Constitution
Sovereign Text/Rulebook establishing character of a society.1
The Constitution may be written/unwritten, political or legal, republic or monarchial, unitary or federal,
flexible or rigid. Some classifications relate to the form of a constitution rather than its contents. The
value, nevertheless, is determined by a constitution’s stability.
Purpose:
• Efficient Organization;
• Accountability of State;
• Protection of Individual Rights;
• Regulates, distributes and limits power of the government;
• Provides structure and power.
UCL: Create, empower and limit institutions that govern society. There is a difference between the
Constitution and the Constitutional Order created by the said Constitution – the difference is one of
functions and its form.
HOL Select Committee 2001: Set of rules, laws and practices; create basic institutions of state; stipulate
power and relationship b/w institution and citizens.
UK → Uncodified, Political & Flexible (also NZ & Israel) primarily because it has had no constitutional
moment, or perhaps it chose evolution over revolution. Jeff King: “Inertia, rather than choice, tends to
dictate the status quo.”
Codified Constitutions → Result of Revolution (US, France) or Collapse of Dictatorship (Germany, Italy)
Theory:
Thomas Paine → Rights of Man: Constitution antecedent to Government. Rejected monarchial
government as tyranny. “A constitution is not the act of a government, but of a people constituting
government; and government without a constitution, is power without right.”
John Locke → Social Contract Theory: Civil Society; Government resolves conflict.
Sources:
1. Statute/Acts of Parliament (Supreme) CRA 2005, HRA 1998.
2. Common Law/Judicial Decisions: Statutory Interpretation – [Ghaidan v Mendoza], Judicial
Reasoning – [R v R].
3. International Law/Treaties for e.g. ECHR; National Constitutional system influenced by
agreements.
4. Conventions for e.g. Royal Assent, Assign PM; separate from practices.
Ivor Jennings: Conventions must be normative, supporting prevailing political philosophy.
Tomkins: Non-legal but nonetheless binding rules of constitutional behavior.
5. Crown/Royal Prerogative
6. Law and Custom of Parliament
7. Constitutional writers for e.g. Dicey, Jennings etc.
8. Constitutional Principles for e.g. Rule of Law, Parliamentary Sovereignty, (partial) Separation of
Powers, Democracy, Accountability, Transparency etc.
Dicey: 1-3 may collectively be called ‘constitutional law’ whereas 4 may be called ‘constitutional
morality’.
Jennings: No distinction of substance or nature, but only technical differences.
1It is a perennial question whether character is one to which the constitution conforms, or must conform to.
Sovereign Text/Rulebook establishing character of a society.1
The Constitution may be written/unwritten, political or legal, republic or monarchial, unitary or federal,
flexible or rigid. Some classifications relate to the form of a constitution rather than its contents. The
value, nevertheless, is determined by a constitution’s stability.
Purpose:
• Efficient Organization;
• Accountability of State;
• Protection of Individual Rights;
• Regulates, distributes and limits power of the government;
• Provides structure and power.
UCL: Create, empower and limit institutions that govern society. There is a difference between the
Constitution and the Constitutional Order created by the said Constitution – the difference is one of
functions and its form.
HOL Select Committee 2001: Set of rules, laws and practices; create basic institutions of state; stipulate
power and relationship b/w institution and citizens.
UK → Uncodified, Political & Flexible (also NZ & Israel) primarily because it has had no constitutional
moment, or perhaps it chose evolution over revolution. Jeff King: “Inertia, rather than choice, tends to
dictate the status quo.”
Codified Constitutions → Result of Revolution (US, France) or Collapse of Dictatorship (Germany, Italy)
Theory:
Thomas Paine → Rights of Man: Constitution antecedent to Government. Rejected monarchial
government as tyranny. “A constitution is not the act of a government, but of a people constituting
government; and government without a constitution, is power without right.”
John Locke → Social Contract Theory: Civil Society; Government resolves conflict.
Sources:
1. Statute/Acts of Parliament (Supreme) CRA 2005, HRA 1998.
2. Common Law/Judicial Decisions: Statutory Interpretation – [Ghaidan v Mendoza], Judicial
Reasoning – [R v R].
3. International Law/Treaties for e.g. ECHR; National Constitutional system influenced by
agreements.
4. Conventions for e.g. Royal Assent, Assign PM; separate from practices.
Ivor Jennings: Conventions must be normative, supporting prevailing political philosophy.
Tomkins: Non-legal but nonetheless binding rules of constitutional behavior.
5. Crown/Royal Prerogative
6. Law and Custom of Parliament
7. Constitutional writers for e.g. Dicey, Jennings etc.
8. Constitutional Principles for e.g. Rule of Law, Parliamentary Sovereignty, (partial) Separation of
Powers, Democracy, Accountability, Transparency etc.
Dicey: 1-3 may collectively be called ‘constitutional law’ whereas 4 may be called ‘constitutional
morality’.
Jennings: No distinction of substance or nature, but only technical differences.
1It is a perennial question whether character is one to which the constitution conforms, or must conform to.
