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Published online by Cambridge University Press: 05 June 2012
In previous chapters we have seen that for a true view of the constitution we must take account of its rules, its institutions, and its ‘ideas’ or theories. In this chapter we outline the various sources of the British constitution and, in particular, the sources of the rules of the constitution. Some of these are legal rules, making up the ‘law of the constitution’; others are rules of practice, known as ‘constitutional conventions’. During the course of the chapter, we shall ask what are the distinctive features of constitutional laws and conventions, and we shall consider the relationship between these two kinds of rules.
Legal rules
Dicey (Law of the Constitution (1885), p 203) held it to be one aspect of the rule of law in England that:
the principles of private law have with us been by the action of the courts and Parliament so extended as to determine the position of the Crown and of its servants; thus the constitution is the result of the ordinary law of the land.
Dicey's statement needs qualification. It fails to take account of the extraordinary powers deriving from the royal prerogative, or of the ‘law and custom of Parliament’, which has developed separately from the ‘ordinary’ law.
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