power to be legitimate its rules must be justifiable to beliefs "by
both the dominant and subordinate"[9]. This means that if a
constitution truly sought legitimacy for the state power, its rules of
powers would be justifiable to shared beliefs of the society. This is
difficult to underpin as each rule of power when designed would have
been justifiable to the beliefs then but societies beliefs are ever
evolving.[10] Nevertheless, at the time of concoction, the rules
through which power is obtained are justifiable. The obvious advantage
of having a constitution that legitimises state power is that the
government is then legal and it has the right to exercise power.
Without this, there would be no law and order as the government would
not be able to exercise power. However, with power being granted
through the constitution, this could lead to cases of government powers
becoming ultimate and can lead to a lack of democracy[11]. As mentioned
prior to this, the constitution grants many powers through a diverse
range of documents and legislations. The Royal Prerogative, for
example, allows the monarch to possess multiple powers such as being
able to form treaties, declare war, absolve parliament and many more.
This significant amount of power is hardly put into action by the
monarch themselves, but instead has been given for the Parliament to
apply. The Parliamentary Sovereignty binds the power that the
constitution permits the state to implement and there is no higher
supremacy that can contest the power. This highlights a crucial flaw in
the constitution, in that it legitimises state power to an extent that
it is possible for the state to turn into a tyranny as there is
unlimited power. This is why there is a vital need for restrain on
state power in order to keep order and keep the state running properly.
An attempt to put restrain on power has been present since Magna Carta,
where the rule of law was introduced to encompass the notion that even
the King was not above the Law. The rule of law was forced upon both
rulers and subjects to abide by and it is split into two different
school of thoughts, the formal and substantive[12]. Each school of
thought binds together the key principles which repress the power even
for governing individuals in order to prevent any extreme rises in
power of the Parliament or monarch[13]. The clear advantage of the rule
of law and having a restraint on state power is to avoid a dictatorship
and prevent one individual from becoming too powerful and judging
themselves to be immune from the legal authority. Also, the Queen
herself has ultimate power, but she does not abuse it as she follows
constitutional conventions which add to putting restraint on the power
and lets event he rulers understand they do not have right to exploit
their position. A disadvantage is the complication that can arise which
is that the Parliament is first seen to have supremacy over all but
then alternatively it is said to have a restraint put over it from the
rule of law. This technically implies that the Parliament are able to
repeal the law and this can be very misleading. After in depth analysis
on the British Constitution it cannot be said that these are the only
functions of a constitution. There are other characteristics which
include founding the backbone of the government, uses the involvement
of an authority "outside and above the order it establishes", it has
greater power of legislation than any other collation of documents and
is well established with the ability to only be re designed through
special procedures[14]. Within Feldman's Inaugural Lecture, he comments
on four roles he considers to be displayed by the English Constitution.
Other functions included are "institutionalization" which is that the
political entity of the state is formed into institutions and limits of
the powers for each institution are stated. There is the 'corsetry'
function which ensures that all bodies adhere to their assigned powers
through judicial reviews and parliamentary accountability. A third role
mentioned explains that the constitution appeals to all masses of
people and those fundamentals felt that would not appeal to all have
been appropriately been concealed. The fourth and final role states
that the constitution is extremely flexible in that it is adaptable to
a variety of governments[15].
After careful dissection of the question, it can be sturdily gathered
that the British constitution is greatly individual from other
constitutions globally when considering its layout being an uncodifed
and "unwritten" instrument which has been used to be the ultimate
underlying foundations of the government existing today. It is a
historic piece that has multifunctional abilities to adapt to different
states of government. The power it authorises the state is what makes
the document so unique from others and this legislative power is also
kept under restraint through means of judicial reviews, the rule of law
and constitutional conventions. This mighty document is multi
characteristic in that it attracts all members of the state. "A
government without constitution, is power without right."[16]
Annotated Bibliography
1. (2001) 52 Northern Ireland Legal Quarterly pp.3-5,
R.Brazier, 'How Near is a Written Constitution?' This was useful for
the understanding of comparisons between constitutions globally and the
format of the British constitution.
2. Wednesday, June 3, 1998 Published at 12:01 GMT 13:01
http://news.bbc.co.uk/1/hi/uk_politics/talking_politics/88136.stm This
gave a clearer understanding of the differences in the opinion of the
British constitution from a media article referencing an authoritative
persons opinion.
3. 2001) 52 Northern Ireland Legal Quarterly 3-5, R.Brazier,
'How Near is a Written Constitution?', From Cases & Materials on
Constitutional and Administrative, Michael Allen and Brian Thompson
2007/2008 This helps to understand that there are different
constituents of the English constitution.
4. Detention Without Trial and the War on terror, ICon 4 3
(553), 1 July 2006, Mark Elliot This helping in understanding the
advantages of the British constitution.
5. D.Beetham, The Legitimation of Power, (1991), pp. 11-12,
From Michael Allen and Brian Thompson Cases and Materials on
Constitutional and Administrative Law, (2007/2008),p16. This source
demonstrates how the government rules with legitimate power and also
where the legitimacy has been founded.
6. Bill of Rights 1688 Chapter 2 1_Will_and_Mar_Sess_2
http://www.opsi.gov.uk/RevisedStatutes/Acts/aep/1688/caep_16880002_en_1
This source comes from the Bill of Rights, which givers a clear
understanding to where the constitution seeks to legitimise power, and
also what power is given to whichg specific government body.
7. Parliament Act 1911 (c13) 1_and_2_Geo_5, D.G.Cracknell,
Constitutional and Administrative Law (2007/2008) This was located
within the parliament act ,and was useful in helping to understand what
duties and rights were given to individual members of parliament and
what power was bestowed upon parliament.
8. None, One, or Several? Perspectives on the UK's
constitution, The Cambridge Law Journal, Volume 64, Issue 02, July 2005
pp329-351 David Feldman This gained a greater understanding of the
political sector and that power was allocated specifically within the
constitution. 9. D.Beetham, The Legitimation of Power, (1991), pp.
11-12, From Michael Allen and Brian Thompson Cases and Materials on
Constitutional and Administrative Law, (2007/2008),p16 This allowed us
to gain a wider knowledge of the different level of legitimacy and
proved how the constitution abides by them. 10. D.Beetham, The
Legitimation of Power, (1991), pp. 11-12, From Michael Allen and Brian
Thompson Cases and Materials on Constitutional and Administrative Law,
(2007/2008) p17 This gave an example of how it may seem that the
legitimacy is not justified by shared beliefs but this was only because
of societal beliefs ever changing, and also that the constitution when
first designed, the legitimacy was justified. 11. C.H.Mcllwain,
Constitutionalism Ancient and Modern (1947), pp.8-10 This source
highlighted the consequences of legitimacy of state power without
restraint.
12. John Adler, Constitutional Law and Administrative law p.169
This played a key role in understanding the key tenets of the rule of
law, and what it is defined as.
13. Report of the Committee on Ministers' Powers Cmd 4060, 1932,
pp.71-72
This re enforced the idea that all were subject to the rule of law.
14. F.F.Ridley, 'There is no British Constitution: A Dangerous
Case of the Emperor's Clothes' (1988) 41 Parliamentary Affairs 340-343,
359-360 This introduced other functions that had not been covered of
the constitutions.
15. Feldman's Inaugural Lecture- None, One, or Several?
Perspectives on the Constitution.p8-10 This gave an insight into other
authoritative opinions on the different functions of the constitution.
16. Thomas Paine, Rights of a Man in the Complete Works of
Thomas Paine pp.302-303 This sums up the major underpinning issue,
strategy and concept carried throughout the whole essay.
----------------------- [1] "As every schoolchild is supposed to know,
the United Kingdom does not have a written constitution." (2001) 52
Northern Ireland Legal Quarterly 3- 5, R.Brazier, 'How Near is a
Written Constitution?' [2] "People frequently say we have an unwritten
constitution' in the United Kingdom. Professor Vernon Bogdanor
dismisses this as being a 'misleading platitude'." Wednesday, June 3,
1998 Published at 12:01 GMT 13:01
http://news.bbc.co.uk/1/hi/uk_politics/talking_politics/88136.stm
[3] "But just listing the primary materials which form the
constitution demonstrates the extent to which the British Constitution
is largely a written one." (2001) 52 Northern Ireland Legal Quarterly
3-5, R.Brazier, 'How Near is a Written Constitution?', From Cases &
Materials on Constitutional and Administrative, Michael Allen and Brian
Thompson 2007/2008 [4] "More fundamentally, it explores the myth,
fostered by centuries of complacency regarding the virtues of an
unwritten Constitution and a sovereign Parliament,71 that Britain is
uniquely immune to the risks posed by a constitutional architecture in
which the incomplete separation of powers could allow for domination by
an omnicompetent legislature controlled by a powerful executive"
Detention Without Trial and the War on terror, ICon 4 3 (553), 1 July
2006, Mark Elliot [5] "The first and most basic level of legitimacy is
that of rules...Power can said to be legitimate in the first instance
if it is acquired and exercised in accordance with established rules."
D.Beetham, The Legitimation of Power, (1991), pp. 11-12, From Michael
Allen and Brian Thompson Cases and Materials on Constitutional and
Administrative Law, (2007/2008),p16. [6] "Dispensing and Suspending
Power- By assuming and exercising a power of dispensing with and
suspending of laws and the execution of laws without consent of
Parlyament." "Standing Army- By raising and keeping a Standing Army
within this Kindome in time of Peace without Consent of Parlyament and
Quartering Soldiers contrary to Law" "Juries- And whereas of late years
Partiall Corrupt and Unqualifyed Persons have beene returned and served
on Juryes in Tryalls and particularly diverse Jurors in Tryalls for
High Treason which were not Freeholders." Bill of Rights 1688 Chapter 2
1_Will_and_Mar_Sess_2
http://www.opsi.gov.uk/RevisedStatutes/Acts/aep/1688/caep_16880002_en_1
[7] "Certificate of Speaker- Any certificate of the Speaker of the
House of Commons given under this act shall be conclusive for all
purposes, and shall not be questioned in any court of law." "Saving for
existing rights and privilege of the House of Commons- Nothing in this
Act shall diminish or qualify the existing rights and privileges of the
House of Commons." "Duration of the Parliament- Five years shall be
substituted for seven years as the time fixed for the maximum duration
of Parliament under the Septennial Act 1715." Parliament Act 1911 (c13)
1_and_2_Geo_5, D.G.Cracknell, Constitutional and Administrative Law
(2007/2008) [8] "The constitution establishes institutions within the
body politic, allocates functions to them and confers on them powers
and duties appropriate to those functions..." None, One, or Several?
Perspectives on the UK's constitution, The Cambridge Law Journal,
Volume 64, Issue 02, July 2005 pp329-351 David Feldman [9] "The rules
can be justified by reference to beliefs shared by both dominant and
subordinate.." D.Beetham, The Legitimation of Power, (1991), pp. 11-12,
From Michael Allen and Brian Thompson Cases and Materials on
Constitutional and Administrative Law, (2007/2008),p16 [10] "Rules of
power will lack legitimacy to the extent that they cannot be justified
in terms of shared beliefs...It is argued that the British Electoral
System ...is losing its legitimacy, and to an extent therefore also
weakening the governments elected under it...It is the increasingly
unrepresentative character of the electoral system, and its consequent
vulnerability to attack society that believes in representation, that
is the basis for the weakening legitimacy of governments appointed
under it" D.Beetham, The Legitimation of Power, (1991), pp. 11-12, From
Michael Allen and Brian Thompson Cases and Materials on Constitutional
and Administrative Law, (2007/2008) p17 [11] "That in any state in
which the distinction is not actually observed between the constitution
and the government there is in reality no constitution, because the
will of the government has no check upon it, and the state is in fact a
despotism" C.H.Mcllwain, Constitutionalism Ancient and Modern (1947),
pp.8-10 [12] John Adler, Constitutional Law and Administrative law
p.169 [13] " The supremacy or the rule of the law of the land is a
recognised principle of the English Constitution...Bracton in his
famous book on English law, deduced from it the proposition that the
king and the other rulers were subject to the law." Report of the
Committee on Ministers' Powers Cmd 4060, 1932, pp.71-72 [14] "1.It
establishes, or constitutes, the system of the government. Thus it is
prior to the system of the government, not part of it, and its rules
can not be derived from that system. 2.It therefore involves an
authority outside and above the order it establishes. This is the
notion of the constituent power. 3. It is a form of superior law to
other laws-because it originates in an authority higher than the
legislature which makes ordinary law and the authority of the
legislature derives from it thus bound by it. 4.It is
entrenched-because its purpose is generally to limit the powers of
government, but also again because of its origins in higher authority
outside the system." F.F.Ridley, 'There is no British Constitution: A
Dangerous Case of the Emperor's Clothes' (1988) 41 Parliamentary
Affairs 340-343, 359-360 [15] Feldman's Inaugural Lecture-None, one or
Several? Perspectives of the Constitution. P8-10 [16] Thomas Paine,
Rights of Man in The Complete Works of Thomas Paine, pp.302-303
