England’s unwritten constitution
February 16, 2010 § 2 Comments
Some call the English constitution an unwritten constitution, but that isn’t quite true. England’s constitution is written down, but not in one place, and not at the same time. It’s not a document, like our constitution, but a whole collection of important legal statements that set out what the balance of power ought to be between the government and the people. They’re important because they’ve stood the test of time. The Magna Carta, for example, is understood to be a living part of the English constitution because it contains an argument that the citizens of the U.K. still believe in: that the powers that be can’t deprive someone of liberty, life, or property willy-nilly–evidence of guilt must be produced.
But the bulk of England’s unwritten constitution isn’t made up of documents as dramatic as the Magna Carta, but is the result of what’s called Common Law. Think of the English Common Law as the agreed-upon wisdom resulting from centuries of court cases and laws passed by parliament. The Common Law comprises legal decisions that have remained firmly in place over time because people have agreed that they are useful and good.
They’re useful because courts use legal precedents to make decisions. (This part is important.) Say you’re arguing a case that hinges on the definition of incest. You’re representing a woman who slept with her stepson. You discover that Parliament enacted a law in 1645 that described the kinds of relationships that could be considered incestuous, but the stepmother-stepson relationship isn’t one of them. If that law had never been successfully challenged and if people were still using it as a touchstone to decide cases (not likely!), then you would argue that this act–this precedent–clearly guides the court to find that your client is not guilty of incest.
The Common Law is dynamic: it doesn’t sit still. Legal decisions and laws change with time and custom. It’s a slow change–most of the time. Courts and parliaments and congresses are essentially conservative institutions. It takes time to chip away at a precedent until it’s no longer considered useful or good. The more deeply the precedent concerns self-identity or fundamental beliefs, the more time it will take to change. Change is inevitable, but swift legal change, like we’ll see in the 1640s, is a rare beast.