Why we need a governing legislative framework at the heart of a new written constitution

In the e-book Democracy Unchained, Chapter 2 charts the rise of a corporatocracy that has re-fashioned the state to serve the needs of powerful corporations and their shareholders – particularly over the last 30 years. It states: “By the 21st century, fewer than 100 transnational corporations (TNCs) dominated the world economy …” and “… some of the largest TNCs now have annual profits exceeding the GDPs of many low and medium income countries. ” (pg21)

And in a separate chapter, the authors make the case for re-connecting with Nature and the existential threat to our survival if we don’t: for Capitalism with its profit driven growth is undermining the vital ecosystem support services that make life possible, not just ours but all life.

I want to take these two points alone – there could be more – and argue that we must radically re-define our starting point for any new constitution. We have to step outside the classic liberal approach to constitution design which has  trapped us in a narrow binary vision of the individual’s relationship with the State – the need to preserve the individual’s autonomy against coercion by the State, and to a lesser extent, society. 

This classic liberal approach is rooted in our history. To the 17th century propertied  landowner or merchant, the State in the form of suffocating despotic kingship, was the overwhelming challenge of his generation. The whole trajectory of western constitutional development over three centuries and longer was defined by the historic challenge to roll back monarchical absolutism and replace it with a bill of rights, representative democracy and the Rule of Law. Its milestones are bloody ones, from Magna Carta through to the English Civil War, the war of American independence and onto the French Revolution.

Today’s threats are of a wholly different order

But today’s threats are of a wholly different order. It is not the State but non-state actors which form the greatest threats to individual and collective wellbeing. And these are as much systemic as they are the products of agency: climate change and ecosystem collapse; the enormous concentration of economic power in the hands of a corporate elite; the demographic time-bomb of an ageing population; the seismic impact of automation, robotics and AI on the nature of work, taxation and the welfare state; the devastating and unpredictable impacts of speculative finance – remarked on by Pankaj Mishra in his book The Age Of Anger, as being as ‘hostile to socio-political order as weapons of war’.

Threading through all these challenges is the one that constitution building must tackle head on: a ‘corporate absolutism’ (or corporatocracy as referred to in Democracy Unchained, pg19)  and the promotion of a neoliberal ideology of unrestrained free market access into every corner life. Its grip on state power and supra-state institutions inhibits the leading role that the State must play in mobilising the vital economic, social and public resources needed to address the aforementioned challenges.

It must be an anti-oligarchic constitution and the term ‘corporate absolutism’ is used here deliberately to stress the contrast with monarchical absolutism that that our 17th century constitutionalist faced. Today’s challenge is not to diminish or circumscribe state power but to mobilise it; to rescue the State from the grip of corporate power and make it our friend, not our enemy.

We must reject a one-sided emphasis on individual rights and freedoms

This has real implications for our designing a modern constitution.  It cannot be a clinical exercise in legal rationality which seeks to “organise, distribute and regulate state power … set out the structure of the state, the major state institutions, and the principles governing their relations with each other and with the state’s citizens” i.e. the traditional approach referred to by UCL Constitution Unit (pg 18 Democracy Unchained).  We have to move away from an atomised vision of democracy with its rhetoric of self-empowerment based on an idealised rational, self-seeking, rights -bearing individual. It was this one-sided idealisation that underpinned the rapid expansion of capitalism and uprooted traditional societies to which who you were related, which village you came from, defined your sense of identity, not the work you did or the money you earned.  Neo-liberalism is a poisonous outgrowth of this atomised vision. What was once a liberating idea has become a tyrannising ideology that justifies the exploitation of others and of the earth’s resources with reckless disregard for the consequences.

Individual rights and freedom must be redefined as something I exercise, not in isolation from others, but in relationship with others.  Rights are not inherent to the individual but embedded in reciprocity and relationship – the web of social relationships and mutual obligations without which no real freedom is possible. The myth, the great lie, at the heart of the phrase  “Life, Liberty and the pursuit of Happiness” is that these are purely privatised pursuits guarded by a set of rights; that their fulfilment can be achieved in isolation from others.   But happiness cannot be privatised, nor life lived in any meaningful way if those around us are deeply unhappy and their liberty deprived by slavish, poorly paid work and exorbitant housing rents. We know this truth when we pause to reflect, but we struggle to hold on to it in the face of relentless advertising that promotes a fantasy world of material wellbeing; and when our political leaders impose an impoverished democracy of consumer choice in public services which is, at best, a debilitating form of self- empowerment.

Communal rights and the Commons as a counterbalance to individual rights

One way of breaking out of the rights model is to expand it. For example when we talk about the individual right to life, let’s also start to talk about all life. If all life, including mine, is not separate and independent but connected and interdependent, what are the implications for the design of a constitution? Do I alone as a human being, have the right to life but the ox, the beetle, the ewe and the bumble bee do not?

Put this way it sounds  silly and fatuous but we need to challenge the one sided pre-eminence of the human right to life when we are faced with  the ecological devastation now underway. A whole spate of recent reports by scientists now document a sixth mass extinction of both wildlife and insect life that also threatens global food supplies.

Another example is the individual’s right to property. What about communal rights to property and the restoration of The Commons? Or go further and talk about the principle of stewardship rather than ownership of the earths resources as referenced by Democracy Unchained (pg 36). In chapter 4 it talks about the need for a Social Licence in order to overcome our one-sided relationships with the world around us and sees this as the  challenge for real democracy. As it says “the  social licence idea can help us consider the way forward and provide a vision of a future structure for managing the human-nature relationship”(pg 37).

The limits to the social licence approach

The social licence idea has real practical value but needs to be qualified, for it assumes that local communities will naturally and spontaneously adhere to protecting the environment if left to their own democratic fora – but they may not! For instance, suppose an impoverished rural community were to discover that it sat on vast reserves of newly discovered mineral that promised wealth, can we assume that in the ensuing fevered excitement, cool heads would prevail? And what of corporate overtures to local communities which might end in a faustian pact for lucrative short term gain over long term harm to the environment?

This example isn’t entirely hypothetical; I  live in Cornwall, a long defunct tin- mining region which is one of the poorest in Europe. It’s mining history is part of Cornwall’s identity. People here have a different cultural understanding of the environment than someone living on the Sussex Downs who vigorously objects to fracking. Mining wealth may be about to return to Cornwall because of the growth in the electric vehicles (EV) market and the spurt in the demand for lithium. Little is known yet as to the size of the lithium seams in Cornwall but there will unquestionably be wide support among some traditional communities for the return of mining.

This is not to suggest a reversion to centralised decision making. But it is to say that the social licence idea may not be sufficient. The natural world must have a pre-eminent seat and voice at the democratic table. A just constitution must form a protective framework for the environment, not just for a flourishing participatory democracy that maximises community power. It cannot confine itself to a social contract between people and government but must include the natural world. Any constitution must re-conceptualise the state as rooted in a new environmental reality imposed by climate breakdown and eco-system collapse.

A governing legislative framework as part of our constitution

What I argue for is a governing legislative framework that forms the heart of a new written constitution, one that incorporates basic principles of environmental, social and economic justice. Until now, the discussion has been about the principle of environmental protection embedded in the constitution as the basis for specific legislation by central and local government. The same protective framework should be extended to essential shared public goods and services on which we all depend.

It is here that the restoration of The Commons as a second principle within a governing framework best captures the idea of a shared ownership.  This is not about a wooden one-size-fits-all nationalisation, but the introduction of flexible forms of co-operative ownership as the basis of a shared economy: parish land and buildings, community woodlands and local currencies, municipal ownership of water and energy. A new digital commons might also seek to secure ‘big data’, digital rights and platforms given their centrality in the new economy. Where natural monopolies exist such as in road, rail and communications infrastructure, these should be state run.

A third principle might be the Principle of of Subsidiarity as exercised  in EU competencies. Whether or not we remain in the EU, this could be strengthened to ensure that political decisions are taken by the lowest or least centralised competent authority, as far as possible and with due regard to the other principles within the framework. It should also be flexible enough to allow regional assemblies to develop their own constitutions within the broader national constitutional  framework.

Conclusion

These examples serve to illustrate what a governing legislative framework might look like. We might agree or disagree on the wording or range of principles to be included but what it cannot be is a set of high sounding principles that sometimes form the preamble to constitutions but actually mean nothing.  They must be framed in a way that leaves no doubt that these are a governing set of imperatives that guide the work of  Parliament, devolved assemblies  and local government.  They must have legal bite and any  legislation that is found to breach these principles would be open to challenge in the courts and struck off as unconstitutional.

While this approach breaks with our cautious Anglo-Saxon tradition that restricts constitutional design to the separation of powers and the relationships between individual and state, it is much more in keeping with the European tradition.  The French constitution now includes the Charter For The Environment which was passed in 2004. The Swiss constitution employs more detailed codices to protect the environment of a kind that we would normally expect in legislation.

A similar approach is taken to essential public goods and services. Both the Italian constitution and the Portuguese Constitution enshrine access to a universal health service as a fundamental right.

In Housing, the Swedish constitution makes reference to housing provision as part of a broader commitment to a strong welfare state: “the public institutions shall secure the right to employment, housing and education, and shall promote social care and social security, as well as favourable conditions for good health”.

Nor is European constitutional development the only model to follow. The Constitution of Ecuador gives explicit direction to both state and local government on its environmental obligations and includes Rights for Nature, that nature in all its life forms has the right to exist, persist, maintain and regenerate its vital cycles.  And we – the people –  have the legal authority to enforce these rights on behalf of ecosystems. Constitutions as varied as Dominica, Norway and Vietnam, all seek to enshrine environmental protection.