Nature of the British Constitution. In almost every country In the world, except the United Kingdom, the terin ‘Constitution’ means a selection or the legal rules that delineate that country’s government, which have Leen embodied in one or several documents. Such a document ray have been drawn up either by a Constituent Assembly or the handiwork of a legislature, or it may have been granted by a King binding himself and Is successors to govern according to the provisions of the Proclamation.
The Constitution, thus understood, means a written, precise, and systematic document containing the general principles under which government unctuous. It is distinct in character, the supreme law of the land, held in special sanctity.
The Constitution is amended and altered by a precise different from that required in amending a statutory or ordinary Jaw. The statutory law must be consistent with the letter and the spirit of the Constitution; otherwise, it is held unconstitutional or ultra vires as soon as a court has an opportunity to review it.
But the British Constitution has never been devised and reduced to writing. It remains undefined, unsystematized, and uncodified. It lacks precision and coherence. The Englishmen never drew out their political system in the size of a formatted document. Consequently, there Is no single place in which The Constitution as a whole is clearly and definitely written down.
Many books may be found which describe the British Constitution, but no one of them can be said to contain it. There are, no doubt, some Parliament enactments that make the British Constitution, but these enactments do not bear the same date.
They are scattered as they were made as and when they were needed, and the circumstances demanded. But the most important part of the British Constitution is just what is kept cut off by the written law and given over to the sole guardianship of custom.
Nor is there any law in the United Kingdom of which we can say that since it is a part of the Constitution, it can be altered by a procedure different from the one required for altering the statutory law. Here the Constitutional Law and Statutory or Ordinary Law stand at par with one another. Both emanate from the same source and undergo the same procedure in passing and amending them. Obvi only then, no court or any other authority can legally refuse to enforce and set aside any Parliament enactment.
The British Constitution is, therefore, to a large extent, an unwritten and flexible Constitution; it is the product of history and the result of evolution. It has grown with the growth of the English nation, changed with its wants, and adapted itself to the needs of various times. Jennings has aptly remarked, If the Constitution consists of institutions and not of the paper that describes them, the British Constitution has not been made but has grown, and there is no paper?
The institutions necessary for carrying out the State’s functions were established from time to time as the need arose. Formed to meet immediate requirements, they (institutions) were then adapted to exercise more extensive and sometimes different functions. From time to time, political and economic circumstances have called for reforms.
There has been a constant process of invention, reform, and amended distribution of powers. The building has been constantly added to, patched, and partly reconstructed to be renewed from century to century, but it has never been razed and rebuilt on a new foundation. In other words, the British Constitution is the child of wisdom and chance.
It results from a process in which many elements, like charters, statutes, judicial decisions, precedents, usages, and traditions, have entered, piling themselves one upon the other from age to age and shaping the political institutions of the country according to the exigencies of time.
The British Constitution is ever-growing and always undergoing modifications. It is a dynamic Constitution with its roots in the past and branches in the future.
Lord Morrison cogently said:
“But as a whole, ours has been a peaceful development, leaming as we moved on, establishing the foundation of further progress.”
No man in 1688 could have foretold, with any measure of accuracy, what the Constitution of present-day Britain would be, and no man of our times can predict how the Constitution will evolve a few decades hence.
Briefly, the British Constitution is a body of basic rules indicating the structure and functions of political institutions and their operation principles.
It is just the same in nature as any other country’s constitution, the only difference being that the British Constitution has never been systematized, codified, and put in an orderly form. Probably, no attempt will be made in the future, too, to bring all these rules and principles together to make the Constitution a consistent and coherent whole.
In fact, it is an impossible task, for not only do the usages and traditions cover a wide range, but many of them are not sufficiently definite to be reduced to writing.
Moreover, as a political entity, the Englishman has never favored a system of government based upon fixed principles involving the application of exact rules. He is practical, a matter of fact, and zealous for business. Expediency is the guiding principle of his life, and he seizes the opportunity by the forelock. He knows no logic, and the British Constitution lacks all logic.
The result, as Ogg says:
“is a constitutional structure which tacks symmetry, governmental system which abounds in the illogical.”
But it does not mean that it is a mere hotchpotch of heterogeneous elements. The sulcus and principles which govern the governmental machinery have been deduced from British experience and consciously adhered to and applied.
Thomas Paine and Alexis de Tocqueville were the two prominent among many writers who thought the British Constitution did not exist. Thomes Paine, a great champion of written constitutions, categorically declared that there is none where a Constitution cannot be produced in a visible form.
In a spirited reply to Burke, who eminently defended the British Constitution in his Reflections on the French Revolution, Paine asked, Can Mr. Burke produce the English Constitution? If he cannot, we may fairly conclude that though it has been so much talked about, no such thing as a Constitution exists or ever did exist.
De Tocqueville, the celebrated French writer on Forcien Governments, a generation later said that in England, the Constitution might go on changing continually, or rather, it does not exist. Whatever be their reasons for making these assertions, Paine and de Tocqueville were both wrong.
There can be no State without a constitution; there is indeed no single document intended to comprise the fundamental rules of constitutional practices to which a British Constitution student may turn for reference, as one does in the United States or India. Still, no constitution is either wholly written or entirely unwritten. Written and unwritten elements are present in every constitution.
All written constitutions grow and expand with time, either as a result of customs or judicial interpretations. Written constitutions, remarked Bryce, become developed by interpretation, fringed with decisions, and enlarged by customs so that after a time, the letter of their texts no longer conveys their full effect.
Nor can the makers of a written constitution foresee the future and shape the constitution to fulfill the people’s needs to come. Man is dynamic, and so are his political institutions. The conventional element in any system of government is inevitable. Finally, a written constitution does not contain all the rules relating to all the institutions of government.
A selection is made of both. For instance, the United States of America’s Constitution contains only seven Articles and occupies about ten pages. On the other hand, India’s Constitution is the lengthiest in the world, containing 395 Articles and twelve Schedules. The difference between the two Constitutions is suggestive. It shows that a written constitution may contain as much or as little as ts thought desirable by the father framers within limits. And yet, no constitution is complete by itself.
It is a framework, a skeleton that had to be filled out with detailed rules and practices. It is concerned with the principal institutions and their main functions and the rights and duties of citizens who are regarded as important for the time being. It may contain more or less, according to the circumstances of the moment and the State’s special problems while it is being drafted. All written constitutions provide for amendments to cater to the future needs of the people. Customs and judicial decisions, too, supplement the constitutional provisions.
The difference between a written and unwritten constitution is, therefore, one of degree rather than of kind. Wherever rules are determining the creating and operation of governmental institutions, there exists a constitution. Britain has such institutions and such rules, and certainly long before the times of Paine and de Tocqueville, England had such a body of rules, with Englishmen equally conscious of its existence and proud of its history.