Views of each state within the federation. In the uk any constitutional

provision can be changed in the same way as any other law. This

makes changes, for example electoral reform, against the interests of

the government in office difficult to achieve.

On the other hand, if a written constitution is difficult to change it

can be accused of inflexibility. Indeed, it is often maintained that a

constitution changes organically as society changes so that a written

document merely freezes the whims of whoever happens to make it at

the time. Hence, in the USA there is a continuing debate as to whether

the 300-year-old constitution should be interpreted in the light of the

intentions of its framers or in accordance with changing circumstances

and values (see Dworkin, 1986, ch. 10). An analogous debate applies in

the UK to any legislation as to whether the actual or presumed inten-

tion of the lawmaker should be decisive or whether the words should

be reinterpreted according to the opinions of successive generations

of interpreter (see Fitzpatrick v. Sterling Housing Association (1999)).

44 General Principles of Constitutional and Administrative Law

A way of dealing with this kind of issue is to distinguish between

‘general’ intention and ‘particular’ intention.’ The framers of the con-

stitution might express a general intention, for example that everyone

should have a fair trial, or be equal before the law while recognising

that the particular ingredients of fairness or equality might change in

different circumstances and over time. Hence, in 1791 when the Bill of

Rights was added the framers of the US constitution saw no con-

tradiction between their belief in equality and the inferior positions of

slaves, women and native Americans.

Another advantage of a written constitution is that it can act as

a convenient source of information and propaganda in order to give

the governing arrangements a particular legitimacy. For example the

UK constitution does not give clear answers to several fundamental

questions. These include the extent to which the monarch has personal

powers, and the reconciliation of disputes between the common law

and Parliament. Moreover many constitutions set out a list of basic

rights of the citizen, and a federal constitution which divides power

between a central government and geographical units within it may

focus the sense of identity of the citizen. Similarly an explicit separa-

tion of powers enshrined in a formal document announces that gov-

ernment is limited.

The differences between a written and unwritten constitution may

therefore be differences of degree and of practical convenience rather

than differences of fundamental principle. Nevertheless by constraining

and structuring change a written constitution may provide stronger

safeguards against the short-term concerns of the government in power

than is the case in the UK. The status of the constitution is, however,

primarily a matter of political and cultural attitudes. For example in

the USA there is an attitude of reverence towards the written consti-

tution that in the UK has been attached at various times to institutions

such as the monarchy.

3.2 The Common Law Constitution

There are two fundamental and potentially rival sources of legal

constitutional power. First there are Acts of Parliament. and secondly

there is the common law applied by the judges in theory on the basis of

community values mediated by reason and precedent. The judges also

have the power conclusively to interpret Acts of Parliament. A written

constitution in the form of ‘articles of government’ was introduced in

England by the revolutionary regime of Oliver Cromwell in 1653 but

45

The Sources of the Constitution

after a year was superseded by a military dictatorship. No written

constitution was adopted by the 1688 revolutionaries perhaps because

the revolution was presented as a return to older tried and trusted

customary arrangements. The absence of a written constitution means,

however, that the ultimate source of legal power or sovereignty is open

to debate. Is it the Crown, or Parliament or the common law? Suffice

to say here that the 1688 revolution determined that the Crown is

subordinate to Parliament but the relationship between Parliament

and the common law has not been authoritatively settled. We shall dis-

cuss Parliament’s claim to supremacy in Chapter 6. In this chapter we

shall consider the common law as a source of constitutional principles.

There is a tension between the classical common law view of the

constitution advocated with varying degrees of emphasis in the seven-

teenth and eighteenth centuries by writers such as Matthew Hale and

Edmund Burke and the modern political notion of the constitution

initiated, as we have seen, by Hobbes as the application of sovereign

power, in our case vested in Parliament, able to make whatever laws

it wishes. Laws made by Parliament can be arbitrary; the exercise of

will as opposed to reason. The classical view envisages the common

law constitution as the product of organic development, binding even

the Crown, deriving its authority from the community, as interpreted

and rationalised by independent judges, adapting the law an evolu-

tionary fashion to meet changing circumstances. Hale’s famous meta-

phor of the Argonauts’ ship has often been used with the ‘same ship

returning that had set sail but having been so often mended, no piece

of the original remains’ (Hale, ‘A History of the Common Law’, p. 43).

Thus the common law embodies a communitarian theory although