Laws and Constitutional Conventions

Abstract

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 canvassed. First, that laws are enforced by courts, with legal sanctions following their breach, whilst conventions are enforced only by political pressure. Secondly, that laws are systematic, a set of rules bound together by other rules, whereas each constitutional convention stands alone. A sophistication of this second distinction focuses on the special claims that law makes. Even if conventions can, sometimes, form systems, this system will not make the claims which are characteristic of legal systems. This paper argues that neither distinction can be sustained. The difference between law and convention is one of degree: laws and conventions should be placed upon a spectrum of types of social rules, a spectrum gradated in terms of the formalisation of rules. Laws lie at the most formalised 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 will be contended that conventions can become laws through judicial intervention, and that conventions can ‘crystallise’ into laws over time by becoming increasingly formalised.

Keywords: Constitutional Conventions; soft law; non-legal rules