Constitution as an developing concept
E Burke - ‘A constitutions is ‘a partnership not only of those who are living, but between those who are living, those who are dead, and those who are born’.
GWF Hegel - ‘What is… called “making a constitution” is… a thing that has never happened in history’ rather ‘evolving national spirit’
Alexander Hamilton on Traditional Constitutions (UK)
Traditional constitutions rest on accident and force, and create and legitimise a hierarchical order
G. Marshall on
- Four distinguishable senses of ‘constitution’:
- The combination of legal and non-legal (or conventional) rules that currently provide the framework of government and regulate the behaviour of the major political actors (UK)
- A single instrument promulgated at a particular point in time and adopted by some generally agreed authorised procedure under the title ‘constitution’
- The totality of legal rules, whether contained in statutes, secondary legislation, domestic judicial decisions or binding international instrument or judicial decision, that affect the working of government (UK)
- a list of statutes or instruments that have entrenched status and can be amended or repealed only by a special procedure
Grimm on the two different meanings of Constitution
- refers to an empirical or descriptive constitution. Used empirically, constitution reflects the political conditions that in fact prevail in a specific region at a given time.
- refers to a normative and prescriptive concept. In this context, constitution establishes the rules by which political rules should be exercised under law
Characteristics of Modern Constitutions (US)
- It is a construction
- It is a text
- It is fundamental law (establishes a legislature that is under virtue of constitution)
Codification Aims
- ensures a consensus on modification
- ‘entrench’ the constitution against change by simple majority
- remove the constitution from ordinary political debates and processes
Why doesn’t England have a modern constitution? pt.1
History
- UK has been politically stable since the idea of a systematically codified constitution took root elsewhere in the eighteenth century
- Modern constitutions are a product of Enlightenment thinking in response to political uncertainty
- a series of reforms designed to create representative democracy gradually unfolded in the UK
Why doesn’t England have a modern constitution? pt.2
Philosophy
Oakeshott said there are two types of knowledge
- ‘scientific’: can be formulated into rules and taught and learned
- ‘practical’: traditional; not taught and learned so much as imparted and acquired by participants
Error of Rationalism (applicable to US): assuming only scientific knowledge counts
Why doesn’t England have a modern constitution? pt.3
The Crown - Blackstone, Commentaries on the Laws of England
- Our system is one of parliamentary government, understood through the historical intimacy of connections between governing institutions rather than separation is the basis of English medieval government.
- Reflected in unity of office of government symbolised by the crown
- Modernisation has come about as a product of political adaptation not puristic reconstruction. as we maintain a medical legal framework
Sources of Constitutional Law pt.1
Statutes
- regulate the formation of the State
- primary source of constitutional law are these constitutional statues that change the structure of the state or its powers
- govern the relationship between institutions of government e.g. European Communities Act 1972
- regulate institutional procedures e.g Parliament Acts 1911 and 1949
- regulate relationship between citizen and state e.g. HRA 1998
Sources of Constitutional Law pt.2
Case law
- Judiciary lay down basic principles of constitutional law as matters of common law e.g. Case of Proclamations 1611
- Factortame litigation - determine authoritatively that EU law takes precedence over domestic law
- Miller/Cherry - crown and prerogative powers
Sources of Constitutional Law pt.3
Conventions
- exist to bring the ancient, formal legal rules into alignment with modern political realities
- not directly enforceable by course
- reflect contemporary views about how governmental power be exercised to align with the constitution
- basic rules about the accountability of governors to elect their representatives are almost entirely a product of conventions
What are the consequences of lack of codified constitution?
- No national law higher than Acts of Parliament
- No formal process for amending the constitutional system. British constitution is characterised by extreme flexibility e.g. Brexit 2019, SC 2005, Devolution 1998 = decisive, quick changes but can lead to ill-considered proposals
- British constitution is unstable
What are the three main characteristics of Political Constitutionalism?
- Believe that power and making of law is and should be legitimised through Parliament
- Label given to set of ideas and practices that highly values the role of politicians in the British constitution
- Sceptical about constitutional role of judiciary and judicial activism
- See no value and many dangers in adopting a codified constitution
Tomkins on Political Constitutionalism
Courts providing ways to hold the government to account “endangers both democracy and effectiveness… judges can never hope to match the democratic legitimacy of elected politicians.”
Characteristics of Common Law Constitutionalism
- Judges draw on precedent to enunciate rules of constitutional character in their judgments
- Favours a prominent role for law, legal processes and judges in regulating the constitutional system
- Most would support a codified constitution, enforced and interpreted by the judiciary
- Based on precedent and tradition and embodies ‘some form of latent wisdom’
- See courts and legally enforceable rights as the key to limiting state power
Rationale for Common Law Constitutionalism
- Emerges through a refined, principled and rational process of legal argumentation, away from party political debate
- Common law predates legislation: common law rights are ‘logically prior’ to Parliament and majoritarian democracy
- Courts recognise that Parliament has power to interfere with common law rights, but court will only permit Parliament to do this if clear words are used in AOP
- Some judges have suggested in recent years that they would be prepared to develop the common law to overturn parliamentary sovereignty
- Parliamentary sovereignty is ineffective in relation to government. No guarantee for fundamental rights or minority rights
- Rule of law and protecting rights and liberty is just as vital to democracy as fairly elected representative government
