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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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