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Constitutional Law Master - Essay Example

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At first sight, this is a strange question. Any constitution would evidently be useless if it did not constrain seriously - under the threat of sanctions- at least the ways and means in which access to power is gained, and the limits of the authority of the principal power holder…
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Constitutional Law Master Essay
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"Constitutional Law Master"

Download file to see previous pages There is no technical difference between ordinary statutes and law considered "constitutional law." Therefore the Parliament of the United Kingdom can perform "constitutional reform" simply by passing Acts of Parliament and thus has the power to change any written or unwritten element of the constitution. The constitution is based on the concept of all sovereignty ultimately belonging to Parliament (Parliamentary sovereignty), so the concept of entrenchment cannot exist. The lack of a central written constitutional document explaining the fundamental principles of the state and relationship between its institutions and between the people leads some constitutionalists to regard the United Kingdom as having "no (formal) constitution." The phrase "unwritten constitution" is sometimes used, despite the fact that the UK constitution incorporates many written sources, statutory law being considered the most important source of the constitution. But the case remains that the constitution relies far more on unwritten constitutional conventions than virtually every other liberal democratic constitution.
Conventions as a source of constitutional rules have been widely acknowledged. Regardless of whether a country possesses an unwritten1 or a written constitution, constitutional conventions usually play an important role in regulating constitutional relationships among different branches of government. A common definition of constitutional conventions is: "By convention is meant a binding rule, a rule of behaviour accepted as obligatory by those concerned in the working of the constitution."2 Law and constitutional conventions are closely related. Constitutional conventions presuppose the existence of a legal framework, and do not exist in a legal vacuum. For example, in the UK, the constitutional conventions of forming a Cabinet presuppose the laws relating to the Queen's royal prerogative, the office and powers of Ministers, and the composition of Parliament.3 A difference between law and constitutional conventions is that laws are enforceable by the courts, but constitutional conventions are not enforced by the courts. If there is a conflict between constitutional conventions and law, the courts must enforce the law. In some countries, such as the United Kingdom (UK) and Canada, the courts acknowledge the existence of constitutional conventions as aids to judicial interpretation.4 Academics consider that such acknowledgement may at 1times appear to be similar to enforcement.5 The constitution ... is seen to consist of two different parts; the one is made up of understandings, customs, or conventions which, not being enforced by the courts, are in no true sense of the word laws; the other part is made up of rules which are enforced by the courts, and which, whether personified in statutes or not, are laws in the strictest sense of the term, and make up the true law of the constitution. This law of the constitution is, as we have further found, in spite of all appearances to the contrary, the true foundation on which English polity rests, and it gives in truth even to the conventional element of the constitutional law such force as it really possesses.

First, as constitutional conventions can easily be adapted to new circumstances arising, they are therefore frequently used as a means of bringing about constitutional development, provided that those constitutional co ...Download file to see next pagesRead More
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