Traditional Approaches: Bryce and Wheare
Towards the end of the nineteenth century when Bryce delivered his Oxford lectures,14 the usual approach to the study of constitutions was that of regarding them as either written or unwritten. The distinction intended — that between ‘natural growths’ and ‘works of conscious art’ — was happier than the terms employed to convey it, for they tended to dwell on a superficial distinction of form and to blur over a more essential difference. Bryce regarded the terms written and unwritten as ‘ill-expressed and rather confusing’, for ‘unwritten law’ (ius non scriptum) was intended to denote customary law rather than non-existent law; as customs were recorded, they could not be regarded as unwritten. The distinction intended was between those constitutions ‘which are expressly set forth in a specially important document or documents’ and those ‘which began, not in formal agreements, but in usage, a usage 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’.15
Unable to display preview. Download preview PDF.