A Constitution of Values? Principles and Values in the Commonwealth Constitution
| Published date | 01 December 2024 |
| DOI | http://doi.org/10.1177/0067205X241305793 |
| Author | George Duke |
| Date | 01 December 2024 |
| Subject Matter | Articles |
Article
Federal Law Review
2024, Vol. 52(4) 387–411
© The Author(s) 2024
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DOI: 10.1177/0067205X241305793
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A Constitution of Values? Principles
and Values in the Commonwealth
Constitution
George Duke*
Abstract
Recent Australian public law scholarship has demonstrated an increasing interest in the theme of
constitutional values. In the current paper, I seek to clarify the terms of the debate by defending a
distinction between (i) constitutional principles, understood as relatively flexible legal norms which
rest on text, structure and history and (ii) extra-legal values. My argument is framed initially through
a critical discussion of Rosalind Dixon’s proposal for a ‘functionalist’approach to constitutional
interpretation, which ascribes a central place to values in judicial reasoning. The functionalist
position, I contend, lacks a sufficiently clear distinction between, on the one hand, con stitutional
principles as legal norms and, on the other, extra-legal values of political morality. As a consequence,
the functionalist appeal to ‘constitutional values’tends to shift between a relatively modest sup-
plement to purposive approaches to judicial interpretation and a more ambitious proposal for
judges to promote ‘normatively attractive’values. These claims are elaborated and refined through
a comparative analysis of German constitutional jurisprudence and a recent example of an appeal to
values by the High Court.
Accepted 20 December 2023
I Introduction
An increasing enthusiasm for constitutional values is noticeable in recent Australian public law
scholarship. It has been argued, for example, that the Commonwealth Constitution, despite its
procedural and legalistic character, inevitably reflects certain value commitments.
1
If one accepts, as
a corollary, that values are an inescapable feature of judicial reasoning, then it would seem
preferable to thematise, rather than downplay, the associated methodological implications. Rosalind
Dixon’s proposal for a ‘functionalist’approach to constitutional interpretation, which investigates
* Associate Professor, School of Humanities and Social Sciences, Deakin University, Australia.
Email: george.duke@deakin.edu.au
1. Elisa Arcioni and Adrienne Stone, ‘The Small Brown Bird: Valuesand Aspirations in the Australian Constitution’(2016)
14(1) International Journal of Constitutional Law 60.
the methodological implications of appeals to values in judicial reasoning, argues in this context that
the High Court of Australia should be more transparent regarding judicial values.
2
This paper seeks to clarify the terms of the current debate on Australian constitutional values.
Drawing on theoretical, comparative and doctrinal resources, it argues for a distinction between (i)
constitutional principles, understood as relatively flexible legal norms which rest on text, structure
and history and (ii) extra-legal values of broader political morality. I motivate this distinction
initially through a critical examination of the ‘functionalist’thesis that the Constitution should be
interpreted through the lens of values. The functionalist position, I contend, lacks a sufficiently clear
distinction between constitutional principles as legal norms and extra-legal values of political
morality. As a consequence, the functionalist appeal to ‘constitutional values’tends to shift between
a relatively modest supplement to purposive approaches to judicial interpretation and a considerably
more ambitious proposal for judges to promote ‘normatively attractive’values.
The paper has three main sections. Section II sets the scene with a discussion of Elisa Arcioni and
Adrienne Stone’s recent examination of the role of values in the Commonwealth Constitution (and
Australia’s wider constitutional culture). I then turn to a critical analysis of Dixon’s advocacy of a
‘functionalist’approach to judicial interpretation, which, I argue, tends to vacillate between a
modest variant of existing purposive approaches and a much more robust values jurisprudence.
Section III deepens the analysis of functionalism by moving to a comparative register, considering
historical, conceptual and doctrinal dimensions of constitutional values, primarily by reference to the
German Basic Law (Grundgesetz), the accompanying jurisprudence of the German Federal Constitutional
Court (Bundesverfassungsgericht) and the theoretical insights of Ernst-Wolfgang B¨
ockenf¨
orde and Robert
Alexy.
3
There are, of course, fundamental differences between the values jurisprudence of the German
Constitutional Court and recent academic and judicial appeals to constitutional values in Australia (these
are explored further below), which at first sight may seem to undermine the rationale for this comparison.
The relevant systemic and jurisprudential contrasts are, however, in themselves highly instructive for two
reasons. In the first instance, the post-WWII German constitutional settlement, precisely because of its
entrenchment of basic rights and development of a systematic values jurisprudence, allows for a clear
identification of difficulties associated with an ‘expansive’construalof constitutional values. In the second
instance, German doctrine reveals the importance, even for judges and scholars (like Alexy) who are
favourably disposed to constitutional values, of distinguishing between values as objective legal norms
that are structurally equivalent to constitutional principles and extra-legal values of political morality.
Finally, section IV extends and refines the arguments of the earlier sections by examining the
recent theories of constitutional principles proposed by Marcelo Neves and Mitchell N Berman.
4
I
demonstrate that both theories, despite their significant points of divergence in other respects,
conceptualise constitutional principles as legal norms that are distinguishable from extra-legal
values, viewed either as subjective preferences or ideals of political morality. In closing, I elaborate
on my claims with examples from Australian public law scholarship and High Court jurisprudence,
arguing that the Court’s appeal to the value of dignity in Clubb v Edwards
5
departs from
2. Rosalind Dixon, ‘The Functional Constitution: Re-Reading the 2014 High Court Constitutional Term’(2015) 43(3)
Federal Law Review 455; Rosalind Dixon, ‘Functionalism and Australian Constitutional Values’inRosalind Dixon (ed),
Australian Constitutional Values (Bloomsbury, 2018) 3.
3. Robert Alexy, Theorie der Grundrechte (Suhrkamp, 1994); Ernst-Wolfgang B¨
ockenf¨
orde, Constitutional and Political
Theory: Selected Writings, ed Mirjam Künkler and Tine Stein, tr Thomas Dunlap (Oxford University Press, 2017) 217.
4. Marcelo Neves, Constitutionalism and the Paradox of Principles and Rules: Between the Hydra and Hercules (Oxford
University Press, 29 April 2021); Mitchell N Berman, ‘Our Principled Constitution’(2018) 166(6) University of
Pennsylvania Law Review 1325.
5. (2019) 267 CLR 171 (‘Clubb’).
388 Federal Law Review 52(4)
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