Parliament, Crown, and the rule of law in Britain

Abstract

The North Atlantic rule of law tradition claims deep roots in the British common law as well as in the constraints on royal power expressed in the Magna Carta. At the same time, when we think of the concrete practices associated with rule of law in the modern world, we often think not of parliamentary supremacy and constitutional custom (indeed, as Chapter 5 showed us, the Athenian equivalents to both have been viewed as threats to the rule of law), but of something like American constitutional institutions: entrenched primary law, life-tenured judges with the power of judicial review, specific guarantees against bills of attainder, and the like. For that reason, a close look at the British rule of law is essential to a nonparochial understanding of the concept in general, particularly for scholarship produced in the United States. Accordingly, this chapter aims to shed light on two key questions. First, does the United Kingdom actually satisfy, to a reasonable degree, the demands of the rule of law? In the first section, I argue that the question cannot be conclusively answered absent empirical research, but offer an informal model demonstrating that – notwithstanding the doctrine of parliamentary sovereignty and the absence of binding judicial review – British officials could be sufficiently constrained to comport with the rule of law. Second, have egalitarian ideas similar to those I developed in Chapter 1 been available within the British rule of law tradition? In the second section, I argue in the affirmative. Both sections are motivated by promissory notes issued in previous chapters. In Chapter 1, I argued that the concept of the rule of law should be treated separately from the practices of particular rule of law states. The institutional principles of the rule of law are functional generalizations from those observed practices, but they can be instantiated in different ways in different states. In support of that institutional independence claim , I pointed out that we usually see Britain as a rule of law state, despite its absence of judicial review and its adherence to the doctrine of parliamentary supremacy, because constitutional customs, rather than the formal written constitutional constraints of the United States, sufficiently constrain British officials.