The Constitutional Spectrum: Examining the Pros and Cons of Codified and Uncodified Laws

A written constitution has been written at a definite period of time. It is considered the supreme law of the land and sacred. It cannot be tampered except by following procedural rules, which are considered cumbrous. This sometimes subject a written constitution to the argument that it is too rigid to meet the new challenges. However, it also promotes stability and avoids conflicts of differing interpretation thereby enabling protection of rights of the people. which can be critically addressed with law dissertation help.

An unwritten constitution is not written in one single document but in many instruments and at different periods of time. They are found in traditions, customs and case law. Unlike the written constitution, an unwritten constitution is considered flexible. It is treated as any other ordinary law and therefore can be changed or modified by procedure followed for an ordinary law. This means that an unwritten constitution can meet challenges from changes in the society, which provides better ability to protect the rights of the people.

The UK has an unwritten constitution. The question in hand raises the argument that there are some flaws with the current form of the constitution that could be addressed if it is converted into a written one. This analysis will address the two opposite sides of the subject in hand.

A written constitution presents a single source of law. Thus, it will avoid potential conflicts of principles arising from multiple sources of laws. A written Constitution will make the provisions of the Constitution supreme. This means that the Constitution will become the grundnorm from which the laws of the land are derived. The Constitutional provisions cannot be overridden by the enacted laws. This means that the sovereignty of the institutional framework of the country is transferred to the Constitution.

The three organs of the government (the executive, the legislature and the judiciary) will be designated separate powers and jurisdiction. The judiciary will exercise judicial review power over the acts of the executive and the legislative actions in compatibility with the Constitution.

In a country with a written Constitution, the national and state governments will have a federal structure where the judiciary will exercise checks and balances considering the actions of the other two organs. The main argument in favour of the written Constitution is it brings uniformity and stability in the laws of the land.

One example in favour of a written Constitution is the written and codified federal German Constitution. The Basic Law governs the substantive law and procedural laws of the states. At the federal level, the law has many substantive law-making powers (Article 72 of the Basic Law). The States must implement the federal acts and create regulations governing the implementation procedures (Article 83). The federal law, thus, has supremacy over the state laws. The Basic Law confers a wide judicial review power to the constitutional court. However, such a federal mechanism of implementing law is subject to the argument that it takes longer time to implement laws. Even the argument favouring uniformity in a written constitution poses a challenge regarding self-realisation of the law when there is constitutional interpretation of legislation every time there is a conflict between the Basic Law and political reality. This gives rise to the argument favouring the unwritten Constitution that allows legal reforms to meet new social demands.

The UK Constitution transfers the supremacy to the Parliament. It is the Parliament that centralises all the powers. In this regard, the uniformity argument favouring the centralised power of the Parliament cannot be denied. This means that an unwritten Constitution has the ability to bring uniformity through the Parliament. This ability is derived from the multiple sources of the Constitution to include statutes, common laws, treaties and conventions. This ability to be flexible to accommodate new challenges may not be found in the written Constitution which is coded. Being coded it is difficult to change to new and different demands as per the change in the society or as per diverse local needs. Thus, a written Constitution will bring more rigidity than that by an unwritten Constitution in that regard.

Just as the written Constitution, for example the Basic Law of Germany, the Parliament has the rule of law as the grundnorm. This means that the Parliament has the sovereign power ensuring the rule of law equally applies to individuals and all the institutions. This means that the longer time of reforming laws will not be found in an unwritten Constitution. Since the Parliament has the consolidated power, legal reforms will be easier, quicker and more effective to meet new social and political changes. The Parliament can refer to the multiple sources of law to bring flexibility in interpreting and implementing laws of the land. Such flexibility will bring certainty to an issue resolution given there all diverse range of legal viewpoints will be considered. If this arrangement is changed to a rigid structure such as found in a written Constitution, the flexibility in interpretation and implementation of laws will cease to operate effectively in legal reforms. It will also restrict the state power at the local level to bring changes in laws to meet their local needs. Thus, a written UK Constitution will deflate the organic growth of the legal systems as per the changing social and political demands.

The main argument against an unwritten Constitution will be the lack of checks and balances that the judiciary brings to the legal framework. Such a Constitution does not provide for separation of powers between the three organs of the state. The judiciary cannot interpret the laws of the Parliament beyond the boundaries stipulated by the Parliament unless the legislative acts themselves provide so. Most of the judicial decisions do not disrupt the functioning or supremacy of Parliament. The absence of checks and balances, thus, raises the argument of abuse of power by the government, which controls the Parliament through the House of Commons. However, the abuse of power could also be stated with regard to extreme judicial review power.

To conclude, if the question is about laws meeting the needs of the society, an unwritten Constitution may be a better answer.

Reflection

Just like the way the question in hand forced me to consider diverse aspects from both the side of the coin, the group discussion offered me the opportunity to explore this skill set at analysing an issue or a topic. The group discussion offered diverse opinions helping me come to a very balanced understanding of the topic in hand.