How Constitutional Conventions Differ from Laws
In the country we live in, Britain, there is no such thing as a
written constitution. Relying on the basis of legal rules, our
constitution is spread out in many written sources of constitutional
law as the legislation (acts of parliament for example) and judicial
precedents (decisions of the European Court of Justice in relation to
Community law). However, there are also rules observed by the
Sovereign, Prime Minister, other ministers, members of parliaments,
judges and civil servants, which are not included in any judicial
decisions or Acts, called constitutional conventions. It is difficult
to define what are also named the rules of morality due to the
different opinions given by distinct men in political life. Dicey
delineate them as “understandings, habits or practices”[1] while G.
Marshall believes “conventions are non-legal rules regulating the way
in which legal rules shall be applied”[2]. Being a major part of the
British constitution, they function as a “record of successful
applications or precedents”[3] and accept the “patterns of social
behaviour and opinion”[4] of an evolutionary nation. Even though they
are not enforced by courts, due to their constant progression adapting
to current events, these rules of constitutional behaviour are
overlapping law and taking over the practice of political
appointments. In the following essay we will explain how
constitutional conventions differ from laws and discuss their general
purpose and importance.
Constitutional conventions are different from laws in their
enforcement. The English constitution is composed by two distinct set...
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...onstitutional
Conventions, page 60
[23] MANUEL AND OTHERS v ATTORNEY-GENERAL NOLTCHO AND OTHERS v
ATTORNEY-GENERAL [1981 M. No. 5138] [1982 No. 90], [COURT OF APPEAL],
[1983] Ch 77, 30 July 1982, Copyright © 2001 The Incorporated Council
of Law Reporting for England & Wales. - Counsel
[24] See footnote 22 – but page 61
[25] GEOFFREY, Marshall, Constitutional Theory, Clarendon Law Series,
Oxford 1971 Chapter1 – the Law and the constitution, part 3. Dicey’s
doctrine and its critics.
[26] REGINA v HER MAJESTY'S TREASURY, Ex parte SMEDLEY, [COURT OF
APPEAL], [1985] Q B 657, 19 December 1984, (c)2001 The Incorporated
Council of Law Reporting for England & Wales
[27] MITCHELL, JDB, Constitutional Law, 2nd edition, Edinburgh, W
Green & SON LTD, 1968, Convention, page 31
[28] See footnote 22 but page 64
Originalism, an orthodox principle of legal interpretation, focuses on interpretation pursuant to the original understanding of constitutional words . This incorporates arguments from the ‘text, context, purpose and structure of the constitution’. The originalist method of constitutional in...
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The Constitutional Convention was undertaken as an attempt to fix the weaknesses of the Articles of Confederation by drafting a new governing document - the Constitution. Naturally, there were several debates about how the Constitution should address the prevailing issues at the time. The framers present at the Constitutional Convention did purposely leave some issues unresolved in the summer of 1787 by leaving some ambiguity. However, the purpose of this ambiguity was to allow some room for the new nation to grow. This statement is exhibited by the many compromises and events concerning slavery in the following years, the debates that occurred after the ratification of the Constitution concerning the exact powers granted to the federal government
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In 1885, in his book ‘The law of the Constitution’, Professor Dicey wrote that the uncodified constitution of the United Kingdom was underpinned by two principles, The Sovereignty of Parliament and The Rule of law. (A Dicey, An introduction to the study of the law of the constitution, 10th ed, 1959). The sovereignty of parliament is considered the founding principle of the constitution that can effectively supersede the Rule of law however it is clear that the two principles are interlinked and that the UK constitution is unable to function effectively if parliament and public officials do not respect the Rule of law. (The Rule of law and its underlying values, Jefferey Jowell) In this essay I will consider the Diceys definition of the Rule
The strict supremacy of statute over judicial decisions and a tradition of literalism in statutory interpretation, 2. Where no legislation exists, the courts are bound by the doctrine of precedent in accordance with a strict hierarchy of judicial authority, 3. In the absence of a relevant precedent, the judges will be guided by legal principle and reasoning by analogy, and 4. There is a clear way of distinguishing the ratio of a case. A key feature of the unwritten constitution is ‘the separation of powers’.
law within the British constitutional structure and the supreme legal authority in the UK which is not
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The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...