The constitution is the basis of every political system, and without it, the state cannot function properly. The Oxford English Dictionary defines a constitution as a body of fundamental principles or established precedents according to which a state or organization is governed. There are different types of constitutions, however, in this essay, I will focus on the unwritten constitution. The is one of few democracies in the world which does not have a written constitution. This can be seen as problematic. Many people argue that should have a written constitution to establish strong bedrock of how our system should work. In the debate over whether requires a written constitution, my opinion aligns with King who is supportive of a written constitution. The goal of this essay is to explore arguments for and against the written constitution.
The function of the Constitution is to allocate state power among three different institutions of government: the legislative branch, executive branch, and judicial branch. This is an important function because if the power is not separated autocracy can occur where a person has an absolute power and this therefore leads to corruption. John Locke prominently asserted this idea. He believed that it is 'too great a temptation' of human nature to desire more for their 'own private advantage'. It seems to me that Locke's argument is valid since abuse of power happens in the system. A great example is Boris Johnson having both legislative and executive powers which he abused. On September 2019, Johnson decided to suspend Parliament for a period of five weeks which was considered an 'unlawful and illegal' act. His actions were disastrous and a threat to Parliamentary sovereignty. Lady Hale commented that such actions prevented Parliament from 'carrying out its function'. This is a clear demonstration of the danger and requirement for a written constitution because an unwritten constitution does not obviously define powers. A written constitution would show clear rights and limitations of each of the three institutions of government which would be really beneficial.
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Dicey was against the written constitution. He formed his belief on the third principle of the Rule of Law which states that fundamental rights are defined and protected by the common law. Dicey referred to an unwritten constitution as a 'judge-made' constitution where the principles of the constitution are based on judicial decisions. This suggests that our rights might come from judgments of the court and not necessarily from the written constitution. I agree to some extent with Dicey's reasoning as case law (judicial precedent) is helpful in delivering fair judgment. Judicial precedent just like the unwritten constitution is flexible and adapts to societal changes and challenges. In addition to this, judicial precedent operates under the principle of stare decesis which means 'to stand by decision'. This is important as it shows that the court applies the law that was set out in decisions from old cases. Some even from the sixteenth century. Also, not always judges' decisions were applied rightfully. A new, written constitution would be much better because it can provide guidance in problems of contemporary society. Making one single document with principles would be clearer and more accessible for people as well. This can be linked to Jeremy Bentham's book Constitutional Code (1830) where he used utilitarianism to express that a written constitution would bring 'the greatest happiness of the greatest number'. My thoughts are parallel with Bentham's. I am sure that a written constitution would be valuable for all of us and it would be peoples' national identity which would be unique of its kind and express issues of our society which might not be similar to other societies of other parts of the world.
Another argument for a written constitution comes from Vernon Bordanor. In his pamphlet 'Brexit and our unprotected constitution', Bordanor admits that the crisis surrounding Brexit has strengthened the case for a written constitution. He claims that a written constitution will provide the judicial protection of human rights. It would be argued that he is wrong. The European Convention on Human Rights (ECHR) is separate from the EU. The Human Rights Act 1988, a 'constitutional statute', has made rights from ECHR enforceable in court. Additionally, section 2 of the European Communities Act 1972 allows EU legislation to have a direct effect. This shows that a written constitution would not make any impact on human rights. Therefore, a written constitution is unnecessary.
The last argument that I will present comes from King who is in favor of a written constitution. He advocates a one-every-generation constitution where one-third of citizens and two-thirds of politicians are chosen in order to write the constitution. He calls this constitutional assembly. King believed that the Constitution must represent the people. From a Marxist perspective, Parliament and the government are bourgeoisie and do not represent the needs of the rest of society- the proletariat (working-class people). This is the reason why I agree with King's point that Constitution should represent everyone. It is important to include people from different social backgrounds to make a valid and representative constitution. However, King's proposition creates two major problems. Firstly, writing a constitution once every generation is too often and preparation would involve a large amount of time and effort. Secondly, most citizens do not know how to draft a constitution as they do not possess the necessary skills. Nonetheless, the written constitution which reflects people is vital.
Overall, I do believe should have a written constitution. The written form of the constitution will not allow for too arbitrary interpretation of the provisions as it can be done in the case when it exists in the unwritten form. Hence, we should not retain the status quo.
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