(1) Characteristics & Definitions of Constitutions

Question 1

What is the most prescriptive approach to defining a constitution?

Answer 1

This view, adopted by some academic commentator, argues that a Constitution must satisfy a series of specific characteristics to be worthy of the name.

Question 2

What is the middle ground approach to defining a constitution?

Answer 2

This view, argues that the term constitution is applicable to the general systems of rules and conventions applicable to government and governmental powers.

Question 3

What is the least prescriptive approach to defining a constitution?

Answer 3

Some consider the Constitution to simply be the result of ‘what happens’ in the course of a country’s governance.

Question 4

According to Ridley’s prescriptive approach what are the four key characteristics of a constitution?

Answer 4

1. ‘Prior to the system of government, not part of it’
2. ‘Involves an authority outside and above the order it establishes’
3. ‘A form of law superior to other laws’
4. A constitution must be entrenched

Question 5

What is reasoning behind Ridley’s requirement that a constitution be ‘Prior to the system of government, not part of it’?

Answer 5

This requirement seems to logically follow from the idea that the constitution provides the grounds upon which a government is created. According to Ridley a legitimate government is one that is created subject to the specifications of the constitution. Therefore, this requirement ensures that the constitution predates the formation of a government.

Question 6

What is the reasoning behind Ridley’s requirement that a constitution ‘Involves an authority outside and above the order it establishes’?

Answer 6

Ridley suggests that to be a constitution there must be normative force behind it beyond that of the system of government it establishes - in other words a source of authority higher than the government itself. In democratic societies Ridley suggests this normative force comes from the authority owed to the people who collectively endorse and legitimise its terms.

Question 7

What is the reasoning behind Ridley’s requirement that a constitution should be ‘A form of law superior to other laws’?

Answer 7

Ridley argues that a constitution should be of a higher status of authority than the laws passed by the government (who owe their authority to the constitution). Thus the powers conferred upon the three branches of government may not exceed the power granted by the constitution itself.

Question 8

What is the implication of Ridley’s requirement that a constitution should be ‘A form of law superior to other laws’?

Answer 8

The constitution simultaneously empowers and limits the power exercisable by the branches of government..

Question 9

What is the reasoning behind Ridley’s requirement that a constitution should be entrenched?

Answer 9

According to Ridley, constitutions should be protected from amendment or repeal by those who temporarily hold governmental powers. Constitutions should have a degree of longevity.

Question 10

What concept seemingly lies at the heart of the term constitution (consider particularly Ridley’s last 2 requirements)?

Answer 10

The idea of limited government lies at the heart of constitutions and therefore, constitutionalism.

Question 11

What does Ridley conclude using the application of his criteria for a constitution?

Answer 11

Applying his own definition, Ridley concludes the UK has no constitution at least not in any meaningful sense of the word.

Question 12

What does Ridley consider to be the biggest barrier to a constitution in the UK?

Answer 12

The Parliamentary Sovereignty Doctrine - this principle, according to Ridley, prevents the UK from having a body of constitutional rules largely immune from legislative interference (entrenched) as Parliament (as the dominant and sovereign institution) have the ability to alter constitutional arrangements through the ordinary process – a simple majority vote.

Question 13

On what grounds is Ridley’s approach to defining a constitution criticised?

Answer 13

Ridley’s definition of a constitution is arguably an overly prescriptive one.

Question 14

How does his finding of an absence of a constitution suggest an overly prescriptive approach?

Answer 14

Ridley suggests that the UK lacks a constitution on three main grounds;
1. There is no normative force behind any ‘constitution’ bc the people have not collectively endorsed the system of government
2. There can be no distinctions between ordinary and constitutional statutes
3. There is no guarantee of longevity through entrenchment
Through this conclusion Ridley suggests the UK lacks any stable body of rules governing how an administration should be formed and how they should exercise their powers. In actual fact all of these characteristics are present in the UK system of government but not in a way formally recognised by his definition - thus the approach is arguably overly prescriptive.

Question 15

How does the UK system of government have normative force behind it?

Answer 15

While there is no explicit grand declaration of the people’s consent, the general elections through which our legislative branch is decided and the party to form our government is chosen allow the people to consent to the system of government – albeit indirectly.

Question 16

What did Loughlin say regarding the normative authority provided to the UK constitution by the people?

Answer 16

He said - ‘even in the British system, constituent power – the power to make and alter constitutional contracts – rests with the “people”’.

Question 17

How does the UK system of government distinguish between ordinary and constitutional statutes?

Answer 17

According to Ridley there cannot be said to be any ‘constitutional’ laws stemming from a higher authority than government itself as all laws are seemingly subject to amendment by the sovereign parliament. However, cases such as Thoburn v Sunderland in the UK have seen the courts identify legislation of particular significance for the powers of government or rights of the individual.

Question 18

How does the UK system of government ensure a degree of longevity?

Answer 18

While legal entrenchment of statutory provisions cannot be found in the UK, the fundamental features of the system of government can be traced back many centuries - suggesting there is, somehow, a degree of longevity.

Question 19

How does the UK have a set of rules governing how an administration should be formed and how they should exercise their powers?

Answer 19

In the UK Primary Legislation governs the process of election to the House of Commons and Conventions providing that the leader of the part able to command a majority in the House of Commons will ordinarily be appointed PM evidence this. Furthermore, laws on judicial review restrict powers of government once in office.

Question 20

How is Ridley’s approach to the UK Constitution arguably overly prescriptive?

Answer 20

Ridley essentially argues that the UK system of government cannot be said to have a constitution because it fails to satisfy particular characteristic of a constitution that he prescribes. In actual fact many of these characteristics are present in the UK system but are simply not recognised under his specific/narrow categories of requirements - thus his approach is arguably overly prescriptive.

Question 21

What is Anthony King’s less prescriptive approach to defining a constitution?

Answer 21

He said - ‘a country’s constitution is simply the set of rules and common understandings [relating to the composition and conduct of government] that currently exist’

Question 22

What is a key specific difference in the definitions of constitutions offered by Ridley and King?

Answer 22

A key contrast between the definitions offered by King and Ridley is in the varying emphasis on the existence of a constitution prior to government – Ridley argues a constitution establishes a system of government while King argues the system of government is the constitution.

Question 23

What is the crucial underlying difference between the definitions of constitutions offered by Ridley and King?

Answer 23

The crucial difference in approaches, however, is that the underlying theme of Ridley’s position is one of rigidity and stability while King’s approach is underpinned by the potential to accommodate change and flexibility.

Question 24

What is J A G Griffith’s even less prescriptive definition of a constitution?

Answer 24

He said - ‘The constitution is no more and no less than what happens. Everything that happens is constitutional. And if nothing happened that would be constitutional also’.

Question 25

How does Griffith’s approach differ from both Ridley’s and King’s?

Answer 25

According to Griffith, therefore, the constitution is not defined by some set of rules used to determine what should happen (in regards to the formation of government and allocation of power) but rather what does happen.