The Cavalier Constitution

8. By Definition…

“It is not sufficient that we adopt the word,’” wrote Thomas Paine in rhetorical answer to Edmund Burke. “We must fix also a standard signification to it…A constitution is not a thing in name only, but in fact. It has not an ideal, but a real existence; and wherever it cannot be produced in a visible form, there is none.” Lowewenstein emphasises that a Western country must have a normative constitution, not a nominal or semantic one. “Constitution” has had a concrete meaning since the 1730s when the word first came into common use. We could add that a constitution is functional not decorative or ceremonially; and that it is a deliberate contrivance, usually approved of by a wider social group than just the elite. There is no such thing as a natural, unintentional or accidental constitution.

Paine supplies four criteria to judge whether or not there is a constitution: it must be real; it must predate government; it must be comprehensive; and it must act as a permanent “higher” law above the day-to-day meddling of mortal politicians. 

Many other definitions of a constitution have been attempted. Despite variations between them, they all speak of a set of binding rules placed on the governors in the interests of the governed. In particular, imitations are imposed on the executive; powers are separated to prevent concentration; and the rights of the people are recognised. Most definitions recognise that not all eventualities can be catered for and they include a category of “non-legal” rules which are more commonly known as conventions but these are kept to a minimum. 

Cooley offers a succinct formula for a constitution: “That body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.” 

Drawing on a consensus of definitions, and referring to modern democratic constitutions such as those of the USA, France, Spain, India and South Africa, we can arrive at an expanded definition of a constitution. For convenience, I group the criteria of a true constitution under thirteen headings.  How well does the “British Constitution” fit the definition of a constitution? Judge for yourself.