Constitutional Limitations on British Parliamentary Sovereignty: Rule of Recognition Perspective

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What this article seeks to analyse is the current constitutional scholarly movement in the United Kingdom towards a non-traditional way of interpreting its Constitution which closely resembles the methods implemented in the United States. Part A explains the old positivist doctrine underlying the British Constitution, and explores the arguments for having a quasi-written constitution by incorporating written principles that restrain Parliament through judicial review. Part B of this paper will then go on to demonstrate how the new lens through which we view the British constitutional system complies and fits in with traditional jurisprudence and legal theory, albeit via slightly amending and stretching its current boundaries. Part C provides a contrasting perspective as it addresses the present debates in the U.S. by American common law constitutional interpreters pertaining to the US having an unwritten constitution whereby constitutional principles are derived from case-law and precedent. The written nature of America's Constitution has been traditionally regarded as a constitutional virtue, and more recently dismissed as an irrelevancy of form. However, the concept of ‘writtenness’ itself, in the constitutional context, remains vague and undefined. This too shall be explored. Finally, Part D of the paper will identify the present cumulative dissatisfaction with the U.K.’s traditional method of interpreting its constitution and provide a reasonable resolution to this dilemma in the form of a compromise, namely that similar to the Canadian method of constitutional interpretation – a mixture of both fundamental written and unwritten sources of constitutional doctrine.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Krishan Thakker | Attorney Advertising

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