What makes a constitution codified?

Question

It is well known that the UK has an uncodified constitution. Unlike most countries, this means that there is no single document containing the UK constitution; instead, it can be found across a variety of sources including statutes, common law, conventions, works by legal academics, etc.

There are, however, many implicit assumptions that are often made about uncodified constitutions.

In Public Law by A. Dennett, it is treated as an implicit assumption that an uncodified constitution is a flexible one that can be changed more easily than one which is written. This is one example, but it is common practice.

To me, this does not follow if we define a codified constitution as simply one which is written down in a single document. It seems we need to add more to our definition regarding how easy the constitution is to change.

While it is clear to me that in the UK, the constitution is flexible, it is not clear to me why the codification of the UK constitution has anything to do with this.

In the US, India, and many other countries, the constitution is harder to change than ordinary law. Are these examples perhaps indicative that the definition of a codified constitution should include some points on the how difficult the constitution is to change?

Is there an authoritative definition of a codified constitution that can avoid the assumptions that one must make if we are to simply use the words "codified" and "written" interchangeably?

Answer 1

The relevant dimension here is probably what F. E. Smith, Lord Birkenhead, referred to as a "controlled" versus an "uncontrolled" constitution. He used this terminology when analyzing the constitution of Queensland for the Privy Council in McCawley v The King [1920] AC 691. That was an appeal from the High Court of Australia concerning a Queensland statute creating a Court for Industrial Arbitration and providing that its judges would also sit on the Supreme Court. It therefore conflicted with the Constitution Act 1867 (of Queensland) which had its own rules about Supreme Court membership and tenure. Lower courts had decided that the 1867 Act had a special status that could not be overridden by an ordinary Act (but could perhaps be subject to a two-step amendment process). The Privy Council decision was that on its construction, although the Act concerned the constitution, there was no mandate for reading any provisions into it about entrenchment. Rather, the Act itself contained the power "to make laws [...] in all cases whatsoever" (s.2), regarding which Lord Birkenhead remarked "it would be almost impossible to use wider or less restrictive language". That was also consistent with the general scheme of colonial legislation post-1865, where legislatures were endowed with plenary power over themselves and their local courts.

The Queensland constitution (as it then was) can be reckoned as codified but uncontrolled - in contrast to the British uncodified-uncontrolled, or the American codified-controlled. Lord Birkenhead's description shows that although this one was largely contained in a single document, unlike the British constitution, they both shared the quality that they could be amended at will by an ordinary act of the legislature.

Some communities and notably Great Britain have not in the framing of constitutions felt it necessary or thought it useful to shackle the complete independence of their successors. They have shrunk from the assumption that a degree of wisdom and foresight has been conceded to their generation which will be or may be, wanting to their successors in spite of the fact that those successors will possess more experience of the circumstances and necessities amid which their lives are lived. Those constitution-framers who have adopted the other view must be supposed to have believed that certainty and stability were in such a matter the supreme desiderata. Giving effect to this belief they have created obstacles of varying difficulty in the path of those who would lay rash hands upon the ark of the constitution. [...]

Many different terms have been employed in the text books to distinguish these two contrasted forms of constitution. Their special qualities may perhaps be exhibited as clearly by calling the one a controlled and the other an uncontrolled constitution as by any other nomenclature. Nor is a constitution debarred from being reckoned as an uncontrolled constitution because it is not like the British constitution constituted by historic development but finds its genesis in an originating document which may contain some conditions which cannot be altered except by the power which gave it birth. It is of the greatest importance to notice that where the constitution is uncontrolled the consequences of its freedom admit of no qualification whatever. The doctrine is carried to every proper consequence with logical and inexorable precision.

Uncodified constitutions are rare these days so it's hard to think of an example of a body of constitutional law that's uncodified (not written down in a single document) but also controlled (the legislative body doesn't have a completely free hand). Perhaps the canon law of the Catholic Church, prior to codification in 1917, would be an example: it was a sprawling body of texts, and while a Pope could formally promulgate new law at will, the interpretation of canon law is still subject to a fixed theological context. We might also count Israel since it has a partially-completed written constitution, which contains some entrenchment provisions in its finished parts - but if they ever finish then it would ipso facto be a codified constitution.

Finally, the actual ease of amendment is a political question. The cited example of India is a constitution that's very frequently amended, even though there are procedural hurdles. The United States has similar hurdles but amendments are much rarer in practice.

Answer 2

Written constitutions are usually "codified" in a sense that they're split into articles/paragraphs/sections which can be directly referred to. Unwritten constitutions do not have such a structure since it's not a single document but rather a case law evolving over time with potentially some anchoring pieces of legislation.

Written constitutions would also include provisions for amendments, which are usually intentionally onerous (e.g.: US Constitution Article V).

Uncodified constitutions, being based on case law and conventions, may be easier to change.

For example, in Israel the "constitution" is a bunch of Supreme Court precedents and "basic laws" adopted by the parliament - all of which can be changed through regular legislation (in some very rare cases a majority of MKs may be needed) or through a new precedent. In fact, some of these basic laws have been changed numerously in just the recent few years for the political purposes of the governing coalition.

Compare to the US Constitution which had a total of 27 amendments in the last 250 years, 10 of which in a single legislation (The Bill of Rights) and one taking >200 years to be ratified.

Answer 3

While it is clear to me that in the UK, the constitution is flexible, it is not clear to me why the codification of the UK constitution has anything to do with this.

[Very broad and abstract answer]

A codified constitution can of course be codified to be flexible as well. But most constitutions are the foundational principles of the state and therefore, change is often subjected to strong controls.

An uncodified constitution is less regulated because - most often - it was never created (= codified) as one thing with the explicit purpose of serving as the foundational law of the state. Therefore parts of the constitution can be in documents/arrangements with similarly high bars to change, while others can be in the form of everyday laws or regular government decrees which have much weaker controls. This latter part is what makes an uncodified constitution generally more flexible.