LEGAL CONSEQUENCES OF THE UNWRITTEN CONSTITUTION

Date: 2015-10-07; view: 774.

Where there is a written constitution, the legal structure of government may assume a wide variety of forms. Within a federal constitution, the tasks of government are divided into two classes, those entrusted to the federal (or central) organs of government, and those entrusted to the various states, regions or provinces which make up the federation. Thus in countries such as Canada, Australia or the United States, constitutional limits bind both the federal and state organs of government, which limits are enforceable as a matter of law. Many written constitutions seek to avoid a concentration of power in the hands of any organ of government by adopting the principle of separation of power, vesting legislative power exclusively in the legislature, executive power in the executive and judicial power in the courts.

Within the United Kingdom, there is no written constitution which can secure these objects or which can serve as fundamental law. In the absence of a constitution to serve as the foundation of the legal system, the vacuum is filled by the legal doctrine of the legislative supremacy of Parliament. The full significance of this doctrine will be examined later, but the result in that formal restraints upon the exercise of power which exist elsewhere do not exist in the United Kingdom. For example, no truly federal system can exist so long as Parliament's legislative supremacy is maintained. For a federal system to be established a written constitution would be necessary, limiting the powers of the Westminster Parliament and thus preventing it from taking back the devolved powers into its own hands. Of course, if subordinate legislatures were to be established for Scotland and Wales, it might be politically difficult to abolish them; but their continued existence would he safeguarded by political factors rather than by constitutional law.

The absence of a written constitution has a sharp effect upon the sources of constitutional law. Instead of the constitution being the formal source of all constitutional law, much greater importance attaches to Acts of Parliament and also to judicial decisions, which settle the law on matters such as police powers that have never been the subject of comprehensive legislation. Some major institutions, like the Cabinet, do not derive their authority from the law; many important constitutional rules are not rules of law at all. To summarize, the absence of a written constitution means that the British constitution depends far less on legal rules and safeguards and relies much more upon political and democratic principles.

Notes

1.assume a wide variety of forms – допускать (предполагать) самые разнообразные формы

2.entrust to the federal government – возлагать на федеральное правительство

3.bind both the federal and state organs of government – связывать обязательством федеральные органы власти и органы власти штатов

4.enforceable as a matter of law – обеспеченный правовой санкцией

5.seek to avoid a concentration of power – стараться избегать концентрации власти

6.adopt a principle of separation of powers – принять принцип разделения властей

7.vest legislative power exclusively in the legislature – наделять законодательной властью исключительно законодательные органы власти

8.render them unalterable – сделать их неизменяемыми

9.secure these objects – сохранить эти объекты

10.legal doctrine of the legislative supremacy of Parliament – правовая доктрина законодательною верховенства парламента

11.be safeguarded by the political factors – быть под защитой политических факторов

12.attach importance to – придать значение

13.depend far less on legal rules and safeguards – гораздо меньше зависеть от правовых норм и гарантий

14.rely much more upon political and democratic and democratic principles — гораздо больше полагаться ни политические и демократические принципы

1. Find the English equivalents of the following words:

1. связывать обязательством федеральные органы и органы власти штатов

2. доктрина превосходства законa

3. ограничить власть (полномочия)

4. отсутствие написанной конституции

a. to limit the powers

b. absence of a written constitution

c. doctrine of the legislative supremacy

d. to bind the federal and state organs of government

2. Find the equivalents:

1.confirm a. to have a good opinion of someone or something

2.approve b. to approve officially by formal agreement

3.safeguard c. to pay a great attention to

4.attach importance to d. protection

3. Agree or disagree with the following statements:

a)Many written constitutions fail to avoid a concentration of power.

b)The vacuum is filled by the legal doctrine of the legislative supremacy of Parliament.

c)The absence of a written constitution doesn't affect the sources of constitutional law.

4. Answer the questions:

1.Which forms may the legal structure assume?

2.What is important to avoid for countries with written constitutions?

3.What is the vacuum of written constitution Riled by?

4.Which disadvantages of not having a written constitution can you point out?

5.How does the absence of a written constitution affect constitutional law and its sources?