There are two different senses in which the word ‘constitution’ is used in politics, and the tangling together of these two definitions is partly what makes the British constitution so puzzling to uncover for the neophyte student. The first type is the one that most people are accustomed to, which is the constitution as a constitutional document in the manner that the USA (and almost all modern democracies) base their polity upon. The Constitution of the United States of America is the title of a specific document, signed by the Founding Fathers and used as a compass by which to steer the political decisions of the nation. However, the US Constitution does not include the Bill of Rights or the Declaration of Independence, the Articles of Confederation or the Federalist Papers, state legislation or any judge-made case law whatsoever. Although there’s no doubt that all these things constitute the political arrangements of the USA, when a person refers to the constitution of the USA they are referring specifically to the eponymous document.
This definition is not shared by the British tradition. When a person speaks of the British constitution, the expression refers literally to what constitutes the nation politically, what the manners, conventions, laws and legal arrangements are. Searching for a document titled ‘The British Constitution’ will yield no results, it does not exist. A lot of the confusion complicating the study of the British constitution is rooted in this etymological difference. Therefore, when de Tocqueville describes the British constitution as non-existent, he is of course referring to a codified constitutional document; he couldn’t possibly have meant it in the other sense, as it’s quite obvious that a nation’s political system must be composed (or constituted) of something (in the absence of total anarchy), especially a nation as stable as Britain. But that something is a tendency, a tradition; it is not a clearly defined programme.
Because the British constitution is not documented (or more accurately is not codified, as much of it is documented but not consolidated, being spread out over countless bills, statutes and court decisions), it has proved to be as fluid and flexible as it is obscure, shifting shape over time, guided by a number of constitutional principles. These principles, often asserted as inalienable rights (such as habeas corpus, the freedom not to be unlawfully imprisoned) have been reclaimed by the British people time and time again throughout history. Edmund Burke explains:
“You will observe that from Magna Carta to the Declaration of Rights it has been the uniform policy of our constitution to claim and assert our liberties as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity…by this means our constitution preserves a unity in so great a diversity of its parts. We have an inheritable crown, an inheritable peerage, and a House of Commons and a people inheriting privileges, franchises and liberties from a long line of ancestors.”
The constitution can therefore be viewed as the inheritance of a multitude of disparate traditions, conventions, revolutions and reforms that through a kind of historical trial and error have resulted in a stripped down and refined constitutional foundation that buttresses the political activity of Britain. The most succinct account of the constitution was given not by a Brit, but by the great Savoyard diplomat Joseph de Maistre, as he wrote of the tradition:
“The constitution is the work of circumstances whose number is infinite. Roman laws, ecclesiastical laws, feudal laws, Saxon, Norman, and Danish customs; the privileges, prejudices, and pretensions of every segment of society; wars, rebellions, revolutions, the Conquest, the Crusades, every virtue, every vice, all sorts of knowledge, and all errors and passions; in sum, all these factors acting together and forming by their admixture and interdependent effects countless millions of combinations have at last produced, after several centuries, the most complex unity and the most propitious equilibrium of political powers that the world has ever seen.”
To put this in a way that libertarians more generally may relate to, we can look at the way that Albert Jay Nock described government (as distinct from the state). In his seminal work Our Enemy, the State, Nock gives a rather unorthodox definition of government and uses an old Native American tribe as an example. He describes the way in which this tribe had no sort of written programme, no formally codified rules of conduct, nothing like a bill of rights that laid out the responsibilities and privileges of its constituents.
Yet despite all this, the tribe had an ancient, traditional system of conduct and hierarchy which, whilst being practically unacknowledged in any kind of formal, legal sense, maintained a habitual, instinctive pattern of behaviour that governed the tribe’s conduct and provided them with order, stability and familiarity. Nock considered this to be a government as good as any other, despite the fact that they lacked all of the corporate, bureaucratic trappings that we would normally associate with the word. It is probable that the concept of an institution, being a term we can use to describe both a formal organisation and an established practice or custom, originated in this way. It is in this spirit that I use the word constitution, this is the best way to come to terms with the way the British have historically approached our constitutional inheritance.
This concept, its implications, and some of its criticisms will be explored further in future installments.
Burke, Edmund (1790) Reflections on the Revolution in France
Maistre, Joseph de (1809) Essay on the Generative Principles of Political Constitutions and Other Human Institutions
Nock, Albert Jay (1935) Our Enemy, the State
Tocqueville, Alexis de (1835) Democracy in America Vol. I