Rebalanced diet advised for a healthy constitution

An Introduction to Constitutional Law

March 5, 1999

The Clarendon law series has never been easy to pigeonhole. Classics such as H. L. A. Hart's The Concept of Law rub shoulders with a few specialised monographs, while the largest group consists of purported introductions to different fields of law. Constitutional law has hitherto been unrepresented in the latter category, and Eric Barendt's new book rectifies the omission.

The vastness of the subject presents a challenge to writers, and Barendt's solution is to deal with "the principles of the United Kingdom constitution from a critical, comparative perspective". His strategy of focusing on principle and eschewing detail is consistently well executed. In the result, there is perhaps insufficient detail on domestic law to satisfy the needs of law students reading concurrently for an examination. The book might be recommended, however, to prospective law students, to stimulate critical thought, and should certainly be useful for students of politics or society who want to know something of the subject.

There is frequent cross-referencing and some repetition is even tolerated in the interests of clarity. The approach is scholarly and the tone serious.

The outlines of the constitution are described and discussed, with due attention to supranational relations and sub-state dimensions. There is a particularly good discussion of the extent to which the European Union may be considered a federation. There are chapters on the legislative, executive and judicial powers and, less centrally, on political parties and elections and on constitutions in times of war and emergency. It is understandable that civil liberties and administrative law are only touched on, although the author's view that "judicial review ... is a concern of administrative rather than constitutional law" might invite questioning, had he entirely adhered to it.

If the treatments of domestic constitutional arrangements are generally familiar, Barendt adds value with his systematically comparative approach. There are regular comparisons with France, Germany and the United States, and occasionally with other countries. He also likes to weigh the main arguments from the literature on questions of constitutional theory before pronouncing on them confidently as good or bad.

The author is critical of Britain's "political" constitution, which, he considers, needs to be rebalanced. He is particularly dismissive of parliamentary and political controls on executive actions, which he seems to regard as irredeemably weak, and in consequence the tendencies to judicialisation of issues, which he perceives, he also commends. An organising principle for his commentary is the separation of powers doctrine, which is not merely rehabilitated here but is elevated, perhaps rather beyond its deserts.

The UK is a union state, and another difficulty for constitutional writers is the need to distinguish between its several jurisdictions. Barendt is not insensitive to the difficulty but sometimes, when there is correspondence, refers to that mythical system, "British law" and, occasionally, when there is divergence, slips into Anglocentric or mono-jurisdictional mode. Authors deserve sympathy, too, for having to cope with the flurry of constitutional reforms since May 1997. Barendt sensibly anticipated the passage of the Human Rights Act and the Scottish and Welsh devolution measures, even if some other changes have crept up on him.

Colin Munro is professor of constitutional law, University of Edinburgh.

An Introduction to Constitutional Law

Author - Eric Barendt
ISBN - 0 19 876253 4 and 876254 2
Publisher - Oxford University Press
Price - £35.00 and £14.99
Pages - 184

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