Primary and secondary rules

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Having already discussed the Common in the multitude and Inheritance, let us turn our attention to the relation between two sets of legal rules within the context of a modern democratic polity. We will examine a typical constitution and the secondary legislation derived therefrom.

A constitution furnishes rules that frame, permeate and penetrate secondary legislation. It is a legal axiom that its provisions enjoy priority over those of secondary law in the case where issues of incompatibility arise.

In terms of function, a constitution achieves the four-fold objective of (a) delineating the general structure of the polity, (b) establishing the qualitative parameters of legality and normativity, (c) determining the scope of secondary legislation, and (d) providing a fallback solution in instances where effective legal provisions fail to deliver the desired results.

A typical constitution is reinforced by clauses that require parliament (or the constitutional subjects) to acquire qualified majority in order to alter its content. The premise of such a practice is that primary law must have a relatively exalted, quasi-permanent status, to foster predictability, stability and transparency, which are considered essential to a properly-operating law-based, [modern democratic] political order.

What is actually enshrined in such legal document is of paramount importance. A constitution that is enumerative in its documentation of the rules governing the state could produce rigidities, longer-term incompatibilities and validation errors where tensions would arise between desired outcomes and actual states of affairs.

Conversely, a constitution that remains generic, outlining the principles of the state, the overarching design and underlying set of values, is one that permits secondary law to expand and to substantiate additional functions. It enables, in a manner of speaking, a more modular design in the legal corpus.

Filtering and qualifying

An abstract way of thinking of the relation between primary and secondary law, is to treat the former’s scope as extensive and the latter’s as intensive. The one goes at compass, the other elaborates in depth.

More concretely, take this statement S about suffrage:

Citizens have the right to vote in general elections.

Where the constitution leaves scope for interpretation its provisions can, in essence, be filtered and qualified by secondary legislation and case law.

For S this would imply that its components may all act as variables, as placeholders that remain subject to definition by a corresponding legal text. Otherwise, such terms as Citizens, to vote and general elections are of little utility where precision is required.

So if Citizens = X, to vote = Y, general elections = Z where X, Y, Z each name a given legal document or section thereof, then S is effectively parsed as a string of citations.

Citizens {read X}
have the right to vote {read Y}
in general elections {read Z}.

In such a way the constitution is kept concise and generic, while each of the variables may be fleshed out in lengthy, detailed texts.

By enabling secondary rules to act as a filter of constitutional provisions, two immediate gains are realised: (i) the constitution can be at once future-proofed and adaptable to social needs, while (ii) any and all specifications remain subject to the ordinary review procedures, instead of requiring qualified majority voting, thus mitigating the overall risk of institutional implosion.

Whereas an enumerative approach to the drafting of a constitutional provision will, perhaps inadvertently, severely hamper this very process of filtering and qualifying its content. If the primary rule, which enjoys priority over secondary ones as was already noted, is made to have both intensive and extensive modes of application, then the aforementioned gains are either entirely lost at the very outset, or their potential is drastically constrained.

To make matters worse, an expansive primary rule that is bestowed with a quasi-permanent status of validity will not only exert occasionally pernicious pressures for conformity, but will most importantly amplify any tension between de jure and de facto arrangements. As a pertinent, real-world example of such a prospect, think of the malignancies of the Euro Area in particular and, in some respects, the European Union in general, where the “constitution”;, the Treaties, require unanimity in order to be amended (for a thorough analysis read my essay On Habermas’ European democracy).

The gist is the way of thinking one has about relations in abstract; well, and relations between sets of legal instruments.

Thank you for reading!