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Abstract
This paper examines the legal conception of political parties. It does so by unearthing the history and ontology of the common law relating to political parties in international perspective. The flexibility of the unincorporated association, in which parties are understood through the private law of contract as networks of internal rules or agreements, rather than as legal entities, has proven to be a mask. In the common law’s imagination, the ideal party is a ground-up organization animated by its membership. But the law mandates no such thing, and in its statutory and constitutional conception intra-party democracy may be sublimated as parties need be no more than an electoral persona or brand.
Acknowledgements
The author thanks Emmanuel Towfigh for insights on German parties, and the editors and reviewers of this symposium for general comments. Any errors are the author’s alone.
Notes
1. This is not completely invariable, e.g. a few small Australian parties have formed as not-for-profit, incorporated associations, gaining the ease of dealing with the world as formally distinct entities yet still largely controlling their internal rules.
2. Dawkins v Antrobus (1879) 17 Ch D 615.
3. Lloyd v Loaring (1802) 31 ER 1302 at 1305: ‘this Court should sit upon [i.e. not decide] the concerns of an association, which in law has no existence.’
4. Hence the definition ‘two or more persons bound together […] for common purposes, not being business purposes […] each having mutual duties and obligations, in an organisation which has rules […]’: Conservative and Unionist Central Office v Burrell (Inspector of Taxes) [1982] 1 WLR 522. Curiously, in this case the court held that the national Conservative party was too loosely structured even to be an unincorporated association, at least for tax purposes. For a critique, see Gauja (Citation2010, pp. 57–58).
5. For example, Julian Assange’s ‘The Wikileaks Party Ltd ACN 162 478 480’ (the ‘ACN’ is the company number). Having to adopt and refer to certain corporate law rules makes the constitution complex; interestingly, the party chose explicitly to include the common law idea that the constitution ought form a contract between and amongst each member.
6. Cameron v Hogan (1934) 51 CLR 358 at 370–371, 384.
7. For example, Johns v Rees [1970] 1 Ch 345 and Lewis v Heffer [1978] 1 WLR 1061.
8. Baldwin v Everingham [1993] 1 Qd R 10.
9. Knox v Conservative Party of Canada [2007] 286 DLR (4th) 129.
10. For example, Dobbs v National Bank of Australasia (1935) 53 CLR 64.
11. Baker v Liberal Party of Australia (SA Division) (1997) 68 SASR 366.
12. For example, Constitution of Vietnam article 4, establishing the Vietnamese Communist Party’s absolute leadership role.
13. German Basic Law 1949 articles 20–21.
14. Constitution of France (5th Republic) article 4.
15. Constitution of France (5th Republic) article 4.
16. Constitution of the Portuguese Republic (7th Revision, 2005), articles 10, 51.
17. Constitution of France (5th Republic), articles 1, 4.
18. Canada Elections Act 2000 section 366(2).
19. Commonwealth Electoral Act 1918 (Australia) section 126.
20. Electoral Act 1993 (NZ) section 63(2).
21. Political Parties, Elections and Referendums Act 2000 (UK) section 28(1).
22. Two minor exceptions prove this rule. In New Zealand, members must, either directly or indirectly, have some role in candidate selection (Geddis Citation2007, p. 80). In Queensland, Australia, if members are balloted about candidate selection, no individual’s vote should count more than another: Electoral Act 1992 (Qld) Part 8A (yet no ballot is guaranteed, and affiliated bodies can have block votes that outweigh the votes of individual members).