Uncodified constitution

Abstract: Acknowledgements List of abbreviations Introduction 1. A 'quiet revolution'? The self-limiting success of the EU's uncodified constitution 2. Constructing and reconstructing the Constitution for Europe 3. Contesting EU constitutionalism in Karlsruhe 4. EU constitutionalism's democracy gap: A law of intended and unintended consequences 5. The euro crisis as a 'loud revolution': The limits of law and the rise of new forms of technocracy Conclusion

Abstract: ▪ Abstract Since 1997, Britain has been undergoing a period of constitutional reform. This reform has been radical and yet piecemeal. The process has been unique in the democratic world, in that it has been converting an uncodified constitution into a codified one, but by stages, there being neither the political will nor the consensus to do more. Some of the contours of the new constitution will be familiar to Americans, for Britain now enjoys a quasi-federal system of government, and, in effect, a Bill of Rights. The creation of a more representative upper house is also part of the ongoing process of reform. In consequence, Britain no longer lives under an organic “historic” constitution but is in the process of fashioning one that is being created by deliberate human agency.

Abstract: Theories of fragmentation and constitutionalisation have long been presented as antagonistic accounts of the global legal order. Fragmentation theorists posit a non-hierarchical order explained in terms of the relationships between general and specialised areas of international law. Constitutionalisation’s adherents, by contrast, identify the global legal order’s ongoing transformation from horizontal and consent-based roots towards a hierarchal structure grounded upon fundamental principles. The proliferation of international tribunals has long been recognised as a factor muddying the picture of constitutionalisation and pointing towards fragmentation within international law. We argue, however, that this proliferation enhances the global order’s potential for constitutionalisation. The current state of fragmentation within the uncodified global order is comparable to long periods when the UK’s uncodified constitution exhibited the hallmarks of fragmented development. We bridge these supposedly rival explanations for the development of legal orders by re-evaluating the role played by competing courts in the UK’s constitutionalisation process, reassessing developments familiar to common-law historians through the prism of fragmentation theory. The UK example indicates that fragmentation is not, of itself, an insurmountable obstacle to constitutionalisation within the global order and may even mark a stage within this process. We employ lessons derived from this comparison to evaluate current flashpoints in relations between international tribunals, including the European Court of Justice’s Opinion 2/13 which has for now stymied the EU’s efforts to accede to the European Convention on Human Rights.

Abstract: The question - ought Britain to have a written, more properly, a codified constitution - is perhaps wrongly put. The real question ought to be - why should Britain not have such a constitution… She is, after all, one of just three democracies without one. There are two reasons why Britain has lacked a constitution. The first is that, historically, Britain never had a constitutional moment; the second is the doctrine of parliamentary sovereignty. Today, however, Britain finds herself engaged in the process of gradually converting an uncodified constitution into a codified one. There is undoubtedly a case in principle for enacting a constitution, but perhaps it ought to wait until the process is completed. There is, moreover, a tension between two types of codified constitution - a lawyer's constitution which would be long and highly detailed, and a people's constitution which would be short, but, inevitably, broadly-worded, and therefore open to interpretation by the courts.