Are We Better Off Without A Constitution?

Welcome back to my philoso-posts er’body.  This semester I, and by extension you, will be learning about the philosophy of law (amongst other things).  Since, the last philosophy of law course I took was in the summer of 1998 I’m basically starting from scratch.  Until I get further into the course my first few entries will basically be my attempts to distill the articles I have to read for class.  Where appropriate I will include my usual witty remarks and keen insight.  jk, lol, omg.  Without further ado…

Rule of Law and the English Constitution (A.V. Dicey)

     According to my main man Dicey, there are 2 characteristics of English (and later, by extension, American, Canadian, and Australian) political institutions that have remained constant: (1) omnipotence/supremacy throughout the whole country of a central gov’t, and (2) the rule/supremacy of law. Lets check out the 2nd.

     Included in the English notion of the supremacy of law are 3 distinct concepts.  A.  People cannot be punished or fined unless they can be shown to have breached the law which has been (previously) established in a normal way in the ordinary courts.  This contrasts with other systems of government where law and breach of law can be determined by a person with great power and/or authority.
    So, why does this matter? What’s really at stake here?  To illustrate lets look at some extreme examples.  On one end of the continuum we have a legal system (i.e. the English system) which gives its executive very little discretionary authority in applying the law.  The role of judges is to interpret laws and apply them as best they can to particular cases.  On the other end of the continuum is a system that allows great discretionary authority to judges.  In such systems, judges have more latitude to take into consideration non-legal mitigating factors. 
     Benefits of a system like that of the English where judges have little discretionary power is that arbitrariness is reduced and individuals have greater legal security; for, “where there is discretion there is room for arbitrariness…discretionary authority on the part of the government must mean insecurity for legal freedom on the part of its subjects.”  If you never knew how a judge would interpret a law it would be difficult, in some cases, to determine beforehand if your action is lawful.

     The second concept in the rule of law is (generally) no one is above the law.  In other words, no matter where you rank on the political, economic, or social hierarchy you are subject to the ordinary law and can be tried in an ordinary court if your actions are suspected of running counter to the law.

     The third concept in the rule of law is that constitutional law is the result of executive decisions about particular cases whereas in most other counties it’s the other way around.  Lets slow down and break this down…wika! wika! wika! remix!  So, like, ok, um, you live under English law, and, like you have constitutional rights? right?  But how are your constitutional rights (freedom of speech, assembly, etc…) determined?  Under the English system judges look at individual cases and previous judgements and make decisions that follow the precedents already set.  Interestingly, the UK doesn’t have a formal constitution, instead it has several formal documents along with statutes and judicial precedents.  Under most other systems, rights and freedoms flow from the articles of the nation’s constitution.  Lets look at this distinction in some more detail and what it means in terms of the law.
     The formal pronouncements of rights and freedoms we might normally find in the formally created constitutions of most countries still exist in the UK but are instead found by abstracting from individual prior judgements.  So, the right to individual liberty in the UK is secured from the precedents set from prior particular cases where judges ruled in favour of individual liberty.  In other most other countries the principle of individual liberty flows from or is secured by a county’s constitution.  Under this system, individual decisions that involve cases where individual liberty is contested will be deduced from the principles of the constitution.
     Both systems are capable of obtaining the same result but, Dicey argues, the degree to which these rights and liberties are secured depends on the system out of which they arose.  The problem with the top-down constitutional model is that, while it spells out what the right and freedoms are, it doesn’t give enough attention to how these rights and freedoms should be protected and enforced.  The English system, on the other hand, can do both.  Because of the judicial precedents of prior cases, not only do we have the rights and freedoms, but also a record of how previous judges have ruled on these cases, i.e., shown how those right/freedoms should be enforced.
     Another strength of the English system is that rights and freedoms are woven into the laws of the land whereas in a constitutional system, the two exist apart:  the ordinary laws and the constitutional laws exists and two different realms.   If we take the example of freedom of speech we see that in the English system this right is built into the ordinary law so it cannot be changed without changing centuries of judicial precedents.  But in the case of constitutional law, “all” that is required for this freedom to be limited or revoked is a constitutional amendment.  Of course, constitutional amendments aren’t easy to achieve, but they are easier to achieve than undoing centuries of individual judicial rulings.
     To sum of this third point, in English law rights and freedoms are the consequence of the ordinary law but in constitutional countries the constitution is the source of rights and freedoms.


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