This article explores the arguments in favour of and against the codification of constitutions and ultimately postulates that the benefits of constitutional codification outweigh its impediments when considering the maintenance of liberties.
As a preamble to this essay, we should clarify the terminology with which we are working. A codified constitution is defined as a framework of legislation and principles that govern a country or state from which all other laws and rules are hierarchically derived. In a codified constitution, key constitutional provisions are contained in a single act or document.
Arguments in favour of codification
1. The entrenchment of liberties
First, codified constitutions fortify the entrenchment of the electorate’s liberties and rights, since the amendment of a codified constitution entails a complex procedure for amendment or abolishment. This is unlike in uncodified constitutions, where alteration is achieved by ordinary legislative means.
Taken broadly, entrenchment protects laws from alteration by making amendments difficult or near-impossible to pass. Arguments in favour of entrenchment are those of stability and identity. The former argument on stability is instantiated by the stringent procedures required for constitutional modification, which demands approval for the alteration from a supermajority in the legislature. Depending on the country’s conventional practice, such amendments may require referendums, approval obtained from joint sessions, or the consent of the minority party. The latter “identity” argument regards entrenchment as a means of indicating fields of law the state considers to be essential to its identity, and as a symbolic act signalling the significance of such statutes.
This is furthered by the promulgation of entrenched clauses, which renders amendments inadmissible, or extremely difficult to ratify. Taking Hong Kong’s codified constitution, the Basic Law, as an example, entrenchment clauses guarantee freedom from slavery or forced labour, non-discriminatory treatment under the law, as well as the right to equal political representation. Although clauses are not all-encompassing, they seek to illustrate how a codified constitution would require unanimous ratification for modifications, and hence would safeguard the rights and freedoms of the citizenry.
2. Maximising clarity, minimizing ambiguity and, in adjunction, conflict between government branches to achieve greater political accountability.
By consolidating all constitutionally relevant statutes and conventions into a single document, incertitude in legislation is circumvented. In corollary of this, interdepartmental conflicts are minimized and political accountability is ensured.
A codified constitution engenders a clearly defined horizontal or vertical separation of powers — namely, through Montesquieu’s model of the judiciary, the legislative, and the executive — as well as the respective authority conferred to the central and national government. Conversely, an uncodified constitution’s critical deficiency is its textual underspecification of key government roles, seeing as it is merely a collection of constitutionally relevant conventions, treaties, precedents, and parliament sovereignty, particularly in the UK’s case.
By blurring the distinctions between the three branches of the government, officials and institutions are not held legally accountable for unconstitutional and unlawful acts. Thus an act that contravenes the authority prescribed to each respective institution may occur, constituting an unlawful abuse of power, and eventually undermining the liberties and rights of the citizenry.
Criticisms of codification
1. Rigidity resulting in an inhibition of democratic government
The underside of entrenchment is that it compromises flexibility, hence inhibiting the democratic government and blurring accountability for political decisions. As A.V Dicey predicated, in his view, the uncodified constitution is regarded as “the most flexible polity in existence”. Uncodified constitutions are dynamic, flexible and amenable to constitutional reform. Described as a “living constitution”, the UK constitution’s adaptations to evolving normative rules from which nascent liberties are derived, is evidenced by the large number of constitutional reforms since 1997, including the Marriage (Same-Sex Couples) Act 2013, the abolition of the majority of hereditary peers in the House of Lords, the introduction of codified rights in the Human Rights Act 1998. Adaptability is also of particular significance to developing nations, as the maturation of a nation is paralleled by the evolution of its constitution to ensure that nascent contemporary liberties are protected.
2. Judicial activism resulting in incompatibility with democratic principles
Codified constitutions, most having been established concurrently with the nation itself, require conventional reinterpretations. This reduces codified constitutions to a reference point rather than a manual on how to act, in turn leaving room for judicial review and interpretation. Additionally, constitutional review confers an elite group of unelected judges the power to overrule the decisions of democratically accountable, elected legislators, which makes it inappropriate as a mode of final decision making in a democratic society.
In conclusion, having addressed the criticisms and arguments in favour of constitutional codification in relation to upholding liberty, this essay postulates that constitutional codification’s benefits outweigh its impediments to the maintenance of liberties.
Sources
The Core of the Case Against Judicial Review (accessed 29-6-21)
Mapping the Path to Codifying - or Not Codifying - The UK's Constitution (18th October 2013) (accessed 29-6-21)
The Supreme Court has fortified Parliament’s “constitutional role” – and its own (accessed 29-6-21)
The UK's constitution is not working (accessed 29-6-21)
The Global Expansion of Constitutional Judicial Review: Some historical and comparative perspectives Albert HY Chen*. (accessed 29-6-21)
Accountability, Liberty, and the Constitution (accessed 29-6-21)
Why entrench? | International Journal of Constitutional Law | Oxford Academic (accessed 29-6-21)
Mapping the Path to Codifying - or not Codifying - the UK's Constitution (2nd July 2012) (accessed 29-6-21)
What is an Act of Parliament? (accessed 29-6-21)
Elective dictatorship (accessed 29-6-21)
Limited government (accessed 29-6-21)
Brexit and the Trouble with an Uncodified Constitution: R (Miller) v Secretary of State for Exiting the European Union (accessed 29-6-21)
United Kingdom invocation of Article 50 of the Treaty on European Union (accessed 29-6-21)
A British dilemma; To codify or not codify… (accessed 29-6-21)
Writer: Angela Chan
Editor: Katherine Yan
Artist: Jennifer Pun
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