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, constitutional 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 supplement 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.

The principle that the constitution derives its ultimate authority from the sovereignty of the people and the nationhood power were both developed by the High Court in the context of Australia's emergence as an independent nation. Although this shared provenance suggests the possibility of a more significant connection between the two doctrines, such a connection has not been developed in Australian constitutional jurisprudence. The heavily criticised judgment of French J in the Tampa decision appears to allude to such a connection, but the relevant reasoning is ambiguous and either left undeveloped or implicitly rejected in subsequent High Court cases. This paper critically examines the relationship between popular sovereignty and the nationhood power on two levels. In the first instance, the paper investigates whether it is even coherent to seek to provide a normative ground for the nationhood power in popular sovereignty. The paper then considers whether such a justification is consistent with Australian constitutional doctrine. Unsurprisingly, the weight of constitutional principle and doctrine supports the general subjection of the executive to prior legislative authorisation, rather than a robust non-statutory executive power grounded in popular sovereignty. While this conclusion is predictable in an Australian context, a detailed examination of the relationship between the weaker conception of popular sovereignty operative in the reasoning of High Court and the nationhood power nonetheless reveals some important underlying assumptions of current doctrinal orthodoxy.

This paper aims to clarify the concept of the symbolic constitution and to explain one of its most significant functions: the representation of political unity in complex societies. Section B briefly outlines the concept of the symbolic constitution which informs the arguments of the paper. The next two sections proceed “hermeneutically” through critical engagements with (i) Martin Loughlin’s recent analysis of the symbolic constitution within an ideology-critique of neo-liberal constitutionalism (ii) Niklas Luhmann’s account of the role of symbolic constitutionalism in concealing the function of the modern constitution as a structural coupling between the political and legal sub-systems. Section E then considers the relationship between the symbolic constitution and an alternative “traditional” concept for the representation of political unity: the common good. I argue that the symbolic constitution is both (i) a placeholder which speaks to the abiding relevance of the common good (ii) a symptom of the decline of its preconditions.

Federations present difficulties for prevailing theories of constituent power, which usually attribute ultimate constitution-making authority to a singular people. This article examines how a ‘pluralized’ constituent power functions in federal systems. It argues that the operation of plural constituent power in federations reflects a distinctive model of constitutional formation according to which a ‘polity of polities’ is established and sustained through the maintenance of a tension between plurality and unity.

Aristotle's assertion in Politics 1.2 that there is a natural impulse to form political communities is immediately contraposed with the claim that the person responsible for their foundation is the cause (αἴτιος) of the greatest of goods (Pol. 1253a33). The attribution of an essential role to the legislator as an efficient cause appears to clash, however, with Aristotle's political naturalism. If the polis exists by nature and humans are by nature political animals (1253a1–2), then the question arises as to why active intervention by the legislator is necessary for a polis. Conversely, if the polis is an artefact of practical reason, then Aristotle's distinction between products of the intellect and natural entities seems to preclude the status of the polis as natural. In light of this apparent tension between different aspects of Aristotle's account of the origins of political communities, the current paper seeks to demonstrate their reconcilability. Section 1 considers the role of the Aristotelian legislator in light of broader Greek assumptions regarding law-making. Section 2 then considers the status of law-making expertise (νομοθετική) as part of political science (πολιτική) and examines the mode of practical reason that is exercised by the legislative founder. Finally, in section 3, and building on recent interpretations which have emphasized that Aristotle operates with an extended teleological conception of nature, I argue that acts of legislative founding and nature can consistently serve as joint causes of the polis, because the ‘products’ of the practical rationality of the architectonic legislator are themselves an expression of distinctly human nature.

The syntactic priority thesis (henceforth SP) asserts that the truth of appropriate sentential contexts containing what are, by syntactic criteria, singular terms, is sufficient to justify the attribution of objectual reference to such terms (Wright, 1983, 24). One consequence that the neo-Fregean draws from SP is that it is through an analysis of the syntactic structure of true statements that ‘ontological questions are to be understood and settled’ (Wright, 1983, 25). Despite the significant literature on SP, little consideration has been given to this bold metaontological claim.1 My concern here is accordingly not with specific applications of SP to debates in the philosophy of mathematics, but rather with the neo-Fregean's claim that SP can constitute a decisionprocedure in relation to substantive ontological disputes. I argue that the explanatory power of SP is limited to an account of what ‘there are’ sentences are true and does not extend as far as substantive ontology.

This paper seeks to clarify the long-standing controversy over Aristotle's relationship to the natural law tradition. The paper argues that a precondition for any adequate assessment of Aristotle's natural law credentials is a close analysis of the Nicomachean Ethics V.7 discussion of the just by nature. Such an investigation, the primary concern of section 1, reveals that Aristotle's characterization of the politically just as partly natural and partly conventional does entail that nature serves as a normative ground for just law. With this conclusion in place, section 2 then turns more directly to Aristotle's relation to the natural law tradition. Despite important differences between Aristotle's account of the normative foundations of law and those found in the paradigmatic natural law teachings of the Stoics and Aquinas, I argue, there are nonetheless features of later natural law thought on the purpose and evaluation of law which are genuinely Aristotelian in orientation.