The Purposes and Characteristics of Constitutions:
The Nature and Purpose of Constitutions:
Liberal democracies see the constitution divide government power into three branches: legislative,
executive, and judicial. Central purpose of the constitution is to allocate/regulate governmental power
in a state, acting as legal norms concerned with governance. Government institutions are established,
power is granted/distributed, and the interactions between institutions are governed.
Parliament enacts legislation (statutes), with legislation determining eligibility to stand as an MP,
police powers, individual. Statute law also regulates activities, such as, road safety, consumer rights,
broadcast media regulations, and whom we can marry/enter a civil partnership.
The Executive (government) is also shaped by the constitution. The appointment of a Prime Minister,
the influence of the King on ministerial appointments (UK has the largest political party leader in the
House of Commons assume the Office of PM and will recommend to the King government ministers.
Ministers of the Crown are also required to answer questions in Parliament, to explain their
successes, failures, and findings. The government is created and regulated by constitutional norms.
The Judiciary determines outcomes of legal disputes between, for example, individuals and the
executive. The constitution establishes structures and procedures to resolve disputes of law between
the individual and the state/between private and individual bodies.
Core concepts of Constitutional law and the branches of government:
Constitutional law provides the rules and principles that regulate the system of government in a
particular country‘. Government without a Constitution is power without a right’ (Thomas Paine, Rights
of Man (1791).
Allocation (and limitation) of power: Making laws, exercising governmental power, and determining
disputes are all set by the Constitution. Tensions between individuals and the state over Covid-19
lockdown measures is an example.
Accountability: Constitutions seeks to ensure that those entrusted with power exercise it responsibly
and are called to account when they do not. Periodic elections attempt some accountability, but the
importance of government means further systems to scrutinise those in power need to exist. Should
this be legal, political, media or a mixture of mechanisms?
Legitimacy: In the democratic tradition, constitutions put in place arrangements that enjoy popular
legitimacy, enabling people to be governed in a way that they regard as acceptable, and which
renders legitimate the exercise of power by government institutions. However, in practice, there are
often huge widespread disagreements, shown with newspaper headlines. Instead, Constitutions can
focus on extreme fundamentals that enjoy popular consensus, such as the Right to a Fair Trial.
Permanency: Constitutions confer a degree of permanency upon fundamental arrangements and
values. If too easy to amend, the less point there is in having one, as there is nothing
enduring/permanent. However, if too entrenched, the society may find themself subject to rules and
principles that existed hundreds of years ago, such as the Right to Bear Arms in the USA.
Uncodified Constitution: The UK’s Constitution is uncodified, with sources both written (statutes)
and unwritten (conventions). There is no singular written document. The Uncodified nature is due to
the relative political stability, as opposed to societal upheaval, such as a civil war or introduction of an
authoritarian regime, which spawns a codified constitution (French, USA constitution). Plus, the two
main political parties favour this option, also (Conservatives and Labour).
Establishing the Central Structures of Government:
, ● The constitution establishing central structures of government is already shown in, for
example, the opening articles of the US Constitution.
○ Article I states there should be a legislature (Congress), comprising the Senate and
the House of Representatives.
○ Article II states that executive power should be held by the President.
○ Article III states that judicial power should be held by a Supreme Court.
● German Basic Law also makes provision for a federal executive, legislature and judiciary.
● A Constitution may also have provisions for state governments for their powers. For example,
the structure may be required to be federal in nature (as in the USA and Germany), with
federal and regional government institutions. On the other hand, the UK and Spain invest
ultimate authority in central government institutions.
Defining and Delimiting the Powers Exercisable by Government:
● The relationship between the three branches of government is often explained through the
separation of powers theory, which sees each government branch able to scrutinise the
exercising of individual functions carried about by the other branches.
● These powers of scrutiny are referred to as constitutional checks and balances, emphasising
the notion that government power should be limited.
● The degree to which government branches can intervene in the activities of the other is
dependent on the country, however. In the USA, the Supreme Court can use judicial review to
strike down measures that contravene provisions in the constitution. However, in the UK,
courts do not exercise the same constitutional powers, and can not invalidate legislation due
to the doctrine of parliamentary sovereignty.
● Scrutiny differs, however, with instead the UK Parliament being able to vote for or against the
government’s legislative proposals, and the courts can also judicially review the use of
executive powers.
Defining the Relationships between the Individuals and the State:
● Constitutions will also regulate the relationships between the individuals and the state,
allowing an independent judicial branch to determine disputes of law (criminal trials and
judicial review proceedings), or between individuals themselves (in tort or contract law).
● Constitutional rights will be established where the state cannot interfere, such as the Bill of
Rights, found in the first 10 amendments of the US Constitution. These make provisions for
Inter Alia, the freedom of assembly, expression, and religion (First Amendment), due process
of law (Fifth Amendment), and the right to a fair trial (Sixth Amendment). Other examples:
Canadian Charter of Rights and Freedoms 1982, the New Zealand Bill of Rights Act 1990 and
the UK’s Human Rights Act 1998.
● Membership of international organisations may impact the powers available to
institutions/national governments through the agreements these states make with, for
example, international trade.
The UK Constitution:
● Organic growth over time has shaped the UK Constitution, as opposed to societal upheaval or
war/revolution. The UK Constitution is fluid, flexible, and uncodified.
○ The Constitution of the United States, agreed to in 1789, was the product of the
Revolutionary War against the British.
○ The Constitution of the Federal Republic of Germany was drawn up in 1949 following
World War Two.
○ The Constitution of South Africa was drawn up following apartheid in 1996.
, ● The UK’s entry into the European Economic Community/devolution of power from Parliament
to devolved administrations in Scotland, Wales, and Northern Ireland are examples of UK
constitutional developments that have come about by careful planning. The EU Withdrawal
Act 2018 is another example.
● The Glorious Revolution of 1688 established the central doctrine of parliamentary
sovereignty, and this was confirmed by the Bill of Rights 1689 and the Act of Settlement 1701.
● Ivor Jennings said, “The British constitution has not been made but has grown”.
● Magna Carta 1215 is the oldest example which placed some limitations on the arbitrary power
of the King. 2016 saw a referendum where the UK voted 52%-48% to leave the European
Union, 2017 saw the UK trigger Article 50 of the Lisbon Treaty, and then the UK officially left
the EU on January 31st 2020.
● Overall, the UK Constitution is an amalgamation of laws, practices, customs, and institutions,
with the House of Lords Select Committee on the Constitution defining the UK Constitution as
a set of ‘laws, rules, and practices’.
● R (Miller) v Secretary of State for Exiting the European Union provided a more detailed
account for how varying sources combine to create a de-facto constitutional system,
concluding the UK is a “constitutional democracy framed by legal rules and subject to the rule
of law”.
● The UK Constitution is uncodified and can be found in written sources (statutes, judicial
decisions), and unwritten (conventions, practices, and customs). The main structures of
national government are Parliament, the executive, and the courts (with limited devolved
powers to devolved administrations, also). However, the main characteristic is the doctrine of
Parliamentary Sovereignty.
● Entrenchment doesn’t exist in the UK, with an ordinary Act of Parliament being able to modify
the Constitution. Plus, Parliamentary questions and judicial review jurisdiction can also hold
the government to account.
The Domestic Sources (Statutes (constitutionally significant), Common Law, and the Royal
Prerogative) of the UK Constitution:
● The absence of a codified constitution means constitutionally significant rules can be found in
a range of legal sources, such as statutes, statutory instruments, the Royal Prerogative, and
judicial decisions. Political understandings, such as conventions, exist too.
● Codified constitutions, such as the USA’s, provide a single written document which outlines
the most important powers government branches can exercise, and key constraints on these
powers. Gordon Brown’s ‘Governance of Britain’ 2007 green paper considered drafting a new
constitution, but this did not occur.
● Whereas a codified constitution enshrines existing political consensus as constitutional law,
Walter Bagehot emphasised there is no single architect behind the UK constitution. Instead,
over time, new rules and principles were structured to reflect new ideas, and existing rules
and principles were either kept or removed depending on their current utility.
Legal Sources of the Constitution:
● Acts of Parliament (statutes) are the highest form of law which can be produced within the UK
governance order, and so are often the best source of rules for explaining how the UK’s
institutions of government interact with each other and with individuals. Some statutes allow
the UK Government to produce secondary legislation - Orders in Council and statutory
instruments - allowing ministers to make law with little parliamentary oversight.
● The Royal Prerogative comprises rules from the era of absolute monarchy, which are:
○ The monarch’s personal prerogatives: constitutional functions nominally performed in-
person (appointing the PM).
The Nature and Purpose of Constitutions:
Liberal democracies see the constitution divide government power into three branches: legislative,
executive, and judicial. Central purpose of the constitution is to allocate/regulate governmental power
in a state, acting as legal norms concerned with governance. Government institutions are established,
power is granted/distributed, and the interactions between institutions are governed.
Parliament enacts legislation (statutes), with legislation determining eligibility to stand as an MP,
police powers, individual. Statute law also regulates activities, such as, road safety, consumer rights,
broadcast media regulations, and whom we can marry/enter a civil partnership.
The Executive (government) is also shaped by the constitution. The appointment of a Prime Minister,
the influence of the King on ministerial appointments (UK has the largest political party leader in the
House of Commons assume the Office of PM and will recommend to the King government ministers.
Ministers of the Crown are also required to answer questions in Parliament, to explain their
successes, failures, and findings. The government is created and regulated by constitutional norms.
The Judiciary determines outcomes of legal disputes between, for example, individuals and the
executive. The constitution establishes structures and procedures to resolve disputes of law between
the individual and the state/between private and individual bodies.
Core concepts of Constitutional law and the branches of government:
Constitutional law provides the rules and principles that regulate the system of government in a
particular country‘. Government without a Constitution is power without a right’ (Thomas Paine, Rights
of Man (1791).
Allocation (and limitation) of power: Making laws, exercising governmental power, and determining
disputes are all set by the Constitution. Tensions between individuals and the state over Covid-19
lockdown measures is an example.
Accountability: Constitutions seeks to ensure that those entrusted with power exercise it responsibly
and are called to account when they do not. Periodic elections attempt some accountability, but the
importance of government means further systems to scrutinise those in power need to exist. Should
this be legal, political, media or a mixture of mechanisms?
Legitimacy: In the democratic tradition, constitutions put in place arrangements that enjoy popular
legitimacy, enabling people to be governed in a way that they regard as acceptable, and which
renders legitimate the exercise of power by government institutions. However, in practice, there are
often huge widespread disagreements, shown with newspaper headlines. Instead, Constitutions can
focus on extreme fundamentals that enjoy popular consensus, such as the Right to a Fair Trial.
Permanency: Constitutions confer a degree of permanency upon fundamental arrangements and
values. If too easy to amend, the less point there is in having one, as there is nothing
enduring/permanent. However, if too entrenched, the society may find themself subject to rules and
principles that existed hundreds of years ago, such as the Right to Bear Arms in the USA.
Uncodified Constitution: The UK’s Constitution is uncodified, with sources both written (statutes)
and unwritten (conventions). There is no singular written document. The Uncodified nature is due to
the relative political stability, as opposed to societal upheaval, such as a civil war or introduction of an
authoritarian regime, which spawns a codified constitution (French, USA constitution). Plus, the two
main political parties favour this option, also (Conservatives and Labour).
Establishing the Central Structures of Government:
, ● The constitution establishing central structures of government is already shown in, for
example, the opening articles of the US Constitution.
○ Article I states there should be a legislature (Congress), comprising the Senate and
the House of Representatives.
○ Article II states that executive power should be held by the President.
○ Article III states that judicial power should be held by a Supreme Court.
● German Basic Law also makes provision for a federal executive, legislature and judiciary.
● A Constitution may also have provisions for state governments for their powers. For example,
the structure may be required to be federal in nature (as in the USA and Germany), with
federal and regional government institutions. On the other hand, the UK and Spain invest
ultimate authority in central government institutions.
Defining and Delimiting the Powers Exercisable by Government:
● The relationship between the three branches of government is often explained through the
separation of powers theory, which sees each government branch able to scrutinise the
exercising of individual functions carried about by the other branches.
● These powers of scrutiny are referred to as constitutional checks and balances, emphasising
the notion that government power should be limited.
● The degree to which government branches can intervene in the activities of the other is
dependent on the country, however. In the USA, the Supreme Court can use judicial review to
strike down measures that contravene provisions in the constitution. However, in the UK,
courts do not exercise the same constitutional powers, and can not invalidate legislation due
to the doctrine of parliamentary sovereignty.
● Scrutiny differs, however, with instead the UK Parliament being able to vote for or against the
government’s legislative proposals, and the courts can also judicially review the use of
executive powers.
Defining the Relationships between the Individuals and the State:
● Constitutions will also regulate the relationships between the individuals and the state,
allowing an independent judicial branch to determine disputes of law (criminal trials and
judicial review proceedings), or between individuals themselves (in tort or contract law).
● Constitutional rights will be established where the state cannot interfere, such as the Bill of
Rights, found in the first 10 amendments of the US Constitution. These make provisions for
Inter Alia, the freedom of assembly, expression, and religion (First Amendment), due process
of law (Fifth Amendment), and the right to a fair trial (Sixth Amendment). Other examples:
Canadian Charter of Rights and Freedoms 1982, the New Zealand Bill of Rights Act 1990 and
the UK’s Human Rights Act 1998.
● Membership of international organisations may impact the powers available to
institutions/national governments through the agreements these states make with, for
example, international trade.
The UK Constitution:
● Organic growth over time has shaped the UK Constitution, as opposed to societal upheaval or
war/revolution. The UK Constitution is fluid, flexible, and uncodified.
○ The Constitution of the United States, agreed to in 1789, was the product of the
Revolutionary War against the British.
○ The Constitution of the Federal Republic of Germany was drawn up in 1949 following
World War Two.
○ The Constitution of South Africa was drawn up following apartheid in 1996.
, ● The UK’s entry into the European Economic Community/devolution of power from Parliament
to devolved administrations in Scotland, Wales, and Northern Ireland are examples of UK
constitutional developments that have come about by careful planning. The EU Withdrawal
Act 2018 is another example.
● The Glorious Revolution of 1688 established the central doctrine of parliamentary
sovereignty, and this was confirmed by the Bill of Rights 1689 and the Act of Settlement 1701.
● Ivor Jennings said, “The British constitution has not been made but has grown”.
● Magna Carta 1215 is the oldest example which placed some limitations on the arbitrary power
of the King. 2016 saw a referendum where the UK voted 52%-48% to leave the European
Union, 2017 saw the UK trigger Article 50 of the Lisbon Treaty, and then the UK officially left
the EU on January 31st 2020.
● Overall, the UK Constitution is an amalgamation of laws, practices, customs, and institutions,
with the House of Lords Select Committee on the Constitution defining the UK Constitution as
a set of ‘laws, rules, and practices’.
● R (Miller) v Secretary of State for Exiting the European Union provided a more detailed
account for how varying sources combine to create a de-facto constitutional system,
concluding the UK is a “constitutional democracy framed by legal rules and subject to the rule
of law”.
● The UK Constitution is uncodified and can be found in written sources (statutes, judicial
decisions), and unwritten (conventions, practices, and customs). The main structures of
national government are Parliament, the executive, and the courts (with limited devolved
powers to devolved administrations, also). However, the main characteristic is the doctrine of
Parliamentary Sovereignty.
● Entrenchment doesn’t exist in the UK, with an ordinary Act of Parliament being able to modify
the Constitution. Plus, Parliamentary questions and judicial review jurisdiction can also hold
the government to account.
The Domestic Sources (Statutes (constitutionally significant), Common Law, and the Royal
Prerogative) of the UK Constitution:
● The absence of a codified constitution means constitutionally significant rules can be found in
a range of legal sources, such as statutes, statutory instruments, the Royal Prerogative, and
judicial decisions. Political understandings, such as conventions, exist too.
● Codified constitutions, such as the USA’s, provide a single written document which outlines
the most important powers government branches can exercise, and key constraints on these
powers. Gordon Brown’s ‘Governance of Britain’ 2007 green paper considered drafting a new
constitution, but this did not occur.
● Whereas a codified constitution enshrines existing political consensus as constitutional law,
Walter Bagehot emphasised there is no single architect behind the UK constitution. Instead,
over time, new rules and principles were structured to reflect new ideas, and existing rules
and principles were either kept or removed depending on their current utility.
Legal Sources of the Constitution:
● Acts of Parliament (statutes) are the highest form of law which can be produced within the UK
governance order, and so are often the best source of rules for explaining how the UK’s
institutions of government interact with each other and with individuals. Some statutes allow
the UK Government to produce secondary legislation - Orders in Council and statutory
instruments - allowing ministers to make law with little parliamentary oversight.
● The Royal Prerogative comprises rules from the era of absolute monarchy, which are:
○ The monarch’s personal prerogatives: constitutional functions nominally performed in-
person (appointing the PM).
