Codification Constituition - pros and cons PDF

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lecture notes in law...

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Pros and Cons of an Uncodified Constitution Cons 1.

The separation of powers is more ambiguous – in the UK system, the powers of the executive and legislature are not clearly defined and the judiciary's independence is not established since the executive chooses the chancellor of the lord chancellor.

2.

Sovereignty isn't as clearly defined: the UK has a constitutional monarchy and even though in theory the Queen has many powers, because of overruling conventions she cannot use most of them.

3.

Constitutional crises are more likely to arise since (as mentioned in the above example with the Queen) the different sources of constitutional information can conflict and result in debate and confusion.

Pros 1.

Flexible less rigid separation of powers they contain - this is by far their most important characteristic since it allows the constitution to evolve with our forever evolving world.

2.

The rules and regulations in the constitution come about from trial and error and the ones that stay do so because they work and are best.

Pros and Cons of a Codified Constitution Pro's More easier to refer

1.

All of the constitutional information can be found largely in one place, making it easier to refer to when considering an action whose constitutional legality is in question. Importantly, this means that the executive and the legislative and their roles are very clearly defined and restrained to prevent corruption and injustice. 2.

The judiciary and their powers are also clearly marked this once again means that there is little room for argument over which powers each of three branches should have and execute. These first two points about the separation of powers are the most important when considering the difference between a codified and uncodified constitution.

3.

less chance of conflict in one source of information than in several separate sources. This is because all of the separate sources must be referred to in order to ensure that one source does allow a particular action whilst another one clearly forbids it.

4.

There is less space for a 'constitutional crisis' which arises from ambiguity in the constitution'.

5.

The basic rights of the individual are clearly defined and known the first 10 amendments (known as the 'Bill of Rights') of the US Constitution outline the inherent rights of the individual citizen.

6.

Change to a codified constitution is very slow (the US Constitution has only had 27 amendments since its creation in 1787) and therefore government must be very sure that an amendment is for the best before it is implemented.

Cons 1.

codified constitutions are very old (especially the USA which has the oldest), much of them have had to be reinterpreted to make sense in the modern day. For example, the Supreme Court in the US has had to constantly reinterpret the US constitution. ~ This reduces codified constitutions to a reference point rather than a manual on how to act. This in turn leaves room for interpretation and therefore ambiguity (giving it similar pros and cons to uncodified constitutions).

2.

Since changes to a codified constitution are so slow, sometimes a codified constitution does not keep up with changing circumstances and its principles are no longer moral or correct.

Essay： Constitution Argument • For/against/both • Must be supported • Current advantages as the current uncodified constitution has • Compare both • Conclusion For: 1. The case for a codified constitution would enable everyone to know what the rule and institution that govern members of the public, minister, civil servant, and parliamentarian. - Knowledge and awareness: people should know that the rules, as they are bind by it. - To make the law more accessible to the people

2. The huge mass of common law statue, treaties obligation, as well as the number of important but uncertain convention is impenetrable(unintelligible) to most people and need to be replace by a single document of basic law. - As to know when the statue apply - If the statue had conflict with …., as we will know what would happen. - We had well educate on what is the statue 3. The flexibilities of an uncodified constitution make it to easy for the government to implement, political and constitutional reforms to suit their own political opinion - Can be seen in the mere simple majority - The ruling government would have a simple majority in the HOL as they will be very easy to pass the law - Ruling party run the government as they have more hand in the parliament 4. The current uncodified constitution is an anachronism that belong to our ancient pass, unsuited to the social and political democracy of the 21st century. - The public wanted their right to be respected. - How would it to move forward as with the law which is does not exist there 5. The current constitution does not at present exist in the largely legal form but instead rely on unwritten understanding and tradition. Most of which only the political elite understand and are inaccessible and unintelligible to ordinary people - Convention, Prerogative - Normal people could not understand why it could not be put into the court - As it controversial with CMR, Margrott Tatcher 6. The extract and mysterious element of the British constitution may have work for the deferential and class orientated society of the pass, but in today worlds more equal society and but for the health of the democratic environment, the constitution should be codified to make it accessible and intelligible to all and not just the politician to run the country. 7. Many important conventions remain unclear and ambiguous, including some of serious national importance. Such as there has been multiple debates over the existence and scope, on whether approval is necessary parliament before the government under into the arm conflict abroad - War against Iraq & Problems 8. The idea of parliamentary sovereignty is from the 17th century signifying the supremacy of parliament over the crown prerogative. Today this is an untenable doctrine where there are no limitation at all on parliament can legislate, however, repugnant to totalitarian, unpopular. This doctrine is updated in the democratic area and needs to be replace by a

codified constitution that expresses the sovereignty of the people and governs the power of the parliament - War damages act= retrospective power - War crimes act 1991 = retrospective 9. Public trust has been in the state of decline in the UK...