BRITISH CONSTITUTIONALISM

The British constitutional tradition is commonly regarded as an anomalous and contrary to the standard conception of modern constitutionalism in other Western countries. In addition to being based on the only “unwritten” constitution in the region, British constitutionalism has had a relatively smooth transition into the age of modernity, with no significant upheaval since 1688 (Bromhead 1974: 13), in contrast to that of France and the United States, which emerged from revolutionary fervor in the late eighteenth century.

British constitutionalism is closely intertwined with, and has been sustained by, the country’s common law tradition, whereby a “substantial part of the law of the constitution is common law” (Turpin 1990: 86). There is no separate identifiable prior law that can be called “constitutional,” but several seminal statutes have a kind of authority or de facto status that achieve that quality, though there have been some deliberate attempt to invest an Act of Parliament with a deliberate “constitutional character” (85).

Some scholars have argued that the written/unwritten distinction is exaggerated and misleading, and that the British constitutional tradition is better described as “un-entrenched” rather than unwritten because there are several written documents that clearly fall within the scope of British constitutional sources (McHugh 2002: 47). The term “unwritten” is misleading since the chief characteristic of British constitutionalism is not its lack of a single central written constitutional text. Rather, this tradition is distinguished by the “institutional means of identifying constitutional provisions and norms and the methods that have been recognized for establishing, modifying, and altering it” (47). These institutional means make the British constitution un-entrenched in the sense that any aspect of it can in theory be changed by a simple Act of Parliament. The interpretation and application of the British constitution depends on the ability to recognize it without the need for a formal document that defines it as such. It is grounded upon expectations that it is as powerful and binding as any formally entrenched constitutional legacy, despite its informal appearance.

Accordingly, what secures legitimacy for the viability of such an un-entrenched constitution is a kind of tacit agreement or consensus among those who exercise political and legal power to abide by the spirit of the principles that are embodied in the constitutional tradition. There is recognition across the political and legal spheres that violating the intrinsic tenets of constitutionality, even if in doing so one may technically be acting within the law, can risk putting the entire constitutional system in jeopardy. Such actions, therefore, are consensually reserved only for genuine exceptions when the situation might truly warrant it. The success of British constitutionalism is believed to derive from the notion of the spirit of the law as a living political, legal and historical force whose legitimacy does not need codification or enshrinement in a single document.

This quality emerged from a long historical accumulation and consolidation of certain constitutional practices that may or may not hold legal status, which serve as an ongoing basis for the practice of government in the country. This form of “aggregative constitutionalism” (Turpin 1990: 13) can be viewed in terms of the emergence and evolution of both laws and conventions that are associated with British constitutionalism. “The legal rules that make up part of the constitution are either statutory rules or rules of common law. Many of the more important practices of the constitution also have the character of rules, and, like legal rules, are the source of obligations and entitlements. These non-legal rules are called conventions” (4, emphasis original).

The Magna Carta of 1215 was a foundational document in the history of British constitutionalism, “the most famous concession of legal rights made by the English king to his subjects” (Helmholz 1999: 297). Among its significant provisions was the rule that no freeman should be imprisoned or banished except by the law of the land. While affirming the critical principle of the rule of law, the text itself accepted the institution of slavery as a matter of course. It is also important to note for our purposes here that King John was pressured by Archbishop Langton and a group of barons to affix his seal to the Carta in order to enable a return to stability from the state of economic and political disarray, to avoid the imminent threat of rebellion. Thus, that document, which is commonly seen as important for the history of constitutionalism in general, was in fact the product of a negotiated compromise for retaining authority and reestablishing control over the kingdom, rather than any noble sentiment on the part of the king.

While accepting the seminal importance of the Magna Carta, Schwartz challenges the assumption that it marks the beginning of British constitutionalism. In his view, the foundations of English law and political institutions are to be seen in the political and social changes following the Norman Conquest in 1066, especially the continuity in English law and institutions (Schwartz 1967: 3). The roots of this continuity were planted through two transformative changes that were introduced into Anglo-Saxon government after the Norman Conquest, namely, “the establishment of a strong monarchy and the introduction of political feudalism” (4). The contractual nature of the land-sharing agreements between feudal lords and tenants, and of the political equation between the sovereign and his subjects, involved “rights and obligations on both sides” (6–7). This equation prevented the strong centralized monarchy implemented by William the Conqueror from lapsing into an exercise of untrammeled power. It was during that formative period that the “vital notion was developed that the obligations of the tenant were limited by the feudal contract to those stated and could not be increased by unilateral action by the lord” (7). The same notion of a constraint on power also dominated the public law of England after the Norman Conquest (8). Thus, a contractual relationship was translated into a framework for the limitation of sovereign power and operated as a legal as well as political principle in regulating relations in feudal society.

Mcllwan also argued that constitutionalism, as the limitation of power and guarantee of rights in Britain, was preserved by the common law tradition, though the line between legal jurisdiction and governance was often fuzzy and the mandate of the former was severely limited.

These factors contributed to the turning point for the history of modern British constitutionalism, namely, the Revolution of 1688, when the legal sovereignty of Parliament was firmly established with the forced abdication of James II on the grounds that he had violated it. While Parliament as the core element of government evolved in the course of British political history, it could not be called sovereign over royal power till the seventeenth century. With the Revolution of 1688, “the king himself came to owe his title to parliament, and parliament’s complete political control of administration made further legal limitation of it unnecessary” (Mcllwan 1940: 138).

at once historical reality, theory of the constitution, and a fundamental principle of the common law. In accordance with this principle the courts hold that statutes enacted by Parliament must be enforced and given priority over rules of common law, international law binding upon the United Kingdom, the enactments of subordinate legislative authority, and earlier enactments of Parliament itself. (Turpin 1990: 24; emphasis added).

Schwartz points out that the “fundamental importance” of these events for constitutional development was that “they settled the essential nature of the English polity and, as such, were the constitutional culmination of the struggle between prerogative and law which is the great theme of the seventeenth century” (Schwartz 1967: 197). However, the distinctive constitutional significance of the Revolution of 1688 for British constitutionalism was in that “the idea prevailed that the best guarantee of a just political order was the supremacy of Parliament over the monarch and not a law antecedent to and constituting both.... The Glorious Revolution marks the beginning of an era in which parliamentary sovereignty supplanted for good the idea of a paramount law” (Preuss 1995: 28). Thus, paradoxically, British constitutionalism evolved on the basis of the displacement of the notion of a paramount law from the country’s political practice and culture.

The relationship between democracy and constitutionalism, discussed later in this chapter, also evolved over the centuries in British political culture, despite the fact that individual civil rights were not expressly documented or protected in constitutional terms as such. While British constitutional documents since the Magna Carta speak of “the ancient rights and liberties of England,” these rights are not positively articulated in any document. As framed in such instruments as the Bill of Rights of 1689, for instance, these rights “are expressed in the negative sense of English subjects being entitled to do anything they are not actually forbidden to do.... [There is] no constitutional protection of an individual’s rights other than the common law of the country” (Pilkington 1999: 21). The current validity of this principle is illustrated by the fact that, although Britain ratified the European Convention of Human Rights in 1950, the process of incorporating these rights as part of the domestic law of the country did not begin until the parliamentary session of 1997–98. As a matter of present British constitutional doctrine, this incorporation remains a matter of ordinary legislation, rather than an “entrenched” bill of rights, as in other constitutions.

Similarly, democracy as the term is commonly understood today came to be incorporated in the British constitutional system through various and gradual developments. “Britain is by no means the ‘mother of modern democracy,’ since the principle of ‘one person, one vote’ was not institutionalized there till the middle of the nineteenth century” (Franklin and Baun 1995: 11). It was only with the achievement of universal suffrage through the enactment of the Representation of the People Acts of 1918 and 1928 that it can be claimed that the British Constitution has finally embodied the principle of democracy (Turpin 1990: 19).

British constitutionalism may indeed be undergoing drastic changes that were unimaginable a few years ago, as membership of the Council of Europe and the European Union, among many other factors, may lead to the adoption of a written constitution and an entrenched bill of rights. While it is too early to speculate about such possibilities, even that apparently new direction will still confirm the main point I am trying to make here, namely, that constitutionalism is always the product of local and regional context, even when it appears to depart from a long-established tradition. British constitutionalism as the product of its own history has so far evolved into particular forms and institutions as a result of the practical experiences of the people of Britain, and will continue to evolve as a result of that experience. Whatever new or different directions it may evolve into, British constitutionalism is sustained by the country’s political culture and political and legal institutions, which have evolved through a practical process of trial and error over centuries. There is nothing predetermined or given about this process, which is simply a matter of actual practice and real experience.