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.
Bamforth,N. Int. Jnl. Of constitutional law. Current issues in United Kingdom constitutionalism: An introduction 2011 9 (1) 79-85 doi: 10.1093/icon/mor029 (Date of Access: 12/12/11)
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.
"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.
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...
... idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution’ (2008) OJLS 709.
The Constitutional Convention was undertaken as an attempt to fix the weaknesses of the Articles of Confederation by drafting a new governing document - the Constitution. Naturally, there were several debates about how the Constitution should address the prevailing issues at the time. The framers present at the Constitutional Convention did purposely leave some issues unresolved in the summer of 1787 by leaving some ambiguity. However, the purpose of this ambiguity was to allow some room for the new nation to grow. This statement is exhibited by the many compromises and events concerning slavery in the following years, the debates that occurred after the ratification of the Constitution concerning the exact powers granted to the federal government
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
In 1885, in his book ‘The law of the Constitution’, Professor Dicey wrote that the uncodified constitution of the United Kingdom was underpinned by two principles, The Sovereignty of Parliament and The Rule of law. (A Dicey, An introduction to the study of the law of the constitution, 10th ed, 1959). The sovereignty of parliament is considered the founding principle of the constitution that can effectively supersede the Rule of law however it is clear that the two principles are interlinked and that the UK constitution is unable to function effectively if parliament and public officials do not respect the Rule of law. (The Rule of law and its underlying values, Jefferey Jowell) In this essay I will consider the Diceys definition of the Rule
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.
Introduction This submission will discuss the problems created by the Doctrine of Judicial Precedent and will attempt to find solutions to them. Whereas, English Law has formed over some 900 years it was not until the middle of the 19th Century that the modern Doctrine was ‘reaffirmed’. London Tramways Co. Ltd V London County Council (1898). Law is open to interpretation, all decisions made since the birth of the English Legal System, have had some form of impact whether it is beneficial or not The term ‘Judicial Precedent’ has at least two meanings, one of which is the process where Judges will follow the decisions of previously decided cases, the other is what is known as an ‘Original Precedent’ that is a case that creates and applies a new rule. Precedents are to be found in Law Reports and are divided up into ‘Binding’ and ‘Persuasive’.
The strict supremacy of statute over judicial decisions and a tradition of literalism in statutory interpretation, 2. Where no legislation exists, the courts are bound by the doctrine of precedent in accordance with a strict hierarchy of judicial authority, 3. In the absence of a relevant precedent, the judges will be guided by legal principle and reasoning by analogy, and 4. There is a clear way of distinguishing the ratio of a case. A key feature of the unwritten constitution is ‘the separation of powers’.
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.
This type of rule of law is upheld through administrative law and by the practice of judicial review. This states out the fact that ‘no one is above the law’ , although there are some aspects that can undermine this factor. Take for instance the powers of the prime minister who’s powers are based solely on the Royal prerogative which is not subject to judicial
law within the British constitutional structure and the supreme legal authority in the UK which is not