Quasi-constitutionality and the Treaty of Waitangi

This chapter has two aims. First, it sets out my own thoughts as to how one might theorize about the political in approaching questions not only of ‘quasi-constitutionality’ but also broader constitutionalism as an organic concept. In presenting this argument, I start from the standpoint that New Zealand’s constitutional framing, similarly to the United Kingdom, is pre-eminently historical-political with its own peculiar accent or idiosyncrasies. It is vitally legalistic in various aspects such that it is improper to regard the legal and the political as divided in mutually exclusive realms. ² By so doing, I wish to demonstrate that the grounding of dynamic, generative activity of constitutional materiality or reflection, whether, say, institutional or that of clusters of actors, is political and this possesses a neglected normative significance. As with K. D. Ewing or Martin Loughlin, I consider the analytical departure point to be political as opposed to juristic or jurisprudential in a narrow, legally-focused sense. ³ It is inaccurate to claim that law is constitutive of politics. The protean actualities are much more complex and intriguing. Historicity, appreciated with subtlety, perseverance and patience, permits us to unveil and illuminate dynamic interactions between and among state and non-state actors. ⁴