Constitutions

?
  • Created by: Nikki
  • Created on: 29-04-15 21:29

Ancient constitutions

1 of 13

Modern constitutions

Construction

Text

Fundamental law

2 of 13

British constitution (1)

Tocqueville --> 'In England, the constitution may change continually, or rather it does not in reality exist; that Parliament is at once a legislature and constituent assembly.'

Peculiarities - History

  • modern constitutions = product of Enlightenment thinking
  • created in aftermath of war, revolution, independence, transition to demoncracy
  • no fundamental breakdown in political order since 17th century
  • but basic changes to structure of state?

Peculiarities - Philosophy

  • 2 sorts 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

Unwritten = flexibility --> can react quickly to constitutional emergency, but affords no fundamental protections of civil or personal liberty

3 of 13

History

Magna Carta 1215

  • limited power of king as lord but upheld office of Kingship
  • aim = to eliminate caprices of individual king, but strenghten crown
  • king's official authority must be exercised through council --> King's Council, Privy Council...

Origins of Parliament

  • established to assist with task of governing 
  • formed by royal will, as an instrument of royal government, meeting in royal palace

The Reformation

  • Henry VIII used parliament to eliminate medieval privileges
  • breach with Roman Catholic Church
  • critical moment in creating absolute legislative authority
4 of 13

History (2)

Modern ideas of law and government

  • medieval idea of law as expression of unchanging custom
  • legislation differentiated from adjudication only with emergence of law as command of sovereign
  • parliamentary sovereignty

Parliamentary government

  • intimacy of connections between govrning institutions rather than separation = basis of English medieval government
  • felected in unity of office of government 
  • modernisation --> product of political adaption not juristic reconstruction
5 of 13

Constitutional sources and principles

Sources

  • statutes
  • cases --> judicial precedent forms common law
  • conventions --> non-legal rules based upon consensus
  • royal prerogative --> residual powers of crown

Principles

  • rule of law
  • parliamentary sovereignty
  • separation of powers
6 of 13

Elements of GB constitution (1)

Unwritten --> misleading as almost all rules are written down somewhere --> just not all in same document

Cabinet Manual 2011

  • guide for those working in government
  • records current position rather than driving change
  • not intended to be legally binding
  • records rules and practices but not intended to be source of any rule
  • not a source of constitutional rules

Statute book

  • Acts don't come labelled as constitutional 
  • some have constitutional and non-constitutional elements
  • room for disagreement
  • only allows us to look at statutory basis of constitution --> doesn't include rules in other forms
7 of 13

Elements of GB constitution (2)

Constitutional conventions

  • rules of constitutional practice that are regarded as binding in operation but not in law
  • distinction between conventions and laws --> sharp (dicey) or spectrum (Barber)?
  • enforcement
    • Dicey --> not directly enforced by courts but violation of conventions leads inexorably to breach of law which courts can enforce
    • controversial view --> some conventions should be enforceable by law
  • concordats, codes etc
    • concordats = agreements to create convention or set of conventions to regulate particular relationship --> driving force is often constitutional reform --> political in character --> not meant to be enforceable in courts
    • codes = not subject of negotiation between different institutions/office-holders --> published by one part of government
8 of 13

Elements of GB constitution (3)

Judicial decisions

  • statutory interpretation
  • common law methods --> judgments creating precedents; judicial review
  • unusual view that law embodies fundamentals of constitution and in extreme situations judges may have constitutional duty to set aside an Act

EU law

  • changed idea that Act of UK Parliament are highest form of law --> takes precedent
  • membership has qualified orthodox ideas of parliamentary supremacy

International law

  • Customary international law
    • rules existed for long time and become customary in international sphere
    • source of common law and may be relied on in UK courts
    • can be ousted by Act to contrary 
    • rules change over time
9 of 13

Elements of GB constitution (4)

  • Treaties
    • 2 possible arrangements for recognition
      • 'monist' systems --> self-executing in national legal system and becomes source of law that may be applied by national court
      • 'dualist' system (e.g. UK) --> need to be expressly incorporated into domestic law by national legislation --> rationale that govt should not be able to make laws without agreement of Parliament --> some treaties never incorporated (not deemed necessary) and for some there is a large delay
  • unincorporated treaties --> not completely ignored by courts
    • legitimate expectation
    • courts may refer to treaty when interpreting concept in legislation in same area of policy through assumption that legislation intended by Parliament to conform to UK's international law obligations
10 of 13

Political constitutionalism

  • power and making of law is legitimised through Palriament
  • general elections put largest political power in HC as having authority to form government --> can rule legitimately because won election
  • can retain power for 5 years so long as they have confidence of HC
  • legitimacy of power of ministers through accountability to Parliament
  • PS --> courts have no constitutional power to set aside provisions of Acts as incompatible with constitutional principles
  • 'What the Queen in Parliament enacts is law'
  • majoritarianism --> view of majority, reflected by composition of HC, should be decisive
  • scepticism about constitutional role of judiciary --> judges as fundamentally biased due to background; judges having own agenda
  • idea that Parliament has greater democratic legitimacy than courts

PS --> should continue to be centrepiece of constitution --> enables elected representatives to have final say over laws under which we live our lives

Separation of powers --> downplay role of courts --> some argue wrong to view judiciary as third branch

11 of 13

Legal constitutionalism

  • courts and legally enforceable rights as key to creating conditions under which governmental power is limited
  • parliamentary control of government regarded as ineffective --> reality that govt controls P
  • PS too weak to be effective restraint
  • should rely on other priniciples, notably rule of law
  • demoncracy underpins views but reject notion of majoritarianism --> democracy not about counting votes but involves insisting on protection of rights that protect individual liberty
  • courts have essential role in protecting rights
  • written constitution and entrenched rights enforced when necessary by courts, or common law as developed by judges = highest forms of law (in both cases courts as referees)

PS --> dangerous arrangement that puts our liberties at risk --> no legal constraints on politicians' ability to make law

Separation of powers --> keen on this to bolster importance of courts as a major 'check and balance' oninsittutions that carry out the other functions

12 of 13

What is constitutionalism?

At formal level in UK it's an umbrella term taht consists of following limbs:

  • concentrates ultimate public power in one institution (PS)
  • government is organised by means of majority rule (representative government)
  • granting and exercise of public powers is determined and controlled by constitutional principles, sucha s rule of law, separation of powers, and respect for individual rights (limited government)
  • government held to account by Parliament for its policies and its conduct (political accountability)
  • government held to account by independent judiciary through principle mechanism of JR (legal accountability)
  • normative discussion of constitutionalism does not take place in UK public law scholarship
13 of 13

Comments

No comments have yet been made

Similar Law resources:

See all Law resources »See all Public resources »