Principles of the British Constitution

Author: Dai Xueli Bin Nan
Publisher:
Publish Date: 2001-04-01
Features: In the preface to the original book, the author pointed out that this book is neither a constitutional outline nor a general treatise on constitutional law. Its purpose is only to explore the fundamental principles or essence contained in the British Constitution. In the process of argumentation, the author limited himself to the perspective of legal observation, using the views and methods of the analytical jurisprudence school to elaborate on the fundamental principles of the British Constitution and argue for its orthodoxy. In the book, the author proposed three main principles of the British state system. These include:
(1) The supreme power of Parliament in legislation. He believed that the sovereignty of the United Kingdom lies with Parliament. It can enact any law without any restrictions, including amending the constitution and abolishing common law. In his view, the British Parliament is legally all-powerful, embodying the entire legal sovereignty.
(2) The principle of the rule of law. Dicey argued that no one should be punished for actions not prohibited by law, and advocated that the legal rights and responsibilities of any individual should be adjudicated by common courts, opposing the establishment of an administrative court to handle disputes between citizens and administrative authorities. He also believed that, according to the principles of common law, both the state and individuals should be equal. The rule of law not only excludes arbitrary decrees but also completely prevents arbitrary judgments by government officials and ensures judicial independence.
(3) The close relationship between formal legal rules and informal constitutional traditions. The British Constitution is a product of long-term political and historical development. It lacks a unified, complete written form and is composed of written laws and unwritten customs and conventions. This primarily includes:
First, historically significant constitutional documents with regulatory nature, such as the Magna Carta of 1215 (the Great Charter), the Petition of Rights of 1628 (the Petition of Rights), and the Bill of Rights of 1689 (the Bill of Rights).
Second, constitutional laws enacted by Parliament, such as the Habeas Corpus Act of 1679 and the Act of Settlement of 1701.
Third, constitutional court judgments, such as the Howll's Case of 1678, which established judicial privileges.
Fourth, certain principles and provisions in common law, such as the system of royal prerogatives.
Fifth, constitutional conventions. Conventions, although not legally binding on courts, play a significant role in British political life, such as the requirement for Parliament to convene at least once a year and the actual exercise of royal power by ministers.
Dicey believed that the British Constitution cannot be enumerated in one or several documents, nor can it be strictly distinguished by past and present time. It lacks rigorous and clear content and an intact system. It differs from both continental law and the U.S. Constitution. Dicey divided all the rules of the British Constitution into two parts based on their effectiveness: the "law of the British Constitution" and the "canon of the British Constitution." The former includes the legal theory and statutes, while the latter includes customs, precedents, and conventions. The author argued that the British Constitution is a system composed of these two types of rules, and according to this system, the sovereignty of England is legally exercised and distributed between the government and the people. The "canon" part is generally unwritten, while the "law" part has both unwritten and written elements. The British Constitution is not a fixed and mechanical system but an organic organization within the political society.
In the process of argumentation, the author cites the constitutions and administrative laws of continental countries for comparison with the British Constitution, thereby deriving some characteristics of the British Constitution itself. First, the British Constitution has the characteristic of a flexible constitution, as it can be altered or amended by Parliament at any time, contrasting with the rigidity of the French Constitution. Second, the British Constitution is conservative. England has a tradition of pursuing reforms while inheriting previous systems. This adherence to conventions has become a distinctive feature of the British Constitution. Thus, it follows that third, the British Constitution has continuity. This continuity depends on the continuity of the life of the English nation. Finally, the British Constitution has the nature of inconsistency between theory and reality. This is because British politics evolved from autocracy to constitutionalism, and while the political system has changed, certain laws and conventions have remained, leading to discrepancies between theory and reality.
Because of the above characteristics of the British Constitution, studying it is both challenging and important. It can be said that the United Kingdom is the mother of the constitutionalism of the bourgeoisie in the world, and the British Constitution holds significant importance for the study of constitutionalism. The author of this book, Dicey, is a learned professor and an experienced lawyer. He is skilled in analyzing matters and extracting fundamental principles from variable and complex facts, making The Elements of the Constitution a work of significant academic value and an authoritative reference for the study of world constitutions, particularly the British Constitution.