Unwritten Constitution - Essay Example

Paine’s definition of constitution is based upon 4 premises: 1. the constitution precedes and establishes the system of government; 2. the people are the superior authority; 3. the constitution binds the Legislature and the Judiciary; 4. it is entrenched, designed to limit the powers of the Executive, and can only be changed by special procedures. Wheare, (1966), defines a constitution as: “[T]he whole system of government of a country, the collection of rules which establish and regulate or govern the government.

” The Select Committee on the Constitution appointed in 2001 uses the following working definition: “[T]he set of laws, rules and practices that create the basic institutions of the state, and its component and related parts, and stipulate the powers of those institutions and the relationship between the different institutions and between those institutions and the individual.” In most constitutions a concentration of powers is avoided by keeping the legislature, executive and judicial powers separate.

This ensures that certain rights of the citizen are beyond the reach of the organs of government and are entrenched by requiring a special legislative procedure if they are to be amended. However, commentators in the UK prefer a wider definition. . Further as Bradley & Ewing point out:"In practice, a written constitution does not contain all the detailed rules upon which a government depends."6 The jurist and legal historian, Lord Hailsham believes that a written constitution is not necessary pointing out that: "The essential ingredientsare a strong executive based on an omnicompetent and elective legislatureregular electionspowerful and independent oppositionand limitedby convention and precedentand regulated more by checks and balances deriving from political constraints and necessities than by a written legal code policed by a Supreme Court.

"7It is misleading to refer to the British Constitution as 'unwritten': "from the Magna Carta to the Local Government Acts most of our constitutional law is contained somewhere in the growing volumes of written Acts of Parliament."8 Hailsham sees no particular reason for a codified constitution since he argues that:"Throughout our history, our Constitution has proved flexible, sensitive and almost infinitely capable of evolutionary adaptation. "9 The flexibility of an 'unwritten' constitution allows the people to vote out the Executive when necessary and for majority rule.

Countries with written constitutions have the equivalent of a Constitutional Court which has a remit to amend the constitution.10"It is an axiom of our constitutional law that no parliament may bind its successor.A traditional constitution, changing and evolving with the needs of a nation, may well prove more flexible and practical than the legal strait-jacket imposed by a 'written Constitution'."11 As examples Hailsham looks at the first two articles of