INTRODUCTION AND TERMINOLOGY

Particularly English lawyers have problems with the terminology of constitution and constitutional judge. It is perhaps symptomatic that in a major reflective work on the British Constitution in the twentieth century, the editor's introduction does not discuss the courts at all and the writer of the report on the courts focuses on the “Government and the Judiciary” and begins by saying, “For much of the twentieth century the judiciary has been thought of more as a dignified than an effective element in the constitution.”

Constitution: There is a British Constitution, even though it does not consist of a single consistent and overarching document. Trevor Allan talks of a “common law constitution” as a set of legal principles and rules which have been laid down from time to time, typically by judges. In addition and of increasing importance are statutes. There is no procedural or formal distinction between a “constitutional” statute and an ordinary statute. For example, the Constitutional Reform Act 2005 was passed by exactly the same procedure as any other public and general statute, despite its acknowledged constitutional importance. In these respects, the British Constitution is now unusual, but it has very similar features to the French Third Republic (1870–1940), which was the longest lasting of the fifteen French constitutions to date.

The result of these features is that the very label “constitutional” attached to a legal rule or principle can be controversial.