Advantages of the Unwritten Constitution

Sovereign states all over the world are governed by a constitution, which underpins the laws of the country. Most countries have a written constitution while the UK distinctly possesses an unwritten constitution. A written constitution is characterized by a complete codification of all the constitutional laws and principles. That is, the constitution takes the form of a unique document. On the other hand, the unwritten constitution tends to have a bulk of the principles not codified, highly characteristic of the UK constitution. In the UK, what counts as the law is what develops from practice. Pek (2008) emphasizes that even though there are parts of the UK constitution that are codified, it is not enough to classify it as written, since there has been no collective conferring by the people. More often than not, the unwritten nature of the UK constitution has been termed as advantageous. This paper seeks to evaluate the UK constitution with respect to its unwritten characteristic and establish the advantages it has over a written constitution.

The UK constitution’s unwritten nature is as a result of history and the steady evolution of principles and laws. Unlike in other states where particular consideration is given to the codification of the constitution, it has never been so in the UK. Even though undefined, it is evident that UK has a constitution, which describes rules and processes regarding state institutions. Unwritten sources of the UK constitution include royal sanctions, treaties, common law, works of authority and conventions held by parliament. Indeed, the main principle underpins the utmost supremacy of parliament. As such, UK’s parliament is mandated to create new laws or make amendments as the final source. There are fewer limits to the matters, which can be legislated by parliament. This sovereignty is accompanied by parliamentary acts that allow parliament to impeach government officials, declare a lack of confidence in the government, and even appoint successors to the throne. Apart from this principle, the UK constitution is also unitary and comprises of England, Wales, Northern Ireland, and Scotland countries. These countries have their own legislature but whose powers are dependent on acts and laws created by parliament. As a constitutional monarchy, the royal prerogative involves the execution of such powers like ratifying treaties, issuing passports, appointing and dismissing ministers. However, the sovereign is subject to consulting with others before exercising these powers.

The UK’s unwritten constitution has distinct advantages especially with regard to promotion of democracy, accountability, transparency, and mandate. All matters regarding the constitution are addressed by parliament, which is composed of the House of Commons, who are the major participants and the House of Lords. The government is subject to being dissolved and therefore has to be accountable to parliament. Constitutional behavior is guided by this unwritten constitution through conventions, which have led to acts of parliament that mandate the government to resign if it loses after a ‘no confidence’ vote in parliament. In most written constitutions, this power is given to judges who are not elected making them highly superior and likely to be swayed by subjective factors. Therefore, parliament acts, as a tool for quality control and with constant regulations and monitoring of the government it is able to ensure democratic legitimacy.

In addition, common law accords the constitution a form of authority in ensuring that civil liberties are respected. As such, judicial courts are obligated to rule cases without biasness and with guidance from previously established laws through practice. The unwritten constitution is mainly founded on traditions, precedents, and customs. Moreover, the conventions responsible for these laws are governed by obligations and obedience. These traits only emerge over time and consequently exert great significance to common law, allowing judges to make constitutional judgments without the overshadowing of a written text on what is right or wrong. Instead, they are able to draw on general rules emerging from traditional practices and precedents (Pek, 2008).

As an unwritten constitution, the UK constitution is highly flexible and can easily evolve and adapt to changing times. Modern times necessitate the changing of laws in order to accommodate news trends, perceptions, and beliefs. All that is required is for parliament to acknowledge the need for changes and thus continue to make amendments. Consequently, it is observed that traditional laws in the UK constitution do not inhibit progress but are instead subject to change in order to align with changing situations. This characteristic is an entrenchment and considering that there are democratic procedures put in place and that both the judiciary and parliament are there to safeguard the constitution, then it is best suited to reflect a constantly changing world. Unlike the unwritten constitution, the written constitution is rather rigid and makes it difficult to modify. In fact, a look at such a constitutional model, the US constitution, reveals the agony of trying to change laws. Apart from this flexibility, the unwritten constitution makes conventions and judicial judgments highly responsive to societal changes. Judicial judges in their rulings are able to reflect on changes as they are in the particular times, making it possible for the judicial system to expand free any confines.

Despite the advantages of the unwritten constitution, there are limits to its supremacy. The unwritten characteristic of the constitution may foster likelihood for its politicization. The fact that parliamentary supremacy is considered as the ultimate law and that judicial courts only act to regulate parliament establishes a political reality. This reality underpins the defenseless nature of judicial courts due to the lack of a codified constitution. Furthermore, there are risks to the flexible nature of the unwritten constitution. All laws are exposed to whimsical changes by parliament or the government as there is no specified legal status. In addition, it makes it easy for individual human rights to be eroded due to the lack of a strictly enforceable legal system. It has also been argued that the unwritten constitution lacks clarity. This is contrary to a written constitution, which is detailed and explicitly addresses limitations of parliament and the government. This makes it easily accessible to ordinary citizens and at the same time promotes transparency in judicial rulings.

In conclusion, there have been debates about the codification of the UK constitution in order to ensure complicit separation of powers. Nevertheless, the above discussion has highlighted the unwritten characteristic of the UK constitution and illustrated the various advantages, which have been observed over time. The UK constitution is guided by numerous principles, parliamentary supremacy being the main pillar. This characteristic has elicited advantages such as promotion of democracy, accountability, and transparency, and flexibility which allows for easy amendment procedures when need arises for change. The unwritten constitution has worked for the UK and even though minor changes are inevitable, it remains more practical than the codified constitution.

Summary

Constitutions are responsible for defining and regulating state institutions, which guide the state’s relationship with individual citizens. They are either written or unwritten with the written constitution being highly codified. This sort of constitution is found in most states unlike the unwritten form, which is possessed by merely three countries. The UK constitution is unwritten and characterized by parliamentary supremacy, royal prerogatives, unitary and monarchical tendencies. As such, a majority of laws are not documented and are subject to change by parliament. As sovereign, parliament is the rule of law and is obligated to enact laws when necessary. This trait makes the unwritten constitution highly advantageous. As a flexible entity, the UK constitution is easily adaptable to constant changes within the society. This aspect has made parliamentary conventions and even judicial courts responsive to these changes, which makes the law relevant. In fact, this has spared the UK difficulties, which often accompany change agendas in the written constitution. Furthermore, the UK constitution through the sovereign parliament is able to regulate and monitor the government. It subjects the government to limitations, thus fostering accountability and democratic legitimacy.

However, the UK constitution also faces limitations especially in regards to its politicization. The very factor that renders the UK constitution advantaged, parliamentary supremacy, could exhibit loopholes for making the constitution a political tool. Its flexibility is also susceptible to unwarranted procedures where laws are altered or decisions made by parliament without due process. Citizens are also entitled to having a grasp of the constitution but this can prove difficult without the presence of a codified document where separation of powers is indicated distinctly. Nonetheless, the unwritten nature of the UK constitution has seemed to work for the state and may even propel other countries to adapt such characteristics.