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    The introduction of a written constitution intothe United Kingdom would be relatively straightforward legislative task; the Executivewould initiate, the Legislature would entrench, and the courts would enforceand protect. Discuss.
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    The main problem with these "written constitution" questions is that they presuppose that the UK does not have a written constitution. This is fundamentally untrue. There is no single official document which says "UK Constitution" but much of the legal substance for how our system of government operates is founded in statutes (called "constitutional statues" which require explicit repeal by Parliament), and is therefore written.

    To tackle this question sensibly, therefore, you should clarify what the question is asking and what the current legal situation is in the UK as part of your essay.
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    (Original post by EconDal)
    Can someone help with this short course work question?

    The introduction of a written constitution intothe United Kingdom would be relatively straightforward legislative task; the Executivewould initiate, the Legislature would entrench, and the courts would enforceand protect. Discuss.
    By no means a full answer, but two ideas I think are particularly interesting:
    1. The constitution currently contains a number of unresolved conflicts (many of which are labelled as 'conventions'), about which there is a constant assumption that it better to leave them dormant than find an answer (e.g. could the Queen refuse to enact primary legislation; Salisbury Convention; the Sewel Convention; definition of the office of prime minister). A written constitution, unless it was left hopelessly vague, would have to resolve these, which would be a ground for serious contention.

    2. Would the written constitution actually function as a sovereign text? Parliamentary Sovereignty dictates that Parliament is sovereign, so it follows that, if the constitution was created by an ordinary act of Parliament, Parliament could always repeal it, so it would not be sovereign. Look at the various theories for transfer of sovereignty.
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    *how*?
    1) parliament making a new law
    2) a referendum
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    (Original post by Nolofinwë)
    2. Would the written constitution actually function as a sovereign text? Parliamentary Sovereignty dictates that Parliament is sovereign, so it follows that, if the constitution was created by an ordinary act of Parliament, Parliament could always repeal it, so it would not be sovereign. Look at the various theories for transfer of sovereignty.
    ...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?
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    (Original post by sleepysnooze)
    ...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?
    I'm not sure where the assertions 'we only have the rule of parliamentary sovereignty because we have no written constitution which negates parliament' and 'a residual rule' come from. I fail to see how the enactment, by Parliament, of a 'constitution' could override Parliamentary Sovereignty, because by the very same procedure Parliament could repeal the constitution. As a control of the legislature, it would hardly be worth the paper it is written on.
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    (Original post by Nolofinwë)
    I'm not sure where the assertions 'we only have the rule of parliamentary sovereignty because we have no written constitution which negates parliament' and 'a residual rule' come from. I fail to see how the enactment, by Parliament, of a 'constitution' could override Parliamentary Sovereignty, because by the very same procedure Parliament could repeal the constitution. As a control of the legislature, it would hardly be worth the paper it is written on.
    our conventions actually do come largely from the absence of legal constraints on parliament. for example, the royal prerogative - it only exists because parliament has failed to put restraints on the executive regarding certain things, such as the declaration of war, or the appointment of a government, etc. when parliament is silent, also, the executive is sovereign (via the monarch). parliamentary sovereignty would end with a constitution in the same way it has ended regarding the EU - to turn a formerly sovereign parliament into a regulated parliament, that, obviously, requires a constitution. you couldn't just say "we've created a monster" because parliament *has* been sovereign, as if this means it will always be sovereign. you also need to realise that the following of procedures from a constitution takes a very important condition: respect for the law. parliament could, in theory, do *whatever* it wanted. it could sack judges, sack monarchs, make laws that walked all over respect for liberty, democracy, etc. the thing which keeps parliament respecting things like "EU-referendum locks" (2011) and the convention of how the opposing parties to a successful referendum result *must* sign that resolution into law even if they don't want to (because democracy, as a convention, is respected by those that make the law) is respect for the system. law isn't something that can do everything on its own - you need people who believe in the law (or in this case, the hypothetical new constitution) or else the law is meaningless - what is a law when nobody follows or respects it as authoritative?
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    (Original post by sleepysnooze)
    our conventions actually do come largely from the absence of legal constraints on parliament. for example, the royal prerogative - it only exists because parliament has failed to put restraints on the executive regarding certain things, such as the declaration of war, or the appointment of a government, etc. when parliament is silent, also, the executive is sovereign (via the monarch). parliamentary sovereignty would end with a constitution in the same way it has ended regarding the EU - to turn a formerly sovereign parliament into a regulated parliament, that, obviously, requires a constitution. you couldn't just say "we've created a monster" because parliament *has* been sovereign, as if this means it will always be sovereign.

    Do you have any evidence for Parliament's ability to limit it's own sovereignty? You've cited accession to the EU as the only non-hypothetical example, so assuming this is where your evidence is, could you explain exactly how EU accession has limited Parliamentary Sovereignty

    you also need to realise that the following of procedures from a constitution takes a very important condition: respect for the law.

    But Parliament defines what the law is, so it's odd to say that it doesn't respect the law when it changes it. Would you say that Parliament 'disrespected' the Sexual Offences Act 1956 when it enacted the Sexual Offences Act 2003.

    parliament could, in theory, do *whatever* it wanted. it could sack judges, sack monarchs, make laws that walked all over respect for liberty, democracy, etc. the thing which keeps parliament respecting things like "EU-referendum locks" (2011) and the convention of how the opposing parties to a successful referendum result *must* sign that resolution into law even if they don't want to (because democracy, as a convention, is respected by those that make the law) is respect for the system.

    So you are saying that, in addition to the new codified constitution, we would need an additional uncodified convention/political attitude (call it what you will) to give the aura of sovereignty to the constitution. What happens if someone questioned this convention (example below)

    law isn't something that can do everything on its own - you need people who believe in the law (or in this case, the hypothetical new constitution) or else the law is meaningless - what is a law when nobody follows or respects it as authoritative?
    I'm sure Joseph Raz would be very interested in that question, but I don't think it is to be resolved here. Suffice it to say, absolute respect for law would be a morally troubling prospect. Regardless, people would still respect the law, whether we had a sovereign Parliament or Constitution. All we are discussing is, when it came to answering the question of sovereignty, which would be found to prevail.
    Put it this way. Parliament enacts the Constitutional Reform Act 2016. Section 1 says that "This Act will be the sovereign text/constitution for the United Kingdom, and shall not be subject to repeal or amendment, save in accordance with the provisions laid out in section X of this Act." Section X sets out some new procedure, e.g. referendum, qualified majority voting or whatever else.

    One year later, Parliament enacts the Constitutional Reform (Repeal) Act 2017 by a procedure which does not comply with Section X of the 2016 Act. Section 1 says "The Constitutional Reform Act 2016 is hereby repealed in full".

    Which act prevails? As far as I understand your opinion, you would say that the 2016 Act is now sovereign, so Parliament was unable to repeal it by the non-compatible legislative procedure which it adopted in 2017. But do you have any evidence for Parliament being able to bind its future self in that way? Sure, there could be a convention, but as I explained above, conventions are just unresolved questions, so now that we are looking for an answer, we must look past the convention to find one.
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    (Original post by Nolofinwë)
    Do you have any evidence for Parliament's ability to limit it's own sovereignty? You've cited accession to the EU as the only non-hypothetical example, so assuming this is where your evidence is, could you explain exactly how EU accession has limited Parliamentary Sovereignty


    sovereignty in the procedural sense is socially constructed - they are sovereign because they think they're sovereign (i.e. because no formal recognised limitation yet exists against it). if there is a constitution, which the members of parliament, the judiciary and the executive socially construct as binding upon parliament, then conventions would cease to be the basis for our constitution in many ways (e.g. sovereignty of parliament), because there would be a newly recognised path to making laws which would specify how new laws could be made or repealed. I don't really know what else you'll be wanting me to say here - how do you think parliamentary sovereignty came into existence? from my own opinion it probably became as domijnant as it is (against the executive/monarch) through the bill of rights in 1688 (or was it 1689, I can't remember...)

    and in terms of how the EU has limited sovereignty, the law of parliament (the euopean communities act 1972) says that the parliament's laws, if conflict with EU laws, cannot stand. there was a fisheries policy of the thatcher government in the late 80s which started a court case because it collided with the EU (I *think* it was factortame II) and the EU won and the courts recognised this to be the case

    But Parliament defines what the law is, so it's odd to say that it doesn't respect the law when it changes it. Would you say that Parliament 'disrespected' the Sexual Offences Act 1956 when it enacted the Sexual Offences Act 2003.


    the parliament doesn't say what a law actually is or how to make it - do you think there is a rule book of parliament somewhere saying how to make laws? it's all based on social convention/constructio - parliament's traditional form of making laws is through simple majorities, and that's how people still do things because nobody's challenged it. it would take a new tradition, or constitutional law, to change it.

    So you are saying that, in addition to the new codified constitution, we would need an additional uncodified convention/political attitude (call it what you will) to give the aura of sovereignty to the constitution. What happens if someone questioned this convention (example below)


    well this isn't really a weakness like you're suggesting it is - you could say that about parliament itself - what if nobody respected parliament's laws? they'd look to a new source of authority. in my case, I am talking about how, if there *was* a reform to create a codified constitution, then MPs will either respect it, or they would need to stand down - unless a big majority of MPs also didnt want to follow it.

    Put it this way. Parliament enacts the Constitutional Reform Act 2016. Section 1 says that "This Act will be the sovereign text/constitution for the United Kingdom, and shall not be subject to repeal or amendment, save in accordance with the provisions laid out in section X of this Act." Section X sets out some new procedure, e.g. referendum, qualified majority voting or whatever else.

    One year later, Parliament enacts the Constitutional Reform (Repeal) Act 2017 by a procedure which does not comply with Section X of the 2016 Act. Section 1 says "The Constitutional Reform Act 2016 is hereby repealed in full".

    Which act prevails? As far as I understand your opinion, you would say that the 2016 Act is now sovereign, so Parliament was unable to repeal it by the non-compatible legislative procedure which it adopted in 2017. But do you have any evidence for Parliament being able to bind its future self in that way? Sure, there could be a convention, but as I explained above, conventions are just unresolved questions, so now that we are looking for an answer, we must look past the convention to find one.
    what do you mean "evidence"? this isn't a science we can lay down here - all parliaments operate in their own respective ways. ours, obviously, seemingly operates through a mixture of conventions, royal prerogatives, written laws (some) and perhaps even court cases, such as factortame. the evidence that this new constitution would trump the formerly sovereign parliament would be the existence of a political establishment (MPs and ministers) whereby this new constitution was recognised as being binding. and if they created the constitution, which itself said "this is binding"< then I wouldn't know why you'd be ready to suspect that this parliament wouldn't honourr the restriction it itself has placed upon itself in the formerly recognised manner (the social convention of simply legislation via a majority)
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    (Original post by sleepysnooze)
    [/b]

    sovereignty in the procedural sense is socially constructed - they are sovereign because they think they're sovereign (i.e. because no formal recognised limitation yet exists against it). if there is a constitution, which the members of parliament, the judiciary and the executive socially construct as binding upon parliament, then conventions would cease to be the basis for our constitution in many ways (e.g. sovereignty of parliament), because there would be a newly recognised path to making laws which would specify how new laws could be made or repealed. I don't really know what else you'll be wanting me to say here - how do you think parliamentary sovereignty came into existence? from my own opinion it probably became as domijnant as it is (against the executive/monarch) through the bill of rights in 1688 (or was it 1689, I can't remember...)

    Parliamentary sovereignty isn't a convention though; it's judicial principle. See, e.g., Lord Bingham at [9] in R (Jackson) v AG 2005 UKHL 56 and Lord Reid at 723 in Lardner-Burke [1969] 1 AC 645. The courts, as Wade recognises (and, as far as I know, no-one disputes) are the ultimate determiners of sovereignty, because they are tasked with finding out what the law is. You use terms consistent with a Hartian rule of recognition, and yet I believe Green was astute to criticise Hart by pointing out that it is not the people, but the officers of the system, who hold sufficient power to determine the rule of recognition.

    and in terms of how the EU has limited sovereignty, the law of parliament (the euopean communities act 1972) says that the parliament's laws, if conflict with EU laws, cannot stand. there was a fisheries policy of the thatcher government in the late 80s which started a court case because it collided with the EU (I *think* it was factortame II) and the EU won and the courts recognised this to be the case

    Indeed, EU law has primacy, but, as Lord Bridge says in Factortame II, it has this primacy only because s2 ECA 1972 says it does. Parliament could always amend or repeal that provision, and hence end EU primacy. The situation in the same as regards the incorporation of EU law throughout Europe. Though the ECJ may claim supremacy qua EU law, the member states only give it supremacy through a mechanism in their own (still sovereign) constitutions: for Germany, see e.g. Honeywell and Art 23.1 BGB; for France, see Raoul Georges Nicolo and Art 55 of the Constitution; etc.

    the parliament doesn't say what a law actually is or how to make it - do you think there is a rule book of parliament somewhere saying how to make laws? it's all based on social convention/constructio - parliament's traditional form of making laws is through simple majorities, and that's how people still do things because nobody's challenged it. it would take a new tradition, or constitutional law, to change it.

    And the courts would have to recognise that tradition as the new sovereign system

    well this isn't really a weakness like you're suggesting it is - you could say that about parliament itself - what if nobody respected parliament's laws? they'd look to a new source of authority. in my case, I am talking about how, if there *was* a reform to create a codified constitution, then MPs will either respect it, or they would need to stand down - unless a big majority of MPs also didnt want to follow it.

    But the new source of authority is one of Parliament's laws, because it was enacted by Parliament

    what do you mean "evidence"? this isn't a science we can lay down here - all parliaments operate in their own respective ways. ours, obviously, seemingly operates through a mixture of conventions, royal prerogatives, written laws (some) and perhaps even court cases, such as factortame. the evidence that this new constitution would trump the formerly sovereign parliament would be the existence of a political establishment (MPs and ministers) whereby this new constitution was recognised as being binding. and if they created the constitution, which itself said "this is binding"< then I wouldn't know why you'd be ready to suspect that this parliament wouldn't honourr the restriction it itself has placed upon itself in the formerly recognised manner (the social convention of simply legislation via a majority)
    Evidence as in authorities for limits on Parliamentary Sovereignty. It's (debatably) not science, but it is the English Common Law. I suspect it would not be binding, because I no of know case which says that Parliament can bind itself as regards a later Act by an earlier Act, or even gives any indication of this. All the cases I know, including those cited above, say to the contrary.
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    (Original post by Nolofinwë)
    Evidence as in authorities for limits on Parliamentary Sovereignty. It's (debatably) not science, but it is the English Common Law. I suspect it would not be binding, because I no of know case which says that Parliament can bind itself as regards a later Act by an earlier Act, or even gives any indication of this. All the cases I know, including those cited above, say to the contrary.
    look, all I am saying is that if parliament made a constitution, it would be very clear that parliament would no longer be sovereign. the EU statute is based on its own parliamentary sovereignty, I know, but it is still a limit to itself because, instead of the implied repeal rule, they have to jump through another procedural hoop which is exceptional in parliament (express repeal). what judge of the supreme court, too, is really going to look at this new hypothetical constitution and say "this doesn't challenge parliamentary sovereignty" even when the binding document actually specifically expresses that it does? how could we call it a codified constitution if it wasn't? and surely this relates, once again, to the rule of social recognition and construction? if the courts don't recognise a constitution that parliament creates, then they'd probably just set up their own new courts and discard the funding to the old courts - that's why the courts aren't sovereign - they don't have the power to tax and therefore sustain themselves independently. if the issue is the nature of parliament being all powerful, then look at how parliament was set up in the first place - by mere politicians. they can destroy what they themselves created, and then re-create a newly bound-by-constitution parliament in its place.
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    (Original post by sleepysnooze)
    ...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?
    This is incorrect. There is no legal theory or doctrine that states that written constitutions and parliamentary sovereignty are incompatible. Plenty of countries have written constitutions that are subject to legislative amendment without special procedure.

    You seem to have profoundly misunderstood the difference between entrenchment and codification.
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    (Original post by callum_law)
    The main problem with these "written constitution" questions is that they presuppose that the UK does not have a written constitution. This is fundamentally untrue. There is no single official document which says "UK Constitution" but much of the legal substance for how our system of government operates is founded in statutes (called "constitutional statues" which require explicit repeal by Parliament), and is therefore written.

    To tackle this question sensibly, therefore, you should clarify what the question is asking and what the current legal situation is in the UK as part of your essay.
    I don't think this is 'fundamentally untrue.' One has a written constitution if and only if (logical semantic requirements) one's body of constitutional law is entirely codified. By contraposition, one has an unwritten constitution if and only if one's body of constitutional law is entirely unwritten. The UK therefore sits somewhere in between, but by no means has a written constitution.

    There are a plethora of conventions and 'the rule of law' and 'parliamentary sovereignty' which form major parts of the UK constitution and which are uncodified.
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    (Original post by sleepysnooze)
    look, all I am saying is that if parliament made a constitution, it would be very clear that parliament would no longer be sovereign.
    There's no actual reason to believe this.

    what judge of the supreme court, too, is really going to look at this new hypothetical constitution and say "this doesn't challenge parliamentary sovereignty" even when the binding document actually specifically expresses that it does?
    If Parliament wanted to retain Parliamentary supremacy, then they would (1) not write into the constitution that there is no longer the doctrine of parliamentary supremacy and (2) not entrench the constitution.

    how could we call it a codified constitution if it wasn't?
    Codification means written (black letter law). You've seem to have massively conflated codification with entrenchment. I can codify a constitution without entrenching it. The US Constitution is codified and entrenched. However, the Constitution can be changed by pre-determined legislative measures. It is by no means an absolute law impervious to change. It's the 'supreme law,' but in US legal theory, ultimate sovereignty is with the people, which is why they can change the constitution (by a 2/3 majority, etc.).
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    (Original post by NYU2012)
    I don't think this is 'fundamentally untrue.' One has a written constitution if and only if (logical semantic requirements) one's body of constitutional law is entirely codified. By contraposition, one has an unwritten constitution if and only if one's body of constitutional law is entirely unwritten. The UK therefore sits somewhere in between, but by no means has a written constitution.

    There are a plethora of conventions and 'the rule of law' and 'parliamentary sovereignty' which form major parts of the UK constitution and which are uncodified.
    I disagree here with the questionable dichotomy. There are very few countries whose body of constitutional law is entirely written in demarcated constitutional devices. The US a prime example. Yes, you have the foundational ideas covered about where power derives (THE PEOPLE), but there are significant areas sadly missed out, especially with regard to the how.
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    (Original post by NYU2012)
    This is incorrect. There is no legal theory or doctrine that states that written constitutions and parliamentary sovereignty are incompatible. Plenty of countries have written constitutions that are subject to legislative amendment without special procedure.

    You seem to have profoundly misunderstood the difference between entrenchment and codification.
    is it really an error that I am clearly and merely generalising constitutions as documents which usually have the sole purpose of entrenchment (in the sense of negating legislation in a general sense) or somehow restricting the powers of the executive? I can only think of one democratic constitutional republic (or nation) that has a constitution which hasn't got entrenchment rules for its parliament, and that's finland. the whole point of a constitution in a liberal democracy is that you don't make violations of obvious natural rights (speech, religion, property, association/assembly, contract, etc) very easy. constitutions, of course, are to specify and define the powers and functions of sections of the state, but really, are we honestly going to find somebody making that as their primary reason for advocating that we have a written/codified constitution? we all know, for instance, what the office of prime minister is - nobody is really sceptical of the prime minister's powers based on the facts of power in britain - the true issue is the appropriate limiting of that power, or parliament itself's power. that's of course our interest in a document like a constitution - it's protection from power, not our better understanding of it. maybe that better understanding is useful in an epistemic sense, but like I've said, that's clearly not the primary purpose of a constitution in a democratic setting. in an authoritarian setting (e.g. saudi arabia), a constitution might even have the sole aim of declaring their relative lack of restriction of power - is that a good use of a constitution contemporarily? I don't think so at least
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    (Original post by NYU2012)
    There's no actual reason to believe this.

    I said in a previous statement that a hypothetical constitution would contain the end of parliamentary sovereignty as its purpose. I questioned, and remain questioning, the purpose of a purposeful constitution without such a limitation upon power.

    If Parliament wanted to retain Parliamentary supremacy, then they would (1) not write into the constitution that there is no longer the doctrine of parliamentary supremacy and (2) not entrench the constitution.

    okay? no argument there

    Codification means written (black letter law). You've seem to have massively conflated codification with entrenchment. I can codify a constitution without entrenching it. The US Constitution is codified and entrenched. However, the Constitution can be changed by pre-determined legislative measures. It is by no means an absolute law impervious to change. It's the 'supreme law,' but in US legal theory, ultimate sovereignty is with the people, which is why they can change the constitution (by a 2/3 majority, etc.).
    who said that a codified constitution didn't allow for amendments? where did I ever claim this? I'm talking about democratic constitutions which balance liberty and democracy. you have democracy in a constitutional setting by allowing for a stronger (or super) majority to be the only thing contrary to liberty. you're either intentionally or accidentally misunderstand the nature of my claims in terms of constitutions. they are democratic and liberal documents for the aim of protecting the polity - they aren't for the purpose of people who hate government changing things - nobody can honestly claim that government might need to change their rules or mechanisms if it was for an ultimately important and necessary reason that the people would recognise as valid
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    (Original post by sleepysnooze)
    look, all I am saying is that if parliament made a constitution, it would be very clear that parliament would no longer be sovereign.
    But I have yet to hear an explanation of how this would be achieved in a way which would overcome Parliamentary Sovereignty

    (Original post by sleepysnooze)
    the EU statute is based on its own parliamentary sovereignty, I know, but it is still a limit to itself because, instead of the implied repeal rule, they have to jump through another procedural hoop which is exceptional in parliament (express repeal).
    But is this a limit on Parliamentary Sovereignty, or on the distinct doctrine of implied repeal? Surely the minimum evidence for a limitation on sovereignty would be that Parliament could not override it expressly or impliedly, because that would indicate that the EU law had primacy over any enactment by Parliament. Additionally, I don't follow constitutional law at all, but I'm not aware of any case which applied this limit on implied repeal ratio - Laws LJ only discussed it obiter in Thoburn.

    (Original post by sleepysnooze)
    what judge of the supreme court, too, is really going to look at this new hypothetical constitution and say "this doesn't challenge parliamentary sovereignty" even when the binding document actually specifically expresses that it does?
    I think this might be a plausible reaction when faced with the two-statute scenario I posited above with above. They'd have the choice of (a) taking a massive, unprecedented step in declaring the end of Parliamentary Sovereignty or (b) following all previous authority and previous theory and uphold sovereignty, and thereby put into effect Parliament's more recent wishes. Judges can (seemingly) be inventive, but they cannot blindly ignore every prevailing authority when they all point one way without risking serious criticism and, thereby, subsequent overrule.

    (Original post by sleepysnooze)
    how could we call it a codified constitution if it wasn't?
    That's why I wouldn't call it a codified constitution in the first place. I'd instead call it the Constitutional Reform Act 2016 or whatever else they named it, and describe it as an act of Parliament, just like any other. Personally, I do not consider it good legal methodology to derive the effect of a statute from its name.

    (Original post by sleepysnooze)
    and surely this relates, once again, to the rule of social recognition and construction? if the courts don't recognise a constitution that parliament creates, then they'd probably just set up their own new courts and discard the funding to the old courts - that's why the courts aren't sovereign - they don't have the power to tax and therefore sustain themselves independently.
    This is indeed an example of how pragmatic considerations override pure legal theory, here by demonstrating a sever fetter on the separation of powers. However, I can say this in reply. Who would preside over the new courts? Presumably, it would be the old judges and/or other practitioners, as they are the only people trained to do so. Therefore, even in a new setting, they are likely to to respect the old orthodoxy. I can imagine you replying "But what if Parliament told them not to, but instead to accord sovereignty to the constitution?" Well: (a) this would demonstrate that Parliament is still sovereign, because it's by Parliament's instruction that they obey the constitution and (b) presumably there would be a constitutional right to a fair trial similar to Art 6 in this new 'constitution'. If so, then it would seem to be breached if Parliament were dictating the legal outcome of decisions by effectively holding the courts to ransom with a threat to withdraw funding, so the original decision would be struck down on review on the grounds of bias.

    Without this ransom impediment, the court's have the power to determine the sovereign body by choosing to apply the laws stemming from that body over any other. Thus, in a way, they kind of do make themselves sovereign thereby. I never considered the ability to levy a tax to be a pre-condition of sovereignty. After all, a written constitution is inanimate, even incorporeal beyond the physical paper, so could not levy a tax itself, but would instead be reliant on Parliament or the executive to provide the necessary funds to sustain it.

    (Original post by sleepysnooze)
    if the issue is the nature of parliament being all powerful, then look at how parliament was set up in the first place - by mere politicians. they can destroy what they themselves created, and then re-create a newly bound-by-constitution parliament in its place.
    Historically, when is this a reference to? Because my understanding of the last even causing an alteration in sovereignty - the Glorious Revolution - was that it took a whole regime change, with William and Mary, as a criteria of taking power, promising to work with Parliament, hence technically making the Monarch-in-Parliament the sovereign body. Previously, Parliament had been overridden by the King's prerogative.
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    (Original post by sleepysnooze)
    is it really an error that I am clearly and merely generalising constitutions as documents which usually have the sole purpose of entrenchment (in the sense of negating legislation in a general sense) or somehow restricting the powers of the executive?
    It's a conceptual error. You're arguing that a codified constitution is inherently impossible alongside a doctrine of parliamentary sovereignty. This is false.

    the whole point of a constitution in a liberal democracy is that you don't make violations of obvious natural rights (speech, religion, property, association/assembly, contract, etc) very easy.
    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.

    constitutions, of course, are to specify and define the powers and functions of sections of the state, but really, are we honestly going to find somebody making that as their primary reason for advocating that we have a written/codified 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.

    that's of course our interest in a document like a constitution - it's protection from power, not our better understanding of it.
    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.

    a constitution might even have the sole aim of declaring their relative lack of restriction of power - is that a good use of a constitution contemporarily? I don't think so at least
    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.
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    (Original post by sleepysnooze)
    I'm talking about democratic constitutions which balance liberty and democracy. you have democracy in a constitutional setting by allowing for a stronger (or super) majority to be the only thing contrary to liberty.
    This simply isn't true. You're still being a prescriptivist.

    you're either intentionally or accidentally misunderstand the nature of my claims in terms of constitutions. they are democratic and liberal documents for the aim of protecting the polity - they aren't for the purpose of people who hate government changing things - nobody can honestly claim that government might need to change their rules or mechanisms if it was for an ultimately important and necessary reason that the people would recognise as valid
    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.

    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.

    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.
 
 
 
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