Acknowledgements

 

I am deeply grateful to Almighty Allah to help me retain my patience and energy to complete the project on social business in time. Similarly, I owe the deepest gratitude to A.V. Dicey  for forging such a powerful tool to fight against crime, the cruelest thing on earth. I would also like to acknowledge my elder sister, Biva, for providing valuable information regarding social business, encouraging me and providing me help in compiling this project.  Similarly, I owe much to one of my very close friends for her support, unrelenting questioning and unconditional help. Most importantly, I thank you, the faculty of my course, Barrister A.M. Masum, for assigning this project by dint of which I got to know a lot of things which is the need of the hour. Surely, his judgment in assigning us a project is laudable.  I hope this paper serves as a blueprint of social business.

 

Executive Summary

 

The Constitutional Convention is a widely researched topic all over the world. It is a rule that is generally followed by people to whom it is applicable but in case of breach of either parties involved, no one can be legally deemed illegal. The main reason behind it is that, constitutional conventions are not written documents. Hence, they are not eligible to form a binding contract between the involving parties. Rather they are socially, politically and ethically deemed as a rule and everyone involved in it are expected to follow the terms stated in it.

 

For over hundreds of years, there has been innumerable number of debated regarding the capability of enforceability of constitutional conventions by legal regulations. However, as of today, it is just an unwritten agreement conformed by the parties involved in it. Nothing more is expected out of constitutional conventions.

 

In a nutshell, constitutional conventions are not a legal document because of its absence of any physical form. However, to maintain an alliance, it is almost all the time followed by the involving parties. In this research, this aspect of constitutional conventions- the enforceability of constitutional conventions- have been taken into account.

 

Table of Contents

 

Letter of Transmittal 1

Acknowledgements. 2

Executive Summary. 3

Introduction. 5

Definition of Law.. 5

The meaning of Convention. 6

Constitution and Convention distinguished. 8

Laws and Conventions Distinguished. 9

THE RELEVANCE OF JUDICIAL BEHAVIOUR. 11

Unenforceability in the courts. 12

Exploring the Jurisprudential Perspective. 15

Conclusion. 15

Bibliography. 16

 

 

 

“Constitutional conventions are rules of political practice which are regarded as binding by those to whom they apply, but which are not laws as they are not enforced by the courts or by the house of Parliament- explain & illustrate.”

 

 

Introduction

According to Wikipedia- “Law is a system of rules and guidelines, usually enforced through a set of institutions”.[1] Holland states[2], “Law is a rule of external human action enforced by the sovereign political authority”. However, constitutional conventions are not termed as law as they cannot be enforced by any legal authorities anywhere in the world. For a clear understanding of the topic we must delve deeper into the topic. This research assignment was prepared to do exactly that.

Definition of Law

The term “Constitutional Convention” was coined by A. V. Dicey in his 1883 book, “Introduction to the Study of the Law of the Constitution”. He wrote that in Britain, the actions of political actors and institutions are governed by two parallel and complementary sets of rules:

“The one set of rules are in the strictest sense “laws”, since they are rules which (whether written or unwritten, whether enacted by statute or derived from the mass of custom, tradition, or judge-made maxims know as the common law) are enforced by the courts….

The other set of rules consist of conventions, understandings, habits, or practices that—though they may regulate the conduct of the several members of the sovereign power, the Ministry, or other officials—are not really laws, since they are not enforced by the courts. This portion of constitutional law may, for the sake of distinction, be termed the “conventions of the constitution”, or constitutional morality.” [3] (Dicey, 1982)

A century later, Canadian scholar Peter Hogg wrote,

“Conventions are rules of the constitution which are not enforced by the law courts. Because they are not enforced by the law courts they are best regarded as non-legal rules, but because they do in fact regulate the working of the constitution they are an important concern of the constitutional lawyer. What conventions do is to prescribe the way in which legal powers shall be exercised. Some conventions have the effect of transferring effective power from the legal holder to another official or institution. Other conventions limit an apparently broad power, or even prescribe that a legal power shall not be exercised at all.” [4] (Hogg, 2010)

The meaning of Convention

First, however, it is necessary to examine in rather more detail the different senses in which the term “convention” has been used. The approach taken here is that of the methodological nominalist, and any presumption that conventions have an “essence” which a satisfactory theory must capture is eschewed.[5] I wish in particular to distinguish in different formulations the characteristics constituting

conventions from the causes producing conventions. As Macbeth discovered to his cost, the mode of origin may be the feature which sets one thing apart from another thing in other respects the same,

and this distinction is of considerable importance when we come to consider Kelsen’s “Pure Theory of Law.” An exclusion should be noted at this point. There are many writers who use the term convention without specifying fully those conditions necessary for the establishment or subsistence of a convention in the sense in which they use the term. They thereby fail to delineate any social phenomenon whose legal status may be investigated. For this reason, their theories are not considered in this study.

 

Dicey’s analysis has provided the framework for most subsequent discussion, but while his terminology has persisted, the ideas which he had run together have been increasingly distinguished. Writers such as Horwill and Jennings sought in convention something more than mere practice or usage. To Horwill, this additional element was “general tacit consent,”[6] Just what it was to Jennings is open to debate, but a plausible interpretation of his writings is that his distinctive contribution to the literature on conventions of the constitution lay in his view that “the creation of a convention must be due to the reason of the thing because it accords with the prevailing political philosophy.”[7] Other writers have focused on the mode of origin of conventions; the possibility that conventions may be created by formal agreement has been canvassed by many analysts.[8]

 

Perhaps the most perplexing difficulty relating to different notions of constitutional convention springs from the existence of accounts of the nature of conventions which specify necessary and sufficient

conditions for the establishment or subsistence of a convention, but in terms which are not themselves clear in meaning. One need only reflect on some of the different terms which writers have used to

explain what makes a practice normative in order to recognise that the difficulties which a court could encounter if simply required to enforce “normative constitutional practices’’ are real.[9]

 

In a nutshell, two different senses in which the term “convention” has been used: (1) to describe practices; (2) to describe normative rules arising from agreement; practice and normativity & practice. In addition, several writers see conventions as normative rules, but throw no light on their origin.[10] In keeping with our nominalist methodology, this list is not exhaustive, for one may attach the label “convention” to phenomena quite different from those noted above. Nevertheless, it captures the main senses in which the term is employed in the literature.

Constitution and Convention distinguished

A country’s constitution is composed of both written rules enforced by courts, and “unwritten” rules or principles necessary for effective functioning of government. Written rules mandate that they be followed in a particular specified situation, while unwritten rules come into play written rules prove to be inadequate. Constitutional conventions are rules of political practice, which are regarded as binding by those to whom they apply. However, they are not laws, as they are not enforced by courts or by the Houses of Parliament.1 Often constitutional conventions are more important than written constitutional provisions. For example, the President is empowered by the Constitution to appoint the Prime Minister, but the Constitution provides no guidance as to who should be appointed as Prime Minister. Here conventions regarding the appointment of the Prime Minister play an important role in guiding the President.

Conventions are an instrument of national cooperation and the spirit of cooperation is as necessary as the Constitution.They are rules elaborated for effecting that cooperation.

 

Laws and Conventions Distinguished

In 1975, Colin Munro wrote an article entitled “Laws and Conventions Distinguished,” in which he noted a dispute over whether and if so how one could differentiate between laws and conventions of the constitution. Without limiting his analysis to a particular jurisdiction, he stated that his aim was “not to prolong this tenacious dispute, but to end it.”[11] Constitutional theorists had for many years been struck by the realization that the operation of government within a polity could rarely be described adequately by reference to statutory or common law constitutional rules alone.[12] This insight received its first systematic exposition with the publication of A. V. Dicey’s Introduction to the Study of the Law of the Constitution, in which that author saw statutory and common law constitutional rules augmented by what he called “conventions of the constitution.”[13] He made-or attempted to make-a sharp distinction between what he saw as conventions and what he saw as laws. Since he wrote, the term convention has been widely used in both scholarly and popular discourse, and in a number of different senses. My general aim in this article is to assess critically claims that “laws” and “conventions” are discrete phenomena, taking into account some of the different senses in which these terms have been used. While such a study may be seen as primarily an application of analytical jurisprudence, the conclusions springing from it are not without potential consequences4n the long term at least-for the pursuit of political activity in liberal democracies.[14] Indeed, one central implication of this study is that certain conventions, if accorded legal status-that is, if identified as law-by a theory of law guiding judges in a court of competent jurisdiction in a liberal democracy, could be subject to specific enforcement by judicial order. The course of political activity could thereby be irretrievably altered. This implication is a logical one only. My aim is to demonstrate the possibility of such enforcement rather than to speculate about its likelihood in a particular jurisdiction, a task which in Part 6 I argue should be approached with great caution. But as Munro has sought to defend a somewhat different position as the final word on the subject, even a conclusion as problematical as this is not without worth.

Geoffrey Marshall asserted that Conventions ?are unlike legal rules because they are not the product of a legislative or a judicial process.? Constitutional Conventions.

Curzon observed that “Laws are the written and unwritten body of rules, largely derived from custom and formal enactment which are recognised as binding among those persons who constitute a community or state, so that they will be imposed upon and enforced among those persons by appropriate sanctions.”

Hood-Phillips claimed that Conventions are ?Rules of political practice which are regarded as binding, by those to whom they apply ….? This suggests that those subject to laws have no choice in their subjugation to the law, but those subject to conventions have a collective choice as to whether or not they will be bound by them.

If the electorate is sovereign, then the content of the law is challengeable by the electorate who could support a party proposing changes in the law. Theories of social contract would suggest that the people obey the law because there is a contract between governor and governed, whereby the people submit to central authority in exchange for security.

 

THE RELEVANCE OF JUDICIAL BEHAVIOUR

This quarrel is theoretical, but if one condition relating to judicial behavior is gratified, it may have practical implications. This condition is that in a polity with which we are worried, at least one court of competent jurisdiction acts eventually to enforce the law as it sees it. If all courts acted willfully and solely to promote certain comforts, then the conclusion that certain legal theories may agreement legal status to certain conventions would be of no practical significance. But it is doubtful whether a society could retain its democratic character in the face of a regular refusal by judges to deliver judgments based on ancestor rules and principles, a point argued with great vigor by Hayek and Goodhart.[15] This condition is in practice a weak one, for it does not preclude that judges may at least take into account non-legal as well as legal considerations, and it could be satisfied even if the determination of the one court of competent jurisdiction acting to enforce the law as it saw it were liable to be reversed on appeal. The course of political events may be irretrievably altered by a granting of legal remedies which is held subsequently to have been without justification.[16] Furthermore, since our argument is about possibility rather than probability, it suffices if it can be established that formal constraints have not been imposed on the ability of courts to enforce the law as they see it. In liberal democracies this is rarely a difficult task. Indeed, as Raz has argued the rules “concerning the independence of the judiciary-the method of appointing judges, their security of tenure, the way of fixing their salaries, and the other conditions-are designed to guarantee that they will be free from extraneous pressures and independent of all authority save that of the law.”[17] Such institutional independence gives rise to the possibility, which’ past judicial behavior cannot exclude, that a court may be motivated by a perception of what

the law is which is derived from a legal theory which provides that certain conventions be accorded legal status. That just such theories are associated with two of the giants of modern jurisprudence, Kelsen and Hart, I shall argue, contra Munro, in a moment.

Unenforceability in the courts

Constitutional conventions cannot be enforced by courts of law. The primary reason for this, according to the Supreme Court of Canada in its 1981 Patriation Reference, is that, “They are generally in conflict with the legal rules which they postulate and the courts are bound to enforce the legal rules.”[18] More precisely, the conventions make certain acts, which would be permissible under a straightforward reading of the law, impermissible in practice. The court ruled that this conflict between convention and law means that no convention, no matter how well-established or universally accepted, can “crystallize” into law, unless the relevant parliament or legislature enacts a law or constitutional amendment codifying the convention. This norm is regarded as authoritative in a couple of other jurisdictions, including the UK.

Some conventions develop or change over time; e.g. before 1918 the British cabinet demanded a parliamentary dissolution from the imperator, with the Prime Minister assigning the request. Since 1918, prime ministers on their own creativity request dissolutions, and need not access members of the cabinet. Nevertheless conventions are seldom ever fragmented. Unless there is universal covenant on the breach, the person who fissures a convention is often profoundly criticized, on occasion’s chief to a loss of respect or prevalent support. It is often said that “conventions are not worth the paper they are not written on”, i.e., they are unenforceable in law as they are unwritten. Whatsoever enforceability they have derives from history, tradition, symbolism and their cross-party support.

Nothing impedes a definition of treaties as non-legal. “In the ordinary law of the land,” wrote Wheare, “it is often within the province of courts to recognize customs, under certain conditions, as part of the law. The same thing is possible in constitutional law. When a convention is so recognized it becomes a part of the law; it is no longer a convention”[19] Definitions of conventions as non-legal reasonably preclude any attempt to examine the legal rank of conventions so clear; conventions non-legal by explanation are therefore considered no further in this study.

 

 

One might have supposed that of all the investigates of convention, Dicey’s would be that most likely to make conventions inevitably non-legal. On closer reading, however, it can be seen that what Dicey was advancing in his references to court-enforcement was not a definition of conventions, but a test by which laws and conventions could allegedly be distinguished.[20] A test differs from a theory or definition in that it is dependent upon an antecedent theory, and its utility may be judged on the basis of whether it accords to phenomena the same status which they are accorded by that theory. If Dicey was defining laws in terms of court enforcement, then many rules which he undoubtedly accepted as legal would have escaped the ambit of such a definition-any, in fact, the enforcement of which had never been sought before a court. At one stage, Dicey wrote: “A law may, for our present purpose, be defined as ‘any rule which will be enforced by the courts.[21] However, that this “definition” depended for its validity on the judiciary’s remaining passive may be discerned from the subsequent sentence: “The principle then of Parliamentary sovereignty may, looked at from its positive side, be thus described: Any Act of Parliament, or any part of an Act of Parliament, which makes a new law, or repeals or modifies an existing law, will be obeyed by the courts.[22] It  is highly significant that Dicey referred to an Act of Parliament, rather than of a court, as a procedure by which a new law is made. Thus, since the proposition emphasized is merely one of expectation, if quixotic judges were on occasion to have refused to enforce Acts of Parliament, it seems improbable that Dicey would have accepted that such Acts were not laws. Such cases show quite clearly that a court-enforcement test need not render a similar verdict on the legal status of a given rule to that rendered by its antecedent theory, and falsify Munro’s claim that Dicey’s court-enforcement criterion “. . . is an adequate litmus test to distinguish laws and conventions.”[23]

Exploring the Jurisprudential Perspective[24]

Having discovered these threshold questions, we might now turn to the legal theories of Hans Kelsen and H. L. A. Hart, which reinforce objections to the drawing of a strict contrast between laws and conventions. Kelsen’s theory is of interest as not only does it permit legal status to be attained by certain types of convention in certain prerogatives but it also highlights the need to distinguish between diverse modes of origin of conventions. In Kelsen’s view, a “. . . legal order is not an aggregate of legal norms coordinated on the same level, but a hierarchy of norms on the top of which stands the basic norm.”[25]

 

Conclusion

It all boils down to this- Constitutional conventions are in fact rules that are morally, socially and ethically obvious for involving parties to abide by. However, in case of the breach of the contract, no party can legally sue against another party to teach them a lesson. One can only expect the involving parties to abide by constitutional conventions but cannot force others, legally, to abide by them. It is because they are not passed by the house of parliament nor by the courts. Hence, there is no question as to the enforceability of constitutional conventions.

 

 

Bibliography

1. Robertson, Crimes against humanity, 90; see “analytical jurisprudence” for extensive debate on what law is; in The Concept of Law Hart argued law is a “system of rules” (Campbell, The Contribution of Legal Studies, 184); Austin said law was “the command of a sovereign, backed by the threat of a sanction” (Bix, John Austin); Dworkin describes law as an “interpretive concept” to achieve justice (Dworkin, Law’s Empire, 410); and Raz argues law is an “authority” to mediate people’s interests (Raz, The Authority of Law, 3–36).

 

1. T. R. S. Allan (1986). Law, Convention, Prerogative: Reflections Prompted by the Canadian Constitutional Case. The Cambridge Law Journal, 45, pp 305-320 doi:10.1017/S0008197300120987

 

1. William Sheppard, Cromwell’s Law Reformer. By Nancy L. Matthews [Cambridge: Cambridge University Press. 1984. xviii, 294 and (Index) 13 pp. Hardback £27–50 net].

 

1. Law, Legitimacy and the Constitution. Essays Marking the Centenary of Dicey’s Law of the Constitution. Edited by Mcauslan Patrick, Professor of Law, University of Warwick and John F. Mceldowney, Lecturer in Law, University of Warwick. [London: Sweet & Maxwell Ltd. 1985. xiv, 211 and (Index) 7 pp. Hardback £18·50 net. Paperback £11·50 net.]

 

1. Termination of Treaties in International Law: The Doctrines of Rebus sic Stantibus and Desuetude. By Vamvoukos Athanassios, Legal Adviser in the Ministry of Research and Technology, Greece. [Oxford: Clarendon Press. 1985. xxiii, 303 and (Tables, Bibliography and Index) 22 pp. Hardback £35·00 net.]

 

1. Alternatives to Criminal Courts. The Potential for Non-Judicial Dispute Settlement. By Tony F. Marshall, Principal Research Officer, Home Office, Research and Planning Unit. [London: Gower Publishing Company Ltd. xiii, 302 and (Index) 7 pp. Hardback £17·50 net.]

 

1. Grun, B. and E. Simpson. The Timetables of History: A Horizontal Linkage of People and Events. (4th ed.) Touchstone, 2005.

 

1. Johnson, D. E. From Day to Day: A Calendar of Notable Birthdays and Events. (2nd ed.) The Scarecrow Press, Inc., 2001.

 

1. Linge, M. K. The Essential Desk Reference. Oxford University Press, 2002.

 

1. Merrill, B. On This Date: A Day by Day Guide to History. CreateSpace, 2009.

 

1. Miller, A. R. and J. M. Brown, J. M. More on This Day in History. Prentice Hall Press, 2002.

 

1. Oxford University Press. The Essential Desk Reference. Oxford University Press, 2002.

 

 

1. Pearson Education. “World History.” Infoplease. »

 

1. Scarre, C. Smithsonian Timelines of the Ancient World. Smithsonian Institution, 1993.

 

1. Spinrad, L. and T. Spinrad. On This Day In History. (1st ed.) Prentice Hall, 2000.

 

1. Teeple, J. B. Timelines of World History. DK Publishing, 2006.

 

1. Vaidyanathan, R. “Fifty Years of Barbie.” BBC. »

 

1. Whiteley, S. On This Date: A Day?by?Day Listing of Holidays, Birthday and Historic Events,

and Special Days, Weeks and Months. (1st ed.) McGraw—Hill, 2002.

 

1. The Wikimedia Foundation, Inc. Wikipedia. »

 

1. Wiltshire, K. The British Museum Timeline of the Ancient World. (1st ed.) Palgrave Macmillan, 2004.

 

 

1. Windsor, C. D. On This Day: Daily Inspiration for the History Buff, the Trivia Lover, and the Innately Curious. Howard Books, 2006.

 

1. CCRG, The Constitutional Convention Research Group, site:http://ccrg.weebly.com/

 

 

1. The Records of the Federal Convention of 1787 [Farrand’s Records, Volume 3]
   CCCXVI. Thomas Jefferson to John Adams

 

1. “The Founder’s Constitution,”edited by Philip B. Kurkland and Ralph Lerner. University of Chicago Press and Liberty Fund, 2000.

 

1. “A Pivotal Voter from a Pivotal State: Roger Sherman at the Constitutional Convention ,” American Political Science Review/, 2006, 100(2): 297-302.

 

1. “An Economic Interpretation of the Constitutional Convention of 1787 Revisited ,” The Journal of Economic History, 2007, 67(4): 829-48.

 

1. “Voting on Slavery at the Constitutional Convention ,” Public Choice, 2008, 136 (3-4): 293-313.  Note: this paper won the 2009 Gordon Tullock Award for the best paper in Public Choice by younger scholars.

 

1. “Personalty interests at the Constitutional Convention: new tests of the Beard thesis” Cliometrica, 2010, 4(2): 207-228.

 

1. http://www.preservearticles.com/201104265960/brief-notes-on-the-different-types-of-law.html

 

 

1. AV Dicey, Introduction to the Study of the Law of the Constitution, 10th edition, pp. 23-24.

 

1. Peter Hogg, Constitutional Law of Canada, p. 7.

 

1. K. R. Popper, The Open Society and Its Enemies (5th ed., 1966), Vol. 2, pp.9-21, and Richard Robinson, Definition (1950), pp.154-155

 

1. H. W. Horwill, The Usages of the American Constitution (1925), p.22.

 

1. Ivor Jennings, The Law and the Constitution (5th ed., 1959), p.136.

 

1. Chand, supra note 23, p.228; K. C. Wheare, Modern Constitutions (London:Oxford University Press, rev. ed., 1962), p.180; S. A. de Smith, Constitutional and Administrative Law, 3rd ed. by Harry Street, Barbara de Smith and Rodney Brazier (Harmondsworth: Penguin, 1977), p.55; Geoffrey Sawer, Federalion Under Strain (Melbourne: Melbourne University Press, 1977), pp.132-133; and Gough Whitlam, The Truth of the Matter (1979), p.38.

 

1. CJ Horwill, supra note 24, p.22; Chand, supra note 23, p.226; Jennings, supra note 25, p.135; Ivor Jennings, Cabinet Government (3rd ed., 1959), p.2; J. D. B. Mitchell, Constitutional Law (2nd ed., 1968), p.33; Geoffrey Marshall and Graeme C. Moodie, Some Problems of the Constitution (5th ed., 1971), pp.23-24; [J. G. Starke], “‘Casual’ Senate Vacancies under s.15 of the Commonwealth Constitution” (1975) 49 Australian L.J. 153 at 156; D. P. O’Connell, “The Dissolution of the Australian Parliament: 11 November 1975” (1976) 57 The Parliamentarian 1 at 4; Jeffrey Archer and Graham Maddox, “The 1975 Constitutional Crisis in Australia” (1976) 14

 

1. Journal of Commonwealth and Comparative Politics 141 at 149; Christopher Enright, Constitutional Law (1977), p.23; E. C. S. Wade and G. Godfrey Philips, Constitutional and Administrative Law, 9^th ed. by A. W. Bradley (1977), pp.16-17, 24-25; 0. Hood Phillips, Constitutional and Administrative Law (6th ed., 1978), pp.104-105; Graham Maddox, “The Governor- General and the Constitutional Crisis” in Richard Lucy (ed.), The Pieces of Politics (2nded., 1979), pp.423434 at 432; and L. J. M. Cooray, Conventions, the Australian Constiution and the Future (1979), p.102.

 

1. E. Finer, “The Individual Responsibility of Ministers” (1956) 34 Public Administration 377 at 393-394; [Starke], supra note 27, p.156; and Enright, supra note 27. 1×23.

 

1. Colin R. Munro, “Laws and Conventions Distinguished (1975) 91 L.Q.R. 218 at 218.

 

1. Hood Phillips, “Constitutional Conventions: Dicey’s Predecessors”(1966) 29 M.L.R. 137.
   1. V. Dicey, Introduction to the Study of the Law of the Constitution (London:Macmillan, 9th ed., 1939), p.24. The notion of conventions of behaviour in a broader sense is of course much older. See e.g. David Hume, ‘A Treafhe of Human Nature, 111, ii, p.2.

 

1. Judith N. Shklar, Legalism (1964), Chap. 1, passim.

 

1. F. A. Hayek, The Constitution of Liberty, p.248 and Arthur L. Goodhart, “An Apology for Jurisprudence” in Paul Sayre (ed.), Interpretations of Modern Legal Philosophies: Essays in Honor of Roscoe Pound, pp.28>302 at 297-298. The familiarity of this type of argument is noted by Ronald Dworkin, “Hard Cases” (1975) 88 Haw. L. Rev. 1057 at 1061, and a similar point in respect of a free society is made by Montesquieu, The Spirit of the taws . Vol. One, Book XI.

 

1. Lord Denning, The Discipline of Law (1979), pp.137-143.

 

1. Joseph Raz, The Authority of Law (1979), p.217. My emphasis.

 

1. Supreme Court of Canada, Attorney General of Manitoba et al. v. Attorney General of Canada et al. (Sept. 28, 1981)

 

1. Geoffrey Marshall, Constitutional Conventions: The Rules and Forms of Political Accountability (1984) provides a valuable book-length discussion of this subject. He does not, however, supply a rigorous discussion of the relationship of law and convention, and confines himself at pp.12-17 to a discussion of conventions in the courts, omitting consideration of the nature of law.