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Is there a distinction between strict law and conventions?
- Dicey wrote that conventions could be clearly distinguished from laws, in the sense that no court could apply a sanction for their breach (The Law of the Constitution, 1971). However, this distinction was attacked as artificial by Ivor Jennings in The Law and the Constitution on the basis that both law and conventions ultimately rest on general acquiesence. However, the case law has tended to agree with Dicey's view. In Madzimbamuto (1969) it was found that the convention under which the UK parliament needed to obtain the consent of the Southern Rhodesia government before legislation for the colony had no effect in limiting the powers of the UK parliament.
- Similarly, the Canadian Supreme Court, Re Amendment to the Constitution of Canada (1982) held that conventions are not enforced by the courts, the sanctions for breach of conventions are political ones. Most constitutional writers have accepted this distinction between law and convention. Marshall and Moodie sum up the general rule, conventions may be described as 'rules of constitutional behaviour which are considered to be binding by and upon those who operate the constitution but which are not enforced by the law courts...nor by presiding officers in the Houses of Parliament.'
- Conventions depend on acquiescence for their very existing, whereas laws do not cease to exist because they are widely disobeyed.
What are the arguments for codifying conventions?
- 1.) It would have the advantage of clarifying certain of the most significant constitutional rules. The informality of conventions makes it difficult to ascertain whether a certain usage has crystallised into a convention rule. For example, the conventional powers of the Queen to require a dissolution of parliament are not certain.
- 2.) Codifying would also allow us to establish when a convention has come into being.
- 3.) Conventions should also be enshrined in law because otherwise they may be more readily violated.
- 4.) The absence of a code mean that unconstitutional' behaviour has no definition.
What are the arguments against codification of conventions?
1.) Codification might achieve a desirable clarity in some areas, but at the expense of present flexibility. There is a rigidity associated with statutes that is avoided with convention. Conventions allow the constitution to evolve and keep up to date changing circumstances. The doctrine of collective Cabinet responsiblity provides an example of the advantage to derived from the indeterminate nature of conventions.
What are the requirements of constitutionalism?
- There are two essential characteristics or purposes of constitutions. The first is that constitutions are necessary in order to control the power of the state. The second is that constitutions ensure that the power of the state derives from a legitimate source.
What are the roles of a constitution?
1.) They are power allocating, the usually distribute power amongst the different organs of the government, according to law. This offers a concrete guarantee against tyranny by separating out different types of power. This is the doctrine of separation of powers.
What does the doctrine of separation of powers demand?
- It demands that;
- 1.) Each part of government should be separate and to an extent independent of others.
- 2.) Each function should be vested with only one main function of government.
What is the basic explanation for the doctrine of parliamentary supremacy?
This doctrine maintains that Parliament, in the sense of Queen, House of Lords, and House of Commons acting together, has unlimited power to enact any law. A law made by parliament must conclusively be accepted as binding, in the sense of enforceable, by the courts.