‘‘unwritten.’’ However, it comprises numerous written documents, including
Magna Carta ( 1215 ), the Petition of Right ( 1628 ), the Habeus Corpus Act
( 1641 ), the Bill of Rights ( 1689 ), the Act of Settlement ( 1701 ), the Parliament
Act ( 1911 ), and the successive Representation of the People, Judicature, and
Local Government Acts. In addition, the British constitution is argued to
include the rules of common law, the principle of ministerial responsibility to
the House of Commons, and early twenty-Wrst-century adjustments to the
character and composition of the House of Lords.
3 Rule of Law within the Politics of
Power
.........................................................................................................................................................................................
However historically constructed or developed, some analysts argue that
constitutions are not necessarily made so as to instantiate a clear and pre-
formulatedtheoryof the rule of law which generates its own normative force,
so much as to secure, and thus encourage, self-restraint on the part of the
principal competing political interests in conXict. In this sense, Stephen
Holmes suggests, somewhat counter-intuitively, that rather than overrun
the rule of law, power politics often ‘‘incubates’’ it by dispersing power as
factional interests organize (Holmes 2003 , 8 ). In this setting, law becomes an
instrument available in principle for use by everyone and diVering constitu-
tional arrangements then reXect the diVering distributions of power holders
in conXict at the time of their formation. So, for the ancients such as
Aristotle, the constitution orpoliteiadeWned the entireregimeor way of
life, including the culture, religion, and mores underpinning its administra-
tive and law-making institutions. Aristotle begins his discussion of theCon-
stitution of Athensdescribing the conscious constitutional arrangements as
they appeared in the time of Solon, as forms of clan structure organizing
communal life increasingly gave way to economic struggles between rich and
poor. Plutarch writes of Solon’s eVorts at Athenian constitution-making, that
‘‘[w]ishing to leave all the magistries in the hands of the well-to-do, as they
were, but to give the common people a share of the rest of the government, of
which they had hitherto been deprived’’ (Perrin 1989 , 453 ), Solon created
property qualiWcations for Athenian oYce holding, but not for the franchise.
constitutionalism and the rule of law 323