What Is Constitutional Law?

Constitutional law focuses on the organization of the state. Constitutions do not just exist as a collection of simple rules defining and granting power, but instead these rules put into practice a legal framework of principles.


What is a constitution?
A constitution comprises a set of rules which aim to establish the duties, powers and functions of the various institutions and branches of the government. The rules enshrined in the constitution regulate the relationship between the branches of government and ensure that there can be no abuse of power by creating a separation of power and ensuring that there are sufficient checks and balances in place, allowing the three branches; legislative, executive and judicial, to function together without any one branch having a dominant and powerful position over the others. Additionally, the constitution also defines the relationship between the state and individuals and therefore defines the extent of civil liberty which shall be granted within a state.

“Substantively, a constitution is a body of law that:

• Attributes power to public authorities
• Regulates the fundamental relations between public authorities
• Regulates the fundamental relations between the public authorities and the individual”

•  Introduction to Comparative Constitutional Law Second Edition, A. W. Heringa and Ph. Kiiver, Page 3. 

The purpose of a constitution
Constitutions exist to control and regulate the power of the government. Power corrupts man, and citizens must be protected from the people in power; without this protection, citizens have no protection against tyranny. Without a constitution, the government would have the power to pass any laws, which could lead to the oppression of minorities, violation of freedom, and so on. We have seen cases of such power abuse during the reign of Hitler and Nazi Germany, where Jews were oppressed.


Codified and Uncodified Constitutions

Codified Constitutions
Codified constitutions are in theory enshrined in law. A codified constitution is one which is based on the existence of a single written authoritative document. This central written document lays down the core principles of the system of government. The main body typically outlines the duties, powers and functions of the major institutions of government.

Three key features of a codified constitution:

• Authoritative – In a codified constitution, the end document itself is authoritative in the sense that it constitutes ‘higher law’. All political institutions are bound by the constitution; this creates a two-tier legal system, where the constitution stands above statute law which is created by the legislature.
• Entrenched – The provisions laid out in a codified constitution are entrenched, which means that they are difficult to amend or abolish. The amendment procedure is more complex than the procedure for making ordinary statutes. Some constitutions contain certain clauses which prevent them being changed at all, such as the German ‘eternity clause’, whilst others prevent the changing or amending of parts of the constitution during times of conflict, or before a certain time period.
• Judiciable – The constitution sets out all of the duties, powers and functions of the governmental institutions in terms of ‘higher law’; this means that all political bodies are subject to the authority of the courts, including the Supreme Court and the Constitutional Court.

Advantages of a codified constitution

• Clear Rules – Rules are clearly defined which results in less confusion and greater certainty that constitutional rules can be enforced.
• Limited Government – Ends parliamentary sovereignty and thus ends the problem of elective dictatorship. Higher law would safeguard the constitution from interference by the government.
• Neutral Interpretation – The constitution would be ‘policed’ by senior judges; judges would be the guardians of the constitution. This would ensure that provisions of the constitution are properly upheld by other public bodies. Judges are ‘above’ politics, they would act as neutral and impartial constitutional arbiters.
• Protect Rights – Individual liberty would be more securely protected. The relationship between the state and the citizens would be defined, possibly through a bill of rights. Thus, they will be clearly defined and easier to enforce.
• Education and Citizenship – The central values and overall goals of the political system are highlighted in a codified constitution; this would strengthen citizenship by creating a clearer sense of political identity, which may become particularly important in an increasingly multicultural society.

Uncodified Constitutions
Uncodified constitutions are becoming increasingly rare and at present there are only three liberal democracies which continue to utilize an uncodified constitution ; these are the United Kingdom, Israel and New Zealand.

Similarly to codified constitutions, uncodified constitutions have three defining features:

• Not Authoritative – Laws and provisions within the constitution share the same status as ordinary laws; these means that states with an uncodified constitution have a single-tier legal system, where there is no form of higher law in the hierarchy.
• Not Entrenched – The constitution can be changed through normal legislative processes for enacting statute law; this is reflected in the United Kingdom, where there is a principle of parliamentary sovereignty, through which parliament can make, dissolve and amend any law it wishes, including laws that directly affect the constitution.
• Not Judiciable – Due to the absence of a higher law, judges do not have a legal standard, enshrined in a written constitution, against which they can declare that actions of other bodies are ‘constitutional’ or ‘unconstitutional’; this is known as ‘constitutional review’.

Advantages of an uncodified constitution

• Less Rigidity – Higher law is harder to change than statute law. Due to this, the law constitution could become out dated and fail to respond to the ever-changing political environment. An uncodified constitution does not recognise ‘higher law’ and uses a single-tier legal system, meaning that it is easier to change the provisions within the constitution.
• No Judicial Tyranny – It is argued that judges should not have the responsibility of ‘policing’ the constitution as they are unelected and socially unrepresentative. The constitution could thus be interpreted in a way that is not subject to public accountability.
• Less Legalistic – Codified constitutions are created by people at one point in time, so they are often only properly understood by lawyers and judges. Uncodified constitutions are endorsed by history and have an organic character.
• Less Political Bias – Constitutional documents are inevitably biased as they enforce one set of values or principles in preference to others. Codified constitutions can never be ‘above’ politics as they are based on political promises and principles; therefore they may precipitate more conflict than they actually resolve.

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