Constitution Law in British System of Laws - Assignment Example

The British system of laws has followed a different and independent of development, and was partly influenced by the Roman Law. The English are insular people arrogantly nationalistic in spirit from very beginning of their history.1 Their judges and courts have always decided the cases on the basis of customs prevalent in different parts of the country. Each new decision becomes a precedent for the settlement of similar cases in the future on the principle of stare decisis (old decisions). Thus the English law called the common Law has grown from precedent to precedent as case-law.2 The British system was influenced by the Roman Law through equity, which mean remedial justice. As Common Law was in many instances a cause of injustice or afforded no relief for an injury, the suitors appealed to the king directly as “the fountain of justice”. The kings referred these cases to the Lord Chancellors, who decided them on the principle of Roman law; in which they were usually trained. Today, equity is used primarily to compel performance of a specific deed by means of writs or injunctions. In modern times, both Common Law and Equity are outgrown by the Parliamentary Statues and even superseded by them. The British System has become the basis of the American Law.3 We can define constitution as a document or set of document that set rules and regulation of how a country will be governed. These documents also define relationship between state and its citizen. It is highest sources of law. If we analyze the British constitution, we will find out that it is not in written form.4 It is governed by constitutional convention or unwritten laws. Most countries have their constitutions in a written form but this structure is far more complex when it comes down to the British constitution. Despite its complexity, British constitution serves its purpose of defining these principles:5 Supremacy of British Parliament Political Supremacy of the functional Executive Unitary System of Government in Britain Monarchy in Britain Uncodified Conventions as central laws in political process As already discussed that British Constitution is not contain in one document, its diffused nature adds to the problem and some aspects are impossible to be finalized or made laws with assurity. The reason behind its disseminated nature is that it has evolved over a period of more than 100 years. 6This allows various British governments to change the government systems under the cloak of continuity. The major point that is followed in this constitution is supremacy of the parliament. It can make any law it wants to. Only reason why parliament does not make unnecessary laws is the presence of arbitrary powers such as Queen, Army Chief, Etc. In my personal view, British constitution is an eccentric document. it is at once too simple to alter, and too unresponsive to change. Many people argue that many problems exist due to the uncodified nature of the British Constitution 7.Most of the problem prevalent in UK political system will be solved if these constitutional conventions are written down in a document form. However, this might not solve the problems as interpretation of law might still pose problems, once the constitution is written down. The royal prerogative is set of rules and regulations pertaining to the powers, authority and immunity that the monarchy holds. It also contains jurisdiction about monarchy as a sovereign authority alone.8 The prerogative also state that some of the executive powers of the governments are vested in the monarch. However, parliament has powers to abolish these powers, but according to United Kingdom’s constitution, some special principles about these powers apply. According to the modern conventions, Monarch can only used these powers on the advice of the Prime Minister or Cabinet, who are then accountable to the parliament about the basis of their advice.9 In the light of United Kingdom’s constitution, the following powers are vested in the hands of monarch: They can call the session of parliament. They can dissolve the parliament They can call for elections Grant royal assent to Laws Grant Royal Charter to create Universities Legislative role in Orders-in-Council Other powers of the royal prerogative include pardoning convicted law offenders, reducing sentences or judicial punishments and they can also create new law. However one must keep in mind at this point that these powers are only arbitrary and cannot be enforced unless advised by the prime minister or the cabinet. The royal prerogative however does not give the complete solution to the laws and powers that are vested under a monarch. For example, though Queen can remove a serving Prime Minister, but it is not clear what will happen if Prime Minister refuses to leave his post. In such situations, the completeness of this prerogative can be challenged on the grounds that it does not give absolute powers to either the monarch or the parliament. However, one thing that this prerogative does is that it keeps check-and-balance on the workings of the parliament and does not give monarch absolute power to become a dictator and that is where the beauty of United Kingdom’s constitutional reforms lies. However after the discussion about the above aspects of British Law and Constitution we will try to analyze the effectiveness of British Constitutional System. 10 I reiterate that British System of Law is very eccentric. On one hand it looks that this system has everything and on the other it looks that it has too little. However, British System has evolved over a period of more than 100 years. It has seen periods of extreme monarchy where one man ruled. It was later that many proponents advocated that this extreme power to one person has polluted the system and there was a need of amendments in the system. It was later proposed that popular sovereignty should replace the system of extreme sovereignty of one man. This was how the British System evolved the parliamentary form of government. Lord Monstiqeu was the first man who distinguished monarchy from parliamentary form of government. He should be therefore rightly credited for the current form of government that exists in UK. However, to their credit Britishers did not completely abolished their traditional monarchy but what they did was that they developed new constitutional conventions to limit the power of monarchy. These conventions did not only keep their traditional system of government into existence but at the same time also move toward popular sovereignty. Some constitutional conventions made it obligatory on the monarch to act and use their powers only on the advice of the Primer Minister, his cabinet or the parliament. This made it very difficult for the monarch to rule the country solely. However, since these constitutions also provided the monarch with powers of dismissing a prime minister and dissolving a parliament, it also meant there was check-and-balance in the system. It has done wonders in restraining the parliaments from making unnecessary laws as royal crown has the power to dissolve the system, if it is deemed it is not working on the aspirations and will of the people of the UK. These constitutional reforms provide cross check-and-balance both on the parliament and the Royal Crown. It restrains both sides from acting irrationally and doing things which might not be in the public interest. This proves my point that British constitutional system is very eccentric and very strange. But despite all of this it is one of the most stable and effective system. It outperformed other systems as there has been no martial law in the country and no conflict between the parliament and monarchy. Thus, this system proves that given effective constitutional reforms and conventions, both popular sovereignty and monarch can co-exist as it is happening in the UK. Not only this, these reforms have provided one of the most smooth system in which all three functions of the state, namely Legislature, Executive and Judiciary, are working independently and efficiently. There are no cases in which Monarchy or parliamentary interfered or influenced the decision of judiciary. Similarly, Judiciary has never intervened the working of executive. There are many countries in which these systems are not working independently and this can be taken as an achievement of British Constitutional System that it has differentiated all the organs of government from each other because these organs work the best when working independently. Conclusion: In the end, I would like to conclude this discussion by stating that the Constitutional System of the UK is successful in limiting the power of all the parts and organs of the government. To its credit, it is one of the best systems of the world. Though there have been arguments about its completeness, but this system is more near to perfection than any other system. Similarly, this system is so good that it became the basis of one of the biggest economy’s constitutional system, which is United States of America. United State of America has used the reasoning and bases of this system to develop its on constitutional reforms. Thus one can safely conclude that this system is the best system of the world given its power of separating the functions of different organs of the government, restraining the powers of monarch and parliament and because of the fact that this system is pervaded by constitutional convention which seek to maximize the interest of common people of the UK. For these reason, this constitutional is rightly called “Common Law”. References: Mazher ul Haque. Political Science: Theory and Practice. Bookland Publications. 1990 Collin Pilkington. Politics Today. 1999 Constitutional & administrative law by Barnett, Hilaire. 2003 Lewis F. Abbott, British Democracy: Its Restoration & Extension, ISR/Google Books, 2006. britishconstitution.blogspot.com Barnett, H, Constitutional and Administrative Law, ed5 (2005, London: Cavendish Barendt, Eric, Is there a United Kingdom Constitution, 1997, Oxford Journal of Legal Studies (vol. 137) House of Commons - Public Administration - Fourth Report http://www.parliament.uk/commons/lib/research/briefings/snpc-03861.pdf house of Commons - Briefing - The Royal Prerogative – http://ukpress.google.com/article/ALeqM5jAGxtNEsx6bLfJqWoxpoftSmC98A V.E Hartley. British Extradition Law. 1980 Cases and materials on constitutional and administrative law / .Allen, Michael J. Constitutional & administrative law / .Barnett, Hilaire. Barnett, Hilaire. Constitutional and administrative law Fenwick, Helen. Constitutional and administrative law Clements, Richard, Constitutional and administrative law Carroll, Alex, Constitutional and administrative law Giussani, Elizabeth. 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