The British constitution departs in various fundamental ways from the prevalent modern understanding of what a constitution is. The nature of those departures makes the British constitution difficult to pin down, or at least more difficult to pin down than the constitutions of most other constitutional democracies. In order to understand the British constitution, it is helpful to begin with a broad outline of what the prevalent contemporary idea of a constitution is and, from that starting point, explain what separates the British constitution.
In Rights of Man ( 1791 ), Thomas Paine wrote of four key features of constitutions: (1) a constitution must actually exist and will usually exist in the form of a document; (2) a constitution creates government and therefore cannot be created by government; (3) a constitution sets out clearly the powers and duties of the government; and (4) a constitution is considered fundamental law and thus distinguishable from ordinary law. These features are, broadly speaking, recognizable in almost all contemporary constitutions, whether at the national or subnational level.
Paine supplied his account while observing the creation of the US Constitution, which was in various ways the original of the modern species of constitution. Indeed, the very idea of constitution making was, at that time, novelãs Alexander Hamilton put it in the first paper of The Federalist ( 1787 ), it was to be “reserved to the people” to decide whether societies are “capable or not of establishing good government from reflection and choice.”
Yet Britain plainly still has a constitution. For those in search of the British constitution, there is more guidance to be found in the German philosopher Georg Wilhelm Friedrich Hegel and the British statesman Edmund Burke's thoughts on constitutionalism than there is to be found in Paine's. For Hegel, as he wrote in The Philosophy of Mind ( 1830 ), constitution making has “never occurred in history” ( 2007, 240 ). In this phrase, Hegel captures the idea that a constitution is more than a particular arrangement of government, it is also a creature that “develops from the national spirit” ( 2007, 240 ). On this view, values, customs, and traditions are the key parts of a constitution.
For Burke, writing in Reflections on the Revolution in France ( 1790 ), a constitution is similarly “an entailed inheritance” ( 1993, 33 ). On this view, there ought to be incremental change to governing arrangements--institutions and practices are altered or dismantled when they are obsolete or convincingly criticized and defended when they are valued and effective. Burke claimed that through this method we can “[bind] up the constitution of our country with our dearest domestic ties [and adopt] our fundamental laws into the bosom of our family affections” ( 1993, 34 ). The core of such views is hat reducing constitution making to “mere” reason risks allowing the vital legitimacy provided by history and experience to be lost to “floating fancies or fashions” ( 1993, 95 ). The notions that are to be found in the accounts of Hegel and Burke—notions of customs, incremental change, and values—will be familiar to observers of the British constitution.
The British ultimately rejected the contemporary idea of a constitution in favor of a flexible system that places parliamentary democracy, values, and practices at its center, as opposed to a document that has the character of fundamental law. This approach, it has often been remarked, has been rooted in a mistrust of the abstract and an adherence to the practical. Even the early landmark documents of the British constitution--such as Magna Carta ( 1215 ), the Petition of Right ( 1628 ), and the Bill of Rights ( 1689 )--were instances of the British seeking to restate the old rather than forge the new. In this sense, these texts can be contrasted with documents such as the US Constitution, which engaged in promulgating abstract principle.
Taking a closer look at some of the main features of the British constitution presents two problems. The first problem is choosing a vantage point. Different perspectives inevitably bring different aspects of the constitution and its complexity to the forefront. In the British context this problem is exacerbated by the lack of a central constitutional text to provide something of a natural starting point.
The second problem is that, even if one can find a good vantage point, the flexible and often ambiguous nature of the constitution makes capturing it accurately a difficult task. Any account is liable to somehow become quickly outdated. Moreover, foundational aspects of the British constitution—such as the nature, status, and order of constitutional principles including parliamentary sovereignty, the rule of law, and the separation of powers—are very much contested and uncertain. Therefore, it often seems that, rather than provide an account of what the constitution is, one can only explain uncertainties.
Three landmark accounts of the British constitution, by William Blackstone, A. V. Dicey, and Walter Bagehot, provide a useful way to introduce some of its central aspects without adopting an overly restrictive vantage point or reducing complexities.
The Commentaries on the Laws of England ( 1765–1769 ), by the British jurist William Blackstone ( 1723–1780 ), aimed to educate “the guardians of the English constitution; the makers, repealers, and interpreters of the English laws” (Book I, 9). It immediately was popular both domestically and internationally, and undoubtedly was the most influential account of British constitutional law produced in the eighteenth century.
Central to Blackstone's account of the constitution was the common law—a judge-made body of law that is developed from case to case, creating precedents that can be embraced, developed, or, where deemed necessary, rejected when a new question arrives before the courts. Blackstone argued that the common law was uniquely English and, moreover, superior to other forms of law.
Blackstone understood English constitutional history as the “gradual restoration of that ancient constitution, whereof our Saxon forefathers had been unjustly deprived, partly by the policy, and partly by the force, of the Norman” (Book IV, 413). Though Blackstone thought himself to be a relatively moderate member of the Tory (conservative) party, that interpretation of English constitutional history was very much in line with the conventional Whig account—an account that shrouded the common law with a mythical status. The notion of the common law eternally seeking to return to the supposed glory of its pure origins was, however, plainly a myth. Despite embracing such a myth, Blackstone was realistic in identifying the necessary existence of an absolute central power. He emphasized that the power of the Crown-in-Parliament is absolute—making Parliament the institution where the British placed “that absolute despotic power, which must in all governments reside somewhere” (Book I, 156). Blackstone also made clear that there were no limits on the sovereignty of Parliament: “It can change and create afresh even the constitution of the kingdom and of parliaments themselves; as was done by the act of the union, and the several statutes for triennial and septennial elections. It can, in short, do everything that is not naturally impossible” (Book I, 156).
As there were no limits on parliamentary sovereignty, Blackstone therefore opted against explaining the common law as possessing some sort of fundamental character, explaining it instead as a positive legal entity. Parliamentary sovereignty was, however, the principle at the heart of the constitution.
The late eighteenth and early nineteenth centuries saw the British philosopher Jeremy Bentham ( 1748–1832 ) and his utilitarian disciples attempt to exorcise any traces of Toryism (conservatism), Anglicanism (loyalty to the Church of England), and natural law from Blackstone's account of the constitution. First published in 1885, Introduction to the Study of the Law of the Constitution, by the British jurist A. V. Dicey ( 1835–1922 ), was the landmark product of that movement.
Dicey was a legal positivist and therefore thought that it was the role of a professor of constitutional law “to state what are the laws which form part of the constitution, to arrange them in their order, to explain their meaning, and to exhibit where possible their logical connection” ( 1959, 32 ).
Dicey thought constitutional law comprised of “all rules which directly or indirectly affect the distribution or the exercise of the sovereign power of the state” ( 1959, 23 ). Those rules, for Dicey, included both conventions, defined as “understandings, habits or practices” that regulate the conduct of members of the sovereign power, and laws enforced by courts ( 1959, 24 ). Through conventions and laws, Dicey was able to set out, neatly, an account of the law of the constitution. Dicey identified three central principles of the British constitution, using his text to articulate these principles and explain their interdependence.
First, there was the sovereignty of the Crown-in-Parliament. For Dicey, this meant that the Crown-in-Parliament had “the right to make or unmake any law whatsoever” ( 1959, 40 ). It follows that there could be no limitation on the competence of Parliament and thus no space for any laws of fundamental, or constitutional, status that were immune from repeal. No other institution is “recognised … as having the right to override or set aside the legislation of Parliament” ( 1959, 40 ). The role of the judiciary, therefore, was to give effect to the laws created by Parliament. Dicey would not entertain what he labeled “speculative difficulties” presented by invitations to consider possible limits on parliamentary sovereignty ( 1959, 39 ).
Dicey's second guiding principle was the rule of law. The rule of law is a notoriously vague construct, but for Dicey it principally meant the “absolute supremacy… of regular law as opposed to the influence of arbitrary power” ( 1959, 202 ). This meant “equal subjection of all classes to the ordinary law of the land administered by the ordinary Law Courts” ( 1959, 202 ).
These two principles could, however, conflict; at their core, one is an instrument of authority and the other is a constraining force. For Dicey, the answer to any such conflict is to be found in the third fundamental aspect of the constitution: constitutional conventions. Dicey stated that the conflicts between other principles of the constitution were resolved through the working practices of the British constitution, practices underpinned with the spirit of liberty.
Dicey's account laid the foundations for the legal study of the constitution. The core ideas of his text, though widely challenged and criticized, remain influential.
While Dicey was laying the modern foundations for legal study of the British constitution, the British writer Walter Bagehot ( 1826–1877 ), in The English Constitution ( 1867 ), was doing the same for those who study the constitution as a political entity.
At the center of Bagehot's account was a distinction between the “dignified” and “efficient” versions of the constitution. The former focuses on the ancient, the complex, the ceremonial—these aspects of the constitution “excite and preserve the reverence of the population.” The latter focuses on the modern, the simple, the functional—these are the aspects of the constitution “by which it, in fact, works and rules” ( 2001, 5 ).
Bagehot's account explained how modern governance grew up within the framework of the ancient constitution: the “gothic grandeur” of the “dignified constitution” ultimately exerted “imaginative attraction upon an uncultured and rude population” while a sophisticated system of government emerged under its cover ( 2001, 143 ). Bagehot compared the British constitution to an “old man who still wears with attached fondness clothes in the fashion of his youth: what you see of him is the same; what you do not see is wholly altered” ( 2001, 3 ).
Bagehot was skeptical of any account of the British constitution that sought to separate law from practice as such an account would, in his view, be liable to be detached from reality. For instance, on the face of the “dignified constitution” the queen may appear to be the person who is in ultimate charge of the “business” of government. In the “efficient constitution,” the prime minister and his or her cabinet occupy that position.
The twentieth century was a period of profound change for the British political system. As the century dawned the constitution existed, predominantly, for the political elite. Government was in the form of a “club,” where an implicit, internalized code of conduct was shared between ministers, parliamentarians, judges, and civil servants. The twentieth century brought universal adult suffrage. The Labour Party swept aside the liberals in order to take its place in a two-party system as the representative of the working class. There was, too, the emergence of party discipline. Perhaps most significantly, there was the unprecedented expansion of government power, as the government assumed more control of the economy and welfare of the population. The British political landscape was changing.
The constitution was also changing quickly and extensively. There was the arrival, first internationally and later domestically, of human rights law ( through the European Convention on Human Rights 1950 and the Human Rights Act 1998 ). The United Kingdom signed up to international organizations and treaties, most notably the European Union ( European Communities Act 1972 ). With this development the UK Parliament compromised its absolute sovereignty, as the constitution of the United Kingdom became subject to the supreme legal order of the European Union (as Lord Bridge confirmed in R (Factortame Ltd) v. Secretary of State for Transport (No 2)  1 AC 603). Certain powers were devolved to Scotland, Northern Ireland, and Wales ( by the Scotland Act 1998, Northern Ireland Act 1998, and the Government of Wales Act 1998 ). The relationship between the House of Commons and the House of Lords was reworked ( through the Parliament Acts of 1911 and 1949 ), and the configuration of the latter was altered ( by, most recently, the House of Lords Act 1999 ).
The early parts of the twentieth century offer a distinct lack of constitutional scholarship. This is surprising given the immense scale of change but also unsurprising given that those changes were of such broad significance that the constitution was not often the focal point of discussions. Without a settled legal framework, those concerned with the constitution focused largely on producing accounts of various institutions of government and how they functioned. It is therefore not difficult to see why J. A. G. Griffith famously quipped ( in “The Political Constitution,” 1979 ) that “the constitution is what happens.” The last few decades of the century saw the return to prominence of constitutional discussion---with a growing number questioning whether Britain's governing arrangements were suitable for a modern democracy with a complex and vast state. By the time the Labour Party, under the leadership of Tony Blair and the constitutionally interested Gordon Brown, swept to power in the 1997 election, they had adopted an ambitious agenda for constitutional reform. The partial implementation of this agenda ( which resulted in increased devolution of powers to various regions, the enactment of the Human Rights Act 1998, and reform to the House of Lords ) and the developments since that time would give rise to arguments ( e.g., Bogdanor 2009 ) that Britain now possesses a new constitution.
The British constitution has rejected the central tenets of most other contemporary constitutions and instead has sought to preserve flexible and pragmatic constitutional arrangements. What this rejection has wrought is difficult to ascertain, but some landmark accounts of the British constitution, and the central ideas within them, provide important clues. Given the extent of the changes witnessed since the late twentieth century, British constitutional lawyers today are presented with the task of attempting to understand the implications of those changes. If constitutional changes persist at the same rate, there may soon be some serious questions about whether it is time for Britain to jettison its historical approach and adopt a constitution of the contemporary type.
SEE ALSO Blackstone, William ; Coke, Edward ; Common Law ; Constitution ; Constitutional Government ; Constitutionalism ; English Bill of Rights ; Limited Government ; Magna Carta ; Parliament ; Representation: Idea of ; Rule of Law ; Sovereignty .
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University of Manchester