Religion, law and the constitution

Balancing beliefs in Britain

Whenever you indentify yourself as a British constitutional lawyer at an international gathering, there is a high chance that some helpful soul is going to earnestly tell you that the United Kingdom doesn’t have a Constitution.  It is tempting to go into a dramatic shushing routine at this point, begging the educator in question not to divulge your secret, and reveal to the world that you actually spend your professional life on the sofa watching Netflix.

It is, of course, true that the United Kingdom does not have a codified constitutional document, but it most certainly does possess a Constitution.  Its principles are contained in a number of written sources (e.g. the Bill of Rights 1688, the Human Rights Act 1998, case law, etc), as well as some unwritten ones (e.g. constitutional conventions).  Admittedly, to external observers accustomed to orderly codified settings, the system might appear chaotic at times, but those familiar with the framework can navigate it with the same ease (or at least, with only comparable levels of confusion and wrangling) as constitutionalists in other paradigms.

Nevertheless, the question of whether a codified system would bring greater clarity and transparency is a perennial one. Without a shadow of a doubt, the idea of having a complete set of constitutional rules set out in a single place does have the seductive appeal of convenience, but there is a horrible catch: codification does not deliver that particular benefit.   If you buy into that process on the basis that it will mean a permanent, self-contained point of reference for constitutional principles, the ideological purchase will not live up to expectations.

This isn’t to suggest that there are no viable arguments in favour of codification.   Proponents of this reform could legitimately suggest that it would provide an opportunity to re-shape and articulate some fundamental constitutional values (e.g. making an express declaration that sovereignty resides in the People); or it could be argued that it would be a natural element of wider structural reforms (e.g. adopting a new electoral system or a differently constituted legislature).  Undoubtedly, these and other potential benefits of codification should be put forward for examination and debate.  However, the promise of a definitive and comprehensive constitutional source is the sale of ideological snake-oil.

The leading Public Law commentator David Feldman has rightly observed that in reality, very little turns on the difference between codified and uncodified Constitutions, and even States with a strong cultural attachment to a constitutional text have elements of their Constitution which exist outside of the core document. Consider, for instance, the USA and the right to bear arms. The current understanding and interpretation of the Second Amendment could not possibly be gleaned by someone reading the words on the constitutional page, with no reference to case law or politics and culture.

We could go as far as to argue that in reality, almost all constitutional frameworks are partially codified.  On the one hand, nations like the United Kingdom which are sometimes described as having an unwritten Constitution, do in fact have significant elements of their framework codified in statute, and equally, even in systems like the US with a quasi-sacred constitutional text, there are vital elements of their constitutional framework located elsewhere.

Needless to say, this itself begs and interesting question: if all Constitutions are really quasi-codified, and the difference between codified and non-codified systems is one of form, rather than substance, is the distinction in any way material?

The short answer is that it depends why you are asking.  For the reasons that we have outlined, the difference lies in form, rather than substance, so if the query is rooted in practical concerns, the answer is no. Nevertheless, when talking about Constitutions, symbolism is a critical consideration, and stating that a question has symbolic importance, is in no way to downgrade it.  Embodying symbols and articulating shared values is one of the key functions of a Constitution, and whether or not national life coheres around an acknowledged text is part of this.  The iconic document and the opening words “We the People” is immensely significant to the values and self-understanding of many US citizens. By the same token, a large number of British people regard their idiosyncratic Constitution, arrived at through compromise and the preservation of tradition, as an aspect of their national identity.

The way in which a constitutional settlement is described, and therefore perceived, is not a minor or tangential issue.   The designation codified or non-codified, and the presence or absence of a revered document has symbolic weight, and symbolism matters immensely to human societies and the way in which they function.

Related Articles

E Ruben, First Second Amendment Case in Over a Decade Could Topple Gun Restrictions, The Conversation (6/10/21)

British Library, Pages on the Magna Carta  

US National Archives, Transcription of the Constitution