Uncodified "Constitutions" - Politics Forum.org | PoFo

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By C-Kokos
#886176
So the United Kingdom has an uncodified (unwritten) "Constitution". So does Israel and (I think) a limited number of other countries.

I can't really see the use or function of an uncodified constitution. It is my understanding that a constitution's purpose is to act as the law of laws, the legal framework beyond which a government cannot act.

An uncodified "constitution", being essentially a collection of non-binding traditions, conventions etc. can't really be anything more than guidelines that can be simply brushed aside by any governments that does not want to observe them.
By | I, CWAS |
#886177
An uncodified "constitution", being essentially a collection of non-binding traditions, conventions etc. can't really be anything more than guidelines that can be simply brushed aside by any governments that does not want to observe them.


So can a regular constitution.
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By C-Kokos
#886182
Yet when the constitution is written, and therefore, binding, the relevant authority can block the government's action.
By | I, CWAS |
#886184
Yet when the constitution is written, and therefore, binding, the relevant authority can block the government's action.


What relevant authority is there outside of the government?
User avatar
By C-Kokos
#886186
Supreme courts, heads of state, etc.
User avatar
By C-Kokos
#886189
State=/= government CWAS.
By | I, CWAS |
#886190
State=/= government CWAS.


If the head of state, and the supreme court are not governing how do they have power over the government?
By | I, CWAS |
#886198
Separation of Powers was invented so that no government could have absolute power over the state.


The seperation of powers is a governmental model.

...Even your link says that first thing
The separation of powers (or trias politica, a term coined by French political thinker Montesquieu) is a model for the governance of the state. This same principle is applied in non-political realms under the term separation of duties.
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By Der Freiheitsucher
#886292
Uncodified and codified constitutions serve practically the same purpose with some small legal differences, but their biggest difference is in their history. While codified constitutions are of continental legal tradition, they stem, at the very root, from the Corpus Iuris Civilis and the codification of Roman law. Uncodified constitutions usually of common law tradition which means they stem from simple customary law. It must be kept in mind that even in the roman codified system, custom was a source of law and in fact had the very powerful attributa of maiestas.

You've said it yourself, the point of constitutionalism is to limit powers and set a basic framework of laws for every organ, that way everyone is under the same rule book. Its purpose is to limit public powers as to avoid any nasty type of government. Reading your original post, you said: "It is my understanding that a constitution's purpose is to act as the law of laws, the legal framework beyond which a government cannot act". The problem here seems to be that you are tying the first part of the sentence with the second part. Some constitution's purpose is to act as a law of laws and to generate a chain of validity, but that is not its basic purpose. Uncodified constitutions usually don't serve this purpose, but they do in fact serve what you described as "the legal framework beyond which a government cannot act". The point of constitutionalism isn't necessarily to establish a hierarchy of laws and norms, but to limit powers and establish a legal framework, something that uncodified constitutions do as well.

It seems that the problem is that people confuse "uncodified" with "unwritten". The Constitution of the United Kingdom is in fact uncodified, meaning that they haven't separated each topic and made a code out of it (Civil Code, Code of Commerce, Penal Code, etc), but it does in fact include conventions which are written. Granted, some, in fact I think most of the provisions are unwritten, but they are still customary, and as such they are binding. Custom is a source of law everywhere... In fact the oldest source of law, and it of course binding whether it's written or not (this of course, will depend on the jurisdiction, I'm talking in a scenario here).

Its biggest difference may be seen as a weakness and as a strenght, which basically comes from what I said, from the non-existance of a legal pyramid. This will be more obvious when it comes to changing the constitution: a codified constitution will most usually be an entrenched one, and to modify it or ammend it will be highly difficult, while an uncodified constitution will be quite simple to change (usually, and I imagine in the case of Great Britain, the parliament will have the competence to do so). This makes the constitution a lot more volatile... Like I said, can be seen as a strength and a weakness.

The fact that it is uncodified doesn't mean that it will be easier to simply discard it. As I said, its provisions are still binding, and even countries with uncodified constitutions have judicial review (I think... Though I wouldn't bet my life on it. Maybe someone can correct me).

Oh and saying that the judiciary is part of the government is... Silly.
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By C-Kokos
#886366
Its biggest difference may be seen as a weakness and as a strenght, which basically comes from what I said, from the non-existance of a legal pyramid. This will be more obvious when it comes to changing the constitution: a codified constitution will most usually be an entrenched one, and to modify it or ammend it will be highly difficult, while an uncodified constitution will be quite simple to change (usually, and I imagine in the case of Great Britain, the parliament will have the competence to do so). This makes the constitution a lot more volatile... Like I said, can be seen as a strength and a weakness.


The various conventions that make up the "constitution" of Great Britain can be changed by a simple majority, thus making the constitution no different than any other law. This I find to be a problem.

Parliamenaty Sovereignty along with the Royal Prerogative in the UK, also ensure that the Parliament and Government are essentially free from judicial review of any importance. Indeed, the Blair government has abused the Royal Prerogative many times in order to piss upon civil liberties.

While codified constitutions are of continental legal tradition, they stem, at the very root, from the Corpus Iuris Civilis and the codification of Roman law. Uncodified constitutions usually of common law tradition which means they stem from simple customary law.


I'd like to point out that the uncodified constitution tradition started from and is most prominent at Westminster. I believe that this is mostly due to the fact that feudal traditions (and institutions) were never eliminated in Britain, unlike in the rest of Europe.

I'm glad we're having an interesting discussion on this forum.
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By Der Freiheitsucher
#886492
It's flexibility is certainly a weakness if you see it as you do right now, but it seems a strength to me since it has the possibility of being moulded and adapted to the political climate at the moment. It would be a huge mess in countries where the voting turnout is really low, but considering that there's a healthy democracy in Britain, I wouldn't think it's a problem (speaking in abstract).

However, your problem seems to be with the Blair government and not really with the uncodified constitution. Sure, perhaps making it an entrenched constitution might fix some of your problems, but there's more ways to skin a cat. I think the problem that you describe isn't really a fault of your constitution, but mor of a fault of your government.
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By Subversive Rob
#886597
Parliamenaty Sovereignty along with the Royal Prerogative in the UK, also ensure that the Parliament and Government are essentially free from judicial review of any importance. Indeed, the Blair government has abused the Royal Prerogative many times in order to piss upon civil liberties.


:lol: :lol: :lol:
Prerogative powers are reviewable under ex parte Lain; ex parte Bentley and GCHQ and have been for a long while. In most of these cases full review is allowed, except for in those areas that are deemed 'non-justiciable'. Furthermore, the Human Rights Act applies to powers exercised under the prerogative, which allows the proportionality test to be exercised.

Parliamentary sovereignty is essentially a formalistic concept that let's judges do pretty much whatever they want, witness something like Anisminic (where determination was held to mean 'legally valid determination' therefore taking a body outside of its jurisdiction and therefore avoiding a clause preventing the court from reviewing the situation). Hell witness the furore over the Anti Terrorism Crime and Securities Bill where Lord Woolf threatened to review decisions that were iron clad in an infalliable ouster clause.

Then you just have to take a look at the Belmarsh detainees case, or the torture evidence case to see that in actual fact the courts can and do intervene rather a lot into the decisions of the executive; with or without 'parliamentary approval'.

Give me a few days and you can have a proper rundown on this, because matters are a lot more complex than you make them out to be.
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By C-Kokos
#886601

Give me a few days and you can have a proper rundown on this, because matters are a lot more complex than you make them out to be.


Very interesting, go on.
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By byosotld
#903682
On certain issues, I'm sure that every American wishes our constitution was unwritten.
By Wilhelm
#908467
Judicial review means nothing when the people in charge of it can be appointed by the political majority. Right now, the US Supreme Court seems to be getting in the way of G. W. Bush, but had the Republicans another chance, they could just appoint other right-wing justices like Roberts and Alito.

A piece of paper does not insure that the Executive or Legislative branch of government will not exceed itself. What's important is who will be reviewing the acts of Parliament. If the majority so wishes, they can just appoint all the judges, and the interpretation of the Constitution will be changed to fit the majority's political interests.

As to DF's question. I am not sure about the current state of judicial review in Great Britain, but I do know that it was started there in 1610, by Sir Edward Coke (chief justice of England's Court of Common Pleas) in Dr. Bonham's Case:

Lord Coke wrote:[I]n many cases the common law will controul acts of Parliament and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right or reason, or repugnant, or impossible to be performed, the common law will controul it and adjudge such Act to be void.


What's really important is the political willingness to respect the rights of the minorities, and not the formal establishment of checks and balances, which turn out to be useless when a political majority takes over all three branches of government.
By Wilhelm
#909890
DF wrote:Oh and saying that the judiciary is part of the government is... Silly.


Regularly, when Americans refer to the Government, they are actually talking about what us Spanish-speakers refer to as "State".

That's probably the misunderstanging that C-Kokos and CWAS had. Whereas Kokos assumed "Government" as "Executive branch", CWAS assumed "Government" as "State".

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