The Function Of Rule By Law Theory Of The British Constitutional Convention

With endogenous, procedural, free trait of British law, constitutional convention is a unique legal norm. It grows in the political practice, develops in the social life, matures in the political struggle and operates in the development of the rule of law. As the constitutional law and constitutional case, constitutional convention is also an organic component in constitutional system. Specifically, the constitutional convention refers to the rules of behavior which can be widely accepted in political practice and have actual binding and influence on the power distribution and control. The customs born in the political life and the agreement among political subjects are collectively called constitutional convention. In Britain, constitutional law and social reality especially for political practice are connected by the constitutional convention. It is the legitimacy source of constitutional law.Consensus and common faith is the foundation of the constitutional convention. The vitality of a precedent comes from the consensus in its present. Under the action of common faith, the influence of this precedent may exceed the specific event and will continue. Anyone who violates the constitutional convention may be punished by the constitutional crisis. It can strengthen the effect of constitutional convention from the negative side. In the practice of the rule of law, the function of constitutional convention is main expressed by the interaction with constitutional law:it can make up the defect of constitution; it can alleviate the rigidity of certain articles of the constitution; it can control the operation of the state; sometimes it even actually determines the interpretation and implementation of the constitution.But the function of constitutional convention is just relative. It can not solve all problems in the field of constitution. The function of constitutional convention itself is also limited:it is difficult to define accurately from the form and theory, especially the uncertainty in formative and extinct time makes it not easy to make sure the number of constitutional convention in certain period. This leads to that the court cannot directly apply to the constitutional convention and national power is difficult to support the constitutional convention directly.However, even if the constitutional convention is just playing a limited function, it does contribute great to the development of the rule of law. In the formal level, it played as a stabilizer on the British constitutional changes and constitutional innovation. Compared with European countries which choose the written constitution, British law did not experience the ups and downs in the constitutional development and constitutional government in Britain also did not encounter similar turbulent. In the virtual level, constitutional convention strengthened the authority of constitution in the country and society. It pushed the constitutional government running well. Compared with the developing countries which choose transplant constitution, British law grows from the interior of the society naturally and there is not additional force outside. It also does not become a mere scrap of paper or the dependency of other power.