History
Constitutionalism in England
Constitutionalism in England refers to the development of a system of government based on a constitution that limits the powers of the monarchy and establishes the rights of the people. This concept emerged through a series of historical events, including the Magna Carta and the English Civil War, ultimately leading to the establishment of a constitutional monarchy and the rule of law.
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11 Key excerpts on "Constitutionalism in England"
eBook - PDFConstitutional History of the American Revolution, Volume III
The Authority to Legislate
- John Phillip Reid(Author)
- 2013(Publication Date)
- University of Wisconsin Press(Publisher)
The lesson that cannot be overemphasized is that the concept of constitutionalism in Great Britain during the 1770s was caught in the same ambiguity as were the concepts of trust, consent, and contract. If the British had already moved to the constitution of parliamentary sovereignty, they still, like Aristocraticus in the passage just quoted, used the language of the old constitutionalism, they still thought of constraints when in a few decades they would think only of power, policy, or command. In the age of the American Revolution they were still employing language that reads much like the vocabulary of trust or consent or contract or fundamental law, although it was saying something more general and less particular than the mechanics of why government was limited. It was harking back to an ancient tradition of the restraints of constitutionalism, the sovereignty of custom, and the rule of a law that was as close as political theory could then come to recognizing unlimited legislative command. The obvious must be repeated that, although today the vocabulary of constitution- alism is thought of as an American vocabulary, it was still the dominant vocabulary of politics in Great Britain during the closing decades of the eighteenth century. It shaped the thought of Edmund Burke, for exam- ple, when, the year after the military struggle had been lost at Yorktown, he wrote that, "Our constitution is a prescriptive constitution; it is a con- stitution whose sole authority is that it has existed time out of mind .... Your king, your lords, your judges, your juries, grand and little, all are prescriptive .... Prescription is the most solid of all titles, not only to property, but, which is to secure that property, to government."4 By the next half century, no one, not even American common lawyers would speak of a citizen's "title" to government or of prescription being the "sole authority" for governmental command.
eBook - PDFUnderstanding Democratic Politics
An Introduction
- Roland Axtmann(Author)
- 2003(Publication Date)
- SAGE Publications Ltd(Publisher)
Summary ● Constitutionalism involves the specification of standards to which constitutional government should aspire. ● Constitutions and constitutional discourse reached maturity with the advent of the modern state. ● Constitutionalism is required to address the permanent tension between maximizing the benefits of government and minimizing its abuses, a tension often expressed as an opposition between ‘democracy’ and ‘fundamental rights’. ● As the international society of states is gradually transformed by new globalizing pressures and by the emergence of ‘post-state’ political forms, constitutionalism faces new challenges to its relevance and legitimacy as a normative framework for governance. TUTORIAL QUESTIONS 1. To what extent, if at all, should constitutionalism be viewed as in tension with democracy? 2. Identify and assess the major new challenges facing constitutionalism in the twenty-first century? FURTHER READING Colin Munro (1999) Studies in Constitutional Law (London: Butter-worths, second edition) provides an accessible and lively overview of the development and contemporary features of the British constitution. 20 Concepts Jan-Erik Lane (1996) Constitutions and Political Theory (Manchester: Manchester University Press, chapters 1–4) provides a concise and informative history of western constitutionalism. Martin Loughlin (2000) Sword and Scales: an Examination of the Relationship between Law and Politics (Oxford: Hart) is another very good short history of constitutionalism, particularly in its assessment of the links between theory and politics. Jeremy Waldron (1999) Law and Disagreement (Oxford: Oxford Uni-versity Press) provides an excellent analysis of the debate between rights-based and democratic conceptions of constitutionalism.
- Se-shauna Wheatle(Author)
- 2017(Publication Date)
- Hart Publishing(Publisher)
While it is notoriously difficult to reduce consti-tutionalism to a single definition, it includes conditions for the creation, organisation, and regulation of governmental power as well as the resolu-tion of political conflict. The pivotal themes within constitutionalism are constituting and limiting governmental power, thereby encompassing norms relating to ‘the exercise of public power and the procedures through which such power is exercised.’ 76 Thus, beyond the establishment of the state and its governing institutions, constitutionalism’s ethos centres on regulation and limitation. It is in this vein that Peter Russell describes constitutionalism as ‘a political condition in which the constitution functions as an effective and significant limit on government’. 77 So understood, constitutionalism is not prescriptive about the form of constitutional norms (whether written or unwritten, political or legal). Accordingly, judicial authority to review and invalidate legislation is not a prerequisite, neither is an entrenched codified Constitution or a written Bill of Rights. 78 Thus the crucial notion in consti-tutionalism is ‘limited government’, where the constitution functions as a limitation that may occur in the form of judicial restraints as well as politi-cal restraints and culture, and may be represented by written and unwritten norms. While seeking to regulate and even limit the exercise of governmental power, constitutionalism does not mandate that there should be mini-mal government; rather, as Bellamy explains, constitutional limits are animated by the need to prevent arbitrary rule. 79 In similar fashion to Russell, Bellamy indicates that prevention of arbitrary government may be 28 Implied Principles and Constitutionalism 80 ibid 1–14. cf Jeremy Waldron’s view that modern constitutionalism is synonymous with legal constitutionalism in ‘Constitutionalism—A Sceptical View’ (2012) NYU School of Law, Public Law Research Paper No.
eBook - PDF- Martin Loughlin(Author)
- 2022(Publication Date)
- Harvard University Press(Publisher)
Its overriding purpose was to protect and promote individual liberty by ensuring that the coercive powers of government are strictly confined. The method of achieving this objective has been to adopt a constitution that ensures that governing authorities act in accordance with known general rules. By virtue of institutional design, we establish a “government of laws, not of men.” 7 Constitutionalism thus seeks to preserve individual liberty by promoting “the rule of law.” But the rule of law is a highly ambiguous notion. Coined during the nineteenth century and extolled by Albert Venn Dicey as a defining char-acteristic of the British constitution, the term was invoked to explain the importance of certain English governing practices that run counter to the modern idea of the constitution. Acknowledging that the rule of law ex-pressed such liberal principles as equality before the law and the necessity of The Ideology of Constitutionalism 41 promulgating law as general rules of conduct, Dicey also emphasizes that it was the distinguishing feature of Britain’s unique and superior constitu-tional arrangements. The great strength of the British constitution, he explains, is that its gen-eral principles are the product of “judicial decisions determining the rights of private persons in particular cases.” Its unique character rests on the fact that it is a “judge-made constitution,” that its principles are generalizations inferred from judicial decisions and that, contrary to the modern constitu-tion, in which rights are assumed to derive from the text, these rights are in-ductions that are “inherent in the ordinary law of the land.” These practices might not have been codified in a document specifying “those declarations or definitions of rights so dear to foreign constitutionalists” but that it had evolved and “gradually framed the complicated set of laws and institutions we now call the constitution” conferred distinct benefits.
eBook - PDF- Roger Masterman, Colin Murray(Authors)
- 2022(Publication Date)
- Cambridge University Press(Publisher)
INTRODUCTION The opening chapter to this book outlined how the idea of limited government was central to an understanding of constitutions, and of constitutionalism. Examining the constitution of the UK on these terms presents us with something of a paradox, for its most fundamental principle – the principle of parliamentary sovereignty – is representative of unlimited legal power. At its most straightforward, the doctrine of parliamentary sovereignty is an encapsu- lation of the legally unlimited power of Parliament to enact legislation; the ability of Parliament to enact legislation concerning any topic, in any form of words, at any time of its choosing. So fundamental is the idea of parliamentary sovereignty that Vernon 145 Bogdanor has used it to distil that entire constitution into a mere eight words: ‘what the Queen in Parliament enacts is law’. 1 This phrase is worth dwelling on, as it is at once accurate and misleading. It is accurate in the sense that it effectively conveys the idea that primary legislation enacted by Parliament is the highest source of legal – and consti- tutional – authority in the UK. It is also accurate in its (implicit) suggestion that laws may change over time, should Parliament determine a change to be necessary. However, Bogdanor’s neat dilution of the constitution is also slightly disingenuous. First, it seems to deny that other sources of law might have a constitutional status of sorts or, at the very least, be of constitutional importance. As we have already seen, other legal sources including the common law, prerogative, and some laws of international origin can be described as having constitutional significance. 2 Secondly, it also disregards the importance of the non-legal rules of the constitution.
eBook - PDFConstitutionalism and the Rule of Law
Bridging Idealism and Realism
- Maurice Adams, Anne Meuwese, Ernst Hirsch Ballin(Authors)
- 2017(Publication Date)
- Cambridge University Press(Publisher)
1; also see H. Hallam, Constitutional History of England: From the Death of Henry VII to the Death of George II (Cambridge University Press, 2011). 8 D. Hume, The History of England: From the Invasion of Julius Caesar to the Revolution in 1688, new edn, 8 vols. (London: J. F. Dove, 1822). 9 Ibid., p. 348. 10 Ibid., p. 355. 11 T. B. Macaulay, The History of England: From the Accession of James the Second, 6 vols. (London: Macmillan & Co, 1913), p. 1300. For another Whig narrative, also see J. Tyrell, Bibliotheca Politica: or an Enquiry into the Ancient Constitution of the English Government both in respect to the just extent of regal power, and the rights and liberties of the subject (London: R. Baldwin, 1694). the emergence of the rule of law 97 without ‘the consent of the representatives of the nation’. 12 Parliament was rightly victorious in the long enduring contest between King and Parliament. The Whig view of the Glorious Revolution meant that ‘it was a triumph for the purity of constitutional law over an outrageous attempt at its perversion, a reaffirmation of the liberties of the English people’, 13 of which James II was guilty of breaching. In this sense, the aftermath of the Stuart era involved an alteration to the balance of power in England, placing constitutional limits onto the monarchy and transferring power to Parliament. The Bill of Rights 1689 contributed significantly to these constitutional developments and pro- claimed several principles of freedom after the tumultuous period of revolution. Its essence was embedded in the principle that no govern- ment was above the law. William III and his wife Mary ascended to the throne, declaring their subjects’ rights and freedoms. It was therefore after the Glorious Revolution, following centuries of tensions with the absolute state model in England that a system of constitutional and parliamentary government took shape.
eBook - PDFConstitutionalizing World Politics
The Logic of Democratic Power and the Unintended Consequences of International Treaty Making
- Karolina M. Milewicz(Author)
- 2020(Publication Date)
- Cambridge University Press(Publisher)
This relatively low hierarchy of law in the British legal system makes constitutional supremacy indiscernible. The British constitution is also exceptional with regard to its stability. It is considered an “unentrenched” constitution (Finer, Bogdanor, and Rudden 1995, 43). Unlike most other constitutions, it derives its stability not from special formal amendment procedures but from informal channels of practice, custom, and conven- tion; and yet, despite the lack of a supreme body of law and the potential ease of amendment, the British constitutional system has a fundamental core that provides for its stability and supremacy – the sovereignty of Parliament. The sovereignty of Parliament as the fundamental constitutional prin- ciple and the source of constitutional stability and superiority has been for most of its history an uncontested matter. Parliament has been viewed as the highest law-making authority in Britain and the legal validity of the acts of Parliament has been unquestioned, not even by the courts (Finer, Bogdanor, and Rudden 1995, 44). In the vein of British constitutional tradition, the principle of parliamentary sovereignty has developed gra- dually in a piecemeal process by means of convention. The beginnings of Parliament go back as far as the Magna Carta. Parliament was established in the thirteenth century and was consoli- dated in the fourteenth century as an institution for the “hearing of petitions in cases referred by the king’s judges” (Loughlin 2013, 45). Originally Parliament was a manifestation of sovereign authority, and parliamentary practices were characterized by the struggle between the crown in protection of its prerogatives and the parliamentarians attempt- ing to limit the power of the monarch. Around the mid-seventeenth National Constitutionalization 95 century, the struggle between the crown and the parliamentarians was no longer about the sovereignty of the monarch per se but about its location.
eBook - PDFA New Introduction to Jurisprudence
Legality, Legitimacy and the Foundations of the Law
- Paul Cliteur, Afshin Ellian(Authors)
- 2019(Publication Date)
- Routledge(Publisher)
Constitutional democracy 51 fundamental rights) 46 in written texts. So, constitutionalism in the European sense is the pursuit of codification of higher law. As such, we could call the American version constitutionalism in the broad sense and the European ver- sion constitutionalism in the narrow sense. The characteristic discussed here under “Constitutionalism” is constitutionalism in the narrow sense. Higher law, that is to say, law that is accorded a higher status than everyday law, consists of administrative law and fundamental rights or human rights. Classified under administrative law would be the fundamental rules about the democratic functioning of the constitutional system, as well as the rules about the separation and balance of powers. Distinct from this first type of higher law are the fundamental rights or human rights, which involve fundamental rights that the individual can compel the state to honor. Higher law, as it can be found in constitutions, is generally called fundamental rights. If it is laid down in treaties, we usually call it human rights. 47 However, there is no fundamental difference between these two types of rights. They are both higher law, more fundamental than everyday law, and they deserve special protection. The history of human rights has been told often, and we will not repeat it here. From Roman stoicism to the Magna Carta 48 ; from the work of Grotius to modern human rights declarations such as the 1776 Virginia Declaration of Rights; from the American Declaration of Independence and the French Déclaration des droits de l’homme et du citoyen, the human rights tradition, especially after the Second World War, went through a great revival. 49 In the Netherlands, we have a list of fundamental rights that forms the first chapter of the Constitution. These rights can be grouped into two categories. The classical fundamental rights, or freedom rights, are almost all negative in nature.
eBook - PDFSword and Scales
An Examination of the Relationship between Law and Politics
- Martin Loughlin(Author)
- 2000(Publication Date)
- Hart Publishing(Publisher)
IV Constitutionalism 11 The Social Contract A S THE UNITY of the medieval world disintegrated, the belief that humans occupied a fixed place within a universal order was placed in question. But if the political order was not divinely ordained, on what foundation did it rest? Some looked for answers in the mysterious workings of history, arguing that evolution had yielded a relatively stable system. In the words of Strafford, loyal servant of Charles I, “the authority of a king is the keystone which closeth up the arch of order and government, which, once shaken, all the frame falls together in a confused heap of foundation and battlement”. 1 Appeals to custom, tradition or the natural processes of evolution, however, proved insufficient to solve the conflicts which were emerging in early-modern England. These conflicts came to a head during the seventeenth century, a period of dramatic political and constitutional change and one in which England’s position in the world was transformed and a modern State forged. 2 Justification for the political order was no longer sought in tradition but in the autonomous powers of reason. The shift towards reason was not unprecedented; much earlier, Plato had tried to rid the world of myth and uncover the basic principles of an ideal State. The early-modern thinkers tended to share Plato’s view that the founding of the State was an analytical, rather than a histori-cal problem: in seeking a justification of political order, they recog-nized the necessity of working from first principles. But unlike Plato, the pioneering early-modern thinkers accepted the need to find an explanation based on the centrality of individual moral will. By start-ing with the value which individuals ascribe to themselves, these thinkers based their theories mainly on the platform of natural rights, meaning a universal set of rights which all communities and creeds could embrace.
- Aoife O'Donoghue(Author)
- 2014(Publication Date)
- Cambridge University Press(Publisher)
He argues that the rule of law, within constitutionalism, is an aspect of a ‘political right’, where the ‘sovereign authority of the state can be recognised’. 44 This link with the political directly connects the exercise of constituted power to a constitutional order and thus also to the exercise of constituent power, and further recognises the importance of the polit- ical to the rule of law’s operation. 45 Generally, it is not disputed that the rule of law is desirable for a legal order; rather it is in the particulars where disagreement occurs. A quite narrow and very much common-law version of the rule of law, identi- fied by Dicey, necessitates ‘the equal subjection of all classes to the ordin- ary law of the land administered by the ordinary Law courts’. 46 Here, the 41 Tomkins, Republican, 13. 42 For a discussion of this position see Georgiev, ‘Politics or Rule of Law’, 4–7. 43 M. Loughlin, The Idea of Public Law (Oxford University Press, 2003), p. 42. 44 Ibid., p. 43. 45 Loughlin, Idea of Public Law, pp. 99–113; and S. Tierney ‘Sovereignty and the Idea of Public Law’ in E. A. Christodoulidis and S. Tierney (eds.), Public Law and Politics: The Scope and Limits of Constitutionalism (London: Ashgate, 2008), p. 15. 46 A. V. Dicey, Introduction to the Study of the Law of the Constitution, 8th edn (London: Macmillan, 1915), pp. 198–9. Norms of constitutionalism 28 judiciary acts to uphold the checks-and-balances system linking the rule of law to the separation of powers, and reflecting the political climate at Dicey’s time of writing his seminal overview of UK public law. When he was writing in 1915, in the confines of the UK system, such a narrow def- inition of the rule of law, reliant on political actors in Parliament, may well have held sway. Yet, beyond the particular importance of parliamen- tary sovereignty in the UK system, such a restricted vision of the rule of law holds limited resonance.
eBook - PDFDimensions of Dignity
The Theory and Practice of Modern Constitutional Law
- Jacob Weinrib(Author)
- 2016(Publication Date)
- Cambridge University Press(Publisher)
At the same time, modern constitutionalism is increasingly subject to criticism from theorists committed to earlier models of governance, which are incapable of addressing the problem of accountability. While critics dismiss modern constitutionalism as wrong in principle, its defenders are content to offer pragmatic defenses. These defenses fail to illuminate the fundamental innovation of modern constitutionalism or articulate why practitioners regard modern constitutionalism as a fundamental advance over earlier forms of legal ordering. This chapter has formulated a principled defense of the legal and institutional structure of a modern constitutional state. Modern consti- tutionalism is a form of governance that is systematically designed to address the problem of accountability. While earlier legal systems suc- ceeded in making public authority accountable to the preferences of the few or the many, the modern constitutional state creates the legal condi- tions in which the exercise of public authority is accountable to the ongoing right of each member of the legal order to just governance. States must bring themselves within the parameters of modern constitu- tionalism because all legal systems must make the exercise of public authority accountable to the right of each person bound by it to just governance and such accountability is impossible apart from the legal and institutional structure of a modern constitutional state. the modern constitutional state 175
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