Thursday, February 25, 2010

Day 142: Britain's Constitution

I puzzled for months to know what, exactly, constituted the British Constitution. No pun intended.

A ”Constitution” and “Constitutional” before the U.S. Constitution was written, did not necessarily refer to a written document with four corners. Instead, it referred to the rules, written or no, which regulated how laws were made (and therefore could be contained in statutes, albeit special statutes). “Constitutional Reform” was therefore a reorganization of the laws that prescribed how a government worked. “Constitutional History” was, in a way, political history.

The U.S. Constitution essentially revolutionized the modern conception of all things constitutional. Most countries have followed our lead in writing down a Constitution that is intended to be fundamental law which governs longer than the lifespan of most statutes.

Yet Britain's was first. It was lauded by Frenchmen Montesquieu as better than all others in providing for personal and political liberty, and was admired by most Founding Fathers.

I am currently taking/auditing a Constitutional Theory course. It reflects both traditions, in that much of the legal theory derives from U.S. sources, yet the facilitators attempt to apply that theory in a British and international context. I am learning much, especially that you should never tell a British lawyer that Britain doesn't have a constitution...

1 comment:

  1. ...and wasn't that a fun lesson to learn!! I distinctly remember the day in class when you declared that Britain has no constitution... What a reaction! Prof Kavanagh categorically rejected your statement by asserting that Britain absolutely DOES have a constitution and the suggestion that it does not was simply not up for discussion or debate! It was brilliant. I had tried to warn you in advance, but I'm actually quite pleased you recklessly ignored my advice - it was very entertaining to witness the very hostile reaction!

    I must say... as a British lawyer, I'm most definitely with Prof Kavanagh on this one. We do have a constitution and the only way to say that we don't is to define the term very narrowly. But it is interesting that so much of constitutional theory derives from America but is applied to the British legal system. I absolutely agree with you that some of the theory does seem a little strained when we try to bring it across the Atlantic.

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