The great written constitutions, from which the idea of constitutional reform unavoidably borrows some of its aura, have set out to redefine the fundamental relationships of citizens, society and government as these were perceived at the time of their writing. The American Declaration of Independence asserted the rights of people to a government of their own choosing, against the status of a colony. The French Declaration of the Rights of Man proclaimed the rights of individuals and nation, against the claims of rank and dynastic rule. These constitutions defined themselves against the most oppressive features of their anciens régimes, as those were then perceived.
In the twentieth century, constitution-makers have often had to reassert these liberal positions as they have instituted democratic states, for example in Germany in both 1918 and 1945, in India in 1947, or where the un Declaration of Human Rights of 1947 tried to set out universal terms of citizenship.footnote1 These later constitution-makers have had in mind a broader conception of rights than their liberal predecessors. The Weimar Constitution of 1918 referred to ‘the right to work’ and said that ‘every German was to be given his chance to earn his livelihood through work in the national economy.’ The Directive Principles of State Policy of the Indian Constitution (non-enforceable, however, in the courts) set out broad and ambitious social objectives. For example (Article 39): ‘in particular the State shall strive to secure (a) an adequate means of livelihood for all citizens; (b) the ownership and control of the community resources so distributed as to serve the common good; (c) the avoidance of a detrimental concentration of wealth and the means of production; (d) equal pay for equal work of both sexes.’ (These principles also required the state ‘in particular, to promote cottage industries’.) The un’s Universal Declaration of Human Rights of 1948 was even more inclusive, being directed at all mankind, and ambitious in its definitions, which encompassed freedom from arbitrary treatment, national self-determination, rights of men and women in and out of families, and rights to just and favourable conditions of work, and to
These declarations pointed to the gaps between recent conditions—of fascism, colonial rule, mass unemployment and a just social order— and attempted to define what the foundations of a just social order, in the light of contemporary understanding, would be. If Britain had been fortunate enough to have had its constitutional debate in 1945 rather than 1991, who can doubt that these broader issues, and the problems posed by Beveridge’s ‘Five Giants’ of Want, Disease, Ignorance, Squalor and Idleness’, would then have been central to our debates?
The fact is that these dimensions are largely absent from our current British constitutional debate, including that part of it in which Charter 88 has the largest say. The Charter is concerned with the inheritance of arbitrary executive powers (the royal prerogative, but not the monarchy), the oppression of the individual citizen, and the unrepresentativeness of government and its powers to manipulate the electoral system to its own advantage. These, of course, are important issues, making a strong claim on public support both in 1988 and now. But one needs to ask why it is that only these issues have been singled out for constitutional attention, to the exclusion of others. On what diagnosis of the central problems of our society (the equivalent of the problems defined by past constitution-makers) do these prescriptions depend? Is this definition of the situation correct, or sufficient?
It seems that the diagnosis on which Charter 88 was founded was essentially that of the state of affairs defined as ‘Thatcherism’ and its actual and exemplary abuses of power. The kinds of problems which the proposals of Charter 88 could resolve are the abuses of individual citizens by government, the trampling of intermediate institutions (for example, local government) by the central state, and the abuse of an electoral system by a single party with a majority in parliament but a minority of the popular vote. These were and are major problems, of course. But they are problems to which a solution may to some extent