Interact with constitutional concerns.

Constitutional law therefore concerns the struggle between rival contenders for power, the constantly changing relationships between the different governmental institutions and the limits imposed on the government. Sir John Laws (1996) described a constitution as ‘that set of legal rules which governs the relationship in a state between the ruler and the ruled’. This can be compared with the following broader description. ‘A constitution is the set of the most important rules that regulate the relations among the different parts of the government of a given country and also the relations between the different parts of the government and the people of the country’ (King, 2000). Constitutional questions therefore concern the rules which identify the ruler, which define the nature and extent of the rulers’ power and which set the conditions for its exercise.

Sir John Laws’s approach is that of a lawyer whereas Professor King writes as a political scientist. Although law is a manifestation of politics, law can be distinguished from other aspects of politics in at least the following respects: its reliance on formal sources of authority, usually in the form of written texts; its emphasis upon dispute resolution; and its authorisation of violence against individuals. The legal perspective is therefore particularly concerned with the relationship between the citizen and the state. It is also worth remarking, as King points out (above), that a constitution deals only with the most important aspects of government. We might reasonably disagree about what is important and what is peripheral so that any attempt to explain the constitution is inevitably subjective although there is likely to be a core of common ground. A study of constitutional law must therefore be selective but should at least include the broad purposes of the political arrangements of the country in question and the main rights of the individual which are protected by the law. We shall not therefore take up Sir Stephen Sedley’s dauntingly all-encompassing definition of a constitution as ‘the totality of arrangements that we make for ourselves as a society’ (Nolan, 1997: 49).

In his Hamlyn Lectures (2000), King makes a useful distinction

between three kinds of constitution. Before examining them it must be

noted that, as with most attempts to squeeze human institutions into

general concepts, these are abstract models which are unlikely to exist

in a pure form in any single country but which serve as reference

points. Most systems will show signs of all three and, at any one time,

one of them is likely to be dominant.

First, there are what King calls ‘power-sharing’ constitutions. These

disperse the powers of government between different institutions in

a co-ordinated manner. They try to minimise conflict by seeking con-

sensus perhaps at the expense of efficiency and decisive government.

An example of a power-sharing constitution given by King is the

Netherlands. This kind of constitution may require elaborate legal

mechanisms such as federal structures in which power is divided

between different geographical units, each being protected against

interference by the others, or a formal separation of powers between

the executive, the legislature and the judiciary (see Chapter 5). It is

also likely to involve elaborate arrangements for consultation between

different official bodies and to result in a relatively inactive and non-

interventionist form of government. Accountability might also be

difficult where power is shared.

Secondly, there are what King calls ‘power-hoarding’ constitutions.

These concentrate power in a strong central authority. Plato, for

example, thought that government was a skill like any other and

should be concentrated in the hands of a specially trained elite. Power-

hoarding constitutions have the opposite advantages and disadvantages

to those of the power-sharing variety and, in democracies, emphasise

strong and accountable government with clear lines of responsibility.

Thus, while we may accept that in the interests of efficiency powers

should be concentrated at the centre, we expect to be able to dismiss a

government easily if it does not perform to our liking. Power-hoarding

constitutions might be divided into those where the central power is

elected directly by the people, those where it is hereditary and those

where it is appointed. In the case of power-sharing constitutions the

different government bodies might also be selected by any permutation

of these means.

Thirdly, King (2001) identifies ‘power-fractionated’ constitutions,

where power is broken up into fragments. Unlike the power-sharing

variety there is little formal machinery to resolve disagreement between

the competing power centres resulting in a permanent state of political

conflict and instability. A power-fractionated constitution is therefore

little more than an assemblage of competing bodies perhaps represent-

ing the nature of our culture better than the other more authoritarian

models. The US constitution might be regarded as power-fractionated

although the competition between its many power centres is to some

extent mediated by the courts. For example, the failure of the presi-

dential electoral process in November 2000 to produce a clear winner

was resolved by the Supreme Court in accordance arguably with the

political preferences of its own members.

Which of these models represents the contemporary constitution

best is for you, the reader, to decide. The UK constitution has usually

been regarded as a power-hoarding constitution. Lord Hailsham in

his 1976 Dimbleby lecture, famously, if unoriginally, described the

UK’s constitution as an ‘elective dictatorship’. If we take the UK con-

stitution to be a power-hoarding constitution we would locate the

centre of legal power in Parliament. The centre of political power is

concentrated in whatever group manages to control both Parliament

and the executive, since as a deliberative assembly Parliament could not

run the country by itself. In law the executive is the Crown, which since