The Historical, Political Constitution -- Some Reflections on Political Constitutionalism in New Zealand's History and its Possible Normative Value

40 Pages Posted: 2 Feb 2016 Last revised: 2 Nov 2016

See all articles by Mark Hickford

Mark Hickford

Victoria University of Wellington - Faculty of Law

Date Written: 2013

Abstract

This article contends that the concept of political constitutionalism in New Zealand is not merely of explanatory value. Rather if it is approached with a historically nuanced sense, then its normative value becomes clearer, with “normative” here meaning a focus on expanding and diversifying areas of contestability and dissent in and through politics as opposed to relying on case-by-case legalism. With reference to the complex histories of Crown-indigenous relations and the development of colonial New Zealand’s constitutional setting in 1852, this article argues that the real, historicised “lives” of the constitution yield normative understandings of our own political constitution in contemporary times. The risk is that, barring a sensitively historical approach, the particular values of political constitutionalism will lie neglected and forgotten. It is analytically inadequate to simply dub these aspects of constitutionalism as “pragmatic” given richer veins of intellectual and political thought were tapped into, deployed, and contested. And these supply a more granular, nuanced picture of historical, political constitutionalism in and as a process.

Keywords: History, legal, indigenous, nuance, normative, constitutional, constitution, political constitutionalism, New Zealand, community, critical legal theory, critical, values, executive, legislative, judicial,

JEL Classification: K00, K1, K19, K23, K29, K39, K3, K49, K4

Suggested Citation

Hickford, Mark, The Historical, Political Constitution -- Some Reflections on Political Constitutionalism in New Zealand's History and its Possible Normative Value (2013). NZLR 4, 585-623, 2013 ; Victoria University of Wellington Legal Research Paper No. 148/2016. Available at SSRN: https://ssrn.com/abstract=2725565

Mark Hickford (Contact Author)

Victoria University of Wellington - Faculty of Law ( email )

PO Box 600
Wellington, 6140
New Zealand

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