How Constitutional Conventions Differ from Laws In the country we live in, Britain, there is no such thing as a written constitution. Relying on the basis of legal rules, our constitution is spread out in many written sources of constitutional law as the legislation (acts of parliament for example) and judicial precedents (decisions of the European Court of Justice in relation to Community law). However, there are also rules observed by the Sovereign, Prime Minister, other ministers, members of parliaments, judges and civil servants, which are not included in any judicial decisions or Acts, called constitutional conventions. It is difficult to define what are also named the rules of morality due to the different opinions given by distinct men in political life. Dicey delineate them as “understandings, habits or practices”[1] while G. Marshall believes “conventions are non-legal rules regulating the way in which legal rules shall be applied”[2]. Being a major part of the British constitution, they function as a “record of successful applications or precedents”[3] and accept the “patterns of social behaviour and opinion”[4] of an evolutionary nation. Even though they are not enforced by courts, due to their constant progression adapting to current events, these rules of constitutional behaviour are overlapping law and taking over the practice of political appointments. In the following essay we will explain how constitutional conventions differ from laws and discuss their general purpose and importance. Constitutional conventions are different from laws in their enforcement. The English constitution is composed by two distinct set... ... middle of paper ... ...onstitutional Conventions, page 60 [23] MANUEL AND OTHERS v ATTORNEY-GENERAL NOLTCHO AND OTHERS v ATTORNEY-GENERAL [1981 M. No. 5138] [1982 No. 90], [COURT OF APPEAL], [1983] Ch 77, 30 July 1982, Copyright © 2001 The Incorporated Council of Law Reporting for England & Wales. - Counsel [24] See footnote 22 – but page 61 [25] GEOFFREY, Marshall, Constitutional Theory, Clarendon Law Series, Oxford 1971 Chapter1 – the Law and the constitution, part 3. Dicey’s doctrine and its critics. [26] REGINA v HER MAJESTY'S TREASURY, Ex parte SMEDLEY, [COURT OF APPEAL], [1985] Q B 657, 19 December 1984, (c)2001 The Incorporated Council of Law Reporting for England & Wales [27] MITCHELL, JDB, Constitutional Law, 2nd edition, Edinburgh, W Green & SON LTD, 1968, Convention, page 31 [28] See footnote 22 but page 64
Approved on 15th of November in 1777 by Congress and confirmed by the state on March 1, 1781, The Articles of Confederation were a humbled effort by a new country to consolidate itself and to create an ideal national government. The Articles were said to have been a “firm league of friendship” () between the states which means that these thirteen states would cooperate and commute together, but leaving out a principal form of government; hence to give limited powers to the central government. However, to some states the current form of government was not satisfying because the Articles of Confederation will come out to be too disadvantageous. Constitution will become the saving grace for America. Written in 1787, Constitution was requesting united and more powerful government.
After the colonials won their independence from Great Britain, they were finally able to stand up for themselves. The newly formed United States of America needed a new national government to have the ability to structure a new country. A government free from tyranny, where the voice of the people mattered. The Continental Congress, a convention of delegates from the thirteen colonies, adopted the Articles of Confederation on November 15, 1777. The Articles generated a problem due to the fact that it gave most of the power to the states and it formed a weak central government. Some disputed that the states needed this power, others argued that more power should be in the hands of the national government in order to run a solid and stable country.
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.
"A noble five-point buck, he occupies a third of the width and height of the pictorial design, in the geographical centre of the forefront. Standing erect, head thrown far back, facing east, but with one eye on the audience, his forefeet stand firmly on the motto (Bennett, 2011)." This is what the state seal featured 1863. The final state seal is a testament of the ever changing face of Arizona as a prospector with fields adorns the back. The strong and proud heritage is seen in the constitution itself. It is the people that shaped the document. In this essay we will discuss the impact of the constitution on the counties, municipalities, corporations, and schools.
Over two hundred year ago, a convention began in the city of philadelphia. George Washington, James Madison, Alexander Hamilton, and Benjamin Franklin were a few of the fifty five men that gathered at this meeting. The men voted George Washington to be the leader of the convention. James madison wrote down everything that was said during the convention.
We live in a very diverse society, observance of the rule of law is the best way that can guarantee that our basic human rights are preserved, successful government at home is operating and a fair progress on the international level is maintained. Basic principles of the rule of law go back to Dicey’s theory, which states that there should be an absolute supremacy of regular law, no one should be above the law and that the Constitution is the result of the ordinary law of land. There is no clear meaning of the rule of law; therefore it is essential that the government maintains the basic principles of the rule of law that were established by the philosophers who feared the concentration of power in one’s hands, on order to prevent tyranny. Rule of Law cannot exist without a transparent legal system, the main components of which are a clear set of laws that are freely and easily accessible to all, strong enforcement structures, and an independent judiciary to protect citizens against the arbitrary use of power by the state, individuals or any other organisation. Only if each branch has influence and retraining functions on each other, can the parliamentary machine function properly and give the effect of the rule of law without imposing any tyrannical or arbitrary power by a specific institution, which would infringe the main principles of the rule of law. The issue would arise if there would be very weak separation of powers with a strong concept of parliamentary sovereignty at the same time. The power of judicial review ensures that officials act within the scope of their legal powers and that individuals have an effective way of obtaining remedies if their rights were violated. Although UK is said to have an efficient system of...
Constitutional, Case and Statutory law all contribute different things to the United States legal system. Constitutional law deals with the fundamental principles by which the government exercises its authority (Constitutional law). Constitutional law was ratified when the country was created. Constitutional law grants the government the power to tax and spend to keep the welfare of the population. Some parts of constitutional law restricts what other parts of the government can do like prohibiting the arrest of a citizen without sufficient cause to. Constitutional laws are the right to speedy trials and bear arms. All of these laws come from the constitution. Constitutional law also deals with the federal relationship between the three branches
Esteemed former Chief Justice, Sir Harry Gibbs, asserted that public confidence ‘in the judiciary can be maintained only if the judges are seen to be not only fully competent to perform their functions, but also independent, impartial and of complete integrity’ and thus, the best method of appointing Justices ought to be in place to fulfill these qualities and allow this confidence to thrive. Therefore, this essay will argue that the current method of appointment of Justices to the High Court should be reformed to better serve the fundamental principles of the Rule of Law and Separation of Powers. This will be argued in accordance with the assertion that the ideal method of reform is informed by what is
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.
One of the most influential and celebrated scholars of British consistutional law , Professor A.V Dicey, once declared parliamentary soverignity as “the dominant feature of our political insitutions” . This inital account of parliamentray soverginity involved two fundamental components, fistly :that the Queen-in-Parliament the “right to make or unmake any law whatever” and that secondly “no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.” . However this Diceyian notion though an established principle of our constitution now lies uneasy amongst a myriad of contemporary challenges such as our membership of the European Union, the Human Rights Act and a spread of law making authority known as ‘Devolution’. In this essay I shall set out to assess the impact of each of these challenges upon the immutability of the traditional concept of parliamentary sovereignty in the British constitution.
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.
A major impediment of the common is the tendency to lead to perpetuity of bad decisions once a precedent has been set. If there is no amendment and the same ruling is applied, that bad decision will be subsist and will be perpetuated. Since the common law system revolves around following antecedents, it usually takes a long while for change to occur. Unfortunately, before this change is effected, the bad decision will be upheld as long as the change does not come into effect. This is one area where the codified system of law has an advantage as it is rules based approach to law making designed to provide a comprehensive code of laws for the area in question.
United Kingdom is a country with a distinctive set of legal system. It is fairly different from other countries having civil law based legal systems. The legal system in the United Kingdom consists of various sources of law, where other civil law based countries rely only on a written set of law. European influences on the English Legal System came much later in near decades. This essay will aim to examine the development of the English Legal System by reviewing applications of various sources of law in the English Legal System furthermore to discuss the recent European influences on the law of England.
This theory looks at how the sovereign and its officials created the law based on social norms and the institutions (Hart, 1958). However, hard cases such as this makes for bad law, which test the validity of the law at hand based on what the objective of the law was in the first place. The law should not be so easily dismissed just because it does not achieve justice in the most morally sound manner (Hart, 1958). Bentham and Austin understood that there are two errors in the way law is understood, what the law is and what the law should be (Hart, 1958). He knew that if law was to become what humans perceived the law ought to be, the law itself would be lost, but he also recognized that if the opposite was to occur where the law replaced morality, than any man would escape liability and there would be no retribution (Hart, 1958). This theory looks at the point of view of the dissenting judge, Justice Gray, which is that the law is what it is, even if it may conflict with morals. Austin stated that “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry (Hart, 1958).” This case presents the same conflict that Bentham and Austin addressed, that the law based on the statute of the
It has been observed that most constitutional monarchies have a parliamentary system in which the monarch may have ceremonial duties or reserve powers according to the constitution. In the United Kingdom, the rights and duties of the head of state are established by conventions. These are non-statutory rules which are just as binding as formal constitutional rules. The monarch’s reserve powers include the power to grant pardons, bestow honours, appoint and dismiss a prime minister, refusal to dissolve parliament, and refusal or delay royal assent to legislation. Strict constitutional conventions govern the usage of reserve powers. If these powers are used in contravention of tradition, it will generally provoke a constitutional crisis.