What is it about?
Using historical methods can help in illuminating the contingency of norms and cultural attributes within a constitution while also revealing the richness of those attributes, their dynamism and stability across time. Through focusing on the political constitution of a state like New Zealand, with its inheritances drawn from the United Kingdom and the presence of plural indigenous legal and normative orders or regimes (Māori), historical insights attuned to the precariousness and assumptions of anglophone legal thinking about constitutional landscapes can cast new light on constitutional theory and practice. In doing so, the article does not put forward a binary "either-or" approach to law and politics but shows how historical sensitivities can see the two vital aspects as mutually engaged and entangled.
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Why is it important?
The article aims to show how a variety of non-legal methods can help the theory of constitutional and jurisprudential thought. The piece focus on historical techniques, as these methods, through accessing less than visible or not as accessible sources, can reveal the richness of constitutional understandings and their vulnerabilities as well as ambitions. Methods focused on a narrowly understood array of "legal" sources can serve to buttress a set of colonial assumptions underpinning constitutional thinking. Careful historical research can lead to theoretical insights that assist in challenging legal assumptions about constitutional regimes. As a colonial state, New Zealand affords illustrations of historical-political and legal practices that ought to be approached historically and other ways in order to better challenge the limitations of abstract legal thought in jurisprudence.
Perspectives
I was invited to present at a symposium in the United Kingdom on historical methods and sources in J.A.G. Griffith's famed 1979 publication on "The Political Constitution" in the Modern Law Review. I decided to approach the question broadly and to use the occasion as an opportunity to illustrate how historical methods looking at the entanglements of law and politics seriously can lead to promising theoretical insights. In particular, I was trying to challenge some of the abstract reasoning in constitutional thought that is insufficiently mindful of historical analyses and change across time and can reproduce colonial assumptions in jurisprudence. The symposium was a wonderful place to test these ideas, particularly with marvellous legal academic colleagues attending, such as Alison Young, Aileen Kavanagh, Graham Gee, Christopher McCorkindale and Martin Loughlin (to name just a few).
Dr Mark Hickford
Victoria University of Wellington
Read the Original
This page is a summary of: Historicity and the Political Constitution, King s Law Journal, January 2019, Taylor & Francis,
DOI: 10.1080/09615768.2019.1602909.
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