Unwritten Constitutions Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

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An unwritten constitution is the body of legislation, rules, regulations, and common law recognized by legislators, executives, and courts as the binding laws that legitimize, guide, and limit a government’s powers and authority as well as the public’s rule of law. With an unwritten constitution, the body of laws are not enumerated within a single, formal document as witnessed in Israel, New Zealand, and the United Kingdom. Unlike a written constitution, an unwritten constitution is modified gradually, changing by accretion of new laws, often in response to the evolving needs and environment of its sovereign state. Of note, there are numerous statutes of an unwritten constitution that do exist in written form, causing some to prefer the term unmodified constitution, on the premise so much of these unwritten constitutions have been documented but not itemized. For example, the United Kingdom’s Houses of Parliament have the ability to approve an act of Parliament, which is a specific primary written piece of legislature serving as an addendum to previous laws or establishment of an entirely new law.

A primary trait of the unwritten constitution is the flexibility by which these constitutions have to effectively adopt new statutes or modernize existing legislature addressing emerging political prerogatives. Governments ruled by unwritten constitutions do not typically have sovereign executives or legislators with constitutional supremacy; therefore, the political, legislative, and civic institutions grew up together as the result of continuous adaptation and accretion of customs rather than abiding to a deliberate, static set of limited powers. There is no singular institution designed specifically to control the principles and implementation of legislation as demonstrated by the U.S. Supreme Court, which not only is the highest appeals court but is responsible for upholding judicial review and the system of checks and balances on congressional and executive powers. Moreover, an evolutionary democratic system based on an unwritten constitution does not mean a flexible constitution equates to unstable governance as demonstrated by the United Kingdom. Stability prevails in this system by depending on the people’s feeling about the fundamental political values the legal system ought to honor.

From a constitutional perspective, the U.K. unwritten constitution is a special case of combining legal and nonconventional rules that provide the framework of government and dictate the behavior of the main political institutions. Juridical supremacy is practiced among all the supreme powers of the state, to include the Crown, Parliament, and cabinet, which can modify or abrogate British constitutional institutions and rules. This parliamentary supremacy and sovereignty in lawmaking make it difficult to distinguish between laws considered to comprise the original unwritten constitution and those laws that have gradually become part of it. Many contemporary political scientists even question the possibility to enumerate the exact number of constitutional laws embodied in the British unwritten constitution.

Case Study: United Kingdom And The Evolution Of An Unwritten Constitution

The historical and political genesis of the United Kingdom’s unwritten constitution is based on a gradual development of British parliament. This legislative institution grew out of the king’s council (curia regis), in which the monarch originally consulted with the great magnates of the realm and later with commoners who represented the boroughs and shires. The locus of power in the constitution shifted gradually as a result of changes in the political and interest groups whose consent the government required in order to be effective. Parliament was, and is, a place in which to debate specific issues of disagreement between the Crown, on the one hand, and Parliament (the House of Commons and the House of Lords), on the other. The conflicts were settled in Parliament so that its original main function was that of a court (the High Court of Parliament during the sixteenth century). During the eighteenth century, the powers of the government passed more and more into the hands of he king’s first minister and his cabinet, all of whom were also members of one the houses of Parliament. According to Marshall’s British Constitution, an evolution of the constitution occurred when the transfer of prerogative powers from the Crown was given to the Crown’s ministers in a way in which the Crown acted on advice about its executive functions. Today’s parliamentary sovereignty originated from the powers of the king to make and approve law.

According to prevailing interpretations of the United Kingdom’s unwritten constitution, the constitutional laws gradually incorporated significant and historical documents, including: Magna Carta Libertatum (1215), which is considered the founding step in evolution of parliamentary sovereignty; Petition of Right (1628); Habeas Corpus Act (1679); Bill of Rights (1689); electoral laws (1832, 1867, 1874, 1918, 1928, 1969); as well as laws transferring the power from the House of Lords to the House of Commons (1911 and 1949; the 1999 House of Lords Act eliminating Hereditary Peers for the House of Lords); and, recent devolution laws (considering Scotland, Wales, and Northern Ireland).

Moreover, this constitution embodies conventions that, according to Dicey’s publication Introduction to the Study of Law of the Constitution, could be interpreted like “rules intended to regulate the exercise of the whole of the remaining discretionary powers of the Crown.” However, the constitutional conventions do not have authoritative interpretations and the individual convention can be challenged by fresh arguments based on the interpretation of the precedence supporting them. Thus, the U.K. constitution includes the books of authority, for example Blackstone’s Commentaries on the Law of England, which are commentaries and interpretation of the most prestigious jurists.

Bibliography:

Bogdanor, Vernon, ed. The British Constitution in the Twentieth Century. Oxford: Oxford University Press for the British Academy, 2003.
Politics and the Constitution: Essays on the British Government. Brookfield, Vt.: Dartmouth Publishing, 1996.
Dicey, A.V. Introduction to the Study of the Law of the Constitution, 10th ed. New York, Macmillan, 1987.
Marshall, G. Constitutional Conventions: The Rules and Forms of Political Accountability. Oxford, Clarendon Press, 1986.
Neubauer, Z. Státovˇeda a teorie politiky [Theory of the State and Politics]. Prague: Slon, 2006.