Wheare's Classification and Its Critics
Chapter Twelve
Syllabus topic 1, "Constitutionalism, Classification of Constitutions"
Pages 54 to 58 of 676
In one line
K. C. Wheare classified constitutions on six pairs of opposites, and the scheme is still the framework this syllabus uses, though it describes texts better than it describes systems.
In the wording a student can write in an exam: Wheare's classification sorts constitutions along six axes, written and unwritten, rigid and flexible, supreme and subordinate, federal and unitary, separated-powers and fused-powers, and republican and monarchical, each axis asking a distinct question about the constitution's form.
Why a classification at all
Comparison needs axes. Faced with seven documents, a student can either describe them one after another, which produces a survey and not a comparison, or place them on a common set of questions, which produces an answer.
Wheare, writing in Modern Constitutions in 1951, supplied the questions, and they have held up because each of them asks about a real design choice a framer had to make.
The six pairs
1. Written and unwritten. Is the constitution reduced to a document? Wheare's own usage; the accurate labels are codified and uncodified, for the reasons in [Written and Unwritten, Codified and Uncodified].
2. Rigid and flexible. Can it be changed by the ordinary legislative process, or only by a special one? Treated in [Rigid and Flexible Constitutions].
3. Supreme and subordinate. Is the constitution the highest law in the system, or does it operate subject to a higher external authority? Wheare's example of a subordinate constitution was a colonial one made under an imperial statute, and Canada's is the case study: the Constitution Act 1867 was an Act of the United Kingdom Parliament, and Canadian constitutional amendment required a request to Westminster until 1982.
4. Federal and unitary. Treated in [Federal and Unitary Constitutions].
5. Separated powers and fused powers. Are the executive and the legislature distinct in personnel and tenure, or is the executive drawn from and answerable to the legislature? Treated in [Separation of Powers] and in the whole of topic 3.
6. Republican and monarchical. Treated in [Republican and Monarchical, Evolved and Enacted].
Wheare added a further observation that examiners like: a constitution is what it is not because of what its text says but because of what happens under it, and the way to test a classification is to look at practice.
Applying it to one system, carefully
Take India and run the six.
Written: codified, in one instrument of 395 articles and twelve Schedules.
Rigid: partly. Three routes, of which one is a simple majority outside article 368, and the basic structure doctrine sits above all three.
Supreme: yes. Article 13 voids inconsistent law; there is no external authority above the Constitution.
Federal: yes, on the four conditions, and heavily centralised, hence the quasi-federal argument.
Wheare's Classification and Its Critics
Fused powers: yes as to the executive and legislature, separated as to the judiciary by articles 50, 121, 122, 211, 212, 124 and 217.
Republican: yes, with an indirectly elected President who acts on binding advice.
That paragraph is a complete classification answer for one system. Six of those, arranged as a table, is a complete answer for the topic.
What the scheme cannot see
Three things, and each of them is examined on this paper.
First, conventions. Wheare's axes are about the text. The British constitution is not merely uncodified: the rules that actually determine who governs, that the monarch assents, that the Prime Minister commands a majority, that ministers are collectively responsible, are conventions and appear on no axis. Nor do the American conventions, or the Indian ones. The whole of topic 2 lives in the gap Wheare's classification leaves.
Second, the difference between the text and the working constitution. A constitution can be supreme, rigid, federal and republican on paper and none of those things in practice, which is [A Constitution Without Constitutionalism].
Third, asymmetry and hybridity. The axes are binary and real systems are not. Article 370 gave Jammu and Kashmir a special position within a federal India; Quebec's position in Canada, the cantonal exceptions in Switzerland, and the devolved but unitary United Kingdom are all points between the poles. The classification pushes them to one end or the other and loses the information.
A fourth criticism is worth knowing because it is the modern one: the axes describe the eighteenth and nineteenth-century design choices and say nothing about the twentieth-century ones, such as whether there is a constitutional court, whether rights bind private persons, whether the constitution has a social and economic programme, and whether it provides for supranational integration.
A worked example
Classify the United Kingdom on Wheare's six and see the difficulty.
Written: uncodified, though largely written. Rigid: flexible; any Act may change any rule. Supreme: the constitution is not supreme over Parliament; Parliament is supreme. Federal: unitary, with devolution. Separated: fused. Republican: monarchical.
Every answer is at one end of its axis, and the classification tells you almost nothing about how the United Kingdom is actually governed, about the Human Rights Act, about Thoburn's constitutional statutes, about the Sewel convention, or about the Supreme Court created in 2005. That is the criticism in concrete form.
The cases
Facts. Reference re Senate Reform, 2014 SCC 32, decided on 25 April 2014, asked whether the Parliament of Canada could unilaterally introduce consultative elections for senators, impose term limits, or abolish the Senate.
Held, unanimously. It could not. Part V of the Constitution Act 1982 provides four categories of amending procedure, the general one being the 7/50 procedure of section 38 complemented by section 42, and abolition of the Senate falls under the unanimous consent procedure in section 41.
Wheare's Classification and Its Critics
Why it matters here. It shows Wheare's third axis, supreme and subordinate, at the moment it stopped applying to Canada. Before 1982 a Canadian amendment meant asking Westminster; after 1982 it means Part V, and the classification of the Canadian constitution changed without the country changing.
Facts. S.R. Bommai v. Union of India, (1994) 3 SCC 1, arose out of Presidential proclamations under article 356 dismissing State governments, and required the Supreme Court to decide whether the proclamations were justiciable and what federalism means in India.
Held, by a Bench of nine. A proclamation under article 356 is justiciable; the President's satisfaction must rest on relevant material; the dissolution of a State Assembly should not take place before both Houses of Parliament approve; and federalism is a basic feature of the Constitution.
Why it matters here. It is the modern Indian answer to the fourth axis, and it shows why Wheare's binary is inadequate: India was held federal in principle in the same judgment that upheld the centre's power to dismiss a State government on the President's satisfaction.
Distinctions
| Wheare's axis | The question it asks | What it misses |
|---|---|---|
| Written / unwritten | Is it in one document? | That much of an uncodified constitution is written |
| Rigid / flexible | Is amendment special? | That practice, not procedure, decides how often it changes |
| Supreme / subordinate | Is there a higher authority? | Supranational law, which is neither exactly |
| Federal / unitary | Two levels or one? | Devolution, asymmetry, the third tier |
| Separated / fused | Where does the executive sit? | Collegial and semi-presidential systems |
| Republican / monarchical | How is the head of State chosen? | That in a constitutional monarchy nothing turns on it |
What beginners get wrong
"Wheare's classification is a list of types of constitution." It is a list of axes. A constitution is not "a Wheare type"; it has a position on each of six independent questions.
"The axes correlate." They do not. Ireland is republican, unitary, rigid, supreme, fused and codified; the United States is republican, federal, rigid, supreme, separated and codified. They agree on three and differ on three.
"Classification is the whole of topic 1." MU prints constitutionalism first. Classification is the vocabulary; constitutionalism is the point.
Limits and criticism
It is a taxonomy of texts. Wheare himself said that what matters is what happens under a constitution, and his axes cannot record that.
It predates the constitutional court. Germany's Federal Constitutional Court, created in 1951, and its jurisdiction over abstract review, individual complaints and disputes between organs, is a design choice with no place on the six axes, and it has been copied far more widely since than any of them.
Wheare's Classification and Its Critics
It predates supranational law. Where does a member State of the European Union sit on supreme and subordinate? The German answer in the Lisbon judgment, 2 BvE 2/08, decided on 30 June 2009, was that the Federal Constitutional Court retains an identity review of whether the Basic Law's inviolable core is respected, which is a third position the axis has no room for.
Quick revision
- Wheare's six pairs: written and unwritten; rigid and flexible; supreme and subordinate; federal and unitary; separated and fused; republican and monarchical.
- The axes are independent; a position on one predicts nothing about another.
- India on the six: codified; partly rigid with the basic structure above it; supreme; federal and centralised; fused except the judiciary; republican.
- What the scheme misses: conventions, the gap between text and practice, and asymmetry.
- Modern gaps: constitutional courts, horizontal effect, social and economic programmes, supranational integration.
- Reference re Senate Reform, 2014 SCC 32: Canada's amending procedures after the change from subordinate to supreme.
- S.R. Bommai v. Union of India, (1994) 3 SCC 1: federalism is a basic feature, and article 356 is justiciable.
Test yourself
1. Set out Wheare's six axes and classify the Swiss Constitution on each. Written: codified, 197 articles. Rigid: highly, article 140 requiring a compulsory referendum with a double majority. Supreme: yes, though article 190 bars the Federal Supreme Court from setting a federal Act aside. Federal: yes, article 3 leaving sovereignty with the cantons except as limited. Separated or fused: neither in the usual sense; the Federal Assembly elects the Federal Council under article 175 and cannot dismiss it, and article 144 forbids dual membership. Republican: yes, with no single head of State.
2. Give three things Wheare's classification cannot record, with an example of each. Conventions: that the British monarch assents to legislation appears on no axis. The gap between text and practice: India between 1975 and 1977 was supreme, rigid and federal on paper. Asymmetry: article 370 of the Indian Constitution, Quebec in Canada, and devolution in the United Kingdom all sit between the poles of the federal axis.
3. Where does a member State of the European Union sit on the supreme and subordinate axis? Neither cleanly. Its constitution is supreme within the domestic legal order, and European law claims primacy within its own field. The German answer, in the Lisbon judgment of 30 June 2009 and in the PSPP decision of 5 May 2020, is that integration is accepted but the Federal Constitutional Court retains an ultra vires and identity review under article 23(1) read with article 79(3).
Wheare's Classification and Its Critics
4. Why does MU print "Constitutionalism" before "Classification of Constitutions"? Because classification is the vocabulary and constitutionalism is the substance. Knowing that a constitution is codified, rigid, supreme and federal tells you what kind of document it is; knowing whether the limits it imposes are effective tells you what kind of State it governs, and only the second question is worth answering on its own.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.