Comparative Constitutional Theory
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Comparative Constitutional Theory

Edited by Gary Jacobsohn and Miguel Schor

The need for innovative thinking about alternative constitutional experiences is evident, and readers of Comparative Constitutional Theory will find in its pages a compendium of original, theory-driven essays. The authors use a variety of theoretical perspectives to explore the diversity of global constitutional experience in a post-1989 world prominently marked by momentous transitions from authoritarianism to democracy, by multiple constitutional revolutions and devolutions, by the increased penetration of international law into national jurisdictions, and by the enhancement of supra-national institutions of governance.
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Chapter 20: The unwritten constitution

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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