Chapter II: The Traditional Classification of Constitutions

The old-fashioned classification of Constitutions which has come down to our own times is based on the distinction of Written and Unwritten Law, itself an ill-expressed and rather confusing distinction, because _ius non scriptum_ is intended to denote customs: and when customs have been recorded in writing, they can hardly continue to be called unwritten. This classification places in the category of Written Constitutions those which are expressly set forth in a specially important document or documents, and in the category of Unwritten those which began, not in formal agreements, but in usage, a usage which lives in men’s recollections, and which, even when it has been to a large extent defined, and secured against error, by being committed to writing, is recorded as embodying that which men have observed, and are deemed likely to continue to observe, not as that to which they have bound themselves formally by a law.

These terms are, however, not happy terms, although the distinction they aim at expressing is a real distinction. The line which they attempt to draw between the two classes of Constitutions is not a clear or sharp line, because in all Written Constitutions there is and must be, as we shall presently see, an element of unwritten usage, while in the so-called Unwritten ones the tendency to treat the written record of custom or precedent as practically binding is strong, and makes that record almost equivalent to a formally enacted law, not to add that Unwritten Constitutions, though they began in custom, always include some statutes. Moreover, these names, while they dwell on a superficial distinction, ignore a more essential one to be presently mentioned. Let us therefore try to find a better classification.

If we survey Constitutions generally, in the past as well as in the present, we find them conforming to one or other of two leading types. Some are natural growths, unsymmetrical both in their form and in their contents. They consist of a variety of specific enactments or agreements of different dates, possibly proceeding from different sources, intermixed with customary rules which rest only on tradition or precedent, but are deemed of practically equal authority. Other Constitutions are works of conscious art, that is to say, they are the result of a deliberate effort on the part of the State to lay down once for all a body of coherent provisions under which its government shall be established and conducted. Such Constitutions are usually comprised in one instrument—possibly, however, in more than one—an instrument solemnly enacted whose form and title distinguish it from ordinary laws. We may provisionally call these two types the Old and the New, because all ancient and mediaeval as well as some few recent Constitutions are of the former kind, while most modern ones belong to the latter. The distinction corresponds roughly to that drawn, in England and America, between common law and statute law, or to the Roman distinction between _ius_ and _lex_, so that we might describe the types as Common Law Constitutions and Statutory Constitutions respectively. Yet the line of demarcation is not always a plain one. In countries with constitutions of the Common Law type, statutes are frequently passed, declaring or modifying or abolishing antecedent usage, which supersede and replace parts, possibly large parts, of the common law maxims, so that at last most of the leading rules can be found in a few great statutes. On the other hand, the Statutory Constitutions become developed by interpretation and fringed with decisions and enlarged or warped by custom, so that after a time the letter of their text no longer conveys their full effect. It is, therefore, desirable to have some more definite and characteristic test or criterion whereby to mark off the two types which have been just described in general terms.