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the Constitution of British
the uk constitution
the Constitution of British
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One could argue that there are two distinct perspectives with regard to the British constitution, the false impression that no such provision exists, and the factual awareness that indeed it does. The French political theorist Alexis de Tocqueville famously termed the notion of a British constitution as "non existent", personifying typically British consensus today. In reality of-course there is a British constitution, in the sense that there is a collection of basic rules and principles, according to which Britain is governed. The British constitution differs from those of other countries in that it does not take the form of a single codified document, but instead a vast collection of legal tributaries, that come together to form the river that is the British constitution. This essay intends to selectively explore the British constitution today, reviewing established safeguards and integral defence measures, uncovering possible flaws in the current system. This essay shall subsequently examine up and coming constitutional reforms, and decipher the extent to which they adequately resolve the relevant problems.
Contrary to popular belief the British constitution does in part exist in 'written form', primary examples of which are Acts of Parliament and similar forms of legal doctrine. Overall however the UK lacks the equivalent of a single primary source for the constitution, relying instead on various secondary sources. These components include statute law, comprising of Parliament Acts and subsequent delegated legislation, common law, which incorporates longstanding legal principles developed and applied by the courts, and conventions, constituting implied, non-enforceable rules of behaviour. Works of authority is another less common yet equally important origin of constitutional law. Historically there have also been a variety of prominent catalysts playing significant roles in the overall development of the constitution. These have taken the form of specific Acts of Parliament, universal/national declarations, and European statutes, to name but a few.
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'THE BRITISH CONSTITUTION'S CURRENT SYSTEM OF CHECKS AND BALANCES NO LONGER ADEQUATELY ENSURES ACCOUNTABILITY' -- DISCUSS. WHAT REFORMS IF ANY WOULD YOU SUGGEST?
One could argue that there are two distinct perspectives with regard to the British constitution, the false impression that no such provision exists, and the factual awareness that indeed it does. The French political theorist Alexis de Tocqueville famously termed the notion of a British constitution as "non existent", personifying typically British consensus today. In reality of-course there is a British constitution, in the sense that there is a collection of basic rules and principles, according to which Britain is governed.
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...
Democracy is more than merely a system of government. It is a culture – one that promises equal rights and opportunity to all members of society. Democracy can also be viewed as balancing the self-interests of one with the common good of the entire nation. In order to ensure our democratic rights are maintained and this lofty balance remains in tact, measures have been taken to protect the system we pride ourselves upon. There are two sections of the Canadian Charter of Rights and Freedoms that were implemented to do just this. Firstly, Section 1, also known as the “reasonable limits clause,” ensures that a citizen cannot legally infringe on another’s democratic rights as given by the Charter. Additionally, Section 33, commonly referred to as the “notwithstanding clause,” gives the government the power to protect our democracy in case a law were to pass that does not violate our Charter rights, but would be undesirable. Professor Kent Roach has written extensively about these sections in his defence of judicial review, and concluded that these sections are conducive to dialogue between the judiciary and the legislature. Furthermore, he established that they encourage democracy. I believe that Professor Roach is correct on both accounts, and in this essay I will outline how sections 1 and 33 do in fact make the Canadian Charter more democratic. After giving a brief summary of judicial review according to Roach, I will delve into the reasonable limits clause and how it is necessary that we place limitations on Charter rights. Following this, I will explain the view Professor Roach and I share on the notwithstanding clause and how it is a vital component of the Charter. To conclude this essay, I will discuss the price at which democr...
To give conventions justiciable entitlement would be taking away from the highly advantageous flexibility that the UK Constitution has attained from remaining uncodified. Further, the large volume of conventions may provide a difficulty in enforcing them within the courts. In contrast, it could be argued that codifying select conventions may bring certainty to many unclear areas, such as defining the Ministerial Code partly did, thus providing an easier structure for conventions to be enforced legally. However, conventions are merely seen as a moral and political obligations, and should not upon breach have legally enforceable consequences. The argument against whether the court should enforce conventions will be supported and discussed in this essay.
Because the British Constitution is reliant upon tradition, the means whereby power is distributed has changed significantly since the first democratic customs. Initially power was vested in the monarchy, which relied upon input from the House of Lords to run the nation. As time progressed the power came to fall under the command of the House of Commons, and with no system of check and balances it came to reside in the ruling party. This system is “the modern embodiment of a fusion of governmental powers which has generally characterized British government.” (Moodie 15) In c...
... idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution’ (2008) OJLS 709.
A constitution is the totality of laws and principles that any governing body or nation has acknowledged to be ordered. It provides guidelines to the government on how the country’s governing bodies are to be administered. It also plays up the fundamentals and principle structures, purposes and limits of governing bodies. The constitution also can be expressed in both the written or unwritten methods. Hence, this essay will discuss around the first appearance of a written constitution in the United Kingdom and the view regarding to a relatively straightforward legislative task.
The doctrine of Parliamentary sovereignty is about the relationship between the parliament and the courts. Parliamentary sovereignty is a principle of the UK constitution; it is the highest authority in the UK. Parliament can repeal or amend any law it wishes. Thus through the procedure of the House of Commons and the House of Lords passing the legislation to the monarch and the monarch gives assent. In result, making the legislation and no court or higher body has legal power to declare the legislation validity. The UK constitution is uncodified which means it is unwritten. According to Professor Leyland’s he says that the history of the British constitution is significant to the current practice . For example, the Bill of Rights 1689 gave inheritance to the current principle that resulted in making the crown, House of Lords and House of common with unlimited legislative authority. Therefore, the legal sovereignty of parliament was Dicey’s regarded founding principle of the constitution. There are three principles that Dicey outlined to explain the doctrine of parliamentary supremacy . This essay will discuss the significance of parliamentary sovereignty to the UK constitution and Dicey’s interpretation of the doctrine of parliamentary supremacy. It will also consider any exception occurred to Dicey’s redefinition principle and other theorist.
While an uncodified constitution has the advantages of dynamic, adaptability and flexibility to meet the ever-changing needs of the society , it poses much difficulty in pinpointing the ultimate constitutional principle that should provide legitimacy in the British constitution. This results in a battle between two broad schools of thought––political constitutionalism and legal constitutionalism.
Firstly, I am going to discuss the core definition of a constitution, exploring the difference between codified and uncodified and assessing the complications of the two categories. Secondly, I shall explain the essential characteristics of a constitution as outlined by FF Ridley, applying Ridley’s test to the United Kingdom in order to establish whether the country can be defined as a constitution. Finally, I will analyse the advantages and disadvantages of adopting a codified constitution, evaluating other countries in comparison to the United Kingdom, to determine which would serve the country most appropriately.
A better appreciation of the complexity of this evolution can come through the development of a comparative perspective. Only when we look at other similar roads can we better discern whether ours was more crooked or less arduous and to this end, the precursor to this course i.e. Constitutional Law 1 (UK and US Constitutional Law) took a close look at two other systems of Government. The US system is important as it can arguably boast of the most sophisticated and well-developed constitutional discourse and one of the oldest constitutions. The British system is intriguing, as it successfully exists without the bells and whistles of a written constitution. What exists instead is a very different system of governmental checks and balances and hence its study provides an interesting counter-balance to the US system, which revolves around a written constitution. Both these systems are additionally worth studying, as they have been important contributors to the theoretical evolution of our own constitutional framework.
First, it is important to understand that the legal system in England and Wales, also called English Law, is a Common law system. It has to be differentiated from the Roman law system applied for example in most European countries. In other words, in the English law system some laws are not written and the constitution is not codified, another difference is the procedure which is adversarial and not inquisitorial. (Laeuchli 2007).
The Constitution of a country is the fundamental law of the land—the basis on which all other laws are made and enforced. It has been described as a “superior or supreme law” with “perhaps greater efficiency and authority”, and “higher sanctity”, and more permanence than ordinary legislation. Nevertheless, a suitable provision for amendment is considered to be a part of the very nature of the Constitution. A democratic Constitution has to be particularly responsive to changing conditions, since a Government founded on the principle of popular sovereignty, “must make possible the fresh assertion of the popular will as that will change”
In conclusion, it is submitted that- the British constitution is flexible because it is not fixed, and can be changed relatively easily. The British constitution, where, in theory, Parliament is sovereign and can make and unmake laws as it pleases. This system is reformed when needed and so long this system works well, which is still highly regarded.
The UK constitution, although uncodified, is unwritten. This essay will critically assess whether the UK would benefit from a written constitution considering problems with the constitution today. The merits and defects of the current unwritten constitution will be examined, for example devolution and the separation of powers.
Constitution is the fundamental law of the land. It refers to the body of rules and principles which the powers of sovereignty are regularly exercised.