Abstract

What is the value of constitutional codification? This question was alive recently in an unfamiliar context, that of the economic and political integration of the European Union, which tried unsuccessfully to convert the most important provisions of existing treaties into a new Constitutional Treaty for the European Union. The constitutional treaty failed to be ratified by France and Netherlands in 2005, marking the end of an effervescent effort of many years to codify a European constitution. More familiarly, the question is alive in the UK where the constitution is not written down in any one document which declares itself as ‘the constitution,’ unlike much of the rest of the world. In addition, this question matters in new democracies which struggle to make the transition from histories of oppression and discrimination like South Africa or authoritarian pasts like the countries of Eastern Europe after the fall of communism. And it is also alive in any constitutional system whether possessing a written constitution or not, for which certain constitutional rules are unwritten, or which considers amendments, i.e. adding or removing clauses to the constitution. What does putting constitutional rules together in a unitary documentary form add, that cannot be accomplished via regular statutes, common law, or other forms of law-making?  This is the main question of this article.
 
The unfamiliar context of postnational constitutional order such as the European Union are valuable because they help us appreciate with fresh eyes the features and functions of written constitutions which may be obscured by their embeddedness in national histories and traditional legal systems. State-based constitutions are now part of national narratives and civic cultures about shared histories, of values and principles negotiated through time by well-established communities, and of patterns of injustice corrected through enduring local struggles. However, the postnational legal orders are much more recent, more fragile, and the commitment to shared goals and values less certain. Regional agreements such as the EU, the Caribbean Economic Community, or the East African Economic Community construct constitutional orders by endowing supranational courts authority over member states, and in more integrated legal orders such as the European one, they create institutions with legal supremacy and direct effect over national legal orders. Constitutional codification has been defended, at least in the EU case, on the grounds that it creates a charter of rights and liberties for EU citizens, it modifies decisions procedures from unanimity to qualified majority, and it further renders various rules belonging to disparate treaties more coherent and makes more explicit the core commitments and priorities of the member states.
 
This article will investigate the case for a written constitution and also explore possible drawbacks for constitutional codification.  It will make the case that most mature legal orders, including regional or international ones, would benefit from an explicit, unitary constitutional agreement, and explore the conditions under which codification is not desirable.