How do we know that the UK has a constitution?

My uni public law lecturer isn't the greatest in explaining or lecturing public law and I'm having a pretty difficult time in trying to figure out majorty of the stuff anyway... He tends to go off track whenever I ask him about anything, so I thought I'd give it a ago here...

He basically just wants us to answer the question "How do we know that the UK has a constitution?"

Any help would be appreciated :biggrin:

Reply 1

ax7fold

Just finished an assignment on a similar topic :biggrin:

http://www.independent.co.uk/news/uk/politics/the-independent-guide-to-the-uk-constitution-the-supremacy-of-parliament-10308704.html

good read ^

largely unwritten constitution as you know but can be found in various statue, as well as common law/precedent have a look at this case im sure you know of it, Entick v Carrington 1765

Reply 2

Notoriety

Check your textbook for the answer. It is a really basic question which probably takes 3 pages of reading to understand.

Briefly, constitution refers to the fundamental rules which govern legal and politico-legal life. It can extend to private life and individual rights also: US Bill of Rights, ECHR/HRA. In the UK, we have those fundamental rules. We have the rule of law, separation of powers, and parliamentary sovereignty. They are found in the common law, are alluded to in statute law or are directly referred to in statute law. The common misunderstanding is that the UK does not have a written constitution and therefore it, for all intents and purposes, does not have a constitution: a large part of our constitution is found in statutes and judgments, both of which are "written", though not in one decisive text. But few countries have all their fundamental rules in one document: the US does not, note the judicial expansion of the due process clause in the Bill of Rights to a substantive provision. And many of its basic rules, such as how elections are conducted etc., are found in legislation.

Anyway, that is my rambling way of saying read your textbook.

Reply 3

itsamieemarie

This is me being stupid, I left uni to go home for a few days and completely forgot my ONLY book left at my accommodation which was Public Law... Explains why I needed a little help on this xD

But thank you! Any help towards this question indeed was appreciated

Reply 4

Insecable

And some of the case law refers to the constitution and its facets too. Think Thoburn, HS2, Factortame etc.

Reply 5

Notoriety

Original post by itsamieemarie

Oh. Well, yeah, I can see how that might be a problem.

Your library will have access to some online books, and indeed journals, which you will be useful. Or you could ask one of your coursemates, assuming one is generous enough, to send you their notes on the topic.

Reply 6

Notoriety

Do share this radical, radical argument.

Reply 7

Notoriety

A very good argument.

I suppose another counter-point would be that codified constitutions, even in civil law countries, depend on legal interpretational by a constitutional court of the constitutional document. The opinion of the court is equally reflective of and dependent on the (judicial and political) attitudes of the day. To go back to the US, there are countless cases where the US Supreme Court has overruled established SC decisions on the meaning of text-based rights. In fact, the common law system is much more consistent than civil law countries owing to its facts-analogy approach, as opposed to the principle-first approach of civil law countries. Civil law is thus much more vulnerable to "punctuated equilibrium" as it were.

Also, France is equally able to change its constitutional laws as the UK, e.g. in relation to human rights. It is perhaps arguable that the UK's fundamental constitutional conventions are even more permanent than the codified constitution's terms as the conventions cannot be removed by statute or referenda. Hence, it is perhaps France which is the more adaptable.

(edited 6 years ago)

Reply 8

Notoriety

Oh, I only just saw this. I broadly agree on the case-by-case approach. I think the a priori approach is still useful -- for example, I think the normativity requirement is conceptually biased towards "broad" constitutions. I think a lack of normativity is illustrative of a narrow constitution; not that a constitution does not exist. Suppose that you have a written constitution which provides for separation of powers and rule of law, and leaves everything else to the legislature (i.e. a written version of what we have), that would nevertheless fail under your criteria notwithstanding its formality and certainty.

A posterori -- there are many examples, beside the US, of a constitution which de jure is strongly worded and prescriptive, yet de facto is adaptable and weak. Russia is the best example of that. What is the Russian constitution, that de jure formality or the de facto reality? You could well argue that the UK is much closer than the Russian Federation to a rigid system; a rigid system which respects the fundamental principles of rule of law and separation of powers.