Vol. 9 No. 10 (October 1999) pp. 458-459.
AN INTRODUCTION TO CONSTITUTIONAL LAW by Eric Barendt. Clarendon Law Series. New York: Oxford University Press, 1998. 189 pp. Cloth $65.00. Paper $37.00.
Reviewed by Barbara Hazlewood, Sul Ross State University
Writing from the vantage point of an individual who is knowledgeable of constitutionalism on both sides of the Atlantic, Eric Barendt starts with an intrinsically British philosophy of what a constitution is. It is a point of departure for a study that is both British-focused and comparative in the traditions of Dicey and Bryce. For the author, a constitution delineates the basic structure and powers of government. It embraces fundamental rights. He endorses Dworkin's view that "all members of the community" are to be treated with "equal respect and concern." Ultimately a constitution embodies the concept of limited government, and with this an internal separation of powers and the reconciliation of individual rights and democracy.
From these not too surprising assumptions the author progresses to examine current concerns with respect to the future of British constitutionalism, including the reconciliation of parliamentary supremacy with individual liberty, the place of internal checks or a "separation of powers," and a melding of legal and conventional institutional roles and limitations. Given that much of the British constitution is actually written down, does Britain have a constitution in the absence of a single documentary referent? The answer--yes, but it's mushier, and "political arguments can become exaggerated while courts may be unable, or reluctant, to do justice to arguments of a genuinely constitutional character." (pp. 31-32). Throughout the book he consistently blends an exposition of formal norms with operational reality.
The author essentially applies his definition to further analyses of the British constitution and other modern constitutions, notably those of the United States and Western European nations. He extends to a treatment of constitutionalism in the European Community through his recurrent theme of conventional developments paralleling legal norms.
In addition to being a worthwhile text, the book makes two signal contributions to the literature of constitutionalism. First, it updates basic topics in the tradition of Dicey by including modern currents in British constitutional debates, such as viability of the separation of powers principle in a system in which scholars focused traditionally on the concept of parliamentary supremacy. The author treats more or less traditional topics in an updated and sophisticated manner such as the executive roles of the Crown, the monarch, and the Government, the distinction between statutory (judicially reviewable) and prerogative powers, theory and reality in the use of the dissolution, and ministerial responsibility. In discussing the constitutional significance of parliamentary supremacy, he combines an exposition of
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legal norms with that of operational reality (pp. 87-89). Interesting legal topics include such matters as the extraterritorial application of British law and the extent to which a law passed by Parliament binds its successors.
On the ministerial side, he pursues a more recent distinction in the concepts of "accountability" (to parliament) and "responsibility," by expanding on the implications of the Official Secrets Act. Referring to British civil liberties as inherently "residual," he incorporates the impact on British jurisprudence of other recent developments, such as the incorporation of the - European Human Rights Convention.
Second, the book is valuable as a comparative study of key constitutional issues cutting through national boundaries. His comparative treatment includes a variety of "traditional" and modern topics, such as relationships between Heads of State and Prime Ministers, the use of emergency powers in an age of terror (Chapter Nine); legal aspects of party funding, questions of electoral equality (Chapter Eight), and various types of federal relationships.
In treating basic considerations relating to federalism and devolution, the author evokes an essential commonality from superficially more diverse systems. Progressing from an analysis of the anomalous positions of Ireland, Scotland and Wales vis-…-vis the British parliament to an analysis of relationships within the European community, he applies the logic of federalism to a variety of constitutional systems. Throughout he incorporates a generous sprinkling of national and international court decisions to clarify contemporary legal relationships. Drawing extensively from court decisions in different countries, he provides considerable insight into traditional comparative exercises, such as relative centralization/ decentralization in various federal systems and the comparative advantages and disadvantages of devolution in a unitary system. In elaborating on an expanding legal base for the European Community, he focuses on such developments as the judicial application of "direct effect" and "community supremacy" to Community-national relationships, noting such parallels to American federal interpretations in the European doctrine of "pre-emption."
The book represents an ambitious project and one that is remarkably executed. This is not to say that his analyses are - or should be - entirely non-controversial. But to an American, only real lapse in the book centers upon his brief treatment of federalism and civil liberties. An American would, no doubt, be more conscious of dilemmas posed in this respect. The American, as civil libertarian, might well conclude at this point that historically the nationalization of bill of rights guarantees in this country was a "good" thing and that perhaps in the future it might not be as salutary. The author, noting that there may be fewer discrepancies in practice than in theory between federal and devolved constitutions when the national government does not interfere locally for long periods (p. 60), draws at best an inclusive parallel to Ireland. However, this seems to be a momentary oversight in a really outstanding treatise.
Overall this is a much-needed work. It is indeed a worthy successor to Dicey. Apart from its use in British universities, it seems a "must" for Americans attempting to get a grasp of the British constitutional system in its current state. And instructors in British/comparative politics will find it an excellent comparative study that portends a good degree of staying power.