The Conventions of the Constitution

• Pages: 25-35

CHAPTER 5

These are the largely unwritten and non-legal political rules which govern and influence

the powers of the State.

Much has been written on this subject, beginning with Dicey, who postulated that

conventions were not part of constitutional law which, in his view, included only those

rules which were enforceable in a court of law.1

Subsequent publicists took issue with Dicey’s theory of exclusion since, as we shall

show, conventions prove an important component of constitutional law. They pose

political difficulties when they are disobeyed.2

DeSmith adopts the language of HLA Hart3in the following comprehensive

definition:

... constitutional conventions, insofar as they impose duties, are primary rules of recognition

unaccompanied by an adequate apparatus of secondary rules of recognition, interpretation

(or adjudication) and change …

Most of the conventions are bonding usages, undertakings and practices. They are forms of

political behaviour regarded as obligatory.

The attributes and purpose of Conventions have been neatly analysed by a distinguished

writer on public law in this way:4

In the United Kingdom, with no written constitutional text, conventions which have

developed over time play a critical rôle in the process of identifying the meaning of various

constitutional rules. These understandings, habits, customs and practices which are not

written down in any authoritative sense are nevertheless obeyed by the political directorate

although they are not enforceable in the Court or by Parliament. A reasonable explanation

for this would lie in these unchanged usages qualifying for constitutional statutes. Of the

attributes claimed for conventions, three may be singled out.

First, they help in the interpretation of the law. Second, they help to regulate the

relationships between the different branches of government. And third, they act as useful

tools in adjusting the strict letter of the law to meet the imperatives of the times.

One writer has described Dicey’s distinction as ‘dogmatic’ and ‘the product of an

outmoded jurisprudence’.5To an enlightened publicist his distinction is distinctly quaint.

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THE CONVENTIONS OF THE CONSTITUTION

1 See, generally, Dicey, 1959.

2 Jennings, 1959, p 134.

3 Hart, 1961, p 118.

4 Fiadjoe, 1999, p 167.

5 Jennings, 1959.