Chapter

Laws and Conventions

N. W. Barber

in The Constitutional State

Published in print December 2010 | ISBN: 9780199585014
Published online January 2011 | e-ISBN: 9780191595318 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199585014.003.0006

Series: Oxford Constitutional Theory

Laws and Conventions

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The previous chapter introduced the idea of constitutional conventions, discussing their nature and place within the constitution. It left at least one important feature of conventions unexplored: their relationship with law. The task of identifying the differences between laws and constitutional conventions has caused British constitutional theorists a great deal of trouble. Two possible distinctions are frequently canvassed. First, that laws are enforced by courts, with legal sanctions following their breach, whilst conventions are enforced only by political pressure. Second, that laws are systematic, a set of rules bound together by other rules, whereas each constitutional convention stands alone. This chapter argues that neither distinction can be sustained. The difference between law and convention is one of degree: laws and conventions can be placed upon a spectrum of types of social rules, a spectrum gradated in terms of the formalization of rules. Laws lie at the most formalized end of this spectrum, but there is no single, definable, point at which rules shift from being conventions into being laws. Alongside this argument, it is contended that conventions can become laws through judicial intervention, and that conventions can ‘crystallize’ into laws over time by becoming increasingly formalized.

Keywords: constitutional conventions; law; social rules; judicial intervention; legal sanctions

Chapter.  8022 words. 

Subjects: Jurisprudence and Philosophy of Law

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