It does so by consisting of a set of rules and principles, “. . . creating, structuring, and possibly defining the limits of, government power or authority.” (Waluchow) Absolutism, on the other hand, the monarch would claim power by “divine right”. They and only they created law, in a pure absolutist state.
Parliamentary sovereignty 'Although in theory Parliament is sovereign, the problematic reality is that British constitutional arrangements ensure that true power lies with the Executive.' Part A: Many countries such as the United States have a written constitution but Britain does not, however 'it must have something which is at the heart of its constitutional arrangements'[1] and this need is fulfilled by the doctrine of parliamentary sovereignty. The traditional and most often applied definition of parliamentary sovereignty is that of Dicey, who stated, 'the principle of parliamentary sovereignty means... the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament'[2]. From this definition, three fundamental principles can be derived; the first is that Parliament can make or unmake any law. An example of this principle in practice; The Septennial Act 1715 was passed to extend the life of Parliament from three to seven years out of fear of the effects of an election.
At one end of the continuum, political actors can take constitutional forms as a given and make policy decisions under it, filling government offices and exercising government power in (constitutionally) noncontroversial ways. Policymaking seeks to exercise constitutional authority, and its implications for elaborating or altering constitutional meaning are only implicit. At the other end of the spectrum, political actors can engage in revolution and replace the existing constitutional order or document wholesale in favour of a new one. The Articles of Confederation can be displaced in favour of the U.S. Constitution. Less extreme than revolution is creation, which adds new text to a pre-existing Constitution.
In the 1975 Report of the Renton Committee, it was argued that criticisms on the quality of drafting of statutes was common centuries ago and it was claimed that statute law lacked simplicity and clarity, especially on the language, structure and the arrangement of the statutes. Also, as supported by the Statute Law Society, the language of statutes is ‘legalistic, often obscure and circumlocutious, requiring a certain type of expertise in order to gauge its meaning.’ Meanwhile, the sequence and structure of individual statute appears to be illogical and unhelpful to readers. In reforming the legislative process, changes to the drafting technique should be made. Verbal impedimenta should be reduced and should be more general and concise. Meanwhile, a Law Council, which is similar to that played in France by the Conseil d’Etat, can be established.
Q1 “ For rules of such importance to be ill-defined, uncertain in application and not enforceable by courts is at best anomalous and at a worst a threat to the principle of government according to law”- Hilaire Barnett- Could it be argued that constitutional conventions would only be effective in regulating political behaviour if they were codified in legal form? From the question clearly stated by Hilaire Barnett that convention has a vague impression and she is urging for codifying the conventions in UK. Whether codifying or not the convention it has been long debating and there are many factors and potential consequence need to be considered when approaching to the conventions issues , these matters will be discuss in this paper. As by first of starting point we need to comprehend the nature of constitution of UK, Constitutional conventions form the most important non legal source which supplement the legal rules of the constitution. Unlike other nations, UK does not have a written constitution (codified constitution), for example United State has a codified constitution which can always referred to their constitution, and therefore the sources like Magna Carta 1215, the Bill of Right 1688 and etc are essentially important in UK.
So how can judge create law through the doctrine of precedent? The basic doctrine means every court in the UK is bound to follow any decision made by a superior court and in general, appellate courts are bound by their own decisions. Although this appears that the courts are not allowed to develop law, there are ways in which the judicial precedent can be avoided, in turn, allowing
Consider what is meant by justice. Discuss whether English Law achieves or fails to achieve justice Justice is an entirely subjective concept, largely depending on political affiliation, and previous experience of the legal system. Similarly to law, there is a vast amount of documentation providing different definitions and different theories of justice but is best described as what one believes to be the fairest course of action for both parties. In order to achieve justice, countries institute a legal system of some sort. Sir John Salmond defined law as “a body of principles recognized and applied by the state in the administration of justice”.
However, this view is not entirely accurate and it is important that conventions are distinguished from habits and practices. Conventions are conceptually different from habits or practices in that these concepts do not prescribe or dictate what ought to happen but are merely descriptive of what in fact does happen. A Further definition of the purpose of conventions was given by Sir Ivor Jennings as: "The short explanation of the constitutional conventions is that they provide the flesh that clothes the dry bones of the law; they make the legal constitution work; they keep it in touch with the growth of ideas." To that end, it is a characteristic of constitutions in general that they contain some areas which are governed by conventions, rather than by strict law. However a simplistic characterization of constitutional conventions, moreover, for discussion purposes regarding this quandary, Fenwick's, H, definition seems to be
Lord Hope stated that “the rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based. The rule of law is vital to the separation of powers doctrine and
Question 2 Although the doctrine of precedent allows some flexibility, it fundamentally requires judges to respect the hierarchy of the courts . Discuss The doctrine of binding precedent or stare decisis, lies at the heart of the English legal system. In essence the doctrine refers to facts that within the hierarchical structure of the English Court, a decision of the highest court will be binding on a court lower. When a court makes a decision in a case, any court which is of equal or lower status to that court must follow that previous decision if the case before them is similar to that earlier case. Moreover, the doctrine requires that like cases should be treated alike in the interests of consistency and certainty of the law as well as a fairly rigid hierarchy of courts.