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What is a Constitution and why do we need it?

Rieka

• 8 min read

Find out more about the Definition and Importance of a Constitution, specifically by looking at the United Kingdom and its lack of a written Constitution.

Introduction

I would like you to do a little thought experiment with me: What would be the first thing you would do if you were the founder of your own new country? What would you do first if all you had was a mass of land with a population of people that you had to care for?

Now, there are different answers to this. You could prioritize your benefit without thinking about others, or you could selflessly devote all your time to ensuring a great quality of life for the citizens of your country. But regardless of your objectives, I think we can all agree that at some point, you would sit down and start reflecting on how you would like your society to be.

You would start to ask yourself what kind of society you want to build and how you could achieve that vision. At some point, you will realize that a solid framework of rights and obligations is needed to ensure the best possible outcome for all. Of course, that would only be the case if you are a rational person with morals and empathy, but we are just going to assume that.

Such a framework based on these principles is essentially what a constitution provides: It is a blueprint of governance, defining the rules of the game, outlining rights and responsibilities and therefore creating a system of accountability. But why is that of such detrimental importance?

What a stupid question, is it not? If there is no order, there will inevitably be chaos and chaos is bad, right? That is at least the sentiment that I would argue quite a lot of people have. When reviewing history, it becomes obvious that humanity appears to be built to seek order. From the city-states of the ancient Greeks to the modern parliamentary democracies, we have always designed systems to manage and protect society. If no such system is in place, chaos reigns and the power is with the strongest. Continuing from that, it would be reasonable to claim that a written constitution is the key to becoming civilized and advancing beyond the present.

With all this in mind, is it not intriguing that one of the most powerful nations that once controlled 25% of the entire world does not have that?

Because yes, England does not have a written constitution. So how does it work?

Definition

To delve deeper into the sphere of endless mechanisms and acts behind constitutional law, we first must clear the word itself. According to ¹Britannica, a constitution is

“the body of doctrines and practices that form the fundamental organizing principle of a political state”.

Essentially, it is a system of fundamental principles or established precedents according to which a state is governed, a rule book to put it simply. For example, it outlines the main institutions of the state and their respective relationships with one another, such as the one between the legislature, the executive and the judiciary. It defines the duties and rights of its citizens.

The majority of countries have what is called a codified or written constitution which refers to a single document that acts as the rule book for a state. These types of constitutions are usually created as a consequence of a revolution, a complete defeat in a war, the collapse of the previous government or attaining independence. Because such circumstances have never occurred for a prolonged period of time, Britain has never encountered the necessity to codify their constitution.²

However, that does by no means translate to Britain having no constitution at all, it simply results in it being spread across numerous places. These sources contain the following:

  • Acts of the UK Parliament
  • Common Law
  • Conventions
  • Authoritative works

So while there are certain Parliament-enacted statutes whose function is to regulate major constitutional aspects, like human rights, they are not distinguishable from regular laws and therefore do not have a deeper constitutional significance. Additionally, instead of deriving all law from primary legislation, the UK uses the “Common Law” system, meaning that judges rely on interpreting statutes and reviewing precedent cases when being confronted with a case. Therefore, even though in actuality it is not supposed to be the judge’s job to create laws, indirectly they are still doing so by identifying what the law is.³

However, Common Law remains quite an abstract concept that one could also call “societal Common sense” in order to make it more understandable: “Common Sense”, though, is never black and white, remaining subjected to the Zeitgeist which is exactly the reason as to why it is not proper parliamentary passed law.⁴

Like Common Law, Conventions are not clearly definable and are not legally binding, as they are “mere” rules of good political behaviour. Which does not mean that violating conventions goes unpunished: There may be no legal consequences but there still are political sanctions the offender may face. For example, if a prime minister appears to be unfit to command the confidence of the House of Commons, they are expected to resign and therefore face political sanction.⁵

Authoritative works on the other hand have little to do with legislation or politics, as they are interpretations of the system written by expert individuals that through the course of history have become increasingly influential and more and more parts of the system itself. One renowned example would be Albert V. Diceys’s “Introduction to the Study of the Law of the Constitution” in which he identifies the concepts of parliamentary sovereignty and the rule of law, shaping the way we think about said concepts up until today.³

The Magna Carta

The Magna Carta, translated as the Great Charter is one of the earliest foundational constitutional texts for what is now the United Kingdom. It is a royal charter of rights, agreed on between King John and a group of rebel barons at Runnymede on the 15th of June, 1215, essentially limiting the king’s power by subjecting him to the rule of law.⁶

Among the most important clauses of the Magna Carta are the following:

39. No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

40. To no one will we sell, to no one deny or delay right or justice.

These articles are some of the few that still remain in force in the UK, as most of the Magna Carta was repealed during the 19th and 20th centuries by Statute Law Revision Acts. But even those still in force only have limited actual influence as they have been replaced by their modern, more detailed, counterparts, such as the European Convention on Human Rights.⁷

Still, the Magna Carta is “often regarded as the nearest equivalent to a written constitution which the English possess”, as Anne Pallister describes it.⁸

However, the Magna Carta predates the idea of a written constitution by quite many years, in addition to it coming into existence as a situational agreement rather than a comprehensive legal framework for governance. Unlike a written constitution, it does not set out structures of government, balance of powers, or mechanisms for law-making and enforcement. Instead, it addressed specific grievances that were relevant at the time. Andrew Blick, the author of Beyond Magna Carta: A Constitution for the United Kingdom concludes that Magna Carta’s legal significance today is mostly symbolic rather than practical, opposing Pallister’s statement in arguing:

“Consequently, as a constitutional document with true legal force in the UK, Magna Carta is negligible.”⁹

Still, the Magna Carta remains significant by representing a breakthrough in the development of Britain’s constitutional system and inspiring later legal documents, such as the Constitution of the United States, even if its value is more that of a historical symbol.

Why do we need it?

To move into more abstract terrain, we can now reconsider the introductory prompt:

Why is it that humans have this tendency or craving for order and systems?

From a psychological perspective, research suggests that humans naturally seek to establish structured systems to reduce uncertainty and feel secure in their environment. This concept aligns with theories such as Maslow’s hierarchy of needs, where safety is fundamental for higher achievements.¹⁰ Constitutions serve this need by establishing a governing framework that maintains peace through definite rules and punishing those offending them. This is also why "Constitutions tend to be made in times of crisis”, as Jon Elster proposes in his paper while drawing connections to historical events, such as the French Revolution as examples of his thesis.¹¹

In times of crisis, humanity longs to restore the lost safety and order, so designing new systems is one path back to comfort. This thought process can also be traced back to my argument in the beginning, since it aligns with the reasons of constitution-making consisting mostly of profound systemic changes.²

Is it restricting us?

However, times change and especially in the last decades societies have evolved at a rapid pace, yet Constitutions often tend to remain static, often because of difficult amending processes. So while traditional laws may be altered more or less easily since the Constitution is the “highest ranking legal force, mark[ing] the fundament of a democratic state […]” ¹² it must remain reasonably stagnant in order to ensure political stability. It is debatable whether that is an issue or not, whether that restricts us from making progress as a society but when considering this, the dilemma between the human need for stability and the drive for evolution becomes obvious.

When looking at real-life examples of this dilemma being handled, comparing the Constitutions of the United States and India is quite insightful: While the amendment procedures in the United States are very complex, India’s Article 368 allows a more flexible approach, resulting in more amendments being made.¹³

According to the Indian Supreme Court, “a static system of laws is the worst tyranny that a constitution can impose upon a country. An unamendable constitution means that all reform and progress are at a standstill”.¹⁴

In the end, the goal is always a healthy balance: Certain functions of the Constitution must always be preserved, such as the protection of individual rights and the limitation of government power, while under other circumstances economic or societal changes may call for the need of reform.

“For this reason, the rules on constitutional amendments must not be too strict, otherwise they block necessary developments and lead to stagnation”, as Wolfgang Babeck argues rightfully.¹²

Conclusion

Returning to the thought experiment we began with, it's clear that a constitution is not merely a framework to avoid chaos—it’s a living reflection of a society's values and history. Just as a founder would carefully weigh the needs for stability and progress, so too must we continuously evaluate whether our constitutional systems truly support the society we strive to build.

In Britain’s case, its unwritten constitution exemplifies that, sometimes, the values and continuity of a nation may be better reflected in an adaptable, decentralized structure rather than a static document. Because ultimately, constitutions are products of their time and environment, shaped by the historical, cultural, and social contexts in which they were created, and therefore must be continuously evolving in harmony with the society they govern.

As Heraclitus already said 2500 years ago:

"The only constant in life is change.”

Sources