Meaning and Classification of Constitutions (Written/Unwritten, Rigid/Flexible)

At a Glance

• What it is A constitution is a set of principles that sets out how the government is organised and works, and how the government and the people are related through rights and duties
• Word origin From the Latin constituere, meaning “to establish” or “to set up”
• Main ways to classify Evolved or enacted; written or unwritten; rigid or flexible; federal or unitary; procedural or prescriptive
• Rigid and flexible Classification given by Lord James Bryce, based on the method of amendment
• India An enacted and written Constitution that is neither rigid nor flexible but a synthesis of both, and described as quasi-federal by K.C. Wheare
• Exam link UPSC Prelims, Polity: Basic Concepts

Where Does It Fit?

This is the first topic of the second category, Basic Concepts. Before the provisions of the Indian Constitution are studied, one needs to know what a constitution is, what it does, and how constitutions differ from one another. Later topics in this category take up federal and unitary features, the rule of law, separation of powers, judicial review and the Basic Structure Doctrine.

What Is a Constitution?

The word constitution is derived from the Latin word constituere, which means “to establish” or “to set up”. In the present sense, a constitution is a set of principles that specify the organisation and working of the government and the relationship between the government and the people, in terms of their rights and duties.

It is variously described as the “fundamental law of the land”, the “supreme law of the state”, the “basic law of the country”, the “instrument of the government”, the “rules of the state”, the “basic structure of the polity” and the “grundnorm of the country”.

How Have Scholars Defined It?

• Gilchrist: the body of rules or laws that determine the organisation of government, the distribution of powers to its organs, and the general principles on which these powers are exercised.
• Gettell: the fundamental principles that determine the form of a state.
• Wheare: the whole system of government of a country, the collection of rules which establish and regulate or govern the government.
• Wade and Phillips: a document having a special legal sanctity, which sets out the framework and principal functions of the organs of government of a state and declares the principles governing their operation.

What Does a Constitution Do?

The constitutional scholar Elliot Bulmer has identified eight functions (purposes) of a constitution. A constitution can:

1. declare and define the boundaries of the political community;
2. declare and define the nature and authority of the political community;
3. express the identity and values of a national community;
4. declare and define the rights and duties of citizens;
5. establish and regulate the political institutions of the community;
6. divide or share power between different layers of government or sub-state communities;
7. declare the official religious identity of the state and mark the relationship between sacred and secular authorities; and
8. commit the state to particular social, economic or developmental goals.

What Makes a Good Constitution?

1. Brevity: It should be precise and avoid unwanted provisions. A lengthy constitution with too many details creates confusion in interpretation.
2. Clarity: It should state its provisions in clear terms. Complicated language reduces understanding.
3. Definiteness: Its provisions should have a definite meaning. Ambiguous or varied meanings increase the discretion of judges.
4. Comprehensiveness: It should lay down the powers of the government and the rights and duties of citizens fully, which reduces controversy and litigation.
5. Suitability: It should reflect the needs and aspirations of the people and suit the historical, socio-cultural, economic and political conditions of the nation.
6. Stability: It should support political stability and not allow easy tampering, which strengthens citizens’ obedience to it.
7. Adaptability: It should be dynamic and not static. It should adapt to changing situations, and be a living document.

How Are Constitutions Classified?

Evolved and enacted

On the basis of evolution, constitutions are evolved or enacted. An evolved constitution is the outcome of a slow and gradual process. Its provisions are found in conventions, practices, principles and judicial decisions. It is also called a cumulative constitution, and the British Constitution is a good example. An enacted constitution is made deliberately by a constituent assembly or a constitutional council, or promulgated by a king or parliament. Its provisions are contained in a book, a document or a series of documents. It is also called a conventional constitution, and the American and Indian Constitutions are good examples.

Written and unwritten

On the basis of how the provisions are incorporated, constitutions are written or unwritten. A written constitution has its provisions in a book, a document or a series of documents. It is consciously formulated and adopted by a body such as a constituent assembly or a constitutional convention. It is also called a documentary or codified constitution. The constitutions of the USA, Canada, Japan, France and India are good examples.

An unwritten constitution is one in which most provisions are not in a book or document. It is found in conventions, practices, principles, charters, statutes and judicial decisions, as a product of historical evolution and not formulated by a body. It is also called a non-documentary or uncodified constitution. The constitutions of the UK, New Zealand and Israel are good examples. The difference between written and unwritten constitutions is more or less the same as that between enacted and evolved constitutions.

Rigid and flexible

On the basis of the method of amendment, constitutions are rigid or flexible. This classification was given by Lord James Bryce. A rigid constitution cannot be amended in the same manner as ordinary laws. It needs a special procedure, and so it makes a distinction between constitutional law and ordinary law. A flexible constitution can be amended in the same manner as ordinary laws. It needs no special procedure, and so it makes no distinction between constitutional law and ordinary law.

A flexible constitution is also called an elastic constitution, and the constitutions of the UK and New Zealand are good examples. A rigid constitution is also called an inelastic constitution, and the constitutions of the USA, Australia and Switzerland are examples.

Federal and unitary

On the basis of the relationship between the national government and the regional governments, constitutions are federal or unitary. A federal constitution divides power between the national government and the regional governments and lets each work independently in its own sphere. A unitary constitution concentrates power in the national government. The regional governments act as subordinate agencies and exercise only the powers delegated to them. Federal constitutions are found in the USA, Switzerland, Australia, Canada, Russia, Brazil and some other states. Unitary constitutions are found in the UK, France, Japan, China, Italy, Norway and other states.

Procedural and prescriptive

According to Elliot Bulmer, there are two broad archetypes. A procedural constitution defines the legal and political structures of public institutions and sets out the legal limits of government power, to protect democratic processes and fundamental human rights. A prescriptive constitution, in addition to describing how the government functions, assumes (or tries to impose) a broad consensus on common societal goals that public authorities must strive to achieve.

Classification at a Glance

Where Does the Indian Constitution Stand?

• Enacted and written: It was made by the Constituent Assembly and set out in a document.
• Neither rigid nor flexible: It is a synthesis of both. Article 368 provides for two types of amendment: some provisions can be amended by a special majority of Parliament, that is, two-thirds of the members of each House present and voting and a majority of the total membership of each House; and some others by that special majority together with ratification by half of the states. At the same time, some provisions can be amended by a simple majority of Parliament in the manner of ordinary legislation, and these amendments do not come under Article 368.
• Federal and unitary: It contains both federal and unitary provisions, and so K.C. Wheare described it as quasi-federal.

What Is the Difference Between a Constitution and Constitutionalism?

The two concepts are closely related, but they differ.

• A country may have a constitution but not constitutionalism, as in a dictatorship. Unlimited power endangers freedom, and absolute power corrupts absolutely, so a constitution should be permeated with constitutionalism.
• Constitutionalism means, in essence, limited government, and it is the opposite of arbitrary power. A country has constitutionalism, and not only a constitution, when its constitution seeks to spread power instead of concentrating it at one point, and also puts other restraints on it.
• It is the idea of a polity governed by a constitution that ordains limited government and the rule of law, as against arbitrary, despotic, authoritarian or totalitarian rule. Arbitrary power in the hands of any individual or institution, even if given by a constitutional document, negates constitutionalism.

Louis Henkin identified eight elements of constitutionalism: popular sovereignty, rule of law, democratic government (responsible and accountable), separation of powers (checks and balances), an independent judiciary, civilian control of the military, police governed by law and judicial control, and respect for individual rights.

Why Is This Topic Important?

• The base for later topics: Words like rigid, flexible, written, federal and unitary are used when the Indian Constitution is described, so they must be clear first.
• Examples to learn exactly: Which country is a good example of which type is a set of facts worth learning exactly.
• The meaning of limited government: The distinction between constitution and constitutionalism explains why a written document alone is not enough.

Key People and Terms

• Lord James Bryce Gave the classification of constitutions into rigid and flexible
• K.C. Wheare Described the Indian Constitution as quasi-federal; also defined “constitution” and “constitutional government”
• Elliot Bulmer Identified eight functions of a constitution and the procedural and prescriptive archetypes
• Louis Henkin Identified eight elements of constitutionalism
• Evolved constitution One that grows slowly through conventions and judicial decisions; the British Constitution
• Codified constitution Another name for a written constitution
• Constitutionalism The idea of limited government under a constitution

Exam Corner

Mains Angle

This topic gives the vocabulary for describing any constitution, including India’s. Use these points to add depth.

• Classify India on each basis: an enacted and written Constitution; neither rigid nor flexible but a synthesis; federal and unitary in features, and so quasi-federal according to K.C. Wheare.
• The amendment mix: Article 368 has two special procedures, and some provisions can be amended by a simple majority outside Article 368. This is how India blends rigidity and flexibility.
• Stability and adaptability: Among the qualities of a good constitution, it should not allow easy tampering, and it should also be dynamic, a living document that adapts to changing needs.
• Constitution is not constitutionalism: Arbitrary power, even if given by a constitutional document, negates constitutionalism. Henkin’s eight elements, such as the rule of law, separation of powers and an independent judiciary, show what constitutionalism needs.