"You Americans operate under a different constitutional structure giving your courts many more powers of review than ours. Of course, your courts are more active in prison matters." Until recently, an American inquiring into judicial review of prison affairs might very well have been told something to that effect by an interested Briton. Citing the relatively few cases on judicial review of prison matters in substantiation of his assertion, the Briton would have declined to regard the issue as open for argument. Nevertheless, there were and are possibilities for expansion of British judicial review of prison disciplinary decisions, related to those that have expanded review in the United States, which could not and cannot be dispelled by simple reference to constitutional distinctions. Of course, there are distinctions, but they would not appear to be fatal to comparative analysis.
The purpose of this chapter is to lay a general basis for further comparison of judicial review of prison disciplinary decisions. It is not intended as an exhaustive discussion of British or American constitutional law. Rather, it is an introduction to the detailed analysis of the following chapters.
There are at least three basic characteristics which distinguish the British Constitution from American constitutions1: (1) written versus unwritten constitution; (2) fundamental law versus ordinary law; (3) judicial review of legislation versus Parliamentary supremacy.2
The British Constitution is not an obviously written document like its American counterparts. That is, its sources, although written into the history of Britain, have not been synthesized into one easily identifiable written document. Such sources include (1) legislation; (2) case law; (3) the last, and custom of Parliament; (4) constitutional conventions; (5) texts of eminent constitutional authorities.3 Relevant materials from the first two categories are cited throughout this work.4 The third and fourth categories are largely unwritten but nevertheless clearly recognizable and accepted practices of political conduct. They generally have only limited relevance to this study and are well covered elsewhere.5 The fifth category is particularly important in British constitutional law since the sources are so scattered and need redefinition from time to time.6 Of course, the works of earlier treatise writers such as Bracton, Coke, and Blackstone may be primary authority under certain circumstances.7
The distinction between written and unwritten constitutions is more a question of form than substance. A written constitution may be just as flexible in terms of its