Constitutions and the rule of law
Sir, – Alan Eustace (Letters, September 5th) makes an important point on the lack of a clear separation of powers in the UK’s constitution. He seems to underestimate, however, the importance of Jonathan Sumption’s point (Letters, September 4th) that political incentives are crucial to maintaining constitutional integrity.
In providing for separation of powers and fundamental rights, constitutions aim to ensure the “rule of law”. In this sense, “rule of law” is understood to mean that law puts fundamental constraints on the exercise of state and political power. While this is an admirable aim, it is unachievable in practice. Law, constitutional or otherwise, cannot constrain political or state power because it is created by politics and the state. In a best-case scenario, the state and political powers operate within the law, but can never be overcome by a metaphysical concept such as law.
As seen in recent years in Turkey and Hungary, legal constitutions are helpless in the face of raw political and material power.
Constitutional hoodlums, as Lord Sumption calls them, therefore need to be constrained by more than written constitutions. They need other incentives, including electoral incentives, as Lord Sumption suggests. A country’s political culture is therefore as important as it constitution, and this is no less true in Ireland than it is in the UK. Irish commentators should therefore not feel too smug about the superiority of written constitutions over unwritten ones. – Yours, etc,