The structure of a nation is based upon a body of rules, which is known as a constitution. It distributes power between states “organs” of government and gives rights to citizens; most constitutions are formed after independence is gained. There are two types of constitutions ‘Written’ (codified) and ‘unwritten’ (uncodified) constitution. Dicey also uses the terms ‘Rigid’ and ‘Flexible’ in (The Law of the Constitutions, ed. Wade. 10th edition, 1959.) He described flexible constitutions as “One under which every law of every description can legally be changed with the same ease and in the same manner by one or the same body.”1 The UK has a flexible constitution. While a ‘Rigid’ constitution is described as “One under which a certain law is generally known as constitutional or fundamental laws cannot be changed in the same manner as ordinary laws.”1 The US has a rigid constitution.
A codified constitution is one in which key constitutional necessities are collected within a single document, which is why it’s known as a written constitution. Codified constitutions have three key features. The document itself is authoritative within the sense that it constitutes higher laws. The constitution binds all political institutions, this includes those that make ordinary laws. Provision of the constitution are said to be fixed, meaning that they are difficult to modify or abolish. A codified constitution sets out the duties, powers and functions of a government institution and are judiciable but only in the presence of higher law. A written constitution that is well respected and has been around for a long time is that of the United States of America. The constitution was written in 1787 and was signed by 39 of the original delegates. Although at the time no one realised that the document would not only give rise to the government of a new nation, but I would become a symbol of hope for the oppressed individuals around the world. Till this day it remains in use, although over the years there have been several amendments. If a constitution is codified in documentary form the power of the state is apparent.
The United States Constitution has the basic laws and principles that defines the rights of an American citizen and it sets the limit on what the government can and cannot do. It gives a framework to federal national government and establishes the system of federalism, which divide responsibilities between the national government and the states’ governments. The constitution is based on the separation of powers, which is an important principle, that divides power between the three separate branches of the federal government. The first is the legislative branch (represented by Congress) who has the power to create laws. The second is the executive branch (represented by the president and his advisers) they have the power to enforce laws.’ The third if the judicial branch (represented by the Supreme Court and other federal courts) they have the power to dismiss or reverse laws that determines as “unconstitutional.”2
After the US won independence for England in 1781, many Americans felt stronger allegiance to their states rather than their country. People did not wish to create a strong national government which they felt they would have little or no control over. In response to this, leader organised the new American government according to the document known as the Article of Confederation. This article gives each state a great deal of independence. The constitution was signed by most of the delegates who created it. Yet there was still the matter for states’ government to approve it.
The advantages of a codifies constitution; in a written constitution references can be made to what is written in the document and any breach of the codes contained will clearly be marked as unlawful. A codified constitution has merits, which allows for the control of arbitrary rule or governance in a sense that it places a limit of the power of the ruler to avoid abuse of power. It also provides a nation with a well-defined list of fundamental laws and principles that is classified into one document. With a codified constitution there is a mutual interpretation of the law of the country and the public can access and understand it easier. It can also be seen as a safeguard against dictatorial government. The rigidity found in codifies constitution can also be an advantage. This is due to the fact that codified system offers clear jurisdiction and definition, particularly defining the role and purpose of those who are heads of states. However, it can be said that the rigidity can actually hinder progression.
On the other hand, an uncodified constitution is one that is made up of rules that are found in various sources, and there is no single legal document or written constitution. Unlike codified constitutions, the constitution is not authoritative, and constitutional laws have the same status as ordinary laws. The constitution is also not fixed, which means it can be changed through the normal process for passing statute law. Uncodified constitution is not judiciable and in the absence of higher law, judges do not have a legal standard against declaring whether the actions of an individual is lawful and unlawful. The constitution of the United Kingdom is one that has effectively evolved throughout history, into an uncodified constitution. As it is unwritten the UK constitution is formed though different sources of law. In the statute theses source can be found; in Parliament, Judicial decisions (forming the common law and Precedents.) And also, the constitutional conventions and royal prerogative (the power of the crown mostly exercised by the executive.) Albert Venn Dicey stated that all laws within the UK system, rather than being supreme, are just ordinary. 4 The Lord Justice laws devised the term constitutional statues’, which stated how all UK statues’ are ordinary. They were described as being laws that have a direct effect on all citizens which in turn altered their constitutional rights. An uncodified constitution is flexible and is easily adaptable, allowing for circumstances to be changed through referendum and also allows for role of House of Lords to be changed.
Although there are many arguments that the UK should adopt a codified constitution. If a codified constitution was introduced in the UK it would significantly affect the power of the government, the relationship between judges and politicians and individual rights and freedoms. Yet the advantage would be that rules of society would become clearer. Constitutional rules are all kept in a single document, and they are clearly defined than in an uncodified constitution; where the rules are written in many different documents. A codified constitution would lead to less confusion about the meaning of constitutional rules and a greater deal of certainty can be enforced. Furthermore, a codified constitution means a limited government, which would cut the government down to size. It would effectively end the principle of parliamentary sovereignty. There is a constitutional imbalance in which executive power is checked by the need of governments to win elections; this is known as elective dictatorship and a codified constitution would see an end to this. This is reflected on the UK, as the government has the ability to act in any way it pleases as long as it maintains control of the House of Commons. It would also stop the government form interfering in the law as it’s there would be an existence of higher law safeguarding the constitution. It would also add educational value; and highlight the central values and the goals of political system. This in turn would strengthen citizenship as it would create a sense of political identity which would be important in a growing multicultural society. The strongest advantage of a codified constitution is that it would protect people’s rights. The freedom of an individual would be more protected securely, as a codified constitution would accurately define the relationship between the state and the citizens. This means that rights would be more clearly defined, and they would be much easier to implement, compared to the current uncodified constitution that persist in the UK. A way in which these rights could be defined is through a bill of rights; which is a document that specifies the rights and freedoms of the individual, and therefore defines the legal extent of civil liberty.
Although, there is a man reasons why the UK should stay with an uncodified constitution, due to the many disadvantage of a codified constitution. Higher law is more difficult to change than statue law, introducing and Act of Parliament is a lot easier than amending a constitution. Due to such inflexibility of a codified constitution it is difficult for a constitution to stay up to date. Since a codified constitution can’t be amended easily, this means that it is difficult to respond to any changes in in political and social circumstances. In an ever-changing society flexibility is both important and useful ability that’s needed in a constitution. In the UK adopting a codified constitution is judicial tranny and a democratic rule, and the UK has a long period of unbroken democratic rule, which often is seen as a strength of uncodified constitutional system. Another argument highlights the fact that a codified constitution would abolish Parliamentary Sovereignty; the principle of which states that parliament can make, unmake or amend any law. With a codified constitution in place parliament would not have the power because of the existence of the constitution and the bill of rights; the reason for this would be that a codified constitution acts as a form of higher law. Therefore, it would undermine one of the key principles in the UK’S representative democracy. Although simply put, many people in the UK think that a codified constitution is unnecessary. Many believe that the current constitution in the UK has ensured a long-history of democracy. A constitution that is codified, may not be the most effective way to limit government power.
A codified constitution has both its advantages and disadvantages. The main ones being that it provides clear rules and acts as a limiting factor on the government. While the main disadvantage is that it is too rigid which could lead to a democratic discrepancy due to judicial domination. Most codified constitutions where created out of necessity and the need to establish a clear standard of rule, following a period of chaos such as the ‘American Independence’. The UK relevant history has not encountered any major problems of this type, meaning there is no need to adopt a codified constitution.