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This chapter presents the text of a lecture on Great Britain's unwritten constitution given at the British Academy's 2009 Maccabaean Lecture on Jurisprudence. This text criticises some of the recent developments related to the British constitution and expresses concern whether Britain has a constitution at all. It proposes the establishment of some body or institution independent of government to plan constitutional reform in a coherent manner, and for the renewal of public interest in constitutional affairs.

In this chapter, the author argues for the idea of the unwritten constitution as a legal concept that conditions or explains constitutions generally—an idea essential for the ideal of constitutionalism. He distinguishes between linear and circular theories of law, explaining the circular account by invoking a classical common law understanding of what ‘unwritten’ law is. He argues that not just individual constitutional norms but entire constitutions may be understood as a form of ‘unwritten law’ from this perspective. Examining the work of H. L. A. Hart and Hans Kelsen, he shows that linear theories of law produce a paradox that makes the basic ideal of constitutionalism, the goal of non-arbitrary government, problematic. He concludes by offering an alternative account of the constitution as unwritten—a circular jurisprudential account, based upon two principles, the pervasiveness of law and the ordinariness of law, as foundational to a compelling vision of constitutionalism.

A central issue in the discussion of delegation of governmental power to private actors is the extent to which governmental actors enjoy a capacity to delegate their power in the first instance. This chapter examines the role of constitutional law in limiting this delegation capacity. The experiences of the three jurisdictions are examined according to three factors: first, the constitutional source of restraint; second, control technique; and third, judicial attitudes to the appropriateness of intervening in governance choices that may be perceived to be taken more appropriately by the legislature or executive. Close scrutiny is given to the US federal non-delegation doctrine; equivalent robust state non-delegation doctrines, and in particular, the non-delegation doctrine developed by the Texas Supreme Court in the Boll Weevil case; the limitations of the UK's unwritten constitution in this context; and the ECJ's seminal case on delegation, Meroni v High Authority.

Constitutional designers rarely ask many questions they should. How and where will the constitution indicate that it has been amended? Will it record the change at the end of the original constitution, or will the change be inserted directly into the founding text? And what about an uncodified constitution: How will it identify constitution-level changes? This chapter offers the first analysis into the options available to constitutional designers for codifying constitutional amendments. This chapter identifies and illustrates the four major models of amendment codification in the world: the appendative model in the United States, the integrative model in India, the invisible model in Ireland, and the disaggregative model in Great Britain. How and where to memorialize changes to the constitution entails implications for how interpreters of constitutional meaning will read the constitution in the course of adjudication, whether the constitution will become a focal point of reference in constitutional politics, and how intensely citizens will venerate their constitution. The way amendments are recorded is ultimately a choice about how and indeed whether a people chooses to remember its past. Today constitutional designers do not consider the consequences of amendment codification, but they should. This chapter explains why the choices involved in amendment codification concern more than mere aesthetics. This chapter considers constitutions from Canada, Great Britain, India, Ireland, Israel, Mexico, New Zealand, Norway, Saint Lucia, Spain, and the United States.

The nature and purpose of constitutions is considered, in particular the relationship between written constitutions, the formal document presented as the constitutional foundation of the state, and constitutions, taken as a set of rules that constitute the state. It is argued that would be costs as well as benefits if the UK were to adopt a written constitution. Some of the ambiguities created by the UK’s unwritten constitution permit multiple visions of the constitution to coexist, and may allow people with different constitutional ideologies to accept the structures of the state. Perhaps counter-intuitively, it is not always desirable for the constitution to give definitive answers to disputes.

This chapter argues for the enduring influence of Magna Carta and its contributions to the development of the common law. Magna Carta’s genius lies in its malleability—it has been added to, subtracted from, and interpreted in a variety of ways with each passing era. Despite its roots in mediaeval feudalism the Magna Carta had allowed for more sophisticated provisions for ‘freedom’—not from servitude—but from impediments to conducting business at a particular time or place. These innovations would eventually give rise to the concepts of modern political freedom and liberty as seen today. Against time and criticism Magna Carta has become a lasting, though hidden, influence in the politics of the United Kingdom and its former colonies.