Codified vs Uncodified Constitution
Which is better, a codified or uncodified constitution? This is a question that has been topic for great debate with varying opinions expressed about the two forms of constitution. An uncodified constitution is also known as an unwritten constitution which means there is no formal documents that delineates government powers and limits. This kind of constitution comprises the laws of a country that are enacted over time and coupled with political precedent emphasis. In addition to this, it is also enshrined in parliamentary procedure creating a framework through which the government operates. While these principles might not be codified into a single law, legislators, executives and the courts still recognize them as binding upon the government and limiting powers.
On the other hand, a codified constitution is one where there is a formal document that defines the constitutional system, rules governing a political system, rights of citizens and the powers of the government. Majority of countries have a codified constitution because it helps restrain unbridled executive powers.
Most constitutions are largely though not wholly codified. For instance in the Australian constitution, most of the fundamental regulations and principals related to the relationship between government branches and concerning the individual and government are codified into one document which is the Commonwealth constitution of Australia. However, because of statutes that have constitutional significance chiefly the Statute of Westminster, which is as adopted by the Australian Act 1986 and Statute of Westminster Adoption Act 1942, the constitution of Australia isn’t contained in a single document. Therefore, this means that the constitution is uncodified and it also has constitutional conventions which are partially unwritten. With uncodified constitution, there are no special requirements to be followed when making constitutional law. This is unlike a codified constitution which has special requirements that must be followed in order to draw principles.
The terms codified constitution and written constitution are used interchangeably and so are uncodified constitution and unwritten. It is essential to note that this usage though, it technically incorrect. Codified constitution refers to a written constitution that is contained in one single document and states without such a document follow an uncodified constitution though not completely unwritten like Parliament Acts of the UK and Basic Laws of Israel.
When evaluated as a whole system, the difference noted between an uncodified constitution and a codified one is one degree. Any constitution that is codified will be overlaid with supplementary legislation as well as customary practice over certain duration.
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