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2014 N.Z. L. Rev. 1 (2014)

handle is hein.journals/newzlndlr2014 and id is 1 raw text is: 1 Mapping the Constitutional SIAN ELIAS* I Introduction Walter Bagehot described the great difficulty in the way of a writer who attempts to sketch a living Constitution: the object is in constant change. That is an unpromising thought with which to start a discussion on mapping the constitutional. Constant change is, however, the least of the problems. After all, the common law is a method of change and the would-be taxonomist of any part of it must allow for development. The more difficult problem in mapping what is constitutional in a legal system is that the constitutional is not set aside from the other categories into which it is convenient for us to divide law. We may no longer hold to the former view that the constitution is all the laws, institutions and customs observed in a legal system,2 but what we call the constitutional is written on a palimpsest in which the wider legal order and its history shows through. If some of the aims of legal taxonomy are to avoid overlapping categories and promote order, coherence and symmetry in law, then the category of constitutional law is inherently untidy. That may be especially so in a legal system like that of New Zealand, which lacks a substantial written constitution, but is so also in systems with a more elaborate written allocation of government powers and constitutional values. No written constitutional text can be complete. What is constitutional in any legal system is contestable and often hotly contested. That is in part because the label itself stakes a claim to legitimacy and priority in the distribution of power in the legal order and so is inevitably ground of conflict. Despite the difficulties, mapping what is constitutional is essentially a responsibility for practising lawyers and academics. That is for all the usual reasons why such effort is indispensible in understanding the limits, the *The Rt Hon Dame Sian Elias, Chief Justice of New Zealand. 1 Walter Bagehot The English Constitution (2nd ed, Cambridge University Press, Cambridge, 2001) at 193 (in Bagehot's introduction to the second edition). 2 Martin Loughlin The Idea ofPublic Law (Oxford University Press, Oxford, 2003) at 120.

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