Jonah Patel
In their 2010 work, Graham Gee and Grégoire C. N. Webber attempt to define a political constitution and distinguish it from a legal constitution. They also explore the paradoxical nature of constitutional conventions, using the British constitution as an example. Gee and Webber characterise a political constitution as a dynamic, uncodified model that evolves organically, shaped by foundational statutes and political norms. They emphasise the role of parliamentary sovereignty, where parliament can legislate on any matter without a supreme law above it. In contrast, legal constitutions remove certain questions from the political realm, reserving them for legal adjudication. While offering insights, their work also faces challenges, including the rationalisation of non-definitions and an incomplete understanding of legal constitutions.
| Characteristics | Values |
|---|---|
| Political constitution vs. legal constitution | A political constitution is uncodified and develops organically based on foundational statutes and political norms and conventions. |
| A legal constitution removes some questions from the political realm and reserves them as legal questions for courts to adjudicate. | |
| A political constitution relies on parliamentary sovereignty, while a legal constitution relies on judicial review. | |
| Dual and paradoxical descriptive-normative nature of constitutional conventions | Political constitutions always contain ambiguity. |
| Political constitutionalism | The UK's political constitution rests on the checking and balancing operations of a representative system in which parliament is sovereign. |
| The Brexit referendum can be regarded as consistent with political constitutionalism, but it challenges claims that it represented the sovereign will of the people. | |
| The political view of constitutionalism locates the constitution in the character and design of the political system and the modus operandi of its component political processes. | |
| Political constitutionalism should be understood as proposing "a political model of constitutionalism". |
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What You'll Learn
Political constitutions in democratic countries
In their 2010 work, Graham Gee and Grégoire C. N. Webber attempt to define a political constitution, differentiating it from a legal constitution. They describe a political constitution as one under which "the political process in political institutions" (e.g., the House of Commons and House of Lords) "hold those who exercise political power to account". On the other hand, a legal constitution is defined as one under which judicial review "holds those exercising political power to account".
Constitutional democracy is a form of democracy where the authority of the majority is limited by legal and institutional means, ensuring that the rights of individuals and minorities are respected. This form of democracy is practised in countries like Germany, Israel, Japan, and the United States. It is characterised by popular sovereignty, where the people are the ultimate source of the government's authority, and the government derives its right to govern from the consent of the governed.
Constitutional democracies also feature a separation of powers, typically among legislative, executive, and judicial functions, to limit the exercise of political power. For example, while one branch may have primary responsibility for creating laws, other branches may draft proposed laws, interpret their meaning, or manage disputes.
Constitutional democracy requires the informed and effective participation of citizens who understand and are committed to its fundamental principles and values. Citizens should have civic knowledge, including an understanding of their country's history, geography, and the development of constitutional democracy.
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The British constitution
In their 2010 work, "What Is a Political Constitution?", Graham Gee and Grégoire C. N. Webber attempt to define the concept of a political constitution in contrast to a legal constitution. They also specifically define the British constitution and explore the dual and paradoxical descriptive-normative nature of constitutional conventions.
At its core, the British constitution remains uncodified, evolving organically based on foundational statutes, political norms, and conventions. Parliamentary sovereignty is a crucial aspect, implying that parliament can legislate on any matter, and no higher law exists outside of parliamentary statute. This sovereignty has evolved through a series of power struggles between the monarch, the church, the courts, and the people. The Magna Carta of 1215, which emerged from the conflict leading to the First Barons' War, granted Parliament the right to exist for "common counsel" before any tax, challenging the "divine right of kings."
The United Kingdom's constitution is influenced by its membership in international organisations like the European Convention on Human Rights and the World Trade Organization. This involvement has led to a recognition that decisions should not override the will of regional governments. Additionally, the British constitution is bound by international law, as seen in the R (Miller) v Secretary of State for Exiting the European Union case, where the Supreme Court emphasised that only Parliament could consent to triggering Article 50 to initiate Brexit.
In conclusion, the British constitution, as characterised by Gee and Webber, is an evolving framework shaped by historical statutes, political norms, and international influences. It operates within a system of parliamentary sovereignty, where the Acts of Parliament are the highest form of law, and the political process holds those in power accountable.
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The US Constitution
In their 2010 work, Graham Gee and Grégoire C. N. Webber attempt to define a political constitution and distinguish it from a legal constitution. They also explore the paradoxical descriptive-normative nature of constitutional conventions. According to Gee and Webber, a political constitution is one where "the political process in political institutions (e.g., the House of Commons and House of Lords) hold those who exercise political power to account." In contrast, a legal constitution relies on judicial review to hold those in power accountable.
Now, turning to the US Constitution, it is the oldest written constitution in the world, consisting of seven articles. It was ratified in 1788 when New Hampshire became the ninth state to approve it on June 21, and it came into law on March 4, 1789. The US Constitution has been amended 27 times and is known for its famous opening words, "We the People," which emphasise that the government exists to serve its citizens.
In conclusion, the US Constitution, with its emphasis on federalism, separation of powers, and protection of individual liberties, has served as a foundational document for the American political system and a model for other democracies worldwide.
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The nature of constitutional conventions
In their 2010 work, "What is a Political Constitution?", Graham Gee and Grégoire C. N. Webber attempt to define a political constitution and distinguish it from a legal constitution. They also seek to define the British constitution in particular and explore the dual and paradoxical descriptive-normative nature of constitutional conventions. Gee and Webber define a political constitution as one under which the political process in political institutions (e.g., the House of Commons and House of Lords) holds those who exercise political power accountable.
Constitutional conventions are rules of good political behaviour and are typically rules of self-restraint, such as not exercising powers to the full or abusing public power. They are principles of responsible government that exist across all branches: legislative, judicial, and executive. Conventions may develop from established constitutional practice or be deliberately created, and they are generally accepted as binding. While they are not legally enforceable, they are enforced on a political, professional, or personal level and play a significant role in the British constitution and others.
Conventions can be written or unwritten. Written conventions can be found in official guidance such as the Ministerial Code, Cabinet Manual, and Guide to Judicial Conduct, as well as in legislation. Unwritten conventions arise from long-practiced customs or may be referenced in other documents. For example, members addressing each other in the third person or by position or constituency.
Conventions are inherently flexible and can evolve, especially during times of political or constitutional crisis. An example of a convention that has evolved is the expectation that the government seeks parliamentary approval before committing troops overseas. This convention arose from Tony Blair's act of seeking parliamentary approval for the 2003 invasion of Iraq.
While conventions are not laws, disobeying them can result in political criticism and even a constitutional crisis. There is an argument for their codification to strengthen their enforcement, but this is a complex issue with advantages and disadvantages.
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The political view of constitutionalism
Gee and Webber differentiate between political and legal constitutions. They define a political constitution as one under which the political process in political institutions (e.g., the House of Commons and House of Lords) holds those who exercise political power to account. In contrast, a legal constitution is defined as one under which judicial review holds those exercising political power to account.
Gee and Webber's work contributes to a full-fledged constitutional theory capable of standing as an alternative to the liberal-legal paradigm. They acknowledge the ambiguity inherent in political constitutions, where political constitutionalists subscribe to a similar set of commitments, arguments, and assumptions, but the normativity of a political constitution may remain indistinct and ill-defined.
Furthermore, the political view of constitutionalism, as discussed by Gee and Webber, is relevant to understanding referendums, such as Brexit, as consistent with political constitutionalism. They argue that referendums can supplement representative democracy when embedded within and constrained by it, challenging the notion that they represent the sovereign will of the people.
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Frequently asked questions
The essay attempts to offer viable definitions of a political constitution versus a legal constitution. It defines a political constitution as one under which the political process in political institutions holds those who exercise political power to account. It also explores the idea of a political constitution as articulated by J.A.G. Griffith, Adam Tomkins, and Richard Bellamy.
A political constitution is a "model" that provides a framework to understand constitutional self-understandings. It is a set of commitments, arguments, and assumptions that guide a country's political system and processes.
Political constitutions rely on parliamentary sovereignty, where all questions are treated as political and subject to parliamentary debate. Legal constitutions, on the other hand, remove certain questions from the political realm and reserve them as legal questions for courts to adjudicate.
The UK's political constitution is an example. It is based on the checking and balancing operations of a representative system, with parliamentary sovereignty as its keystone.
The US Constitution is a legal constitution that has ossified the system of government into a republican transcription of the British constitution of the late 18th century. It includes a division of powers and a bill of rights.
