Written and Unwritten Components of the Constitution

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A constitution is a thing antecedent to a government, and a government is only the creature of a constitution. A constitution is not the act of government, but of people constituting a government, and government without a constitution is power without a right. (1)

Thomas Paine

A constitution is the system of laws, customs and conventions which define the composition and power of organs of the state, and regulate the relations of the various state organs to one another and to the private citizen. (2) According to Helen Fenwick and Govin Phillipson, the purpose of a constitution is to control the power of the state and ensure that that power derives from a legitimate source. (3) There are many ways to clarify types of constitutions but the most significant are monarch or republican, unitary or federal, and written or unwritten. The latter clarification has raised large debates for many centuries and was discussed by eminent scholars, starting with Walter Bagehot to Vernon Bogdanor. This essay will evaluate main strength and weaknesses of both, viz. a constitution as a single document, the doctrine of separation of powers, and flexibility and entrenchment of written and unwritten constitutions

First of all, a written constitution is a codified single document which comprises rules of governing a country as well as rights, duties and freedoms of individuals within the country. However, an unwritten constitution, also termed as an uncodified constitution, is diverse of different pieces of legislation, customs and political conventions. There are only three countries in the world which have unwritten constitution, including New Zealand, Israel, and the United Kingdom. Usually, a constitution can be written after a m...

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...ugh both Houses of Parliament and receive three-fifth majority (17). Professor John McEldowney(16) writes that the advantages of entrenchment of written constitution is that it limits powers of the government to interfere into different branches of government, namely the executive, the legislature, and the judiciary. What is more, the entrenchment constitution, unlike flexible unwritten constitution, provides rational approach to social world in the way it does not depend on the government of the day, (18)

However, Anthony Bradley and Ewing have more positive point of view towards flexible unwritten constitution relied on political principles rather than legal rules established by written constitution. (19) This point of view can be demonstrated by the capital punishment article of the American entrenched constitution, which infringes fundamental human rights.

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