Constitutions – what makes a constitution?

In the previous post, I presented an introduction to constitutions. In that previous post, readers were asked to look at the definitions of what a constitution is and think of some of the characteristics it may have.

Anthony King, Prof of Government at University of Essex, has written a book The British Constitution. Prof King says:

“‘Constitution’ refers:

to the set of the most important rules and common understandings in any given country that regulate the relations among that country’s governing institutions and also the relations between that country’s governing institutions and the people of that country.” (King, 2009, pp. 3–4).

Note carefully that Prof King does NOT say that a constitution has to be written, a point I had asked readers to note in my previous post. So when the Encyclopaedia Britannica refers to ‘the fundamental written document…’ it is incorrect. While most countries may have a written constitution, it is not an absolute must, as the UK’s Constitution clearly shows; it is a mixture of Constitutional statutes, Constitutional conventions, Royal prerogative and Constitutional principles (eg the rule of law). More on this later. Countries that do not have completely written constitutions include the United Kingdom, Canada, Israel, New Zealand, and Saudi Arabia.

Prof King also points out:

“In the first place, a definition of this kind is wholly neutral in moral and political terms. It says nothing whatsoever about whether a given country’s constitution is good or bad or about whether it is worth commending or condemning. A country’s constitution is simply the set of rules and common understandings that currently exists. In this sense, almost every country has a constitution, and to say that a given country has a constitution is to say nothing else about that country save possibly that it is not a so-called ‘failed state’, a state whose governmental structures have effectively collapsed. Germany under the Nazis and the Soviet Union under the Communists both had constitutions on this definition, however abhorrent they may have been. Germany, Russia and Britain today also have constitutions in this sense, and whether their constitutions are admirable or otherwise is, in this context, neither here nor there.” (King, 2009, pp. 3–4).

So, Prof King describes the definition of a constitution, the set of rules and understandings that currently exists, as a neutral definition. It does not go any further to describe whether a constitution is good or bad.

“Even given this definition, there may, of course, be some debate about which are a country’s ‘most important’ rules and common understandings. There is bound to be, on the one hand, a core constitution, the changing of which everyone would agree was a real constitutional change, and, on the other hand, elements of a country’s political practices that might or might not be regarded as strictly constitutional and the changing of which might or might not therefore be regarded as constitutional change. The rule in the United Kingdom that free and fair elections should be held every few years is undoubtedly one of the country’s most important rules, as is the rule that the leader of the majority party in the House of Commons normally becomes prime minister. At the other end of the scale of importance are, for instance, the rule requiring the Speaker of the House of Commons to wear a black gown when presiding over the House and the rule (or is it merely a custom?) requiring someone called the Gentleman Usher of the Black Rod to knock at the door of the Commons chamber before summoning members of the Commons to hear the Queen’s Speech in the Lords chamber.” (King, 2009, pp. 3–4).

In the above, Prof King points out that a constitution has a ‘hierarchy’ of rules, with some having more importance than others. He cites the rules regarding regular, free and fair elections as one of the more important, or ‘core’, rules.

Next, the UK Constitution.