Crown In Parliament Research Articles

Endogenous Political Legitimacy: The Tudor Roots of England’s Constitutional Governance

This paper highlights the importance of endogenous changes in the foundations of legitimacy for political regimes. It focuses on the central role of legitimacy changes in the rise of constitutional monarchy in England. It first defines legitimacy and briefly elaborates a theoretical framework enabling a historical study of this unobservable variable. It proceeds to substantiate that the low-legitimacy, post-Reformation Tudor monarchs promoted Parliament to enhance their legitimacy, thereby changing the legislative process from the “crown and Parliament” to the “crown in Parliament” that still prevails in England. The break with Rome permanently altered England’s political development.

Parliamentary sovereignty and the locus of constituent power in the United Kingdom

Abstract This article argues that parliamentary sovereignty’s assimilation of constituent power—the ultimate power in a legal order to create and posit a constitution—has stultified the development of British constitutional law. The result is a deeply ideological, as distinct from oft-heralded pragmatic, constitutional structure that is incapable of confronting the systemic challenges the United Kingdom currently faces. By conceptualizing a more antagonistic relation between the Crown in Parliament and “the people” by questioning the democratic credentials of the former, this article contends that the UK constitutional order can be reinvigorated. This reappraisal, however, also requires the interrogation of the notion of “the people” in the UK constitutional order itself. Thus, despite what appear to be substantial constitutional reforms in recent decades, parliamentary sovereignty’s inviolability is stultifying deeper constitutional reform. The result is a constitutional law in “crisis” in search of a paradigmatic revolution. A descriptive—as distinct from normative—account of constituent power is then introduced paving the way for a distinction to be drawn between the possessor of constituent power in a constitutional order and “the people.” Constituent power in the context of the UK is then discussed, arguing that parliamentary sovereignty incorporates much of what the idea of constituent power does. However, this does not mean that constituent power is vested in “the people”; rather, the locus of constituent power in the United Kingdom should be more forcefully critiqued from a democratic perspective. By acknowledging this distinction, the sacrosanctity of parliamentary sovereignty can be broached and more effective constitutional reform can follow by embracing this tension between Parliament and “the people.”

Parliamentary Sovereignty and the Locus of Constituent Power in the United Kingdom

This paper argues that parliamentary sovereignty’s assimilation of constituent power — the ultimate power in a legal order to create and posit a constitution — has stultified the development of British constitutional law. The result is a deeply ideological, as distinct from oft-heralded pragmatic, constitutional structure that is incapable of confronting the systemic challenges the UK currently faces. By conceptualising a more antagonistic relation between the Crown in Parliament and ‘the People’ by questioning the democratic credentials of the former, this paper contends that the UK constitutional order can be re-invigorated. This re-appraisal, however, also requires the interrogation of the notion of ‘the People’ in the UK constitutional order itself. Part I argues that despite what appear to be substantial constitutional reforms in recent decades, parliamentary sovereignty’s inviolability is stultifying deeper constitutional reform. The result is a constitutional law in ‘crisis’ in search of a paradigmatic revolution. A descriptive — as distinct from normative — account of constituent power is then introduced paving the way for a distinction to be drawn between the possessor of constituent power in a constitutional order and ‘the people’. Constituent power in the context of the UK is then discussed, arguing that parliamentary sovereignty incorporates much what the idea of constituent power does. However, this does not mean that constituent power is vested in ‘the people’; rather, the locus of constituent power in the UK should be more forcefully critiqued from a democratic perspective. By acknowledging this distinction, the sacrosanctity of parliamentary sovereignty can be broached and more effective constitutional reform can follow by embracing this tension between Parliament and ‘the People’.

In the name of king, country, and people on the Westminster model and Bhutan's constitutional transition

In 2008 Bhutan inaugurated a written constitution thereby instituting the state as a constitutional monarchy. The constitution is almost unanimously described as democratic by international media and academics. The ease with which this apparent consensus on its democratic character has been achieved, however, raises the important question of how best to approach the theory of constitutional democratization. In approaching the issue of democratization as a move towards popular control, this article discusses the ambivalence of the Bhutanese constitution towards this principle in a cultural context where social order is seen as constituted within the unity of king, country, and people. Curiously, this language is not as unique to Bhutan as one might expect, but influenced by the Westminster legacy in its emphasis on the principle of “Crown in Parliament”, its ritualization, and ideas of political inequality. It raises the question whether this model is suitable as a blueprint model for countries with different historic and cultural trajectories from the European ones? The article advocates a novel approach to the analysis of constitutional transition that transgresses the dichotomy between an institutional and linguistic approach, thus opening up interesting new insights on the waxing and waning of processes of expanding popular control.

Assessing the Relationship between Legislative and Judicial Supremacy in the UK: Parliament and the Rule of Law after Jackson

In this article, the authors will consider a very narrow yet spectacularly important aspect of the rule of law: its place in a constitution—the constitution of the United Kingdom—in which supremacy rests not with the constitution as a document to be interpreted by a constitutional court, but with the legislature itself. While traditionally the supremacy of the Crown in Parliament has meant that British courts have had no right to set aside even the most oppressive legislation, recent extra-judicial writings and obiter dicta in case law have been indicative of a shift in the judicial mood. In light of these developments, the paper will ask: Where does the relationship between the supremacy of the Crown in Parliament and the rule of law stand now? Where might that trajectory take us? And what might be done to reconcile the two?

Shaping the Nation: England, 1360–1461

Shaping the Nation: England, 1360–1461. By GERALD HARRISS (Oxford, Clarendon P., 2005; pp. xxi + 705. £35). THE New Oxford History of England is a series which aims to embody ‘the scholarship of a generation’. It aims, in other words, to be authoritative, up-to-date and trustworthy, each volume serving as a work of reference which marks a particular point in the evolution of historical research into what its general editor describes as ‘the state story’, that is, ‘the story of a state-structure built around the English monarchy and its effective successor, The Crown in Parliament … that provides the only continuous articulation of the history of peoples we today call British’ (pp. vii–viii). Not surprisingly, the author of each volume in the series interprets this brief in his or her own way. Robert Bartlett, in his England Under the Norman and Angevin Kings (2000), concluded his survey of the period 1075–1225 with three long chapters on ‘Cultural Patterns’, ‘The Course of Life’ and ‘Cosmologies’, including discussion of such topics as the performing arts, patterns of naming, manners, time and ‘beings neither angelic, human, nor animal’. Gerald Harriss has written a rather different book. Shaping the Nation is divided into three sections: ‘Political Society’, ‘Work and Worship’, and ‘Men and Events’. Given that the focus of Harriss's work over a long and very distinguished career has tended to be on kingship and government, it would not be surprising to find that the real strength of this book lay in its first and third parts. In fact this is not the case. This is an immensely well-informed book throughout, and the range of reading which underpins the section on ‘Work and Worship’—to say nothing of the sharpness of the judgements delivered there—is just as impressive as in the political and narrative sections.

Conciencia y sacerdocio femenino en Ia Iglesia de Inglaterra

In 1993 an Ecclesiastical Law, a canon of the Church of England, allowing women to exercise priestly functions came into being. The Priest Measure includes a conscience clause which bishops, clerics and laity, may take. This clause applies not only to ideological concerns which may arise, but to the scruples of conscience of those who sincerely believe in the tradition of millennia that reserving ordination to men constitutes the deposit of faith, following Christian directives and in particular the Catholic tradition. The historical roots, which have delineated the doctrinal and disciplinary elements of the Church of England, are examined. An analysis of the legislative system is made. This reveals that we are dealing with a hybrid: that the conscience clause of the Priest Measure is « Mixed ». Those who take the clause demonstrate their expressed reserve with respect to the damage to the truths of faith produced by the new order within the Church. Similarly they express reserve with regard to the State, since the Priest Measure has the rank of Statute Law and forms part of English Law having been approved by the Crown in Parliament.

The Development of a Party-Orientated Electorate in England, 1832–1918

Modern British government is government by party leaders in Cabinet. It is still the ‘Crown in Parliament’ which formally takes or authorizes every legislative or administrative action, but of the three major components of the Crown in Parliament – the Commons, the Lords, and the Sovereign – the first is now virtually unchecked. The House of Lords can only minimally delay acts of the Commons, and both the Lords and the Monarch have long since lost their ability to veto (much less initiate) legislation. Since those in the Cabinet control the agenda of the House of Commons, since the Cabinet almost invariably consists solely of the leaders of the party with a majority of seats in the Commons, and since the influence of party on voting in Parliament is very strong, the Commons itself has in essence only retained a veto over the legislative proposals of the majority party's leaders who sit in the Cabinet. As a recent essay on legislation in Britain notes, ‘today's conventional wisdom is that … Parliament has relinquished any capacity for legislative initiative it may once have possessed to the executive in its midst’.