- 04 Jun 2006 07:52
#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.