The Scope Of Constitutional Law

Constitutional law is concerned with the role and powers of the institutions within the State and with the relationship between the citizen and the State.

The constitution is a living, dynamic organism which at any point in time will reflect the moral and political values of the people it governs, and accordingly, the law of the constitution must be appreciated within the socio-political context in which it operates.

          The study of the constitution of the United Kingdom involves acquiring an understanding of a variety of historical, legal, philosophical and political factors which have, over the centuries, shaped the organisation of the State. The United Kingdom appears to be almost unique in not having a constitution which is conveniently set out in a single written document. However, not too much weight should be given to the “unwritten” nature of the constitution. Under all constitutions, not all of the rules will be written,  and still less will they be collected within a single document.

          In the United Kingdom, by contrast with most other States, the constitution is the product of many centuries of continuous and, mostly, gradual, peaceful evolution. With the exception of the contitutional turmoils of the seventeenth  century,  the  United  Kingdom’s constitutional development has an unbroken history dating from 1066. Accordingly, historical origins form the background for the study of the contemporary constitution, and no meaningful appreciation of the present constitution can be acquired without understanding this historical backcloth which reveals the moral and political influences which have shaped the constitution as it exists today. That said, it must always be remembered that the principal emphasis of study is on the contemporary constitution of the United Kingdom rather than on the many centuries of development which underlie it. With that point in mind, it is necessary to draw on historical sources and events with a view to understanding the contribution made to an evaluation of the many constitutional issues which present them  selves today.

          It is particularly true of the United Kingdom’s constitution, which is more the product of evolution than conscious rational thought, that it is difficult to see clearly the demarcation lines between constitutional law, history, philosophy and political science. In order, therefore, to study the United Kingdom’s constitution successfully, it is necessary to gain an insight into the history, politics and political philosophy which underpin the constitution.

This task is not easy, particularly as many students will come to constitutional law without a background in history, politics or political philosophy. It is however, an essential component of constitutional study, without which the structure, law and policies of the State cannot be understood. More than any other area of legal study except jurisprudence, constitutional law in the United Kingdom involves far more than a learning of legal rules. Indeed, it may be said, without exaggeration, that the non-legal rules and practices within the constitution are at least as important – if not more important on many occasions – as the legal rules. For example, in analysing and evaluating the  extent to which the individual citizen enjoy constitutional protection of  individual rights, it is necessary to appreciate the timeless and tireless quest to ensure the legal protection of the rights of individuals. This study involves, inter alia, an appreciation of natural law and social contract theories which underpin the constitutional limitations on government power in order that the rights of individuals are protected against the power of the States.

          Also, by way of example, the study of the constitutional relationship between the government and the legislature today encompasses a knowledge of the political backcloth, the rules of parliamentary practice and the non-legal or conventional rules which apply in a given situation. By way of further illustration, when studying the legislative supremacy of parliament, it is of fundamental importance to grasp that, in terms of classical constitutional legal theory, the power of parliament in the absence of a written constitution is omnipotent or sovereign. However, the constitutional and legal fact that parliament has the ultimate law making power within the State, does not mean that there are no restraints on what parliament may do. The law making powers of parliament, while theoretically and legally unlimited, are in fact constrained by the electorate to which parliament is accountable, and by economic, moral and political necessities. In terms of accountability to the electorate and the limits which this imposes on parliament’s powers, it is necessary to appreciate the philosophical and historical foundations of the democracy and the idea of individual rights. Notwithstanding the lack of a codified constituent document, under the constitution of the United Kingdom, the principles on which the government operates today are precisely those which govern the relationship between the government and the people under a written constitution. Here, an understanding of the idea of ‘social contract’ makes it possible to understand the complex  relationship between ‘sovereign power’ and the power of the people to determine who holds that sovereign power and the manner in which it may – and may not – be exercised.

          Nowadays,  the  ‘supremacy’  of  parliament  in  the  United  Kingdom  must   also be  considered  against   the   United   Kingdom’s  membership  of  the  European Community  and  European  Union,  which  has  significant  implications  for  the   classical  doctrine  of sovereignty.   Since 1972,   when  the  United   Kingdom  acceded   to  the  European  Community ,  the  United   Kingdom  has   in  many   respects   ceased  to  be  an   autonomous,  independent   State   and   has   become  a  member  of  an  ever-expanding  European   political,  economic  and  legal  order,  the   impact  of   which reaches  to  the  heart  of  the  constitution.  In  legal   terms,  it   is   undeniable   that    the United   Kingdom   parliament   could   decide to withdraw from the  European Community and Union, that, in light of the non-legal restraints – political and economic – there exists little real power to withdraw from the Community an Union. The non-legal restraints are in fact more important in this regard than the simple legal rule that Parliament is sovereign in its law making powers.

          To Illustrate further the distinction between absolute legal power and practical power, in terms of law, the Crown has the right to appoint the Prime Minister of its choice, and the power to dissolve Parliament when it chooses. To know these rules, however, is not to know very much, for the legal powers of the Crown are restricted – constrained – by non-legal ‘conventional’ rules which determine the conditions under which the Crown has a discretion to exercise its powers. In order. Therefore, to understand issues such as the appointment of a Prime Minister and the rules regulating the dissolution of  Parliament, it is necessary to understand the conventional rules which have developed over time and have taken on binding force.

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