Difference between Written constitution and Unwritten constitution
Posted on : 21-11-2018 Posted by : Admin

Introduction: Written Constitution

A written constitution is normally supposed to mean a document or a collection of documents in which the basic rules regarding the main organs and institutions of government are clearly laid down.

A written constitution is a deliberate creation and it is a consciously planned system. It may be created by a constituent assembly or a convention.

The constitution of India was formulated and adopted by the constituent assembly.

The preamble of India constitution begins with the words,

“We the peoples of India having solemnly resolved to constitute India into a sovereign democratic Republic…”

And ends with the words, “in our constituent assembly this twenty sixty day of November 1949, do hereby adopt, enact and give to ourselves this constitution.”

The constitution of USA was drafted by a special convention of delegates, presides over by George Washington. This constitution emerged out of the Philadelphia convention on September 17, 1787 and was referred to the States for their ratification.

A written constitution may be single document having one date. Such is the case of India, Myanmar and United states.

It may be in a series of documents bearing different dates. This is the case with France, Australia etc. The French constitution under the Third Republic was fragmentary and did not consist of one single document. It was composed of three constitutional laws passed on February 24, February 26 and July 26, 1874.

Whenever there is a written constitution in a country, a distinction is made between constitutional law and ordinary laws.

The constitutional law is supposed to be the will of the sovereign and it should not be altered by the ordinary legislative process. The ordinary (statutory) law has to limit itself within the framework of constitutional law. If they conflict with constitutional law they are termed as ultra vires.

Merits of a Written Constitution

  1. The most important merit of a written constitution is that it is very definite. There is not uncertainty. The constitution provides all fundamental principles in written and people can refer to it as and when they want. As the powers and organization of the various organs are well defined there is very little scope for confusion and disputes. If a dispute arises it can be referred to the judiciary.
  2. As written constitution is drawn with great care and after long deliberation. It means it is the result of experience and knowledge. There is no place for temporary emotions and hasty decision.
  3. A written constitution protects the rights of the individuals. Rights are incorporated in it making them superior to the ordinary law and saving them from being change by different government from as they wished.
  4. It checks the constitution from being twisted and turned according to popular whims and emotions. This gives a guarantee of stability.
  5. A written constitution is stable and guides through difficult situations. It is more suitable for emergency period.
  6. For a federal government written constitution is more suitable because there is provision for the central and state power separately.

Demerits of a written constitution

  1. Generally, written constitutions are difficult to amend, thus introducing rigidity and conservatism.
  2. In a written constitution, judiciary is quite conservative and interpretations are merely to see whether a law follows the constitution or not. This might strangle a nation, which needs to change according to the times.
  3. It tries to encompass all rules and ideals of a nation, which may not be suitable for all the ages. Thus the future growth may be neglected.
  4. It sometimes becomes too exhaustive leading to legal jugglery.

Introduction: Unwritten Constitution

An unwritten constitution reflects the evolutionary nature of free documentation of the rules and regulations. First they are practiced and then by continuous practice, they become part of the constitution. The constitution of Britain is the best example of an unwritten constitution.

Unwritten constitution is the result of long process and natural growth of political constitutions of the country. There are no single document/documents, which contain it; though many sources may be found describing it. There may be some written documents but their proportion is much smaller than the unwritten elements.

Merits of Unwritten Constitution

  1. They are quite easily adaptable to changing circumstances. Law can be added as and when required. There is no limitation of any pre-documented constitutional law. Thus they are progressive.
  2. They are flexible and people can bring about changes without undertaking revolutions. As these constitutions evolve themselves with the changing time, public opinion finds suitable place in constitution and it terminates possibility of revolution.
  3. Unwritten constitution can undergo changes, without basic framework being sidelined. This is useful especially in case of unforeseen situation.
  4. Historically they seem to stand the test of times and keep up the traditions of a nation state as it is said about the British constitution that it has unbroken history. It’s a continuous process of development.

Demerits of unwritten constitution

  1. The serious defect of an unwritten constitution is that it is vague and indefinite.
  2. Common man may not understand the constitutional system of the country. He cannot refer to any document in which he can find all that he requires to understand the structure of the government of his country.
  3. An unwritten constitution requires a very high degree of political consciousness among the people to understand its spirit, and ordinarily that is not easy to find.
  4. Sometimes unwritten constitutions are quite unstable.
  5. The judiciary may play more role than is warranted. It becomes the playthings of judicial tribunals. The judiciary can interpret the unwritten laws as it suited to its desire and will.
  6. It is also opposed that an unwritten constitution is not suited to democracies. The masses need a well- defined document under which they have to live. They may be suited for aristocratic societies but not for democracies.

The following are the differences between the written constitution and the unwritten constitution

Written Constitution
 Unwritten Constitution
Written constitution is found in legal documents duly enacted in the form of laws. An unwritten constitution consists of principles of the government that have never been enacted in the form of laws.
It is precise, definite and systematic. It is the result of the conscious and deliberate efforts of the people. It is unsystematic, indefinite and un-precise. Such a constitution is not the result of conscious and deliberate efforts of the people.
It is framed by a representative body duly elected by the people at a particular period in history. It is not made by a representative constituent assembly. So, it is sometimes called an evolved or cumulative constitution.
It is always promulgated on a specific date in history. It does not have a specific date, as it is evolved in course of time.
The Constitution of India is the best example of written constitution (promulgated on 26th January 1950) The constitution of England is the best example of an unwritten con­stitution.
A written constitution is generally rigid and its amendments need constitutional laws.  In other words a distinction between constitutional law and ordinary law is maintained. The first is regarded as superior to the second. Unwritten constitution is not rigid and its amendments DO NOT need any laws.  In other words a distinction between constitutional law and ordinary law is NOT maintained.
A written constitution may also be termed as an enacted constitution. Unwritten constitution may also be termed as an un-enacted constitution.
The evolution of Indian constitution started during the British rule in India. Indian constitution was framed by constituent assembly with a group of members who pursued to improve the existing conditions prevailing in India and other countries The foundation of the English Constitution was laid in the 13th century by King John, who issued the first charter of British freedom known as the Magna Charta. Since then it has been in the process of making through conventions and usages.

Modern written constitutions owe their origin to the Charters of liberty granted by the kings in middle Ages. But the first written constitution framed by a representative constituent assembly was that of the United States of America. This example was followed by France. During the 19th century a number of states framed their constitutions, all of which were written, an exception among them is the constitution of England.

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