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Janet McLean

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.

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Janet McLean

This chapter considers modes of constitution making which are not directly or self-consciously styled as constituent acts by and for the people. The first part asks how it is possible in a system in which the legislature is simultaneously  a legislative assembly and a constituent assembly to differentiate between ordinary statutes and those with a constitutional status and hence to talk about constitution-making. It uses examples from the UK imperial constitution, New Zealand and Israel to demonstrate how the legislature itself can create a normative hierarchy between statutes, and discusses the UK judicial invention of the so-called “constitutional statute”. The second half of the chapter suggests that in all constitutions, whether written or unwritten, constitutional conventions, norms and habits are an essential part of the constitution, and considers how these can be created or destroyed.