Constitutions
- Elliot Tierney
- Sep 16, 2022
- 4 min read
A constitution: fundamental principles of government in a nation, either implied in its laws, institutions, and customs, or embodied in one fundamental document or in several. [1]
Conceptions of a Constitution
Traditional Constitution (EG: British System):
A traditional constitution is founded upon a set of practices and traditions that link the people over time, devolved from an evolving national spirit.
A constitution is ‘a partnership not only of those who are living, but between those who are living, those who are dead, and those who are to be born’. [2]
‘What is … called “making a constitution” is … a thing that has never happened in history; a constitution only develops from the national spirit.’ [3]
Modern Constitution (EG: American System):
A modern constitution is a constructed text of fundamental law. Free citizens form a compact through agreement and ratification of a constitutional document to establish a government.
‘It has been … reserved to the people of this country to decide an important question … whether societies of men are really capable or not of establishing good government from reflection and choice … or whether they are forever destined to depend for their political constitutions on accident and force.’ [4]
Comparison:
Both are created, maintained and developed by different means. A traditional constitution cannot be viewed with a normative viewpoint.
‘Every political unit is constituted, but not every one of them has a constitution. The term “constitution” covers both conditions, but the two are not the same. The term has two different meanings. Constitution in the first sense of the word refers to the nature of a country with reference to its political conditions. Constitution in the second sense refers to a law that concerns itself with the establishment and exercise of political rule. Consequently, the first definition refers to an empirical or descriptive constitution and the second a normative and prescriptive concept. Used empirically, constitution reflects the political conditions that in fact prevail in a specific region at a given time. In the normative sense, constitution establishes the rules by which political rule should be exercised under law.’ [5]
The Nature of the British Constitution
Sovereignty is derived from 'what the Crown in Parliament enacts in law.'
The British constitution is continually changing and evolving. This is, at least partially, because it is not a physical entity, but an idea.
‘In England, the constitution may change continually, or rather it does not in reality exist; the Parliament is at once a legislature and constituent assembly’ [6]
‘There is a great difficulty in the way of a writer who attempts to sketch a living Constitution – a Constitution that is in actual work and power. The difficulty is that the object is in constant change’ [7]
Parliament as both legislative and constitutional assembly, so all laws are equal.
The unwritten constitution ‘enables Britain to react quickly to any constitutional emergency, but it affords no fundamental protections of civil or personal liberty’. [8]
Historical and Philosophical Reasons for Britain’s Peculiar Constitutional Nature
Historical:
Modern constitutions were produced by enlightenment thinkers after a transition to democracy (e.g. war, revolution, independence etc.).
Britain has not had a breakdown of political order substantial enough that a modern constitution has been drafted since the development of modern constitutions. Our most recent breakdown of order resulted in the creation of a constitutional monarchy, authorised by Parliament’s approval after the Glorious Revolution.
Constitutional issues often do not arise as this would cause further complications due to the legal unions between England, Wales, Scotland and N Ireland. A constitution would fundamentally and irrevocably change the structure of the states.
Philosophy:
The British system works in a practical way, meaning that it is developed from tradition and evolution not learning from rules. For centuries, law was not taught in universities, but learned from apprenticeships in the legal profession.
British Constitutional Development
Origins of Parliament:
Originally made of a group of consultants to the King to raise taxes for war, Parliament was established to aid with governance.
Parliament was formed by royal will, in a royal palace to serve a royal function.
During the Reformation, Henry VIII used Parliament to separate the state and Church. He seized authority over the English legal system and set himself as the figurehead of the Church of England. Henry believed that when Parliament and himself worked together, they had absolute legislative authority.
Relationship:
The British system is an evolutionary Parliamentary government.
The Crown symbolises the unity of the office of government. This is why the executive, legislative and judicial all devolve their power from the Crown.
The Crown in Parliament ‘have sovereign and uncontrollable authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding the laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal’. [9]
Conventions:
The constitution is ordered through conventions.
While it would be improper for Parliament to abuse its power, it is not beyond its power to do those things due to its supremacy. For example, the courts could not, at least in theory, invalidate an Act that stripped people of their rights.
‘It is often said that it would be unconstitutional for Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper … But that does not mean that it is beyond the power of Parliament to do these things. If Parliament chose to do any of them the courts would not hold the Act of Parliament invalid.’ [10]
Main Sources of Constitutional Law in the UK:
Statutes:
Regulate the formation of the state.
Regulate government institutional relationships.
Regulate procedures.
Regulates the citizen-state relationship.
Cases:
Constitutional law has developed through the common law.
Conventions:
Ensures powers are not abused, by accountability to Parliament.
Resources:
References:
[1] Columbia Electronic Encyclopaedia [2] E Burke, Reflections on the Revolution in France (James Dodsley 1790) [3] GWF Hegel, The Philosophy of Mind (1830) [4] Alexander Hamilton, The Federalist (1787) [5] Dieter Grimm, Constitutionalism, Past, Present, Future (Oxford University Press 2015) [6] A de Tocqueville, Democracy in America (1835) [7] W Bagehot, The English Constitution (Chapman and Hall 1867) [8] Unknown [9] William Blackstone, Commentaries on the Laws of England (1765) [10] Madzimbamuto v Lardner-Burke and another [1969] (Reid LJ)
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