McLean, Janet --- "The unwritten constitution" [2018] ELECD 112; in Jacobsohn, Gary; Schor, Miguel (eds), "Comparative Constitutional Theory" (Edward Elgar Publishing, 2018) 395

Book Title: Comparative Constitutional Theory

Editor(s): Jacobsohn, Gary; Schor, Miguel

Publisher: Edward Elgar Publishing

ISBN: 9781784719128

Section: Chapter 20

Section Title: The unwritten constitution

Author(s): McLean, Janet

Number of pages: 20

Abstract/Description:

Abstract: This chapter considers some of the different ways in which constitutions are unwritten. Once we remove our usual focus on a particular code we are forced to ask more basic questions about what makes a political system (codified or otherwise) ‘constitutional’? Using the British and United States’ Constitutions as points of comparison, it considers the British tradition of the ancient constitution which has its source in historical precedents, tradition and the customs of the people (commonly represented by the common law). According to this narrative of constitutionalism, disruption is repeatedly described in terms of continuity and restoration rather than revolution. While the American and French revolutions undeniably changed what as understood by “constitution” in important ways, interesting similarities remain between codified and uncodified constitutions. Distinct methods of interpretation which appeal to the spirit of legality aim to transcend the politics of law-making and constitution-writing whichever the constitutional form (though the justifications and objections will vary). In both kinds of constitutional systems, culture, habits and patterns of living are as, if not more, essential to the preservation of the constitution than the set of fundamental laws—though this is not as obvious in the presence of a written constitution.