“A constitution is a document that seeks to legitimise state power, but to do this properly it should also act as a restraint on state power. Those are the only functions of a constitution” Discuss
This essay will discuss the above quote made by Professor David Feldman and in particular look at the ‘constitutional’ position within the United Kingdom, but will also make reference to other states interpretation of ‘constitutional’ mechanisms, including the United States and France.
It will aim to dissect the statement into its individual propositions and then analyse each in turn and provide a balanced view on the writer’s opinion on the proposition itself backed up by evidentiary support.
“A constitution is a document”
When authors refer to the term ‘constitution’ they can be referring to several different political incantations, depending upon the context in which the term is utilised. It can and has traditionally been used in the strict sense of a written document as in the case of the US Constitution, or conversely they can be referring to the more general definition. This broader and more general definition is the one that would be used to describe the current political system in the UK, which has been loosely described as a ‘constitutional monarchy.’ (1)
It is predominantly the case that the basic constitution of most countries is contained in a document, such as the Code Napoleon in France or as previously stated the US constitution. Some political theorists, prevalent in the Nineteenth and early Twentieth Centuries have a view of the characteristics of ‘constitutions’ that largely affirms the documentary analysis proffered in Feldman’s quotation. Seminal figures of the Nineteenth century, such as Alexis de Tocqueville and Thomas Paine both were of the view that Britain did not possess a constitution (2).
The concept of ‘constitutional conventions’ is perhaps the single most important factor that disproves the idea that a constitution must be contained within a single or even multiple documents. It is agreed by the vast majority of commentators in the field of constitutional law including Feldman himself (3) that the UK possesses a constitution. However, if the assertion that all constitutions must be in a document then the issues of conventions and the royal prerogative cannot be resolved. Constitutional Conventions may be defined as, “principles of political or constitutional morality which are regarded as binding, but which are not legally enforceable” (4). There are countless of these conventions that act to curtail the power of the monarch, the most important one being the convention that the monarch must enact every piece of legislation, but only on the advice of the government and not of their own volition. This is one of the corner stones of the British Constitution and yet does not appear in any document.
The royal prerogative is the remains of the historical power of the monarch in the UK, that is now effectively exercised by the government of the time. It is another of the unwritten sets of guiding rules into which the British Constitution rests and is another powerful reason why it is incorrect to make the assertion that ‘a constitution is a document’. The royal prerogative includes the power to declare war, make treaties (5) and even quash convictions in the criminal courts. Council for the Civil Service Union v Minister for Civil Service  AC 374, (GCHQ case) demonstrates the royal prerogative in action. (6)
Feldman’s statement is incorrect when one looks not only at the example of the British constitution but even in countries such as the US, it not technically correct to claim that the entire country’s constitution is contained in a document. This is because over a protracted period of time, the initial documentary basis becomes overlaid with political practices and judicial interpretation; this is unavoidable.
A constitution seeks to legitimise state power
There is undoubtedly a large degree of truth to this statement, especially given the circumstances surrounding the creation of most constitutions. Examples of the creation of the Spanish constitution in 1978 after the end of the rule of the dictator, Franco and post Apartheid South Africa show that in some situations the desire of the people who created the constitution was obviously to provide the essential legitimacy that was noticeably lacking before. The majority of political commentators would agree with the assertion that a constitution does have an important role to play in justifying the ultimate power the state possesses (7). The distrust and scepticism of the masses over the government’s use of political power as publicised by James Madison in the period leading up to the creation of the US constitution is the fundamental reason for this necessity to legitimise state power (8). The reason for this stand-point is because “the law does not exist in a social and political vacuum” (9) There is especially in the modern world of mass media and global communications the need to ensure the transparency of political decision making.
There are however certain limitations on the state’s desire to legitimise its own power and these can be best demonstrated by reviewing certain aspects of the British constitution. The main area in which a succession of British governments have been somewhat reluctant to amend to ensure true accountability to the people is the ‘separation of powers’ of the state. If a legislative body was aiming for true legitimacy it would ensure that the executive, legislative and judicial branches of the constitution were independent of one another to ensure no one organisation becomes too powerful and potentially neglectful of the people. The prime example of the indifference of the British constitution set up is exemplified by the role of the Lord Chancellor within the political system (10).
A constitution should act as a restraint on state power
It would be hard to argue against the proposition that a constitution ‘should’ have a function of restraining state power, but the question as always is does it effectively do so. In the case of the British system, two glaring loopholes exist in the supposed restraining nature of the constitution, they are the royal prerogative and the doctrine of parliamentary supremacy. As previously explained the royal prerogative affords monarch, but in reality the sitting government almost unlimited powers in certain areas, totally at odds with the any desire to restrain state power. Some of the most influential acts a government can take are within the confines of the royal prerogative and they are mostly in the area of foreign policy (11). The doctrine of parliamentary supremacy essentially allows a government with a majority of members of its party in the House of Commons almost unlimited power to enact or repeal almost any conceivable law (12).
There are on the other hand several inbuilt systems, both written and unwritten that act to certainly restrain the majority of the states actions and they are, judicial review of actions by a governmental body and the concept of ministerial responsibility. Judicial review allows a person who has the requisite ‘locus standi’ and sufficient grounds in the eyes of the courts to challenge the legality of an action by either the government itself or an agent of the government (13).
Ministerial responsibility is another constitutional convention and it’s role in governing the relationship between the executive and legislative branches of the constitution in the UK cannot be overstated. One particular contentious aspect of this doctrine, is the idea that all members of parliament must declare their financial interests in the register of members each year. Equally importantly they must also make a public statement before a debate if they perceive that there is a personal interest that might influence their impartiality to act in the best interests of the electorate. This certainly limits the abuse of power to a certain extent, although criminal sanctions for a breach of the rules are rarely imposed and so the deterrent by contrast to the potential reward is relatively minor.
Legitimising state power and acting in restraint on state power are the only two functions of a constitution
It is perfectly correct to suggest that the fundamental purpose of a constitution is to provide a series of checks and balances on the power of the government and that this aim interlinks with the need to legitimise state power in the eyes of the people the particular government intends to rule. However, this interpretation overlooks another fundamental purpose of a constitution and that is define the basic rights of the citizens themselves within the state (14). Most commentators including the eminent political theorist A V Dicey support this view. Dicey himself took a much broader interpretative stance in his explanation of constitutional law within society (15). It can therefore be stated that acting in restraint of state power and providing fundamental legitimacy for that power and indeed important functions of a constitution, but are by no means its sole functions.
- Oxford English Law: English Public Law – David Feldman (Oxford University Press, 2004) p19
- Alexis de Tocqueville – Democracy in America (1835) i ch IV – in his opinion the UK did not have a constitution due to the existence of parliamentary supremacy, namely the fact that it was free to amend as and when it wished any statute enacted. He claimed bluntly, “the English Constitution was one which did not exist” Colin Munro tries to explain this standpoint on p2 of his “Studies in Constitutional Law (2nd Edition)”, in his opinion, “he (de Tocqueville) was merely drawing attention to the absence of a single document referred to as ‘the constitution’.” Thomas Paine in his work “the Rights of Man” made the comment that “no such thing as a constitution exists in England”
- Oxford English Law: English Public Law – David Feldman (Oxford University Press, 2004) – ”the better view is that the UK does have a constitution, though it is dissimilar from almost every other constitution in the world in that it is not set out in a single text or even in a limited set of documents” p6
- ibid, p14
- ibid, p13 – “It remains however, relatively important in the context of foreign affairs, where traditionally the executive is unconstrained by legislation”
- In this case the Prime Minister Margaret Thatcher, used prerogative powers to remove the right to belong to a trade union from members of GCHQ on the grounds of national security. Upon appeal by the workers’ union the House of Lords found in favour of the government.
7. Colin Munro tries to explain this standpoint on p4 of his “Studies in Constitutional Law (2nd Edition)”. He states that, “a formal document is likely to be employed, for symbolic reasons and as a badge of legitimacy”.
- Ian Loveland in his work “Constitutional Law, Administrative Law and Human Rights: A critical Introduction (4th Edition)” makes Madison’s view of the importance of the legitimacy of state power. “Madison suggested that the dangers of faction could be reduced by adopting a form of ‘representative government’, in which laws were not made directly by the people themselves, but by representatives who the people had chosen to exercise law-making power on their behalf…” p9
- Constitutional and Administrative Law (14th Edition) – A W Bradley and K D Ewing (Longman, 2007) p1
- The role of the Lord Chancellor is analysed in detail in pages 101-104 of Constitutional and Administrative Law (5th Edition) by Hilaire Barnett. In this work, she explains how the Lord Chancellor is fundamentally linked to all three bodies in the constitutional framework. He is at the same time, head of the judiciary, a senior member of the executive, as he is within the cabinet and he also is a member of the House of Lords and in fact is the government’s spokesman in that House.
- ibid pp146-149. The royal prerogative allows the government of the time an almost free hand to make international treaties and perhaps more importantly make declarations of war, although it appears that after the second Gulf War in 2003, a constitutional convention now exists, stating that a sitting government will consult parliament before declaring war.
- ibid pp173 “the rule means that there is no limit on the subject matter on which parliament may legislate”
- The grounds of challenge of a manifestation of the government are: illegality, irrationality and proportionality and if the person bringing the action can prove the state acted ‘ultra vires’ then the courts have the authority to declare the action invalid. Chapters 14 and 15 of Constitutional Law, Administrative Law and Human Rights: A critical Introduction (4th Edition) by Ian Loveland.
- “When states do have a written constitution, the document often includes a set of guarantees of individual rights and freedoms, for which the generic term has become a Bill of Rights” – Studies in Constitutional Law (2nd Edition) – Colin R. Munro (Butterworths, 1999) p7
- ‘Constitutional law …appears to include all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state’ He distinguishes between rules which are laws and are enforced by the courts and rules that are more akin with principles of constitutional morality such as conventions. A V Dicey – Introduction to the Study of the law of the constitution – (10th Edition, Lndon, Macmillan 1959) p23
Constituational and Administrative Law (14th Edition) – A W Bradley and K D Ewing (Longman, 2007) – A work that allows a appreciation of several fundamental aspects of constitutional politics in the UK and looks at the relations between the individual and the state, particularly chapters 1-3.
Introduction to the Study of the law of the constitution – A V Dicey (10th Edition, Macmillan, 1959) – This provides a useful insight into the UK constitution as viewed at the turn of the 20th Century and explores several of the central themes of this essay, in particular the legitimacy of ‘constitutional’ power.
Studies in Constitutional Law (2nd Edition) – Colin R. Munro (Butterworths, 1999)
Chapters 1 and 2 of this work looks into the differing histories of constitutions and offers a series of differing interpretative strategies in the area of precisely what constitutes a ‘constitution’.
Constitutional Law, Administrative Law and Human Rights: A critical Introduction (4th Edition) – Ian Loveland (Oxford University Press, 2005) – Chapters 1-3 provide a most useful treatise of arguably the world’s first constitution, the US Constitution and insights into areas such as the separation of powers, majoritism and representative government.
Cases and Commentary on Constitutional and Administrative Law (4th Edition) – John Marston and Richard Ward (Pitman Publishing, 1997) – chapters 1 and 2 of this work provide an in-depth analysis into the case law that surrounds the modern concept of the UK constitution.
Constitutional and Administrative Law (5th Edition) – Hilaire Barnett (Cavendish Publishing, 2004) – Chapters 1-7 provide a very useful introduction into the UK constitution and in particular: the rule of law, separation of powers and the doctrine of parliamentary supremacy.
Oxford English Law: English Public Law – David Feldman (Oxford University Press, 2004) – This work gives a greater insight into the explanatory reasons behind the writer of the quote on which this essay is based.
Cambridge Law Journal (2005) – None, one or several? Perspectives on the UK’s constitution(s) by David Feldman – This work further elucidates the viewpoint as expressed in the statement to which this essay is based and provides insight into the thought processes of the maker of the statement and some of his supporting evidence.