Public Law—Concise Argument for and Against Codified Constitutions
What Is a Constitution?
A Constitution is a set of rules, laws, and principles that specify how a state must govern and also the relationship the state has with its individual citizens. It outlines the very structure of a political system.
The House of Lords Select Committee made a point of defining what a constitution was in 2001:
"the set of laws, rules and practices that create the basic institutions of the state and its component and related parts, and stipulate powers of those institutions and the relationships between the different institutions and between those institutions and the individual."
Every country has a constitution, and it is this that dictates whether a country has president(s), house of representatives, MPs, monarchies etc. It also states exactly how much power each of these things have and their relationship with each other. You can think of a constitution as the 'ground rules' of a political system—who goes where, what anyone has the right to do, and what everyone should try to do.
In a way, a constitution is also the laws of laws—it includes the only acceptable ways in which you can change the constitution, which means that usually there are some things that can never be changeed about the constitution—no one has the right to do so.
All countries have a codified constitution except for four: the UK, Israel, New Zealand and Canada which have uncodified constitutions.
Read on to find out the drawbacks and benefits of codified and uncodified constitutions.
Codified and Uncodified Constitutions
A Codified Constitution is one that includes most of its rules and principles in one large written document whilst an uncodified constitution is one that doesn't.
Note: although in the USA (and other countries) this large written document is often called 'the constitution', the constitution in those countries actually includes more than what is written in that document e.g. conclusions made from judicial decisions and conventions.
The UK is an example of a country with an uncodified constitution and has 5 main sources that constitute the constitution (note the connection in words) and are all used as reference when trying to decide whether an action is constitutional (complies with the constitution) or not. More importantly, some parts of the constitution are not written down which both creates and solves different problems.
Pros and Cons of an Uncodified Constitution
The Pros and cons of an uncodified constitution are the reverse of a codified constitution. It is important to note that the pros and cons concern how political systems actually are even though perhaps under other circumstances they would not apply.
- The separation of powers is more ambiguous - in the UK system, the powers of the executive and legislature are not clearly defined and the judiciary's independence is not established since the executive chooses the chancellor of the lord chancellor.
- Sovereignty isn't as clearly defined: the UK has a constitutional monarchy and even though in theory the Queen has many powers, because of overruling conventions she cannot use most of them.
- Constitutional crises are more likely to arise since (as mentioned in the above example with the Queen) the different sources of constitutional information can conflict and result in debate and confusion.
- Uncodified constitutions are a lot more flexible because of the less rigid separation of powers they contain - this is by far their most important characteristic since it allows the constitution to evolve with our forever evolving world.
- The rules and regulations in the constitution come about from trial and error and the ones that stay do so because they work and are best.
Pros and Cons of a Codified Constitution
- All of the constitutional information can be found largely in one place, making it easier to refer to when considering an action whose constitutional legality is in question. Importantly, this means that the executive and the legislative and their roles are very clearly defined and restrained to prevent corruption and injustice.
- The judiciary and their powers are also clearly marked and this once again means that there is little room for argument over which powers each of three branches should have and execute. These first two points about the separation of powers are the most important when considering the difference between a codified and uncodified constitution.
- There is much less chance of conflict in one source of information than in several separate sources. This is because all of the separate sources must be referred to in order to ensure that one source does allow a particular action whilst another one clearly forbids it.
- There is less space for a 'constitutional crisis' which arises from ambiguity in the constitution'.
- The basic rights of the individual are clearly defined and known - the first 10 amendments (known as the 'Bill of Rights') of the US Constitution outline the inherent rights of the individual citizen.
- Change to a codified constitution is very slow (the US Constitution has only had 27 amendments since its creation in 1787) and therefore government must be very sure that an amendment is for the best before it is implemented.
- Because some codified constitutions are very old (especially the USA which has the oldest), much of them have had to be reinterpreted to make sense in the modern day. For example, the Supreme Court in the US has had to constantly reinterpret the US constitution. ~ This reduces codified constitutions to a reference point rather than a manual on how to act. This in turn leaves room for interpretation and therefore ambiguity (giving it similar pros and cons to uncodified constitutions).
- Since changes to a codified constitution are so slow, sometimes a codified constitution does not keep up with changing circumstances and its principles are no longer moral or correct.
Concisely, the Sources of the UK Constitution
Enacted Law - also known as 'legislation' and includes:
- Acts of Parliament.
- Legislation enacted by ministers.
- Legislation enacted by those who have been conferred legislative powers from Parliament.
- Legislative instruments issued by the Crown (prerogative powers).
- Legislation enacted by the bodies of the EC.
Judicial Precedent - also known as 'common law' and includes:
- National case law that contains important decisions made by judges about the interpretation of legislation.
- National case law that creates common law.
- Case law of this nature made by the European Court of Justice (ECJ).
- Case law from the European Court of Human Rights, which must be taken into consideration by national courts under the Human Rights Act 1998.