From the two definitions above it is easy to see that the two conflicting methods of Governmental foundation provide fuel to a fiery debate in which each system is embellished and debased on a variety of discerning factors. A source from scribd.com claims on the subject of Britain and its current constitutional system, ‘The lack of a codified constitution is not the problem, accursed democracy is the problem.’ This bares some truth, as it is arguable that each system bares so many negative externalities as the executive is always seeking to exploit any gaps or inconsistencies in a system. It is permissible that no system will achieve be better than the next, it is simply to what extent the Government stands to abuse the system.
However regarding the point above, an unwritten constitution is far more ambiguous in interpretation, this works either to the advantage or disadvantage of the Governmental system as a whole. The Judicial system could either appose the executive in interpreting the constitution against them, or they could use its ambiguous nature to support the executives driving through of suspiciously, umbrageous policy. An example of which, regarding Britain, was the Government’s attempt to allow 90 day detainment of terror suspects, this was interpreted as unconstitutional by the UK Supreme Court, and rejected. However the Government retained the right to simply change the law to be able to push through policies of this nature, a rather daunting prospect.
In contrast a codified constitution has its laws entrenched, they are interpreted unambiguously, in an almost biblical, modus operandi. This disenables the Government from, ‘coercing’ the Judiciary into supporting a cause, as there is simply no other way to elucidate the entrenched law. An argument against increasing the power of the Judiciary, however, is that written constitutions are ruled upon by judges. Most judges are unelected and it is therefore undemocratic to take power away from our elected representatives and give it to judges who tend to be quite reactionary.
Yet, with the compilation of both an increased length of scrutiny, and more of a Judicial involvement in interpretation of the constitution in the formulation of bills etc, one of the most admired points of an unwritten constitution is its ability to produce effective policy, quickly and efficiently in times of crisis for example, a written constitution greatly slows this ability. However a written constitution, perhaps accountable for shelling out weakened policies, moderates the ability of Government to fast-track radical policy and make large constitutional amendments on whim, a dangerous aspect of an unwritten constitution, perhaps culpable to the increasing threat of executive dominance. An example of this is Blair’s reform of the House of the Lords. He was able to completely change half of our legislature without a referendum or other means of checking consensus.
One of the benefits of the current system is its flexibility. If they have a political mandate from the people, the government can reform the constitution, as with the example of the House of Lords. If you had to have a 2/3 majority in both houses, this measure would never have been passed; neither would devolution. In countries like the USA, it is nearly impossible to change their constitution. How can we know, in an ever changing society that a set, written document can govern, without change, for hundreds of years?
Parliamentary systems founded on the concept of the Rule of Law - subject to no authority beyond itself, it retains sovereignty, contradict a written constitution and go against the principle of the rule in which many democracies are based on. This argument is strong, yet flawed, many unwritten Governments infact follow a sort of constitution, for example in Britain constitutional conventions are very strong and have served well. There are also laws such as the 1911 Parliament Act.
Rights, without a written constitution, the UK, for example has no Bill of Rights to protect its citizens from a dirigistic state. The existing Human Rights Act provides only weak protection, with judges only able to rule that new laws are ‘non-compliant’ with the Act - the government can ignore such rulings if it wishes. The Human Rights Act can easily be, and has been amended by a simple majority in both Houses of Parliament. A written constitution with a proper Bill of Rights would provide much stronger protection for the rights of the citizen. Therefore the basic standards by which people live and abide by can be manipulated and distorted to follow executive requirements or to drive forward and expand the powers of the ‘political class.’
On the other hand, one could see that rights are already protected in the UK. There is a strong culture of rights and liberties which stretches back to 1214 with Magna Carta and the 1689 Bill of Rights, which is widely accepted by politicians of all parties, lawyers and judges, the media and civil society as a whole. This consensus makes it impossible for a single government to overturn rights - as government defeats on the proposed detention of terrorist suspects demonstrate. Since 1998 the Human Rights Act has enshrined the European Convention on Human Rights into UK law, and now provides a focus for this culture of rights. Rulings by judges that anti-terror laws are ‘non-compliant’ with the Human Rights Act are very embarrassing for the government, and have effectively forced it to amend its laws.
To summate, a written constitution provides ample evidence for both the advocation and dismissal of its properties. It seems to produce a state in which Government is well regulated, yet inefficient. It also seems to create a system in which ministerial and collective accountability are harder to avoid, as the laws and manner by which a written constitution is to be governed are unambiguous in nature. However this results in an inability to react to situation and change, this could leave written cultures behind as other societies develop. The accumulation of these points has lead me to the conclusion that although there is a ‘case’ for a written constitution, in my view it is not a ‘clear’ case, nations have survived well without a written constitution, the public is not clamouring for a one, therefore in a somewhat pragmatic conservatelised view point I believe radical change is unnecessary and would not be in the best interest of the public and governments currently using an unwritten system.
