Text 4 constitutionalism

The concepts of the rule of law and the separation of powers are aspects of the notion of “constitutionalism”, that is, the idea that governmental power should be limited by law, and that there is a sphere of freedom which is not the business of the law. Indeed, in a liberal society one of the main purposes of a constitution is to restrain the exercise of political power and to enshrine basic freedoms.

The fundamental problem with ‘constitutionalism’ is that laws are made and enforced by governments, so how can government under law be anything more than a hope that the rulers will be benevolent? There are broadly three ways in which constitutions have grappled with this.

1 By creating substantive principles of justice, and individual rights policed by courts that are independent of the government. These set limits upon the extent to which governmental purposes can override individual liberties. This ‘bill of rights’ device is used in many countries, most famously in the USA but is open to the objection that it gives too much power to unelected judges. There is no such bill of rights in the UK, but judges are able to apply ideas of fairness and individual rights when interpreting legislation. They claim to base these upon generally accepted community values. Many writers regard this as nonsense and claim that the courts apply their own prejudices.

2 By placing structural limits upon powers in order to encourage rival power centres to restrain each other – the doctrine of the separation of powers. This can be achieved in various different ways, for example, division of function, division between central and local powers, division between elected and appointed officials.

3 By procedural restraints requiring the exercise of power to be justified by pointing to definite rules and requiring disputes to be settled by independent bodies according to fair public and open procedures.

Any constitution might adopt all orany combination of these devices which are of course interrelated. For example, the USA embodies all of them, in some cases in advanced form. Broadly speaking, the UK Constitution relies on structural and procedural restraints but in a diluted and unsystematic way. We shall examine these under the “catchwords” of “the rule of law” and the “separation of powers”.

Constitutionalism has been part of the British political tradition at least since medieval times. Then it was believed that even the king was subject to the law. The law was largely the creation of judges and was theoretically based upon the “custom of the realm”.

Magna Carta (1297) is sometimes regarded as Britain’s closest equivalent to a written constitution. In fact, Magna Carta is an ordinary piece of legislation dealing mainly with specific grievances between the king on the one hand and the feudal claims of the king’s tenants-in-chief on the other. Although concessions were made by the king, these were wrung from him by force. Other groups including the Church, the cities, and the boroughs also obtained a measure of protection. Nevertheless, Magna Carta is of symbolic interest revealing as it does the subservience of the king to ideas of law, and also setting up rudimentary enforcement machinery against the king (legalised rebellion).

Chapter 39 recited

“No free man shall be taken or imprisoned or be disseized of his freehold [his landholding], or liberties or free customs or be outlawed or exiled or any otherwise destroyed; nor will we pass upon him nor condemn him but by lawful judgment of his peers orby the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.”

This has been a source of rhetorical inspiration for subsequent constitutional development both in the United Kingdom and overseas.

The Charter itself was reissued in 1225 with most of its constitutional provisions removed. It has now all been repealed. There is also the Bill of Rights of 1688. This again is an ordinary statute intended to limit the power of the Crown. It concerns mainly the relationship between Crown and Parliament.

Дата добавления: 2015-11-14