Why is the West different from the rest?

The ensuing Constitution was based on the doctrine of the separation of powers; it included an Executive, a Legislature with two houses, each to check the other and a Judiciary separate from the other branches of government.

The inclusion of the judiciary was a distinctive contribution by the USA framers to the development of Western notions of government.

Events in the USA were soon followed by revolution in France. That revolution spawned a great deal of theoretical writings about government although in practical terms unrest and upheaval rather than stable government ensued. The enduring legacy of the French Revolution was the belief in the equality of its citizens … liberty, equality, fraternity was its clarion call.

The Napoleonic Code was introduced into those countries occupied by France. This Code presupposed that all citizens were equal before the law.

When in the late 1890’s our Fathers of Federation met they already had before them various theories and more importantly realities of government upon which to draw. They eschewed the concept of the powerful executive implicit in the USA constitution. Rather they opted for a constitution based on the supremacy of parliament; a parliament based on the Westminster model of responsibility. The outcome of their deliberations was a compromise. The pre-existing states had to be accommodated because their ratification was a prerequisite. The framers followed the example set by their US counterparts and opted for an independent judiciary.

Accordingly, after 1901 government in Australia was characterised, as it still is, by a diffusion of power between states, localities and the commonwealth, a commonwealth legislature with powers limited by the constitution and a powerful independent judiciary. A judge of the High Court of Australia has security of tenure and action by both Houses of Parliament is required to remove such a judge. Parliament is described as “representative” which presupposed that constituents would vote at elections. In 1902 the Franchise Act, (Cth) gave the vote to women although not to Indigenous women.

Constitution Act, (Cth) 1901 is an act of the United Kingdom parliament and thus legitimacy of the Australian constitution is derived from the British Crown. This is not to say that the occasional judge of the High Court of Australia has not attempted to frame a theory of popular acceptance of the Constitution by means of the Conventions held in Melbourne and elsewhere.

In more recent years, in the 1970s and 80s in response to the accretion of power in large corporations as well as government bureaucracies, by a series of acts, administrative tribunals were established. The idea informing tribunals is to ensure relatively cheap access for the resolution of grievances arising out of consumer purchases, social security benefits and so on. In addition during those decades both federal and state parliaments enacted suites of legislation recognising rights of individuals to seek redress against discrimination of various kinds.

To sum up, it is clear from the above that what distinguishes the “West” is its slow evolution to a form of government which has responded to new challenges and situations; where the powers of government are limited by law; where the arbitrary use of force is curtailed; where Joe and Jean Bloggs cannot be deprived of their freedom to worship as they please, to vote as they please, to assemble not quite as they please and do a myriad other things including voting at regular elections.

Most important, indeed essential, for the development of constitutional government is for the state to be the sole agency that can legitimately exercise force. In Iraq and Afghanistan this is not so. Armed militias proliferate. Nor is there in such countries a concept of civil society or nationalism. Accordingly, voting tends to be along tribal, religious and/or ethnic lines.

Written constitutions without more can be equally ineffectual. In 1936 Stalin had a wonderful constitution promulgated replete with basic freedoms for the individual. But as is well known the existence of that constitution was no protection against the Stalinist purges of the late 1930’s. Similarly, even coming to power by legitimate means, as Hitler did in Germany in 1933, was no protection against his evil regime.

At the risk of labouring the point, a constitutional democracy is composed of many intersecting and interrelated components. It is also more than the some of its many parts. Each democracy presupposes a degree of stability, a basic national consensus, not least a tradition of rule by law as well as a diffusion of power among numerous state institutions. There is not one source of authority - there are many.