“The constitution of the United Kingdom exists in hearts and minds and habits as much as it does in law. ” – Jack Straw (Member of British Parliament) The English legal system is one of the most peculiar systems in the world. The absence of a codified constitution makes it even more distinguished. It is fascinating how the UK has been able to operate for so long without a codified constitution. This has raised debates amongst legal scholars all over the world. Some even go as far as to suggest that since there is no single codified document, the UK does not have a constitution.
I completely disagree with this statement; therefore I decided to research on this issue and write this paper. A constitution is the most important element of a democratic state as it provides the legal framework for a state to operate. The issue of Britain having a constitution has been under constant debate since the early 19th century. Even at this point many people doubt it; however technically there should be no doubt because a constitution is one of the most important elements of the legal system of a country.
One without which the state would be unable to function. Therefore, it is inevitable for the UK to have a constitution. The main question here is what kind of constitution does the UK have? A great number of scholars have researched on this particular topic as it is of great importance not only for UK but also for the general field of Constitutional law (i. e. International Constitutional Law). After almost a century of research, most scholars have come to agree that the British constitution is one which is partly written and completely uncodified.
This acceptance has raised quite a few questions. This paper will mainly discuss the main features of the British constitution. It will also provide arguments as to why it is possible to claim that there is a “British Constitution”; while trying to understand the legal nature of the constitution. Moreover, it attempts to discuss the recent developments in the field of English constitutional; as well as their implications on the constitution. Furthermore the different sources of the constitution will be discussed. Methodology Nature of the research
The research on this particular topic is mainly descriptive. Moreover different types of research methods have been used. Since the main purpose of this research was to understand the current situation of the British constitution, it is possible to say that this research is an explanatory research; because it attempts to presents a clear understanding of this particular issue. Approach used While conducting the research the main method used in formulating the research design was deductive method. This method was applied while deciding and finalizing the research question.
After selecting the topic, inductive method was applied in order to figure out a specific research question. An inductive approach was used while formulating the hypothesis, since it required gathering all the conclusions from the research and creating one general hypothesis. Research strategies The main strategy employed was to collect as many different scholarly opinions, on this issue, as possible. Therefore legal databases, (i. e. Westlaw) were mainly used in order to find different articles addressing the issue of British Constitution.
After the data collection process was completed, the sources were thoroughly examined and only the most relevant sources were selected in order to write the literature review. Reliability & Validity One of the strengths of the research carried out is that all the sources used, come from credible sources. Since the sources were taken from legal databases and the library, it is safe to say that they were reliable. Generally the sources used are up to date and they have been published within the last decade. Research Question
This paper basically tries to find answer(s) to the following question: Whether it is possible to claim that UK has a written constitution? What is the nature of the British constitution? Research Purpose This research was carried out in order to: – Find out if the United Kingdom has a constitution. – Understand the nature of the British constitution – Classify the main sources of the British constitution – Identify the recent developments in UK’s constitution. – Figure out the implications of the recent developments in British constitution. Hypothesis
The British Constitution does in fact exist because there are certain sources which provide a legal framework and define the basic elements of the English legal system. These sources are said to amount to the British Constitution. The British constitution is one which is partly written and entirely uncodified. The British constitution is currently undergoing the slow and gradual process of codification. The recent developments and changes in the constitutional system due to UK’s incorporation in EU have had a great impact on this process of codification. Literature Review
In order to support the hypothesis, a number of selected sources were referred to. There are quite a number of authors who have researched on the need of UK having a written constitution. One such author is Colin R. Munro, who has researched in the particular field of British constitutional law. In his book “Studies in Constitutional Law” he said that the word “constitution” can be defined in two senses: broad and narrow. As many authors have mentioned according to the narrow sense UK does not have a constitution, however in the broad sense the UK does have a constitution.
There are many reasons as to why the UK does not have a codified/written constitution. The main reason is that the UK has been stable for too long, there have been no major events which could cause an upheaval in UK. Therefore the UK never got the chance to codify its constitution; unlike the Americans who codified their constitution in the 18th century (as well as the French). He also mentions that unlike any other constitution in the world the British constitution has both legal and non legal sources.
1 In a literature review conducted by Dr. Andrew Blick, he states that the absence of a codified British constitution is significant in many accounts, however not all. Moreover, “the ‘American theory’ that a constitution ‘can be laid down in a single document… is impossible’ while the ‘British theory’ that ‘holds a constitution to be a complex and evolving living organism that cannot be set in stone once and for all… is a better answer to the question of what a constitution is'”.
According to Blick, a key theme in the literature assessing the UK constitution is the rapid change in the constitutional law of UK in the past two decades. He states that parts of UK settlement have become increasingly codified mostly from 1990s and onwards. He considers the idea that the substantial constitutional change might lead to a full on codification, sometime in the near future. However the main argument against this idea is provided by Anthony King in “The British Constitution”, where he states that the UK has undergone quite a period of constitutional change from the 1960s.
He believes that it is now time to pause and reflect on these changes. 2 In Eric Barendt’s book “An Introduction to Constitutional Law” he discusses the works of many famous authors and experts on constitutional law. It was mentioned that Thomas Paine said that “Everything in England has a constitution, except for the country itself”. Moreover, he criticized the claim made by Paine and Tocqueville that a constitution is necessarily rigid and that the term should only be used in order to refer to a set of higher rules, superior to ordinary laws.
He said that this view is too restrictive and therefore not very advantageous to the overall constitutional law. The main problem with the “British constitution is that it is not the most superior law of the country because the Parliament is sovereign and therefore can amend the constitution easily. He also talks about the nature of the “British constitution”. He believes that apart from the conventions the British constitution is mainly written and uncodified.
He explains that with the exception of the conventions it is a “jumble of diffuse statutes and court rulings” and states that it has been called as the “common law constitution”. This concept can be explained through examining parliamentary sovereignty, which is a common law principle. It is through the rulings/decisions of courts that the parliament has unlimited right to enact any legislation it likes. Therefore, it is possible to say that the British constitution is a common law constitution, because the parliament relies on the decisions of the courts rather than any codified constitution/document.