5.2.3 Constitutions and Secondary Rules
Who is in charge of society, who or what is sovereign? H.L.A. Hart’s answer, in The Concept of Law, invokes the supremacy of the law:
“The rules are constitutive of the sovereign, not merely things which we should have to mention in a description of the habits of obedience to the sovereign.” [p. 76]
This amounts to saying that a society defines its governance by its constitution. Everyone, including the government and the judiciary, is subject to it. Hart referred to it as a system of “secondary rules” that “specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined” [p. 94]. It is the basis for the authority and the legitimacy of sovereign power.
In Hart’s definition, which is also the usage in this book, the secondary rules control the maintenance of the entire governance structure – including economic regulations, the legal system and the political system. The separation of these powers is a useful safeguard against oppression, as discussed later (5.2.8).
The secondary rules for the maintenance of national laws are mainly a constitutional matter for the country concerned, but they are constrained by international agreements that the country has entered into – so sovereignty is affected, as described earlier (2.8.3). The British vote to leave the EU, in a ‘Brexit’, was partly driven by spurious arguments over sovereignty – as described in The campaign for a Brexit blog post. And Brexit has put the system under strain, in what The Economist described as Britain’s constitutional time-bomb: “The constitution is unclear on whether the executive or Parliament should prevail” and Brexit is “threatening the integrity of the union”.
There is a procedure for amending most constitutions – which normally requires a more substantial majority than is the case for primary legislation, so they cannot be changed as easily. The British Constitution, however, is unwritten and flexible and a government with a sufficiently large majority can change it. Boris Johnson’s Election Bill seized control of the Electoral Commission in 2022, for example, posing what a Prospect article described as “a grave threat” to UK democracy.
No constitution can be effective if there is no process for enforcing it. Politicians all over the world, especially those with authoritarian characteristics, have ridden roughshod over the provisions of their constitutions and have done so with impunity. Breaches of the constitution diminish a government’s legitimacy, and can weaken its grip on power, but the question of whether this is an effective safeguard is a political matter.
Another possible weakness of constitutions arises when the courts are politicised, as has recently been the case in America. The intent of the U.S. Constitution was for the composition of the Supreme Court to reflect public opinion over a prolonged period, averaging out changes in party popularity, but Mitch McConnell’s dishonest manoeuvrings enabled Donald Trump to appoint three conservative judges and prevented President Obama from appointing any. The partisan nature of the court was dramatically illustrated when it overturned the Roe v. Wade legislation on abortion rights in June 2022, imposing the views of a minority of Americans by its controversial interpretation of the Constitution.