Should the UK follow a written fundamental law?
A fundamental law is the normally acknowledged organic structure of rules or established ordinances and process to which state provinces are governed by and recognised within Parliament. Britain, along with Israel and New Zealand, is one of merely 3 democracies in the universe non to hold a written fundamental law ( Consoc, 2009, NP ) . Constitutions come in two normally accepted signifiers of written and unwritten, and can frequently be referred to as ‘codified ( written ) and un-codified ( unwritten ) ’ . State states’ constitutional Acts of the Apostless compose of Torahs, traditions and general codifications to which that state abides by ; they are ‘the regulations that govern the political system and the rights of citizens and authoritiess in a statute form’ ( political relations, 2004, NP ) . Fundamental laws are of import and necessary because they are the guidelines by which authoritiess are controlled, and it can be suggested that constitutional Acts of the Apostless can convey more power to the general populace.
Although the United Kingdom does non hold one formal written papers it does hold many noteworthy constitutional paperss such as: EU Law, and Common Law, ‘along with the 1689 act of rights that defines powers of Parliament through the Monarch’ ( political relations, 2004, NP ) . It has been suggested that the British fundamental law can be summed ‘in eight words: what the Queen and Parliament enact is law’ ( UCL, 2015, NP ) . On one manus, written fundamental laws are frequently understood to be more dependable for the people of a state as they ‘provide greater answerability and democracy’ ( Rishman, 2015, p.1 ) .Most European and Common Wealth states employ a written fundamental law on the footing that ‘it is the specifying kernel of a country’ ( Rishman, 2015, p.1 ) . On the other manus, some written fundamental laws include irrelevant, out-of-date guidelines that are in no manner applicable to today’s society ; an illustration being the US fundamental law which still includes ‘material sing the rights of slave owners’ ( Rishman, 2015, p.1 ) , although these commissariats have long been hibernating it is easy to see the hazard or offense they could arouse. There is considerable argument as to ‘whether a written fundamental law ought to be introduced in order to aline the UK with other nations’ ( Consoc, 2009, NP ) . Although it can be argued that, on the footing of the paperss already provided, Britain and The UK does non necessitate a formal written fundamental law as it has survived to a satisfactory degree for 100s of old ages without the service of a written fundamental law.
In add-on, states which do non hold a written fundamental law are normally noted to hold unwritten fundamental law, besides known as un-codified fundamental laws. The name of ‘unwritten constitution’ is frequently deceptive as it suggests that a state has no written fundamental law to adhere or protect its people and authorities, which is normally non the instance. An un-codified system is a fundamental law in which the cardinal guidelines and ordinances of a state comes from the imposts, traditions, use and legislative acts of a country’s legal system: ‘The “ Unwritten Constitution ” refers to the thoughts and procedures that are accepted as a needful portion of government’ ( DeLorenzo, 2000, p.1 ) . It can be seen that states which have un-codified systems are at hazard of holding no system in topographic point to restrict the power of the state leader. Written fundamental law sets out clearly the rights, ordinances and Torahs of that state. Without a written fundamental law ‘it makes it hard to cognize what the province of the fundamental law really is’ ( UCL, 2015, NP ) . Therefore, if the constitutional system is ill-defined this ‘suggests that it is easier to do alterations to the fundamental law than states with written constitution’ ( UCL, 2015, NP ) . Such illustrations can be seen in the recent alterations to constitutional reform of since 1997 ( UCL, 2015, NP ) . Although this may look to be a hazard to authorities power, there is no grounds to propose these alterations were for the worse of the state or to help in the easing power of the leading.
The purpose of a written fundamental law is to ‘avoid a concentration of power to any one government’ ( Avgousti, 2011, P.1 ) . Therefore, it can be understood that written fundamental laws are viewed as being really stiff and do non let for any flexibleness and are normally unable to be adapted to accommodate the docket of modern society. An illustration of rigidness in such written fundamental law is with the on-going effort of the US to modify its gun Torahs. The 2nd amendment of the American written fundamental law provinces: ‘A good regulated Militia, being necessary to the security of a free State, the right of the people to maintain and bear Weaponries, shall non be infringed’ ( Brooks, 2013, NP ) . This jurisprudence was provided shortly after the fundamental law in order to give more power to the province reserves. The amendment was created in order to give the citizens of America more chance to contend back following the invasion of the English and the usage of gun power to maintain Britain out of America. Although this amendment was created for the involvement of the people at the clip it can be argued that it does non follow with modern society and the demands of the different provinces of America.
The job, in this specific instance with the stiff written fundamental law is within the reading of the significance and the nature of the constitute it aims to support ; ‘since its confirmation, Americans have been reasoning over the amendments significance and interpretation’ ( Brooks, 2013, NP ) . There has been tonss of argument in over the fundamental law and the first opinions over this issue came in ‘1876 in U.S. v. Cruikshank. The instance involved members of the Ku Klux Klan non leting black citizens the right to standard freedoms, such as the right to assembly and the right to bear arms’ ( Brooks 2013, NP ) . The fundamental law clearly states that it is the right of all citizens to bear weaponries nevertheless this was debated at such a clip of racialist tensenesss in America. Since this there have been two more instances which debate the fundamental law and its significance and reading in the instances of Presser V Illinois and the instance of Miller V Texas ( 1894 ) . Although in some state of affairss holding such a stiff written fundamental law protected some of the citizens in the above instance it can besides be argued if its citizens are debating the amendment, its usage in the fundamental law is questionable.
In the above instances the argument has been against province reading of American fundamental law. In which instance it can at that place be seen that a written fundamental law for the whole state is restricting as different countries may hold different cultural demands that the fundamental law does non provide to. In the argument of this amendment of written fundamental law there is two chief issues of reading ; how the single province interprets and applies the amendments, compared to the reading of single citizens. Both statements are assisting ‘to form the ongoing gun debate’ ( Brooks, 2013, NP ) . This on-going argument on one amendment and a states inability to come to one determinations provides a strong statement for the restrictions a written fundamental law may supply for such a big and culturally diverse state. It suggests that Britain, which besides deals with many of the same cultural difference and province divisions that America faces, although on a much smaller graduated table, may besides confront similar interpretational troubles. It can be understood that a written fundamental law ‘does non incorporate all the regulations in which a authorities depends’ ( Avgousti, 2011, NP ) . If this is the instance it can be understood that a written fundamental law would hold no positive benefit to UK authorities, its citizens or its Torahs.
The written fundamental law is mostly tied up with the authorities and therefore may non be practical to the single demands of the citizens. One of the most good known instances that has arisen from the argument between written and unwritten fundamental law is the instance ofRoe Vs Wade( 1989 ) in which the affair of difference was the woman’s right to an abortion. This instance ‘promoted a argument that is still ongoing today to endure abortion should be legal, and who should make up one’s mind the legality of abortion’ ( Rubenfeld, 2001, P. 6 ) . It can be argued that once more, this affair can be applied to the single demand of the province and to hold merely one amendment in the fundamental law for such a sensitive cultural, spiritual and personal state of affairs is restricting to the demands of the person. In this instance is can be understood why England does non follow a written fundamental law as it is un-desirable to cut down the province system down to a individual papers ( Parliament.UK, 2014, P.1 ) . The UK’s reluctance to make so is an indicant of the success it has brought to the state. The consequence of a state to bring forth a written fundamental law has about ever been the direct consequence of a national calamity, a revolution, or due to a grant of independency from a colonial power ( Parliament. UK, 2014, P.1 ) . In which instance, these state of affairss have non, as yet, been straight applicable to the UK.
Many people believe that the UK should follow a written fundamental law as it is understood to ‘restrain the unchecked power of the executive’ ( Politics, 2004, P.1 ) . The former alliance authorities straight stated they would non and ‘had no programs to follow a written fundamental law, nevertheless they would look into the creative activity of a British Bill of Rights’ ( Politics, 2004, p.1 ) . Again this suggests that the legislative acts that are in topographic point, statues which are written and passed by parliament have a higher legal position than a constitutional amendment, are more necessary and effectual to the British authorities that the creative activity of a constitutional papers.
In decision, there are strong statements for both sides of this argument as both written and unwritten constitutional systems have advantages and disadvantages. The written fundamental law was originally created with the purpose of protecting the citizens of a state and to avoid over-powering oppressive authoritiess ( Brooks, 2013, NP ) . An unwritten fundamental law besides provides advantages as it can be modified to alter a jurisprudence for the better of the state ; moreover ‘the legal procedure of statues has higher legal authorization than that of an amendment’ ( UCL, 2015, NP ) . With respects to the UK’s need to follow a written fundamental law, the creative activity of such a papers is non necessary and the UK should non follow a written fundamental law. There are many arguments that inquiry the legitimacy of a state that has an unwritten constitutional jurisprudence, nevertheless the necessity for unwritten constitutional rights has begun to organize an of import function in Supreme Court determination doing procedure ( Rubenfeld, 2001, P.7 ) . Therefore, if the demand for unwritten constitutional rights has been found utile in the American Supreme Courts, there is grounds to propose that the written fundamental law is in blemished and restricting for the single state of affairss of its citizens. In making one papers to use to an full state limits the alone quality of each legal instance debated in tribunal. The current UK system, which encorporates many legal paperss both of its state every bit good as from EU Law and the high legal power of the legislative act doing procedure provides a more complete and unafraid legal system that does non restrict the rights of the people or the rights of the authorities.
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Rubenfeld, J ( 2001 ) The New Unwritten Constitution.Yale Law School module scholarship series.Yale Law School: Yale.
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