Should Constitutions be Written?

Should Constitutions be Written?Constitutions should be create verb whollyy. Discuss.Choose unrivalled clownish with a case perform upfulness form and one with a civil equity carcass and discuss the advantages of each.ANSWER1. IntroductionA organisation can be defined as a organization or framework which enshrines the principles and conventionalisms by which a carcass is g everywherened. In the context of states the term makes beginning specifically to the national preparement of the state, which serves to define the fundamental political principles, the licit environment and modus operandi of the state and which establishes the duties and powers of the politics of the state.1National forms can be classified as either codified or uncodified. Codified temperaments be those which be contained in a individual document, containing the single source of the thoroughgoing uprightness of a state, and whitethornhap the most well known ensample is the Constitution of the unite States.2 Uncodified constitutions argon those which atomic number 18 non contained in a single document, just consist instead of several different sources, which can be pen or un indite.. It should be noted that there are hybrid bodys which seem to fall between the cardinal classes such(prenominal) as the Australian Constitution3, in which essential law largely derives from a single pen document, tho other written documents are also considered part of the constitution4. Probably the best example of a pure uncodified constitution is the constitution of the join soil which does not rely on any single written fundamental document, but rather consists of a patchwork of written and impromptu sources.The term written constitution makes file name extension to a constitution which is entirely written and by definition this would include each codified constitution. Indeed, in academic writing the term written constitution is synonymous with codified constitution, a nd in similar fashion the term unwritten constitution is interchangeable with uncodified constitution (although as stated this is not always entirely accurate see Australian constitution).In the saucy(a) world, codification is the norm. Most states halt evolved written constitutions which stand as the supreme and overarching statements of national law. common-law(predicate) constitutions are certainly in the minority, but it is submitted at the outset that this should not be taken as proof that a written constitution is a requirement to success or stability.2. A Common Law transcription EnglandThe United kingdom is notable in that it operates under an unwritten constitution, although this term has been criticised by percipients such as Bogdanor as a misleading platitude5. In this paper we will confine ourselves to an examination of the wakeless agreement of England and Wales, within the United Kingdom, because the Scottish legal system derives from Roman Law a very diffe rent legal heritage and tradition.6The modern incline system of law can be traced back to the Norman triumph of 1066. The Norman kings, magic spell promising to respect local rights and customs, dispatched judges to travel around the country on circuits and these judges gradually began following each others decisions to preserve the consistency of the activity of law in different parts of the country. This practice became formalised and is today known as the doctrine of judicial precedent. This doctrine was extremely successful in underpinning the English common law system (ie a law common to all parts of the kingdom). One advantage of this uncodified toughie is that it is free to grow and develop organically to suit the changing environment it must regulate something which is more than difficult when one is hold back by a rigid set of general principles such as that which would underpin a fully written system.As the Parliament at Westminster fully established itself and gr ew in power and authority over the monarch butterfly it took its place a considerableside the common law. Together, the common law and Parliamentary legislation came to offer a recollective and comprehensive system of law, which has matured and refined itself over centuries of stable presidency. It can be argued that an unwritten system puts its faith in untrammelled democratic process and in those charged with its maintenance. on that point are, it is submitted, obvious risks abandoned to this strategy, but in simple terms England has never found the need to adopt an overlaying written constitution, because of the force-out and scope of its existing system.However, this is not to say that the English constitution is entirely unwritten. Aspects of constitutional-style law are bare in venerable statutes such as the 1215 Magna Carta,7 the 1689 Bill of Rights8, the 1701 feat of Settlement9 and the 1911 and 1949 Parliament flakes.10 More recently the United Kingdom has adopted quasi-constitutional law in in stages fashion by means of the European Communities Act 1972, which provides the legal framework necessary for the countrys membership of the European Union, and the Human Rights Act 1998, which imports the rights and freedoms enshrined in the European Convention of Human Rights into UK law, conferring those rights on citizens of the United Kingdom. This means that the English system achieves an effect combining weight to that which is delivered by a written constitution without the formality of the latter model and therefore some of the advantages of written systems are to some extent rendered nugatory. That said, the principle that stands at the very heart of the English legal system and overrides all other provisions and considerations cannot be found set out in any of these documents.The highest rule of UK law, which has the potential to override any principle of a constitutional or quasi-constitutional nature, is the Doctrine of Parliamentary So vereignty. This unwritten rule declares that the Parliament of the United Kingdom enjoys full and unchallengeable sovereignty in all its actions. In practice, this means that the Parliament of the day (namely the House of Lords the House of Commons, and the Monarch acting together)11 has supreme authority over all aspects of English governance and all other institutions of the state, including the courts and other executive bodies.This ensures that the situation in England differs with that which prevails in many states operating under codified or written constitutions, where supreme courts are often sceptered to strike put through legislation deemed to be unconstitutional in nature.12 The Constitution of the United States is one example of such a system and the so-called checks and balances it employs to safeguard the integrity of the constitution and the governance of the state are much cherished.. In the English system, given thatParliamentary supremacy is unquestioned, although complex procedures for judicial review are in place, by which courts can review and challenge laws considered defective in some way, the final account book is left to Parliament itself.In the Introduction to the Study of the Law of the Constitution (1885)13 Dicey Parliament has the right to make or unmake any law whatever and further, that no person or body is recognised by the law of England as having a right to override or set forth the legislation of Parliament.This is the most important law of the English legal system and it is this rule above all which explains the countrys lack of a written constitution. As a direct consequence of the application of this principle the UK Parliament has the power to make, amend and revoke law on any issue at any time. No Parliament has the power to bind a successor Parliament to its will, meaning that no Parliament could enact a so-called constitutional law which could not later be repealed or amended by some future Parliament as easily as a ny other piece of legislation. Moreover, the only body with the ultimate power to vary a law brought into force by the UK Parliament is Parliament itself.This gives the English system considerable flexibility and adaptability, and this is clearly and advantage. However, given that the system relies solely on the integrity of Parliament, its success is predicated on a fluctuating democratic mechanism. To date, the United Kingdom has enjoyed beloved and stable governance and its citizens confuse not expressed any cogent desire for the protection of a written constitution.. However, that is not to say that at some point in the future the checks and balances and clarity typically provided by a written constitution might prove useful.3. A Civil Law System FranceThe cut legal system is a good example of a civil law system operating under a written constitution. The current Constitution of France, which is known as the Constitution of the fifth part Republic, was adopted in 1958.14 It has been amended on various occasions, most recently in 2003. The french model is particularly interesting as it was used as a template for the foundation treaties of the European frugal Community, which has now evolved to become the European Union, which itself is now seeking to establish its own written constitution.15National legal systems characterised as Civilian are those which see their origins in the model of governance adopted in ancient Rome by the Emperor Justinian (sometimes known as Roman law systems). Civil law systems are systematic (based on an organised code of conceived principle) and inductive (where a specific ruling is induced from a general first-principle) as opposed to Common law systems which are empirical (based on a banking company of actual cases) and deductive (where a general principle is deduced from a specific instance or serial publication of instances).As to which system is to be preferred, both give rise to a variety of advantages and disadvanta ges and both have the potential to provide a state with a fair and effective system of government. Codified or written systems are always of the Civil school, given that a code of law is a prerequisite of that legal tradition, and consequently common law or case law systems are far give way suited to an uncodified or unwritten constitutional arrangement.In very general terms the advantages of written systems of law such as the French system are those of certainty, consistency, clarity and stability, while its main disadvantage is inflexibleness. Unwritten case law systems benefit from universe more fluid and adaptable and assuming this flexibility is not abused an uncodified model can be extremely successful. The main disadvantages of case law systems are that it is more difficult to predict the laws rejoinder to new situations, and that the fundamental guiding principles of the legal system are harder to identify.The preamble of the French constitution refers to the 1789 Declar ation of the Rights of Man and of the Citizen. As such it establishes the identity of the French state as a democratic secular republic which derives its sovereignty from the nation of France. This gives the French constitution a clear mandate and provides it with a strong foundation, something which is lacking in unwritten, uncodified systems such as the English. This may be construed as an advantage, given law is an amorphous concept which can benefit from grounding in any context, but unless the authority of law is subject to challenge the advantage is theoretical only and the people of England appear satisfied to adhere to the law without such conceptual underpinning..A written constitution such as the French offers a one-stop shop for provisions relating to the election of the electric chair of France and the French Parliament.. It also sets down mechanisms for the appointment and selection of the Government of France, and specifically details the powers of each of these bodi es and the relations between them. The French constitution also guaranteed the autonomy and authority of the judiciary and establishes the Constitutional Council, the High Court of Justice, and an Economic and Social Council. This is a clearly useful, and probably stands as an advantage over the English system, where such matters are dealt with in piecemeal fashion and without the simplicity and some might say methodological strength of an written system. When dispute arises in the French system there is therefore one and one only sovereign authority to repeal to for guidance and this may prove beneficial in its resolution. In rebuttal, those defending the unwritten English system can point to many states which operate under a written constitution which suffer advantageously more administrative difficulties and enjoy significantly less stability than it does. The maxim if it isnt broke, dont fix it appears to suit the English experience and explains the reluctance or at least ambi valence of English government and people in this context.The French constitution also provides for a politically strong President and this could be seen as another advantage, although again it is hard to argue that the British Prime Minister is invidious by the fact that his role is not similarly enshrined.. The French constitution also permits the ratification of worldwide treaties such as those necessary for membership of the United Nations and European Union.. However, this is not unavoidably an advantage. It is submitted that in modern times the trend has been towards greater and deeper foreign association. It could be argued that national written constitutions have the potential to dun international integration given that the international association may also wish to establish a sovereign constitution and that there will inevitably be conflict between the two sets of laws.There are tensions, for example, between the French constitution and the constitution which has been proposed for the European Union, and even with existing provisions of EU law. It can thus be contended that the English unwritten system is more adaptable to assimilation with an international body incorporating its own constitutional framework. Moreover written constitutions can be bypassed something done by French President Charles de Gaulle in highly controversial circumstances in 1962,16 and this can leave a new law in a state of limbo.4. Concluding CommentsIn summary, it is submitted that perhaps the most obvious advantage of a codified or written constitution is that it provides coherent, comprehensive and certain body of rules.. Being contained in a single document a codified constitution is accessible to all and can, if well crafted, establish an equitable and effective system of governance and rights. Written constitutions also promote consistency and concrete points of reference for law which can be applied to shape a legal systems response to changing conditions within a state. That said however, written constitutions which become entrenched may suffer from rigidity and it is flexibility that perhaps stands as the greatest advantage of the unwritten, uncodified system operated in the United Kingdom. It is true that constitutional courts may offer a wide range of interpretations of constitutional principles under a written system, but it is not possible to lend a codified system that flexibility and adaptability enjoyed by an unwritten one.The title of respect to this work asserts that constitutions should be written. It has been shown that this is not necessarily the case, given that states can function successfully and for long periods of time without the foundations of a codified or written constitutional framework. A good example is that of the United Kingdom itself, which is one of the most stable and successful democracies in the world, and which has grown to become such without being underpinned by a written constitutional document. While it has been suggested that the United Kingdom adopts a written constitution there appears to be no urgent pressure or compelling need to make the change. Therefore, while it is acknowledged that most states around the world have adopted a codified constitution this commentator contends that the statement under review should be subject to the caveat that states do not require to make reference to such a system of law as a prerequisite to effective government or a robust and equitable society. The fact that a constitution is unwritten does not necessarily undermine the integrity of a national legal system, as the relative success of the United Kingdom and such countries as New Zealand and Israel testifies.There are, has been noted, risks attached to an unwritten system which puts its faith exclusively in the democratic process. However, in closing it is worth noting that there are also risks attached to written systems bound to overarching constitutions, because those constitutions can be abused or manipulated in a way that can deliver undue power and authority. A constitution is, after all, only as good as the words that even off it. Ironically, the elliptical doctrinal patchwork of an unwritten system can frustrate the intentions of nascent dictatorial ambition. In conclusion it is undeniably true that the great majority of states have chosen the certainty and clarity of a written system, but that is by no means the only way to run a country well.THE END WORD COUNT 2808 (excluding footnotes)BIBLIOGRAPHYA. Bradley and K. Ewing, Constitutional and Administrative Law, (2003) LongmanWikipedia (various sources) http//en.wikipedia.org/wiki/Constitution_of_the_United_StatesJF McEldowney, Public Law, (2002) Sweet MaxwellP. Spink and N. Busby et al, Scots Law, (2003) LexisNexisAlbert Dicey, Introduction to the Study of the Law of the Constitution (1885) http//www..constitution.org/cmt/avd/law_con.htm.1Footnotes1 For an insightful overview see A. Bradley and K. Ewing , Constitutional and Administrative Law, thirteenth ed., (2003) Longman, chapter 1.2 go over http//en.wikipedia..org/wiki/Constitution_of_the_United_States.3 See http//en.wikipedia..org/wiki/Constitution_of_Australia.4 In the Constitution of Australia, most fundamental political principles and regulations regarding the relationship between branches of government, and regarding the government and the individual are codified in a single document, the Constitution of the Commonwealth of Australia. However, the existence of statutes with constitutional significance, namely the Statute of Westminster, as adopted by the Commonwealth in the Statute of Westminster Adoption Act 1942, and the Australia Act 1986 means that Australias constitution is not incorporated in a single constitutional document.5 See http//news.bbc.co.uk/1/hi/uk_politics/talking_politics/88136.stm.6 See P. Spink and N. Busby et al, Scots Law, (2003) LexisNexis, chapter 1.7 See http//www.bl.uk/treasures/magnacarta/trans lation.html8 See http//en.wikipedia.org/wiki/English_Bill_of_Rights.9 See http//en.wikipedia.org/wiki/Act_of_Settlement.10 See http//en.wikipedia..org/wiki/Parliament_Acts.11 Although the exponentiation of the Crown is essentially ceremonial and formal only.12 See http//www.archives.gov/national-archives-experience/charters/constitution..html.13 Albert Dicey, Introduction to the Study of the Law of the Constitution (1885) http//www.constitution.org/cmt/avd/law_con.htm.14 Which replaced that of the tail Republic dating from October 27, 1946.15 Ironically this plan has been frustrated by a negative referendum vote in France itself.16 See http//en.wikipedia.org/wiki/Constitution_of_France.