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  • Pavlos Eleftheriadis

Two Doctrines of the Unwritten Constitution

Updated: Mar 2

For many years UK law remained under the spell of a ‘simple fact’ theory of

Dicey, Wade and Hart, refusing to deal with the question of constitutional

change. But the theory was never fully accepted, because it turned constitutional

law into a pre-legal mystery, where routine developments took place as exceptional

matters of social fact, not as a matter of law. The courts have now rejected this

theory altogether. In place of the rigid Diceyan formula we now have the idea of

the legal Constitution, which gives Parliament an explicit – although perhaps not unlimited – power to shape the Constitution. Accordingly, the unwritten

Constitution is a system of principles, whose origins lie not in a fact of sovereignty

or in the identity of the underlying ‘political community’ but in the legal

transformation of the United Kingdom three centuries ago by way of the Bill of

Rights 1688, the Act of Union 1707 and other constitutional statutes that created

the higher law of the Constitution in line with principles of constitutional justice

for equal citizens.



P Eleftheriadis, 'Two Doctrines of the Unwritten Constitution' (2017) 13 European Constitutional Law Review 525




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