The modern constitution is usually classified either as a codified constitution, sometimes denoted as ‘written’, or as an uncodified constitution, commonly called ‘unwritten’. A codified constitution, found in most democracies, such as the United States of America and France, can be defined as one in which key aspects of the constitution are written and compiled into a cohesive whole and single unit or document. The less popular of the two forms, the uncodified constitution, is found in only three democracies in the world, that of the UK, Israel and New Zealand. In this system, the key aspects of the constitution are not all written and amalgamated, rather are said to be scattered amongst various writings, laws and traditions. Since many are accustomed to being able to physically access and consult the modern constitution, as can be easily done with the codified constitution, the nature of the British constitution has resulted in a questioning of whether the UK has a constitution at all.
Alexis de Tocqueville rather famously stated that in England, the constitution “does not exist.” This statement was made in light of the fact that the UK lacks a single, specific unit which acts as a constitution, and thus can be seen as a valid argument if you accept the premise that the definition of a constitution includes that it should exist as codified. Tocqueville highlights that the UK’s constitution is constantly changing, or does not exist at all, due to parliamentary sovereignty. The notion that parliament is sovereign as a hindrance to the distinction between ‘constitutional law’, which is usually considered higher in the hierarchy of laws, and ‘ordinary law’. This would thus create a situation in which it appears there is no governing law, no supreme authority to limit the powers of public officials, and thereby no constitution.
However, the codified constitution, regarded by some as the epitome of the modern constitution, is usually adopted following the Enlightenment of the 18th century and in the aftermath of a war or revolution, or independence of new states from colonialism, as is exemplified by the adoption of a codified constitution in the US following the American Revolutionary War (1775–1783), and in India following independence in 1947. Britain, on the other hand, has not experienced any such disruptions in the political order since the 17th century, and thus has no codified constitution; nonetheless, it has been governed by a body of rules and laws over the centuries, which are denoted as its constitution.
Britain may not have a codified constitution, but it has a ‘living constitution,’, described by Sartori as sui generis, and by A.V. Dicey as a ‘historical constitution’ in that it was the product of historical development rather than planning and designing, and is in a constant process of evolution. The constitution has a variety of different sources, some of which are written and unwritten. It is for this reason that Dicey further argues that the term ‘unwritten’ as used in reference to the constitution is invalid, as aspects of the British constitutions are indeed written, such as statutes and other historical documents including the Magna Carta. As such, it would be more appropriate to refer to the British constitution as ‘uncodified’ rather than ‘unwritten’, but this does not detract anything from the argument that it does have a constitution.
Although there is no single document that can be referred to as the British constitution, it remains valid to argue that there is a British constitution as all the essential aspects of a constitution are contained in the various sources of the constitution, though not compiled into a single unit. The constitution is sourced from common law, from statutes or Acts of Parliament, from prerogative powers, and from works of authority including Bagehot’s The English Constitution, Dicey’s Introduction to the Study of the Law of the Constitution, and T. Erskine May’s A Practical Treatise on the Law, Privileges, Proceedings and Usage of Parliament (Parliamentary Practise). One of the most notable sources of the British constitution, and sometimes controversial due to their unwritten nature, are conventions. These long-standing traditions which have evolved into law, such as the convention that the monarch never refuses to give Royal Assent to bills that are properly passed by Parliament, form a significant aspect of the British constitution, but some find it difficult to understand how unwritten laws could play such a notable role in the constitution, and thus criticise the British constitution. However, it is important to note that conventions play significant roles even in countries which have written constitutions. This was reinforced by Bogdanor who exemplified this with the use of the Swiss ‘magic formula’, a convention in which the Swiss Federal cabinet seats are divided amongst political parties on the basis of 2:2:2:1. The existence of conventions as an aspect of the British constitution thus does not undermine the constitution itself in any manner.
Some claim the constitution needs modernisation by codification. The British constitution, however, has many advantages in that it is flexible, and thus more easily adaptable and responsive to social, political and economic changes than other rigid constitutions. This can be seen where the government was able to respond soon after the July 2005 London bombings in an attempt to change constitutional laws on terrorism through the Anti-Terrorism Bill of 2005. Such a rapid constitutional response was unable to be taken in the US in the aftermath of the 9/11 terrorist attacks due to the rigidity of the constitution which has only been amended 27 times in about 200 years. The uncodified constitution also works perfectly with the Westminster model of democracy which is practised in Britain, or at least has done so for the past several centuries. As such, it is argued that the British do have a constitution which has worked well for them over time, and there is no need to change it in order to streamline it with the idea of the modern, codified constitution. Besides, the Constitutional Reform Act (2005) provided much of the modernisation said to be needed by the constitution, such as infusing greater separation of powers.
Moreover, the British constitution is said to be ‘engraven in the hearts of Englishmen’ It has stood the test of time, has maintained a stable political system over the years, and has well achieved the basic telos of a constitution in limiting government power and protecting the people. The UK, therefore, does have a constitution which, albeit different from the conventional, appears to work satisfactorily.
Bibliography:
Bagehot, Walter (1867) The English Constitution. London: Chapman and Hall.
Bogdanor, Vernon. (1988). ‘Introduction.’ Constitutions in Democratic Politics. Oxford: Ashgate.
Dicey, Albert Venn. (1902) Introduction to the Study of the Law of the Constitution. London: Macmillan.
Finer, S.E. (1988). ‘Notes Towards a History of Constitutions.’ Constitutions in Democratic Politics. Oxford: Ashgate.
Llewellyn, Karl. (1934) ‘The Constitution as an Institution.’ Columbia Law Review. XXXIV
Macaulay, T (1986). The History of England. London: Penguin
Maddox, Graham. (1982). ‘A Note on the Meaning of ‘Constitution’’ The American Political Science Review. 76 (4) pp. 805-809.
Sartori, Giovanni. (1962). ‘Constitutionalism: A Preliminary Discussion.’ The American Political Science Review. 36 (4) pp. 853- 864.
Tocqueville, A. (2004) Democracy in America. New York: Literary Classics of the United States Inc.
S.E. Finer. (1988). ‘Notes Towards a History of Constitutions.’ Constitutions in Democratic Politics. Oxford: Ashgate, p. 17.
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G Maddox. (1982). ‘A Note on the Meaning of ‘Constitution’’ The American Political Science Review. 76 (4) p. 806.
V Bogdanor. (1988). ‘Introduction.’ Constitutions in Democratic Politics. Oxford: Ashgate, p. 3.
A Tocqueville. (2004) Democracy in America. New York: Literary Classics of the United States Inc. p. 113
Karl Llewellyn. (1934) ‘The Constitution as an Institution.’ Columbia Law Review. XXXIV
Albert Venn Dicey. (1902) Introduction to the Study of the Law of the Constitution. London: Macmillan, pp.13-16
T Macaulay (1986). The History of England. London: Penguin, p. 290