# What is a constitution and access the advantage and disadvantage of written and unwritten constitution discuss the constitution
## Introduction
A constitution can be understood as the framework of rules and principles that establish how a state is governed. These rules define the primary institutions of the state, such as the legislature, executive, and judiciary, and regulate the relationship between them and the country’s citizens. A fundamental distinction in constitutional law is between ‘written’ and ‘unwritten’ constitutions. This essay will first define what a constitution is, before proceeding to assess the respective advantages and disadvantages of written and unwritten constitutional models. The discussion will draw upon the United Kingdom’s unwritten constitution as a central example to illustrate these points.
## The Nature and Function of a Constitution
At its core, a constitution provides the foundation for the state’s legal and political order. As stated by F. F. Ridley, a constitution typically involves a document which is ‘distinguishable from the other laws of the country’ (Ridley, 1988). Its primary functions are to distribute state power, place limits on the exercise of that power, and often to guarantee the fundamental rights of individuals against the state. By creating a predictable and stable system of government, a constitution aims to prevent the arbitrary use of power and ensure that governance is conducted according to established procedures. It serves as a blueprint for the state, outlining who holds power, how they can exercise it, and the limits of that authority.
## The Written Constitution
A written, or codified, constitution is one where the fundamental rules are consolidated into a single, authoritative legal document. The Constitution of the United States of America is a classic example. This model has several key advantages and disadvantages.
The main advantage of a written constitution is its clarity and accessibility. By containing the core principles in one document, it is easier for officials and citizens to know what the rules are. This clarity can promote legal certainty and help citizens understand their rights and the structure of their government. Furthermore, written constitutions are typically ‘entrenched’, meaning they are difficult to amend and are considered a form of ‘higher law’. This makes them superior to ordinary legislation, which can be declared unconstitutional by a court if it conflicts with the constitution. This process of judicial review protects fundamental principles and rights from being easily changed by a temporary government majority, thereby providing stability (Barnett, 2021).
However, this entrenchment can also be a significant disadvantage. The rigidity of a written constitution may prevent it from adapting to societal changes and evolving values. The complex amendment processes required can make necessary reforms slow or impossible to achieve. Another criticism is that granting judges the power to strike down laws made by a democratically elected parliament can be seen as undemocratic, leading to what is sometimes called the ‘counter-majoritarian difficulty’ (Bickel, 1962).
## The Unwritten Constitution
In contrast, an unwritten, or uncodified, constitution is one where the governing principles are derived from a variety of sources. The United Kingdom’s constitution is the most famous example, with its rules found in Acts of Parliament (like Magna Carta 1215, the Bill of Rights 1689, and the Human Rights Act 1998), common law (judicial decisions), and non-legally binding constitutional conventions.
The primary advantage of this model is its flexibility. The UK constitution can evolve to meet new circumstances without the need for formal, complex amendment procedures. For instance, major changes like devolution to Scotland and Wales, and the creation of the Supreme Court through the Constitutional Reform Act 2005, were achieved through ordinary Acts of Parliament. This flexibility allows the constitution to be responsive and pragmatic. Linked to this is the principle of Parliamentary Sovereignty, as explained by A.V. Dicey, which holds that Parliament is the supreme legal authority and can create or repeal any law. This is often defended as being highly democratic, as power ultimately resides with elected representatives.
The main disadvantage is the potential for uncertainty and a lack of clarity. Because the rules are not contained in a single document, it can be difficult to identify them definitively, particularly in the case of conventions which are not enforced by courts. This lack of a clear, higher constitutional law also creates the risk of what Lord Hailsham termed an ‘elective dictatorship’ (Hailsham, 1976). A government with a large majority in the House of Commons can, in theory, pass any legislation it wishes, potentially undermining fundamental rights or constitutional principles without any formal check on its power.
## Conclusion
In conclusion, both written and unwritten constitutions present a trade-off between competing values. Written constitutions offer the benefits of clarity, stability, and the protection of fundamental principles through entrenchment, but at the cost of rigidity and the potential for rule by unelected judges. Conversely, unwritten constitutions, such as that of the UK, provide flexibility and uphold the democratic ideal of legislative supremacy. However, this comes with the disadvantages of uncertainty and the risk that a powerful government could erode constitutional norms without formal restraint. Ultimately, the choice between the two models reflects a nation’s preference for either a stable, legally-defined framework or a more fluid political system that can adapt organically over time.
## References
- Barnett, H. (2021) Constitutional & Administrative Law. 14th edn. Routledge.
- Bickel, A.M. (1962) The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Yale University Press.
- Hailsham, Lord. (1976) ‘Elective Dictatorship’. The Listener, 21 October 1976.
- Ridley, F.F. (1988) ‘There is no British Constitution: A Dangerous Case of the Emperor’s Clothes’. Parliamentary Affairs, 41(3), pp. 340-361.
