Written and Unwritten Constitution - Essay Example

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All publicists distinguish between written and unwritten constitutions, although the distinction is somewhat superficial. A State is deemed to have a written constitution when the basic principles and institutions of its political organization are to be found in a document or a series of documents…
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Written and Unwritten Constitution
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Download file to see previous pages As we have already seen, the sources of the British Constitution are many and various, and may generally be grouped under four heads:
This distinction between written and unwritten constitutions has led to the establishment of a far more important classification of written and unwritten constitutions. The idea of permanency is closely associated with the concept of constitution so much so that stability is considered to be one of its main attributes. Written constitutions are considered to be more permanent and, therefore, more written, because, generally speaking, they cannot be amended except by a special process or by means of special machinery. Unwritten constitutions, on the other hand, are deemed to be unwritten because they can be amended or altered by the ordinary process of legislation. It should, however, be noted that the distinction between written and unwritten constitutions does not necessarily depend on the distinction between written and unwritten constitutions. A written constitution may be as unwritten as an unwritten constitution. A typical instance is furnished by the Italian Constitution of 1848 which, according to the generally accepted view, could be amended by the ordinary process of legislation. (Smith, 2001, 80)
The distinction between written and unwritten constitutions was pointed out for the first time by Bryce, and has now become a fundamental concept of constitutional law and practice. According to Bryce, there are two types of constitutions: those which have grown organically without any pattern either in their form or in their content and which consist of a variety of laws, conventions and customs. (Bogdanor, 1997, 351)
The second type is the result of systematic, exhaustive and conscious labour. The first type is derived from the same source as the ordinary laws and, consequently, may be abrogated or revised by the same organ and in the same manner as in the case of ordinary laws; and this he calls an unwritten constitution. On the other hand, a written constitution is derived from a source other than that of ordinary laws and is of a rank superior to that of ordinary laws. It can only be annulled or amended by the same organ which created it or some other organ to which its power has been delegated. In other words, a written constitution is one which demands for its amendment or revision special machinery or a special method. 1 It, therefore, occupies a privileged position and possesses a greater guarantee of permanence: a situation which French jurists have described as constitutional super-legality. In theory, therefore, inflexibility is the essence of this system. (Patterson, 1947, 135) A typical instance of a written constitution is furnished by the United States of America. Article 7 of the Constitution prescribes two different methods of amendment: (i) either two-thirds of both Houses of the Congress may propose amendments, or legislatures of two-thirds of the States may call a convention for proposing amendments, and (ii) the ...Download file to see next pagesRead More
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