Public Law: Text, Cases, and Materials (2019 4 edn). p 88 quotes from J.E.K. Murkens, ‘The quest for constitutionalism in UK public law discourse’ (2009) 29 Oxford Journal of Legal Studies 427, 430– 2, 454– 5 (footnotes omitted).
[. . . C]onstitutionalism is too big a concept for the small boots that public law scholars are prepared to give it. At present, the Orwellian ‘belief in the law as something above the State’ does not exist in the United Kingdom. At a formal level constitutionalism in the UK is an umbrella term that consists of the following limbs:
(i) it concentrates ultimate public power in one institution (the sovereignty of Parliament);
(ii) the government is organized by means of majority rule (representative government);
(iii) the granting and exercise of public power is determined and controlled by constitutional principles, such as the rule of law, separation of powers, and respect for individual rights (limited government);
(iv) the government is held to account by Parliament for its policies and its conduct (political accountability);
(v) the government is held to account by an independent judiciary through the principal mechanism of judicial review (legal accountability).
George Orwell. Work : Essays : The Lion and the Unicorn.
And yet the gentleness of English civilization is mixed up with barbarities and anachronisms. Our criminal law is as out-of-date as the muskets in the Tower. Over against the Nazi Storm Trooper you have got to set that typically English figure, the hanging judge, some gouty old bully with his mind rooted in the nineteenth century, handing out savage sentences. In England people are still hanged by the neck and flogged with the cat o’ nine tails. Both of these punishments are obscene as well as cruel, but there has never been any genuinely popular outcry against them. People accept them (and Dartmoor, and Borstal) almost as they accept the weather. They are part of ‘the law’, which is assumed to be unalterable.
Here one comes upon an all-important English trait: the respect for constitutionalism and legality, the belief in ‘the law’ as something above the State and above the individual, something which is cruel and stupid, of course, but at any rate incorruptible.
It is not that anyone imagines the law to be just. Everyone knows that there is one law for the rich and another for the poor. But no one accepts the implications of this, everyone takes it for granted that the law, such as it is, will be respected, and feels a sense of outrage when it is not. Remarks like ‘They can’t run me in; I haven’t done anything wrong’, or ’They can’t do that; it’s against the law’, are part of the atmosphere of England. The professed enemies of society have this feeling as strongly as anyone else. One sees it in prison-books like Wilfred Macartney’s Walls Have Mouths or Jim Phelan’s Jail Journey, in the solemn idiocies that take place at the trials of conscientious objectors, in letters to the papers from eminent Marxist professors, pointing out that this or that is a ‘miscarriage of British justice’. Everyone believes in his heart that the law can be, ought to be, and, on the whole, will be impartially administered. The totalitarian idea that there is no such thing as law, there is only power, has never taken root. Even the intelligentsia have only accepted it in theory.
Pls see the question in the subject line.
I'm befuddled. The first quote from 2009 says "belief in ‘the law’ as something above the State and above the individual" doesn't exist in the UK. But Orwell said this belief did. Who's right? If Murkens is correct, what happened to this belief?
Why's this belief "incorruptible"?