Does a society constructed upon clear-cut policies usurp one established from unwritten conventions? 🏛️

National identity. Consistency. Awareness. This is the law’s objective. The government can bring this about by statutes. Alternatively, unwritten forms are utilised: the common law, customary practices and historical precedents (1). In the UK, these forms work hand in hand to endorse justice. However, critics have argued that all mandates must be written down to accomplish these objectives. Conventions have only made the law arbitrary. This assertion is evidently not a leap into the dark. Yet, for there to be any validity in this argument, the benefits must outweigh the costs.

Reliability and scholastic advancement are essential for an efficient system. This is what documented policies bring to the table. The plague of ambiguity and ignorance in public duty could be cured. An economist would be pleased with this well-informed approach. Sources of the law would be enforceable, verifiable and collaborative established (1). What this provides is supremacy within the law, which uncodified rules lacked.

This ignorance can be evidenced through the 20^th century events. Following the Reichstag Fire and the Enabling Act, Hitler dismantled the Weimar Constitution, ruling through a small elite (2). The atrocities that followed could come down to the spontaneity of the guidelines; the political prejudice and arbitrary decisions that resulted only furthered a class-oriented structure. This illustrated that customary practices and traditional norms wither away when power is exploited. Governments cannot rely on rulers pledging good faith and adhering to conventions forever. It is rendered impossible because of the opacity of uncodified rules.  Solipsistic politicians can enforce dogmatic changes effortlessly. A written rulebook may be the remedy: a return to equality, uncontaminated democracy and rules which cannot be unilaterally changed (3). Resultingly, this could provide loyalty, akin to the veneration demonstrated for the 13^th century Magna Carta and the US Constitution (4).

Continuing this trajectory, the case for a complete composition of written rules is substantiated by the case between Spitalfields and Tower Hamlets in 2024 (5). The judge (Lord Sales) used the unwritten common law to dismantle the appellant’s incongruous argument. The ease with which the opposing party missed this branch of law is of concern. The appealing party hinged onto physical, accessible enactments because the organisation was not well versed with case law. Lawyers and committees faltered because of the lack of definitive guidelines. If those educated in the law can go awry because of the lack in clarity, what can be our expectations of the public?

Unspoken rules have also had their historical critics, notably the 18^th century English philosopher, Jeremy Bentham. His desire for the codified law is reflected through his critique of the common law. He assimilates the process of Judges constructing the law based on judicial decisions to a man making laws for his dog. The common law does not tell someone what they ought not to do, but “hang him” for something which the judges believe he should not have done after the event. He called for judiciary rules to be incarnated into statutes, which provides certainty. The caricature of common law, “dog law” (6), does not account for this. This would also alleviate problems of discrepancy between cases. A formal, secure system would arise, restricting unchecked governmental power, as well as prompting state legitimacy (7).

Therefore, a complete set of written regulations seems synonymous with success, insofar as only the benefits are acknowledged. But the consequences of this change is where the merits go down the drain. Unwritten rules may not solve all these problems, but their presence is more advantageous. It must also be considered that the problem may not be the unwritten or written conventions, but politically poor decision-making (7).

It is commonly understood that physically pledging rules can elevate consistency. However, the adaptability of these rules is under pressure. The law becomes rigorous and clear-cut and difficult to tailor to changing circumstances. Each case is unique. To tailor the written law in this fashion would be impossible whilst maintaining its dependability. Certainty is important, but versatility is equally, if not more. Conversely, unwritten rules can accommodate evolving contemporary challenges (8). This is firstly evidenced through the Marriage Act of 2013 for same-sex couples. Decades passed in its implementation since the 1967 Sexual Offences Act decriminalising same-sex acts (9). Written rules did no adapt to the speed in which modern society changed. Furthermore, courts chose to expand privacy rights due to our dependence on the internet, which was absent in statutes (1). The law adapts within one case, whilst changing statutes could take months, if not years. Having this dynamic applicability could also be beneficial for the ‘separation of powers.’ In the UK, unwritten conventions and statutes separate the three branches of state (legislature, judiciary, executive). Resultingly, a close and efficient relationship stems, as seen by the Prime Minister being head of government and leader in the legislature. What this allows is for seamless operation. A completely codified network like the US cannot offer this (10).

Alongside the flexibility offered, unwritten laws are politically significant because it facilitates for the absorption of political shocks and changes in the governmental makeup of society. This would reduce disruption to society’s function,as a formal amendment is not required. Resultingly, countries with this uncodified legal network (UK, New Zealand, Israel) are the highest in perceived political freedom (11). This is advanced through the malleability of the 1972 Local Government Act (12). Whilst an overarching written act, the scope in which power can be exercised is based on the convention of efficacy. For councils, this provides them with legal authority to govern proceedings as they deem fit. Votes can be restricted. Standing orders can be created. No hard and fast rules are provided, judging based on merit. What concurred is a structured and coherent order within each community, which otherwise would have been hindered by statutes.

In some avenues, a written rulebook can also be rendered meaningless. Take the Universal Declaration of Human Rights (13). “Freedom of speech,” “freedom from fear,” “right to life” are some of the phrases pledged, all of which are generic. Its applicability is through unwritten rules and beliefs of what ‘freedom’ constitutes. To codify principles with such detail is impossible, but incoherent without it (3). Conversely, conventions and norms are now second nature and developedover time; the same impact cannot be replicated by written rules.

The overarching question still remains: who has the authority to codify law nationally? In the UK, that would be the parliament. This would place parliament above the law, bringing ambivalent suspicions. Giving absolute power has only led to corruption and furthering of agendas in the past. Critics argue that this decision could be more desirable if the public were included in the decision-making process. Even so, our views are so dichotomous that it is impossible to satisfy the consensus. Playing devil’s advocate and the Parliament find a way for the public to be included, weighing innumerable debates and opinions, is economically infeasible. To illustrate, the Tax Law Rewrite Project took 11 years and millions of pounds to administer nationally (6). This is a significant opportunity cost. Even after the implementation of such acts, perfect order cannot ensue without significant disruption.

Finally, scribing all rules does not necessarily result in awareness. Industries such as the medical, the technological, andthe legal use language that is foreign. This is theorised by the 20^th-century, postmodern philosopher, Michel Foucault, in his critique of discourse (14). The ‘discourse’ utilised in law is a barrier because of the complexity of its language. Many people want to believe that a physical document of rules could aggrandise awareness, but this is not the case.  Take the ‘Defamation Act 2013.’ It uses lexemes such as “defamatory” and “publication,” holding alternative meanings within context (15). In the name of simplification, more confusion occurs. Accuracy, effectivity and applicability are lost. No marginal convenience is brought about.

The Middle Ground:

In conclusion, we must acknowledge that the world is changing. Whether a country utilises a completely codified or uncodified set of principles, the primary goal must be to outline rules and responsibilities to form an ordered society (16). On one hand, the idea of a completely codified rulebook arose to solve societal problems and ameliorate democratic decisions, whilst bringing national unity. This is exemplified in the codified South African constitution acting as the voice of the people by beginning with the pronoun “we” (17). For the UK, this may be vital after the precarity and alienation caused by Brexit. There are also its conveniences: uniformity and reliability.  Along with it, though, could come the stifling of the justice system because it can become outdated and extremely rigid. This must be considered before threatening stability with a radical reformation. Amalgamating unspoken rules with a strong emphasis on concrete statutes is the cure. Whilst controversial, the copious benefits of a hybrid system, consolidation of cultural identity, consistency and awareness, eclipse the side effects. These should be the underlying principles of any system.

 Bibliography:

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12.      Local Government Act 1972.

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17.      The Constitution OF THE REPUBLIC OF SOUTH AFRICA CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA.