Conventions vs Laws
Malcolmson and Myers (reference below) describe conventions and laws as the two types of fundamental rules that make up a regime’s constitution: conventions are political rules; laws are legal rules. (See Constitutional Conventions and Constitutional Laws.)
They note that:
“A political rule is typically followed because one fears the political consequences of breaking the rule. A legal rule is a rule enforced by a court and is typically followed because one fears the consequences of legal punishment.”
emphasize that “the distinction between conventions and laws is not that the former are unwritten and the latter are written: the distinction is in how the rule is enforced.”
They note that whereas statutory law is written down and common law is not, both are rules enforced by courts:
“What makes conventions different from laws is that conventions are rules enforced by politics, whereas constitutional laws are rules enforced by courts.”
Rationale and enforcement of conventions
Malcolmson and Myers cite the example of the constitutional convention in the UK that the monarch will not refuse to provide royal assent to legislation that has been passed by both the House of Commons and the House of Lords:
“This rule takes the form of an unwritten agreement, accepted as binding by everyone, and sanctioned by the force of tradition. But it is not mere tradition that makes a particular practice a convention. The essential point in any convention is its rationale. … The British convention requiring royal assent is … based on an obvious rationale: as Britain evolved from a monarchy to a democracy, the House of Commons became the primary political power, and withholding royal assent would thus not be viewed as politically legiti1nate. This convention is now well established, but its legitimacy rests on the perception that there are good reasons for such a rule, not on how constitutionally ingrained it is.
“The question, of course, is what happens if someone violates a convention. If politicians break a law, they can be brought before a court, tried, and punished if found guilty. But precisely because the court is a “court of law” and not a “court of conventions” its judges cannot, and will not, enforce constitutional conventions. So who does enforce them? The answer is the voters. In a constitutional system based on conventions, it is assumed that the voters will know what those conventions are and will guard them jealously. Therefore, those holding political office will respect these conventions out of fear of invoking the wrath of the voters. But this is not to say that constitutional conventions are always respected. The great advantage of having constitutional rules in the form of conventions rather than laws is that they can be applied with a certain amount of flexibility.”
Atlas topic, subject, and course
Patrick Malcolmson and Richard Myers (2012), “The Constitution,” in The Canadian Regime: An Introduction to Parliamentary Government in Canada, 5th ed., page 16, Toronto: University of Toronto Press.
Page created by: Ian Clark, last modified on 12 August 2016.
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