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The British constitution is thus essentially historical. It consists almost entirely of established practices. In privileging established practices rather than abstract principles it is closely related to our common law tradition. As in the common law, precedent is the norm in the British constitution. Indeed, its genius has been that it tends to minimise the gap between law and public opinion — reducing the risk that the two might diverge to the point of major social conflict, if not civil war. 

The British constitution has tended to ensure government by consent. Governing by means of established practices which are modified frequently, but for the most part gradually, has created a law-abiding culture — a culture in which law is approached with an instinctive respect rather than suspicion. The case-bound character of English common law — along with its distrust of overly abstract principles — has both reflected and reinforced that instinctive respect for the law. UK courts’ concern to identify and respect the will of parliament has been integral to government here.

One consequence is that “judicial review” on the American model — when it openly shapes public policy — is distrusted. It is seen as a kind of usurpation by judges. So is it hardly mere accident that since joining the EU such review by the Luxembourg Court has aroused widespread dismay and opposition in Britain.

If creating and sustaining a culture of consent is the proper goal of any system of representative government, the British system — with a constitution consisting largely of practices rather than abstract principles — can be said to have been more successful than many continental political systems based on a Roman law tradition. Does not an important part of the opposition to EU membership springs from a sense that EU “law” is more of a diktat than the common law?

But successes generated by the common law tradition in creating a culture of consent should not blind us to the formidable scale of the challenges now facing the British political system as a result of the referendum vote to leave the European Union. The historical character of the British constitution means that by far the largest part of the constitution consists of accumulated practices rather than abstract principles. Well, a great deal has happened since the UK joined what became the European Union nearly 50 years ago. Our constitutional formula — the sovereignty of the Crown in Parliament — has been extended to “cover” thousands of EU laws and rules that have often received only limited parliamentary scrutiny, if any. For nearly half a century rules and practices resulting from membership of the EU have been introduced into the British state. What is the result? They now constitute a very large part of the identity of the British state, layer after layer of its identity.
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untenured
November 1st, 2018
12:11 PM
At the end of WWll, the UK elected to choose the delusion of socialism which doesn't require the existence of a constitution. Eventually Alastair Campbell seems to have taken on the role of Lord Protector, giving us Tony Blair as the figurehead of a clone of the U.S. political arrangement. Unlike the U.S. which is responsible for the global currency and can do as it pleases, the U.K. has one of the myriad crypto-currencies, and can do nothing to arrest its descent to oblivion. Alastair Campbell is leading the successful Resistance to Brexit. He knows what's best and can ignore the ruination of the statelets of the EU that used to be serial devaluers, but now just stuff their worthless IOUs into the ECB's balance sheet. "Yet in recent decades, especially since the Thatcher government, the UK government has itself become excessively centralised." Just another way of saying the socialists are in charge. Take a bow Mr. Serwotka and all the like-minded servants of our country.

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