Sir Ivor Jennings’ ‘The Conversion of History into Law’

Abstract

2015 saw the 800th anniversary of the signing of the Magna Carta. Beyond Britain, especially in the phase of decolonisation and state-building, the Magna Carta, British institutions and laws spread across the globe. As Linda Colley has recently observed, ‘Although Britain has no written constitution, British lawyers, civil servants, and diplomats have been conspicuously active in writing constitutions for other countries’.1 Arguably the most important British figure in this process during the 20th century was Sir Ivor Jennings. One of Britain’s most prolific and prominent constitutional scholars, Jennings was the driving force behind this process. Aside from being the author of well-known texts including The Law and the Constitution , Cabinet Government , Parliament , and The Approach to Self-Government (all still in print) and a distinguished Cambridge Don, Jennings was also highly influential as a constitutional adviser across the world. In particular he had a substantial influence on constitutions in the ‘New Commonwealth’ from the late 1930s till the 1960s, and his advice was sought throughout the Commonwealth and the United Kingdom when it came to constitutional matters. Jennings has been credited by legal scholars, like Martin Loughlin, with being one of the founders of the ‘functionalist’ method in public law.2 This approach sees the analysis of politics and state institutions as central to the study of public law. The arguments below, delivered from a lecture given on 16 March 1960 to an unknown audience, detail a further strand of the functionalist thought by showing how Jennings saw the British common law tradition as one of converting history into law. His paper articulates and ultimately argues the wisdom and pragmatic superiority of the British concept of parliamentary sovereignty where the legislature is infused with both historical precedent and contextual need in determining the constitutional order …