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Differences between uk and us constitutions
Principles of the constitution
The uk constitution
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ERASMUS
In 2000 the report of the Royal Commission on reform of the House of Lords described the UK Constitution as “extraordinarily flexible with the capacity to evolve in the light of changes in circumstances and society”.1
The constitution is a body of fundamental principles or established precedents according to which a state or other organisation is acknowledged to be governed. 2 Most states can look to a written constitution for the rules which define the nature of their constitutional arrangements.
In Contrast, the United Kingdom differs from many others in not being embodied in a written document but in a complex mixture of institutional practices; that is, of history, custom, tradition, and politics reflected in conventions, procedures, and protocols as well as within the body of statute and common law. Because on many matters British government depends less on legal rules and safeguards than upon political and democratic principles, the UK constitution is well-known to have a political constitution. A political constitution is defined as one where those wielding power are held accountable through political means by other institutions. To be effective, there must be a strong and vital political discussion and the potential for significant independence. A legal constitution counts, on the other hand, on enforcing accountability through legal processes and, likewise, requires significant independence and an understanding that law serves as an instrument of accountability for governmental institutions.
The flexibility of the Constitution emphasized by the Royal Commission, and often seen as an important virtue by Dicey3 allows changes in the Constitution, such as the devolution. Devolution is defined as “the delegation of...
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... traditional role of the judiciary, it is obvious that devolution has brought important changes in the UK Constitution. Whereas the changes in the executive and legislative powers seem to preserve the political constitution, the important changes of the role of the judiciary seem to challenge the nature of the political constitution. However the new powers of the courts, have generally been exercised in a manner that seeks to supplement the political constitution, not to undermine it. To my mind, even if the political constitution had over the last few decades been diluted by an infusion of “legal” elements, we are not, as Loughlin thinks, moving towards a legal constitution. Our Constitution “is no longer an entirely political constitution but the political constitution remains vibrant and vital as a core component of our increasingly rich constitutional order.”17
A more sudden, but perhaps equally profound event is the adoption in 1982 of the Canadian Charter of Rights and Freedoms. Whereas before the adoption of the Charter Canadian legislatures were supreme, having power without limit within their jurisdictions, they now have debatable supremacy within altered jurisdictions. Moreover, although no powers or rights have been explicitly ‘reserved’ to the people, supporters of the charter nevertheless appear to give Canadians hope that the possibility may exist.
There could be arguments supporting it and arguments going against it. As a result, the citizens of the UK saw a codified constitution as a necessity at that moment. However, there are many advantages of an uncodified constitution. The biggest advantage is the idea of flexibility. As societies are changing, and societal norms take new forms, it is very important for the constitution of countries to adapt to that quickly, as a country’s constitution should be in the best interest for its citizens.
For many years, the question of how adaptable and flexible the constitution is in Australia has been widely debated. As of now the atmosphere of verbal confrontation on protected change, has restored enthusiasm toward the issue in exploring whether the constitution is versatile and adaptable in meeting the needs of the nation following 100 years in being embraced.
The constitution was a document that embodies the fundamental laws and principles by which the U.S is governed. The constitution states basic rights for its citizens. Delegates signed the constitution on September 17, 1787. There is a total of 27 constitutional amendments. The reasoning for writing it was for a stronger federal government - legislative, executive and judicial. The constitution was a break with a past of ‘unfair’ taxes, wars and ‘unfair’ treatment.
It should grant and limit different powers and responsibilities to the different levels of government and set guidelines for making policy. It should not include specific policies or statutes (Brown et al. 59). Excessive details should be reserved for statutory laws. Writing solutions to specific problems in a constitution causes the need for frequent amending as new issues arise (Brown et al. 59).
The Constitution is responsible for establishing and distinguishing the powers of the presidency, Congress, and the court system. It says that each state must acknowledge the laws of other states and that the Constitution is the supreme law of the land. The Constitution is made of seven articles and twenty-seven amendments
Parliamentary sovereignty, a core principle of the UK's constitution, essentially states that the Parliament is the ultimate legal authority, which possesses the power to create, modify or end any law. The judiciary cannot question its legislative competence, and a Parliament is not bound by former legislative provisions of earlier Parliaments. The ‘rule of law’ on the other hand, is a constitutional doctrine which primarily governs the operation of the legal system and the manner in which the powers of the state are exercised. However, since the Parliament is capable of making any law whatsoever, the concept of the rule of law poses a contradiction to the principle of parliamentary supremacy, entailing that Parliament is not bound by the Rule of Law, and it can exercise power arbitrarily.
The. A constitution is the system of fundamental principles according to which a nation is governed. Our founding fathers created the US Constitution to set specific standards for our country. We must ask ourselves why our founding fathers created the Constitution in the first place. America revolted against the British due to their monarchy form of government.
It is widely acknowledged that the judiciary within England and Wales is not representative of the wider society. The composition of the judiciary is regularly subject to criticism on its apparent homogenous identity’ being largely comprised of elderly, white male barristers educated at Oxford or Cambridge. This ethos has prevented diversity within the judiciary, particularly the upper echelons of the judiciary. Academics such as John Griffith have suggested that the narrow range of the judiciary threatens to undermine public confidence in the judicial system. Similarly, Baroness Hale argues that a representative judiciary is paramount for directives associated with the promotion of equal opportunities and strengthening of judicial legitimacy. The government has attempted to combat these issues with statutory and procedural changes to the Courts and Legal Service Act 1990, the Courts Act 2003, the Constitutional Reform Act 2005, and the Judicial Appointments Committee. However, the government’s reforms have made little impact on the demographic profile of the judiciary, as the cornerstone of all judicial appointments is merit. Until diversity can break into the judiciary, particularly the upper echelons of the judiciary there will continue to be a lingering threat to the publics confidence of the judiciary as diversification has yet to materialize.
In the 19th century, A. V. Dicey, wrote of the twin pillars of the British constitution. These pillars are the principle of Parliamentary sovereignty and the rule of law. Parliamentary sovereignty means that Parliament is the supreme law-making body: the Acts passed are the highest source of English law. Following the UK’s membership of the European Economic Community in 1972, the UK not only became bound by the laws of the EU, but also the supremacy of European Union law. The contention between the dominance of EU law over parliamentary supremacy is ascertained in Thoburn v Sunderland City Council which
middle of paper ... ... ccountability to Parliament” (March 2004) www.publications.parliament,uk/pa/cm200204/cmseelct/cmpubadm/422/42202.htm “Unfinished Business? Ministerial Powers and the Prerogative” (May 2003)- http://www.parliament.uk/parliamentary_committees/public_administration_select_committee/pasc_no_12.cfm http://www.guardian.co.uk/monarchy/story/0,2763,407374,00.html --------------------------------------------------------------------- [1] Cited in Barnett H “Constitutional and Administrative Law” (Cavendish Publishing, Australia, 2004) pg 289 [2] Barnett H “Constitutional and Administrative Law” (Cavendish Publishing, Australia, 2004)
In summation, British government has evolved from a primitive monarchy to a sophisticated parliamentary democracy in our modern world. Through several revolutions, reforms, signing of official documents, battles, and power imbalances, Britain has come to be one of the most powerful nations in our modern world (98). Their central idea of common law and rational-legal authority has been the rope that ties British history to the modern Britain (98). Its ideals have been the central theme to power and authority in the country throughout hundreds of years that have transitioned Britain into a powerful welfare state with strong aspects of rule, citizenship, noblesse oblige, and common law (98).
Parliament, the supreme law-making body, has an unrestricted legislative power, and the laws it passes cannot be set aside by the courts. The role of judges, in relation to laws enacted by Parliament, is to interpret and apply them, rather than to pass judgment on whether they are good or bad laws. However, evidence has shown that they have a tendency to deviate from their ‘real roles’ and instead formulate laws on their own terms. Thus the real role of a judge in any legal system continues to be a phenomenon questioned by many. We must consider whether they are “authoritarian law-makers, or if their profession makes them mere declarers of the law” . In this essay, I will argue the ways that judges do make law as well as discussing the contrary.
The rule of law is thought to be one of the most fundamental doctrines of the constitution of the whole of the United Kingdom. The distinctive UK‘s constitution has influences previously on the judicial system too. Government and the legal systems in history have both been involved in rules and discretion and most of all the elimination of all discretionary power in which both of these are impossible and unwanted. The rule of law means in one sense, government by the law but obviously government is by the people as well as by the law. As soon as the governing people are added in, the government can’t then be by law on there own. Although the situation is not undoubtedly as the making of particular laws can be guided by open and relatively stable general laws that have been made. For the Rule of Law to have meaning in a democratic society, it has to mean that those who run it have comply with it for it to work; there must be no room for an “ends justifies the means”
law within the British constitutional structure and the supreme legal authority in the UK which is not