Constitutions in politics
- A single case study of the United Kingdom
Answering question 1
Søren Lysemose Støvring
CPR:
Political Science, Final exam
December, 2011
Contents
1 Introduction .................................................................................................................................................... 2
2 Key Concepts .................................................................................................................................................. 2
2.1 States and political systems..................................................................................................................... 3
2.2 Constitutions ........................................................................................................................................... 3
2.2 Constitutionalism..................................................................................................................................... 4
3 Analysis of the United Kingdom ..................................................................................................................... 5
4 Discussion ....................................................................................................................................................... 7
5 Conclusion ...................................................................................................................................................... 7
6 Bibliography .................................................................................................................................................... 8
1 Introduction
This paper deals with constitutions and their relation to political systems and states. Does a constitution
constitute a state and a political system? To examine this question, it will first describe the key concepts,
hereby defining political systems and states and distinguish between different definitions of constitutions
and constitutionalism. Afterwards it will apply the concepts to the case of the United Kingdom. Finally, it
will discuss the results of the analysis in relation to the above stated question.
According to the assignment, some scholars argue that constitutions constitute states and political systems.
The verb ‘constitute’ is somewhat ambiguous and I have therefore decided to interpret is as “establish and
shape” so that the argument of the scholars can be reformulated as: a state and a political system cannot
function without a shaping and establishing constitution. The United Kingdom as a single case study has
been chosen because of the difficulties with defining its constitution. While other countries, US for
instance, have a constitution successfully concentrated in a single document, the constitution is far more
diffuse and it is as such an anomaly in terms of constitutions. The examination of this anomaly will prove
that even in special cases the scholars are right. The word diffuse is in this paper used as “decentralized” to
indicate, that the constitution is spread out.
2 Key Concepts
This chapter begins with a brief description of the characteristics of a state and of a political system.
Afterwards, it explains different definitions of constitutions and constitutionalism.
2.1 States and political systems
This first subchapter seeks to define a state so as to be able to apply the definition to the case of the United
Kingdom. States are by far the most popular way of structuring political societies today, which is reflected
in the sentence: “The state is now the dominant principle of political organization on the world’s landmass”
(Hague and Harrot 2004). Max Weber defined it as: “A compulsory political organization with continuous
operations will be called a “state” insofar as its administrative staff successfully upholds the claim to the
monopoly of the legitimate use of physical force in the enforcement of its order” (Eddy Ashbee 2011),
which emphasizes continuous operation and the state as the only institution allowed to perform violence.
Gianfranco Poggi lists three more requisites for a polity to be regarded a state, namely territoriality,
sovereignty, and co-existence with other states (Caramani 2011, p. 68). Territoriality is the state’s exclusive
claim of a geographic area, sovereignty is not recognizing any power superior to the state in the territory,
and co-existence with other states is the mutual recognition of sovereignty between states. These five
characteristics, monopoly of legitimate violence, continuous operation, territoriality, sovereignty, and coexistence with other states will be used in section 3.
Political systems, on the other hand, refer to the organization of politics within states. This can be classified
in numerous ways. Typical and well-known examples of political systems are democracy, dictatorship and
monarchy, all of which can be further classified. This brief description is also going to be used in section 3.
Meanwhile, the next subsection will examine constitutions.
2.2 Constitutions
To understand the relationship between a state, its political system and the constitution, it is important to
get a clear idea of what a constitution is. This is, however, not easy, since definitions vary. A broad and
generic definition is Alec Stone Sweet’s, stating: “a constitution is a body of meta-norms that specify how
all other legal norms are to be produced” (Caramani 2011, p. 164). Another definition, focusing more on
the specific purposes, is: “A constitution sets out the formal structure of the state, specifying the powers
and institutions of central government, and its balance with other levels. In addition, constitutions express
the rights of citizens and in so doing create limits on and duties for the government” (Hague and Harrop
2004, p. 210). Finally, Stone Sweet defines today’s modern constitution in the following way: “Written
constitutions are the ultimate, formal source of state authority. They establish governmental institutions,
such as legislatures, executives, and courts, and grant them the power to make, apply, enforce, and
interpret laws. Constitutions tell us how infra-constitutional norms, like statutes, are to be made” (Stone
Sweet 2009, p. 626). Constitutions can be codified or uncodified depending on whether they are written
down in a single document or not. According to Stone Sweet and in accordance with his meta-norm
definition, there have throughout history empirically been three different kinds of constitutions (Caramani
2011, p. 165):
Type 1. The absolutist constitution, in which authority to change constitution is centralized and absolute.
This type is closely related to monarchy (one-person rule) or one-party rule. The meta-norms reflect the
absolute power.
Type 2. The legislative supremacy constitution, in which the most important meta-norm is the rule of the
legislative sovereignty. The constitution provides a stable set of governmental institutions and the
legislative power gets authority through elections to pass legislation that has constitutional value. Thus, this
type of constitution is not entrenched and can be changed by the legislative power. Judicial review is also
subject to the rule of the legislative power.
Type 3. The higher law constitution, in which meta-norms is reflected as constitutional rights. In contrast to
the type 1 and 2, this type of constitutions reject centralization of power and legislative sovereignty. The
constitution is entrenched and can only be changed through amendments. Of the three types, type 3 is by
far the best represented in the world today.
2.2 Constitutionalism
Constitutions have given name to the notion constitutionalism, which seem to be even harder to define.
One way of understanding it is as constitutional rule: “the combination of habits, practices and values
which underpin government by law” (Hague and Harrop 2004, p. 209), thus referring to a “political
environment in which the equal rights of individuals are not just stated but also respected” (Hague and
Harrop 2004, p. 209). This definition describes a situation where there is some kind of constitution and it is
accepted and followed by both citizens and the political system, and it is worth noting that it incorporates
such difficult-to-measure things as habits and values. This goes well with Stone Sweet’s usage of the word
(Caramani 2011, p. 164) as a reference to the variable commitment of “any given political community to
accept the legitimacy of, and be governed by, constitutional rules and principles”. He does not, however,
differ between the acceptances in states with entrenched constitutions and stated without entrenched
constitutions. Another definition of constitutionalism is that of Carl Friedrich who uses it in situations
where the constitution effectively restrains those who control the coercive instruments of the state
(Caramani 2011, p. 164). This differs from the first definition in the way that the constitution has to restrain
the power of the governing effectively. A third usage of the word constitutionalism is the notion “new
constitutionalism”. This was introduced by Shapiro and Stone Sweet in 1994 and refers to the recent1
popularity of the type 3 constitution described in 2.1 (Caramani 2011, p. 165). Precepts of the new
constitutionalism include a written constitution establishing institutions of the state, a constitutional
limitation of the use of public authority, a catalogue of rights and a constitutional justice to defend these,
and laws of constitution review written in it (ibid). The following chapter seeks to apply the different
definitions from chapter 2 in the case of the United Kingdom.
3 Analysis of the United Kingdom
3.1 The United Kingdom as a state and political system
The United Kingdom has a relatively well functioning political system that has been stable and changed
relatively smooth through time from monarchy to today’s democratic constitutional monarchy with a
sovereign bicameral Parliament and a plurality voting system. From a geographical point of view, the
United Kingdom today claims a well-defined territory consisting of Great Britain and the north-eastern part
of Ireland. Without anyone seriously questioning the monopoly of legitimate violence, the polity is
sovereign in this territory2 and although Scotland, Wales and Ireland have their own parliaments these can
be dissolved by the Parliament of the UK. The Parliament of the UK is the oldest in the world (Hague and
Harrot 2004, p. 261) and the Weber requisite of continuous operation must therefore be regarded as
fulfilled. Finally, the UK is, as a part of EU, UN, NATO, and G8, widely recognized and accepted as a state
among other states. To conclude, UK can from the above definition without any doubt be regarded as a
state.
3.2 The constitution of the United Kingdom
The constitution of the United Kingdom is less easily defined. As stated in the introduction, it is somewhat
diffuse and not written down in a single paper, which means it is uncodified. Instead, it is based on two
pillars, the principle of Parliamentary sovereignty (first) and the rule of the law (second) both described by
A. V. Dicey in his 1897 work “Introduction to the study of the law of the Constitution” (Zoller 2008, p. 113).
The principle of Parliamentary sovereignty means that all legislation passed through Parliament is the
supreme law-making body, thus making it not entrenched. It has evolved with Acts of Parliament and is
today embodied in statutes, court judgements manifested in the common law3, conventions, which are
1
There was a lot of constitution-making among postauthoritarian states in the late twentieth century most of which
chose the type 3 constitution (Hague and Harrop, p. 210).
2
Riots broke out in several large cities in England during August 2011 but after a few days, the state had the situation
under control. (The Guardian)
3
A legal system with large precedential weight on common law.
“unwritten practices which have developed over time and regulate the business of governing” (School of
Public Policy 2011), and treaties. Stone Sweet states that in the constitution of the United Kingdom, which
has “evolved over centuries, meta-norms provide a simplified representation, or model, of how the political
system has been institutionalized, and is expected to function” (Caramani 2011, p. 164). The principle of
Parliamentary sovereignty is however in conflict with other definitions of constitutions, since it excludes
“the possibility of acknowledging a higher, constitutional power” (Hague and Harrot 2004, p. 209). By
application of the definitions of constitutions, it is clear, that the British constitution is a brilliant and rare
example of the type 2 in Stone Sweet’s typology of constitutions.
3.3 Constitutionalism in the United Kingdom
Hague and Harrop’s definition of constitutionalism as constitutional rule fits very well with the situation in
the United Kingdom, where citizens in general accept and respect the diffuse constitution. This applies both
to politicians, government, and all other parts of the political society, and “constitutional rule can operate
without a foundation in a specific constitution: indeed, the United Kingdom is such a case” (Hague and
Harrop 2004, p. 209). Using Stone Sweet’s constitutionalism, one can argue that the United Kingdom in
general show a high level of constitutionalism, since they have accepted the constitution for a long time.
One can, however, also argue that the constitution of the United Kingdom might be easier to live under and
be governed by than that of a type 3 or type 1, since it can be changed relatively easy through Acts of
Parliament.
Carl Friedrich’s definition of constitutionalism is difficult to apply to the case of the United Kingdom, since it
is difficult to conclude whether the government is effectively restrained by the diffuse constitution.
Friedrich, an American-German political theorist who helped writing the German post-war constitution
which was heavily focused on restraining the executive power, probably did not base his definitions on the
special case of the United Kingdom.
Although the constitution of the United Kingdom is not at all a part of Shapiro and Stone Sweet’s new
constitutionalism (it does not have a written constitution, the diffuse constitution does not limit the
legislative power etc.) it has changed during the same era with legislation coming from the state’s
membership of EU and civil rights legislation coming from membership of the European Convention on
Human Rights. This supranational legislation indicates a change in sovereignty.
Having applied now the different theories to the case of the United Kingdom, the following chapter will
discuss the results of this analysis.
4 Discussion
While most of the recent cases of constitution-making, mainly in Eastern Europe and Latin America, have
been comprehensive and of the type 3, which clearly shape and establish the state and the political system
through a written constitution in accordance with Stone Sweet’s description of a modern constitution, the
United Kingdom constitution has developed slowly over centuries into a unique mix of judiciary, Acts of
Parliament, treaties and conventions. The usage of Stone Sweet’s broad and generic definition allows
scholars to regard the United Kingdom as having a constitution and explains how meta-norms throughout
history have shaped its political system and the state. Thus, even in the special case of the United Kingdom,
constitutions can be regarded as establishing and shaping the states and political systems. The question is,
however, whether Stone Sweet’s abstract definition is too broad and the incorporation of the United
Kingdom thereby not usable. He says himself, that some “may argue that pushing for more abstract
understandings of a “constitution” may lead us to find constitutions everywhere we see stable forms of
social organization” (Stone Sweet, p. 625). One could argue that in the specific case of the United Kingdom,
the constitution is so heavily defined and shaped by the culture and the traditions, that it is in fact the state
and the political system that constitute the constitution and not the other way around. According to a slide
show by Ashbee, some argue that “if there is legislative supremacy there is no constitution at all” (Ashbee
2011) thereby concluding that the type 2 constitution cannot be regarded as a constitution. If this is the
case, the United Kingdom is an example of a state with a functioning political system established and
shaped by something else than a constitution.
Whether we define the unique example of the United Kingdom as having a constitution or not does not
affect the fact that constitutional rule operates in the state. Citizens, officials and government institutions
act according to a constitution and accept it, and it is very hard to imagine the United Kingdom as a
functioning political system and state without this constitutional rule.
5 Conclusion
This paper initially asked whether a state and a political system can function without a constitution.
Through definition of states as having territoriality, sovereignty, a monopoly of legitimate violence,
continuous operation, and that they coexist with other states through mutual recognition, and political
systems being the organization of politics within the state, this paper shows that the United Kingdom can
be regarded as a state with a functioning political system. There are several definitions of both
constitutions and constitutionalism, and application of these to the case of the United Kingdom reveals that
some fit better than others. Stone Sweet’s broad definition of a constitution is able to fully include that of
the United Kingdom, and his typology of constitutions shows that it is a type 2 constitution. Hague and
Harrop’s definition of constitutionalism as constitutional rule reveals that even without a codified and
entrenched constitution, constitutional rule operates in the United Kingdom. In the discussion of these
results, this paper argues that when using Stone Sweet’s broad definition, the diffuse constitution of the
United Kingdom can be regarded as constituting the state and the political system.
6 Bibliography
Books and lectures
Caramani, D. (Editor) (2011) Comparative Politics. Oxford: Oxford University Press, chapters by Stone
Sweet, A.; Poggi, G.;
Hague, R. and Harrop, M. (2004) Comparative Government and Politics: An Introduction. New York:
Palgrave Macmillan
Stone Sweet, A. (2009) Constitutionalism, Legal Pluralism, and International Regimes. Indiana Journal of
Global Legal Studies 16.2: 621-645. Available at: http://works.bepress.com/alec_stone_sweet/27
Zoller, E. (2008) Introduction to Public Law : A Comparative Study. Boston: Martinus Nijhoff
Ashbee, E. (2011) Lecture 9 and lecture 3
Links
Lewis, P. (2011) Reading the riots: Investigation England’s summer of disorder [web page].
URL http://www.guardian.co.uk/uk/series/reading-the-riots [First accessed 19th December 2011]
School of Public Policies (2011) What is the UK constitution? [web page].
URL http://www.ucl.ac.uk/constitution-unit/research/uk-constitution [First accessed 19th December 2011]