In today’s episode of the Telos Press Podcast, Camelia Raghinaru talks with Greg Melleuish about his article “Constitution and Culture: The Unusual Case of Australia,” from Telos 189 (Winter 2019). An excerpt of the article appears below. If your university has an online subscription to Telos, you can read the full article at the Telos Online website. For non-subscribers, learn how your university can begin a subscription to Telos at our library recommendation page. Purchase a print copy of Telos 189 in our online store.
Constitution and Culture: The Unusual Case of Australia
Greg Melleuish
It is obvious that any constitution is an expression of the culture of the entity, be it country, corporation, or just club, for which it sets the rules and practices under which it will operate. This is not the same thing as saying that a constitution spells out or defines the culture of that entity or that doing so should be one of its functions. What role a constitution plays in the life of a particular political community will vary according to both the culture of that community and the way in which it understands exactly what a constitution is.
The word constitution does not have a clear-cut meaning. Today, it is often assumed that a constitution means a written document that sets out the rules under which a polity will operate. It need not be understood in such explicit terms; it can be viewed as what might be described as the fabric of a political entity, just as one speaks of someone having a weak or strong constitution.
Nevertheless, the association of constitution with something written is fairly strong and has its origins in the desire in any society that has writing for its laws to be written down so that they can be known by all members of that society. An oral code is too open to abuse, especially by those holding power.
Of course, a written law code is not the same thing as a constitution. The Romans codified their laws over time, culminating in the Institutes of Justinian, but these are legal codes; they do not establish the “constitution” of the empire over which Justinian ruled, which, as has been recently argued, continued to express some traditional republican ideas. The Roman constitution, going back to the days before emperors ruled, was always largely established by practice. Hence when Augustus proclaimed that he had restored the res publica even as he changed it, he was not necessarily being disingenuous. Harriet Flower has argued that the res publica had already changed many times.
A constitution, then, can be ascertained in more than one way. It may be, as Aristotle discerned, the πολιτεία of a political system that is largely a description of how that polity operates. It can also, at least in modern terms, be a document that is designed to set out the rules that define how a polity is meant to function. The association of a constitution with a specific document is primarily a European creation that derives ultimately from the Papal Revolution of the eleventh century and its impact on the development of law in Latin Christendom. The development of communes based on written charters and understood as corporations would appear to be a uniquely Western creation based on the unique Roman and Christian inheritance of the West. If the peoples of Europe invented the idea of the state, which is essentially a specific form of corporation, then it is equally true that they also invented the notion that a document was required both to set out how that state should work and to place limits on the capacity of those in control to wield power.
The systematization of law at the time of the establishment of the first communes was a response to the often arbitrary nature of existing social arrangements, especially lordship. Magna Carta, for example, was an attempt to rein in a particularly arbitrary lord in the shape of King John and to make him follow a set of rules. The rule of law implies regularity and an expectation that one will not be despoiled of one’s goods or worse.
In the English case, there would never be a single written constitution, only a series of documents that protected the rights of the people, with Magna Carta often seen as a starting point. They were not a constitution; they contributed to the emergence of an idea of an English constitution, which came to be understood as largely unwritten and as a set of practices and customs combined with certain key documents. The Glorious Revolution of 1688 was generally understood as restoring the ancient constitution of the realm, leading critics of the Whig order of the early eighteenth century, such as Bolingbroke, to complain that Walpole had subverted and corrupted the constitution. This constitution could be understood in many ways according to the set of ideas that the observer brought to bear on it. For example, it was possible to use ideas from the ancient world to argue that the perfection of the English constitution lay in the way in which, like the Roman Republic, it brought together the rule of the one, the few, and the many as a mode of mixed government.
For our purpose, the nature of the British constitution and its ever evolving nature matters because its nature needed to be understood and appreciated in those overseas communities that the English established from the seventeenth century onward. It was important for such communities to have an understanding of what they believed that constitution to be. The American colonists of the eighteenth century certainly had their understanding even as they rejected British rule. But that is a topic outside the bounds of this essay.
In the case of the colonies established in Australia, the issue of what the British constitution meant was crucial for colonists seeking to become respectable members of the wider British community. The original colony established by the British in Australia, unlike British colonies elsewhere, had no charter as it was a penal establishment and remained so for many years. Trial by jury was not allowed for some forty years, and the colonists saw themselves as fighting for basic British liberties.
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