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.
Copyright 1999