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英国宪法和人权法的法律渊源 Legal Sources of the UK Constitution and

2017-11-06 14:26:16    Tag:    点击联系客服: 客服:Damien
英国宪法被描述为一个不成文的宪法。请参考英国宪法的法律来源和适当的例子,解释为什么它被称为不成文的,并考虑成文和不成文宪法之间的区别是否具有法律意义。
 
“宪法”一词有许多不同的含义,但只有两个适用于宪法。首先,“宪法”可以是一个书面文件,其中包含一个国家运行的规则和原则。第二,“宪法”一词可以指:
 
“关于该国政府的规则和安排的主体。”
 
第二个定义不要求任何书面要求。应该强调的是,虽然有些国家没有成文宪法,但世界上每个国家,包括英国,都有第二种意义上的宪法。几个世纪以来,英国/英国宪法的态度从钦佩到严厉批评。托马斯·潘恩更进一步,他排除了一个可能性,英国宪法可能存在。英国宪法有时被描述为“政治”,格里菲思认为,“政治”可以用来指一个范围广泛的特质,例如英国的宪法是全体公民的平等和许多重要的规则没有法律规定。他还强调,宪法的运作与议会和议会选举密切相关,这就引出了一个结论,即必须在政治背景下分析英国宪法。。
 
1. The UK constitution is described as an unwritten one. Explain with reference to the legal sources of the UK constitution and appropriate examples, why it is called unwritten, and consider whether the distinction between a written and unwritten constitution is legally significant.
 
The word 'constitution' has many different meanings, however only two of them are applicable to constitutional law. Firstly, 'constitution' could mean a written document which contains the rules and principles according to which a country is run. Secondly, the word 'constitution' could refer to:
 
"the body of rules and arrangements concerning the government of the country."[1]
 
The second definition does not impose any requirement of writing. It should be stressed that although some states do not have a written constitution every country in the world, including the UK, has a constitution in the second sense of the word. Over the centuries the attitude towards the British/English constitution ranged from admiration to sever criticism. Thomas Paine went even further, he ruled out a possibility that an English constitution could exist.[2] The British constitution has been sometimes described as ‘political.’ Griffith believes the word ’political’ can be used to refer to a wide range of qualities, e.g. the UK constitution assumes equality of all citizens and many important rules are not legal rules. He also stressed that operation of the constitution is closely linked to Parliament and Parliamentary elections, this leads to a conclusion that the British constitution must be analysed in the political context.[3]
 
The UK constitution draws on a wide range of sources: statutes, common law, the royal prerogative, international treaties and agreements, conventions and academic texts written by legal experts. As an expression of Parliament’s will statutes are the most important source of law, some of them have a particular constitutional significance, e.g. the Magna Carta 1215, the Act of Settlement 1701, the Representation of the People Act 1983 and the Human Rights Act 1998. Another written source of law is case-law. Although judges should merely interpret the law, and not get involved into a law making process, many crucial legal principles have been established in the course of legal proceedings, for example in British Railways Board v Pickin[4] Lord Reid said that the courts have no power to overrule Acts of Parliament on any grounds. International treaties and agreements, such as for instance the Treaty of Rome 1957, have also become a source of English law; similarly, texts written by legal experts may acquire exceptional legal significance, e.g. Dicey's An Introduction to the Study of Law of the Constitution.
 
The unwritten sources of the UK constitution are the royal prerogative and conventions. The royal prerogative stems from the powers which used to be exercised exclusively by the monarch and which are now exercised by the ministers on the Queens behalf. The examples of the royal prerogative are the power to declare war, the control over the appointment of ministers and the right to dissolve Parliament. The legal nature of conventions is somewhat different, they are non-legal norms which should be obeyed by those to whom they apply; although conventions cannot be enforced by the courts they are usually respected. As the above discussion illustrates, a large part of the constitution is written. However, due to lack of a separate document which could be called a constitution this fact is often disregarded and the UK constitution is said to be unwritten.
 
The unwritten character of the UK constitution, or rather the existence of unwritten rules, has serious legal implications. The first point to note is that Parliament can pass and revoke the law as it sees fit. Until recently the British constitution did not guarantee any rights; although an Act, called the Bill of Rights, was enacted as early as 1688 it dealt exclusively with issues related to Parliament and Crown. This meant that, in theory, Parliament could pass any legislation it considered appropriate even if it infringed rights of UK citizens. Prior to the enactment of the Human Rights Act 1998 the only limitation on the Parliamentary sovereignty in cases involving of human rights violation would have been the rule of law. However, effectiveness of the rule would have been limited if the courts, wanting to avoid interference with Parliamentary decisions, refused to enforce it. This should be juxtaposed with countries which have written constitutions and where rights of ordinary citizens are protected by specially drafted provisions.
 
In addition to being uncodified the UK constitution is flexible and unitary (provided devolution is not taken into account) but it is not entrenched. The result is that while written constitutions are rigid the UK constitution is flexible, an advantage of flexibility is that any necessary changes can be introduced quickly and relatively easily. On the other however, lack of entrenchment leaves a lot of power in the hands of a small group of people. Moreover, unwritten constitutions always involve a degree of vagueness, the situation is made worse by the fact that norms which are not written cannot be enforced by the courts. These problems do not arise if the constitution is written, yet it does not follow that all the relevant law can be found in the constitution. Munro argued:
 
“It ( ) also suggested, wrongly that in countries such as the United States, all the rules and arrangements concerning government had been reduced to writing in a single document. In practice, this is never the case.”[5]
 
Both written and unwritten constitutions rely on the legal precedent, they are formed and modified by judicial interpretations of the law and political practices.
 
The UK constitution is said to be 'unwritten' however as has been shown above it is not, strictly speaking, true. The constitution relies on a wide range of sources and most of them can be found in writing. It has already been mentioned that the constitution can be described as political, yet following developments such incorporation of the European Convention on Human Rights, membership of the European Union and changes which took place post-1997, more and more constitutional rules are being codified. Thus, according to Munro the UK constitution is becoming ’legal.’[6] It is, therefore, submitted that the gap between the unwritten British constitution and the written constitutions in other countries is gradually becoming narrower. The new EU constitution may close this gap entirely.

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