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    (Original post by NYU2012)
    It's a conceptual error. You're arguing that a codified constitution is inherently impossible alongside a doctrine of parliamentary sovereignty. This is false.
    quote me - I never said that without qualifying it. I never said a constitution automatically caused parliament to not be sovereign - like I said previously, finland has a constitution while having a sovereign parliament without more restrictive procedures in amending its constitutional laws. I was saying that a constitution, which *did* specify limits and mechanisms of amendment, would repeal parliamentary sovereignty, though. because, by definition, this parliament would have something stopping itself from legislating whatever it wanted through a simple majority (assuming such laws said that merely simple-majorities were not sufficient in certain respects)

    This is a methodological error. You're being prescriptive here; you're claiming what a constitution ought to do limits what it can do. Just because you have a belief that constitutions ought to do this doesn't mean that they necessarily have to. Purely descriptively, parliamentary sovereignty and codification are not at odds with one another.
    I don't even know what you're arguing here because you're not responding to anything I've actually said - codification? codification of what? the codification of rights/liberties? if the rights were codified and it was specified that there needed to be a super majority or referendum to change or repeal these rights (like a lot of constitutions in the democratic world) then *surely* that would mean that parliamentary sovereignty in its ordinary form would be ended because parliament would be subordinate to a higher institution (the constitution)?

    Actually, yes. It would be nice to have what are currently constitutional conventions listed out in law. It would be nice to have a document specifying which rights are recognized by English law, etc.
    ...but that's so obvious that it's why we still don't have a document of a constitution. what would it do that isn't already in effect if it wouldn't cause them to be entrenched? I'm sceptical of this purpose of a constitution because the british constitution as it is now, and a written one to reflect this unwritten one, would be *exactly* the same if there is to be *no* amendments or entrenchments at all. the fact that you're suggesting that we create a constitution after all this time because it would be "nice" is just very strange in my opinion if you have no real intention other than 100% (and not 99.999%) clarity of law (which the current law itself, unwritten in many respects, would be needed in order to fulfil this aim, suggesting how clear the current constitution, unwritten, is!)

    Now you've conflated entrenchment for adherence to rule of law. Just because a constitution isn't entrenched doesn't mean that it doesn't protect one from abuses of power. Under the rule of law, a government body or agent is limited to those actions whichare legally permissible. Entrenchment isn't necessary for adherence to rule of law.
    entrenchment essentially keeps, or keeps better, the laws/rules which stop the executive (or parliament itself) from overstepping appropriate bounds of power. if the only thing keeping parliament from being too authoritarian was an ordinary law/statute that they could reform with a simple majority, then it's not even anything stronger than a convention because there is *nothing* apart from such a convention or easy-to-change law to stop them from doing it!

    You're being a prescripitivist, which is wholly irrelevant here. The question is one of logical possibility, not oughts. Work in the plane of descriptivism.
    based on your comment, I can only conclude that you didn't read what I said, because a "lack" of restrictions specified in a contitutions (relating to power of parliament) would be to uphold parliamentary sovereignty, like you obviously prefer our parliament/government do (+awaiting you challenging this claim out of sheer OCD)
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    (Original post by NYU2012)
    This simply isn't true. You're still being a prescriptivist.
    okay then - what would be the fundamental purpose of a democratic nation's constitution at its root, then? if you're going to tell me that it's clarity for the courts, then, again, this isn't something that the courts today don't have - there isn't an issue which they don't have clarity over. or at least an issue which cannot be clarified by a simple court declaration after speculations.

    Your use of the term 'constitution' isn't then recognizable to those in the academic setting who study constitutionalism. A constitution is, according to constitutional theory, a document which regulates the power/setup of government. A constitution need not contain any forms of rights, it could merely establish the branches of government and the power between them. It's perfectly acceptable to have an illiberal and undemocratic constitution - a dictatorship can have a constitution; and in fact, many have had such documents.
    if you have restrictions of power, then *somebody*, as a result, has rights created. if you say "government can't go to war without asking parliament first", then that means 1) elected MPs have the right, by constitution, to have their consent determine whether we go to war or not, and 2) indirectly, you allow the citizens of a nation, subjectively, to have the right to not go to war without more people scrutinising that very decision first, in their favour. in fact, regarding (2), this *usually* is a right that is through a referendum or something akin to it (e.g. denmark's requirement of two parliaments assenting to it, and then a refrerendum with a required % turnout). and yes, I've already given you the example (or I gave it to *somebody*, I can't remember if was you exactly) of saudi arabia as a nation where its constitution was *very* illiberal. and lastly, yes, there is a place for specifications of the branches of power, but that's only when you, say, have a revolution where tradition/convention doesn't exist to tell the politicians/judges/bureaucrats how this new regime works. imagine if a dictatorship turned into a democracy and people in power were expected to refer to word of mouth to understand how this new state worked - that would be a case where a written constitution of specifications would be useful, but we're talking about britain here where that aim wouldn't be necessary, as there is no confusion.

    Your claims about constitutions are meaningless in this context because you're talking about what you think constitutions ought to do; you're being a prescriptivist. The question, however, is if parliamentary sovereignty and the existence of a codified constitution are legally possible. The answer to this is, undoubtedly, yes. You may think that constitutions ought not to permit these simultaneous existences, but that's your opinion about constitutions. It is not a statement of descriptive constitutional theory.
    I'm not prescribing - I'm describing. I'm describing constitutions in their most typical forms, in the democratic world. and, again, I don't know how you're thinking that I'm putting parliamentary sovereignty and simple a "codified" constitution at odds with each other - I, again, said that a constitution which expressed legal procedures for amending such a document (if it is to be expressed as unamendable via simple-majorities in parliament) in restrictive manners would, then, end parliamentary "sovereignty", because sovereignty obviously means all-powerful, and how could a body like parliament be so described with a constitution of such limitations outlined?

    You've massively conflated the moral aims of liberalism and the origin of constitutionalism as being within liberalism as meaning that constitutions necessarily are, achieve or aim for the realization of those same moral aims. You need to separate your moral ideology from your descriptive legal ideology. Take a lesson from legal positivism.
    legal positivism has nothing to do with what I am suggesting. I am telling you that a parliament with a legally binding restriction upon its on procedures, currently only regulated by convention/tradition, would fail to be sovereign. legal positivism, as a philosophy of describing what the law is, not what it ought to be (essentially.) is not the problem here because I am not suggesting that, via such a philosophy, our parliament currently isn't the absolute determinant of the law (as it can supercede the courts and the executive) - I am not saying what a constitution ought to do - there isn't even a constitution for this country which I am making prescriptions about - I am saying that a constitution for this country, at least if we are suggesting that this constitution has the strength of the constitutions of the vast majority of democratic states, would likely end parliamentary sovereignty, *or else*, there would be pretty much no point at all in making such a legal document, for reasons I have specified previously. we already know the powers/roles of our branches of power. we also know the limits upon he executive and the prerogatives that stem from the absence of such constraints. the only function we would possibly need for our own parliament or executive would be procedural restrictions, like I have said, because this is the only thing that our "unwritten" constitution cannot give us in a reasonable and appropriate form
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    (Original post by sleepysnooze)
    quote me - I never said that without qualifying it. I never said a constitution automatically caused parliament to not be sovereign
    Quote:
    ...but we only have the rule of parliamentary sovereignty because we have no written constitution which negates parliament...so having a written constitution would stop parliamentary sovereignty in its current form - how is a written and codified constitution going to be trumped by a residual rule such as parliamentary sovereignty?
    The claim here is that the mere existence of a written constitution would inherently stop parliamentary sovereignty (by which you actually mean supremacy; sovereignty and supremacy are technically different concepts even though they have a nasty habit of being interchanged).

    A written and codified constitution in no way cannot be trumped by a rule of parliamentary supremacy. An entrenched, either written or unwritten, codified or not, constitution cannot co-exist with parliamentary supremacy.

    Your claim was a blanket claim about the nature of constitutions and supremacy. Nowhere was it in any capacity qualified.

    - like I said previously, finland has a constitution while having a sovereign parliament without more restrictive procedures in amending its constitutional laws. I was saying that a constitution, which *did* specify limits and mechanisms of amendment, would repeal parliamentary sovereignty, though. because, by definition, this parliament would have something stopping itself from legislating whatever it wanted through a simple majority (assuming such laws said that merely simple-majorities were not sufficient in certain respects)
    It could specify mechanisms of simple majority. A constitution can contain amendment clauses without overriding parliamentary supremacy.

    I don't even know what you're arguing here because you're not responding to anything I've actually said - codification? codification of what?
    Codification of the constitution. That's what we're talking about here. A written constitution, when contained in a single document, is called a codified constitution.

    if the rights were codified and it was specified that there needed to be a super majority or referendum to change or repeal these rights (like a lot of constitutions in the democratic world) then *surely* that would mean that parliamentary sovereignty in its ordinary form would be ended because parliament would be subordinate to a higher institution (the constitution)?
    Legally, both yes and no. In conventional day-to-day law, Parliament would not have supremacy over those clauses. However, as we know from constitution making processes, they could rupture the constitutional order and create a new constitution. But that's more to do with Parliamentary sovereignty than supremacy.

    ...but that's so obvious that it's why we still don't have a document of a constitution.
    And yet there are still academics making these arguments and they haven't fallen on deaf ears.

    what would it do that isn't already in effect if it wouldn't cause them to be entrenched? I'm sceptical of this purpose of a constitution because the british constitution as it is now, and a written one to reflect this unwritten one, would be *exactly* the same if there is to be *no* amendments or entrenchments at all.
    It would specify the body of constitutional law. Do you know all of the constitutional conventions? I certainly don't. And, new ones can just sort of pop up. Codifying the constitution prohibits conventions from simply popping up, by requiring them to be in a written document.

    the fact that you're suggesting that we create a constitution after all this time because it would be "nice" is just very strange in my opinion if you have no real intention other than 100% (and not 99.999%) clarity of law (which the current law itself, unwritten in many respects, would be needed in order to fulfil this aim, suggesting how clear the current constitution, unwritten, is!)
    I haven't suggested anything. I've merely given you current academic arguments.

    entrenchment essentially keeps, or keeps better, the laws/rules which stop the executive (or parliament itself) from overstepping appropriate bounds of power.
    This argument is question begging. If there is no entrenchment, then legally speaking, there are no 'appropriate bounds of power.' This is a prescriptive moral claim about what constitutions ought to do.

    based on your comment, I can only conclude that you didn't read what I said, because a "lack" of restrictions specified in a contitutions (relating to power of parliament) would be to uphold parliamentary sovereignty, like you obviously prefer our parliament/government do (+awaiting you challenging this claim out of sheer OCD)
    Nowhere have I stated that I prefer the model of Parliamentary supremacy. I'm a US citizen, now studying law at the graduate level at a US law school, writing my thesis on, inter alia, US constitutional law. If anything, I'm massively culturally biased for models of entrenchment and judicial supremacy.
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    (Original post by NYU2012)
    Quote:
    by "quote me", I meant since making such qualifications which I assumed you were responding to in the first plae (but I don't even know who's responding to me half the time). I have qualified it since saying that, seeing as people like you started getting unnecessarily knit-picky, confusingly enough

    The claim here is that the mere existence of a written constitution would inherently stop parliamentary sovereignty (by which you actually mean supremacy; sovereignty and supremacy are technically different concepts even though they have a nasty habit of being interchanged).
    I thought people like you would have the common sense to realise I was referring to constitutional limitations before I had to make massive specifications - do I have to take baby-steps for you here?

    A written and codified constitution in no way cannot be trumped by a rule of parliamentary supremacy. An entrenched, either written or unwritten, codified or not, constitution cannot co-exist with parliamentary supremacy.

    Your claim was a blanket claim about the nature of constitutions and supremacy. Nowhere was it in any capacity qualified.
    does it make you feel better that the only strength of your statement here is that you're being overly specific when I am assuming, like I have already said, that you understand what I mean by a constitution deleting parliamentary sovereignty (unless it's a constitution like finland's which is rare)? well done - your victory is via pointless superficial incredulity. even when most constitutions in democratic nations, and the vast minority not being as such, you still have the audacity to say "not technically", even when we, when I made that statement before my qualifications, was before we even began getting technical enough to make the qualifications I made (e.g. "a codified constitution will normally contain restrictions to power via procedures"

    It could specify mechanisms of simple majority. A constitution can contain amendment clauses without overriding parliamentary supremacy.
    why are we going around this *again*? we've covered this ground. you're actually saying something I've already said, too.

    Codification of the constitution. That's what we're talking about here. A written constitution, when contained in a single document, is called a codified constitution.
    pointless and unnecessary given the time/effort required to make it.

    Legally, both yes and no. In conventional day-to-day law, Parliament would not have supremacy over those clauses. However, as we know from constitution making processes, they could rupture the constitutional order and create a new constitution. But that's more to do with Parliamentary sovereignty than supremacy.
    you're honestly telling me there's now a difference between "sovereignty" and "supremacy"? how do you have time for this unnecessary branching off into obscurities which aren't to do with what we're even discussing?

    And yet there are still academics making these arguments and they haven't fallen on deaf ears.
    not really - are they an unrepresentative vast minority?

    It would specify the body of constitutional law. Do you know all of the constitutional conventions? I certainly don't. And, new ones can just sort of pop up. Codifying the constitution prohibits conventions from simply popping up, by requiring them to be in a written document.
    1) I'm not a judge or a lawyer, so, no.
    2) not without being noticed - th new parliamentary convention of asking parliament before going to war wasn't unnoticed. it is a convention because at least two governments followed this convention and, thus, set forth a reasonable expectation for parliament that this is how it is going to be from now on. we could make a law saying "the executive must gain the assent and agreement of parliament to make a declaration of war" - obviously, as you are probably aware of, limitations upon the executive/crown don't require a codified constitution. it's just parliament that would require such a document with such restrictions contained within

    I haven't suggested anything. I've merely given you current academic arguments.
    they don't stand to scrutiny

    This argument is question begging. If there is no entrenchment, then legally speaking, there are no 'appropriate bounds of power.' This is a prescriptive moral claim about what constitutions ought to do.
    ...why would a newly made constitution, like I've previously asked you, not contain *any* entrenchments to parliament, when it's already clear enough what the powers and roles of each branch of state is...? the obvious argument for a codified constitution is based on what our unwritten one doesn't feature - entrenchments, or more specfifically, restrictions upon what parliament can do without following specific procedures (e.g. super majorities or referenda, etc). you can echo your previous statement of clarity (for the sake of a vast minority of academics) but I've already expressed how this is an unnecessary justification.

    Nowhere have I stated that I prefer the model of Parliamentary supremacy
    yup
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    (Original post by sleepysnooze)
    by "quote me", I meant since making such qualifications which I assumed you were responding to in the first plae (but I don't even know who's responding to me half the time). I have qualified it since saying that, seeing as people like you started getting unnecessarily knit-picky, confusingly enough
    If you're going to make an argument, the burden is on you to ensure that your statements are precise and make the exact point you're attempting to make. Don't blame me for your lack of ability to properly articulate arguments.

    pointless and unnecessary given the time/effort required to make it.
    You're self-admittedly not a lawyer, nor a judge, so how you would know whether or not it's pointless or unnecessary? You have absolutely no qualifications or experience to be making the assessment.

    you're honestly telling me there's now a difference between "sovereignty" and "supremacy"? how do you have time for this unnecessary branching off into obscurities which aren't to do with what we're even discussing?
    Yes, there is a difference between sovereignty and supremacy. No, it's not obscure. It's crucial to understanding constitutionalism, especially in the context of a constitutional structure wherein there is parliamentary supremacy.

    not really - are they an unrepresentative vast minority?
    No, they are neither an unrepresentative vast minority nor are they not being taken seriously. Parliament has repeatedly conducted investigations into whether or not codification (not entrenchment) should be done; with most lawyers advising that it should be.

    1) I'm not a judge or a lawyer, so, no.
    Then you're, frankly, in position to be making assessment as to the necessity or usefulness of codification. You aren't professionally trained in the relevant area, and lack personal experience in dealing with constitutional law or constitutional law's direct relationship with principle of the rule of law.

    2) not without being noticed
    This speaks volumes about your ignorance about constitutional law in the UK. We factually know of cases where something was claimed to be a convention and the HL had to decide if it was or was not a convention. Prior to it being claimed to be a convention, no one noticed it being a convention.

    they don't stand to scrutiny
    You're in absolutely no position to be making this call. Self-admittedly, you're neither a lawyer nor judge, so I (quite reasonably) presume you've never actually studied law, nor are you familiar with the relevant academic arguments being made, as you haven't actually read the literature. Unless you have knowledge of the relevant current literature and constitutional law, your assertions here are worthless because they're made out of ignorance.

    ...why would a newly made constitution, like I've previously asked you, not contain *any* entrenchments to parliament, when it's already clear enough what the powers and roles of each branch of state is...? the obvious argument for a codified constitution is based on what our unwritten one doesn't feature -
    While some academics are making entrenchment arguments, a great number are not.

    entrenchments, or more specfifically, restrictions upon what parliament can do without following specific procedures (e.g. super majorities or referenda, etc). you can echo your previous statement of clarity (for the sake of a vast minority of academics) but I've already expressed how this is an unnecessary justification.
    Yet again, you're making ignorant and thereby worthless statements. You aren't familiar with the academic literature, which academics are arguing what, and why. It's like making ignorant claims about quantum mechanics - unless you have relevant knowledge, then what you're saying is likely (1) incorrect; (2) misinformed; (3) lacks conceptual nuance; (4) fails to understand related concepts; etc.

    What you consider an 'unnecessary justification' demonstrates you complete lack of familiarity with the concept of rule of law. Any citizen ought to be able to go and look at what the law states. There is no text of constitutional conventions, and there are no rules as to how new ones can arise (there are rules for identifying conventions). How is average citizen supposed to figure out what the numerous constitutional conventions are? This is a violation of the doctrine of notice - laws are supposed to be clear and publicized. The rule of law is a foundational aspect of the constitution. As it currently stands, the lack of compliance with doctrine of notice in relation to conventions means that all of convention law which isn't publicized or isn't clear, is in violation of one of the main principles of the constitution.

    There are numerous other arguments as to why codification is a constitutional necessity, not merely a pragmatic niceness.

    The fact that you're neither a lawyer nor a judge, aren't familiar with the contemporary literature, yet think highly enough of yourself to comment on constitutional matters that are primarily the domain of lawyers is astonishing and extreme arrogance.

    Let me analogize:
    You: " I don't think that's right."
    Professor "Well, why not?"
    You: "Because it's unjustified."
    Professor: "In what way is it unjustified?"
    You: "I don't know, I didn't actually read the material."

    Without knowing the relevant current academic material, you're incapable of contributing to any form of academic discussion on the subject. The first condition for entering into any debate, particularly one happening inside the academy and between the academy and specialists in government, is to learn about the subject and the current dialogues being had. You cannot present a research paper without first having consulted sources. In the same manner, you cannot constructively or accurately contribute to a debate you don't know anything about because you've failed to educate yourself. If you cannot articulate the concepts you're attempting to refute; if you don't even know the arguments you're trying to refute; then you're epistemically in no position to be offering any form of refutation.
 
 
 
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