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CONSTITUTIONAL THEORY Content of Constitutions & Entrenchment — Tutorial Essay
Authority of law <> authority of conventions
Law gets authority from membership of a system o Raz — legal system presents itself as being complete — doesn't accept authority of other rules
Barber — legal systems can exist that don't assert completeness, eg religious legal systems o Conventions are also systematic in nature — presume existence of other conventions, etc — all connect to the State o Rules presume existence of institutions
Raz's account of authority of law — law gains legal authority by virtue of membership of a system o System exists because of rule of recognition
Hart — acceptance by judges constitutes the rule of recognition
Barber — not all judges have to accept same sources
Dickson — article on whether rule of recognition is a convention o <> Conventions stand alone
Finnis — should start from position that should obey legal rules o <> Raz — no general obligation to obey the law o EG T-junction in the desert — Finnis would stop but Raz wouldn't o Raz's approach makes look more like convention o Laws get moral authority by virtue of systemic nature o TRS Allan — conventions are only conventions if morally justified —
therefore everyone is morally obliged to follow convention
Reflection of Dworkin's view of law
Crystallisation of conventions into law o Hart's account of emergence of legal system — (1) primary rules, then (2) secondary rules to regulate operation & regulation of primary rules and application o Similar re conventions — 1949 conventions grouped together in document (authoritative statement); convention emerges that PM entitled to modify those rules; then when alleged to be broken, Cabinet Secretary investigates & applies
But ministers didn't resign when broke Code — despite assertion
Potentially convention developing into more sophisticated convention How, if at all, can we distinguish constitutional conventions from other sorts of rules?
Dicey defines constitutional conventions as understandings, habits or practices that regulate the conduct of State power and are non-legal rules of the constitution. They are of great significance, particularly in the UK but also elsewhere: significant aspects of constitutional practice including the de facto Head of State are governed by convention rather than legal rules. There is no bright line separating such conventions from other sorts of rules. This essay will distinguish constitutional conventions from (a) non-constitutional rules and (b) non-legal constitutional rules, before going on to focus on the distinction with (c) constitutional legal rules. In particular, it will argue that the difference between constitutional conventions, legal rules and moral rules is in the source of their authority: practice, instrument and conviction respectively. A.
Customary rules in the nature of conventions, as well as legal and moral rules, play a role in regulating the conduct between people as they do between institutions. In some States customary law governs much private law, such as in Ethiopia where the codified civil law is both unwilling and unable to monopolise regulation of conduct throughout the State; in others it is incorporated by reference piecemeal in particular Statutes (eg the Hindu Marriage Act in India) or wholesale in the Constitution (eg in Canada and Kyrgyzstan). Constitutional conventions can be distinguished from these rules, together with (most) common law, legislation, and moral rules on the basis that they regulate the operation of the State rather than the interaction between individuals. However, even legal rules with constitutional implications extend beyond written constitutional provisions. Some common law principles have interpretive implications for legislation via the principle of legality, and several judges have postulated in obiter or extra-curially that they may have implications for the validity of certain statutes: eg Lord Hope in AXA Insurance and Lord Hodge in Moohan. Likewise, the principes généraux du droit developed by the Conseil d'Etat and Conseil Constitutionnel in France have been elevated to constitutional status by those courts in the Ingenieurs-Conseils case and Arret 44 of 1971 respectively. It is necessary to bear the breadth of these definitions in mind when attempting to distinguish constitutional conventions from legal rules with constitutional implications. B.
NON-LEGAL CONSTITUTIONAL RULES
Constitutional conventions are sometimes referred to as constitutional morality. Moral or social rules are also generally legally unenforceable but may also have political consequences. Marshall says that the strongest and clearest constitutional convention is that parliament should not legislate in a tyrannical way. If that is distinct from the coordinate moral rule, it covers the same ground. Many conventions are morally neutral when considered outside their institutional context; but this is no distinction as most moral rules rely on some degree of context for their force. It follows from Sir Ivor Jenning's third element, discussed in more detail below, that many constitutional conventions are concurrent with moral rules. However, they are broader than moral rules: conventions derive from practice and belief and are supported by a normative justification, whereas moral rules derive from a normative
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