Unwritten Constitutions: A Global Perspective

A constitution is a document that outlines a country's legal system and details its citizens' rights. While all modern written constitutions confer specific powers on an organisation or institutional entity, not all constitutions are written. The Gayanashagowa, the oral constitution of the Haudenosaunee nation, is also known as the Great Law of Peace. The earliest known code of justice was issued by the Sumerian king Urukagina of Lagash c. 2300 BC, and many governments have since ruled by special codes of written laws. The first written constitution adopted by a modern state was the 1634 Instrument of Government, drawn up by the Lord High Chancellor of Sweden, Axel Oxenstierna. The US Constitution, written in 1787, is the oldest and shortest written constitution still in force.

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The oldest written constitutions

The Constitution of the United States of America, which was signed in 1787 and ratified in 1788, is the oldest and shortest written constitution that is still in force. Since 1789, when it was introduced, close to 800 constitutions have been adopted and amended by independent states worldwide. The US Constitution is the oldest active codified constitution.

The oldest written document still governing a sovereign nation is the Constitution of San Marino, written in 1600. It is also the oldest surviving constitution in the world. The document, known as Leges Statutae Republicae Sancti Marini, was written in Latin and consists of six books. The first book, with 62 articles, establishes councils, courts, various executive officers, and their powers. The remaining books cover criminal and civil law and judicial procedures and remedies.

The first written constitution adopted by a modern state was the 1634 Instrument of Government, drawn up by the Lord High Chancellor of Sweden, Axel Oxenstierna, after the death of King Gustavus Adolphus. The English Protectorate established by Oliver Cromwell after the English Civil War promulgated the first detailed written constitution adopted by a modern state. It was called the Instrument of Government and formed the basis of government for the short-lived republic from 1653 to 1657.

The Swiss Federal Constitution was first written in 1848 and established the Swiss Federal State. It was later rewritten in 1874 and replaced by the modern Swiss Federal Constitution, which was ratified in 1999. The Constitution of Canada was written in 1867, the same year that four British colonies in North America united to form a self-governing confederation under the British Crown. The Constitution of Luxembourg was first written in 1841, two years after Luxembourg became a sovereign nation.

Oral vs written constitutions

A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation, or other types of entities, and commonly determines how that entity is to be governed. Constitutions can be written or unwritten.

Written constitutions are codified and formally written. They are enacted through a formal process and often require a special majority to amend. They provide a clear outline of the fundamental principles and framework of the government, including the separation of powers and the Bill of Rights. Countries with written constitutions include the United States, India, France, Germany, and others. The United States Constitution, drafted in 1787, is one of the earliest and most well-known examples of a written constitution. The Constitution of India, adopted in 1950, is the longest written constitution of any country in the world, with 146,385 words in its English-language version.

Unwritten constitutions are not structured and are based on conventions, customs, judicial decisions, and historical precedents. They evolve over time, with new laws and guidelines added gradually. Unwritten constitutions are often found in countries with a long history of parliamentary democracy, such as the United Kingdom and New Zealand. The United Kingdom's constitution is based on statutes, common law, and conventions rather than a single written document.

Oral constitutions are a form of unwritten constitutions. The Gayanashagowa, the oral constitution of the Haudenosaunee nation (also known as the Great Law of Peace), established a system of governance as early as 1190 AD (or perhaps more recently at 1451) in which the Sachems, or tribal chiefs, of the Iroquois League's member nations made decisions based on the universal consensus of all chiefs following discussions initiated by a single nation. Another example of an oral constitution is the Kouroukan Founga, a 13th-century charter of the Mali Empire in West Africa, reconstructed from oral tradition in 1988 by Siriman Kouyaté.

Written constitutions provide a clear and formal outline of the principles and framework of a government, while unwritten constitutions are more flexible and based on customs, conventions, and judicial decisions. The choice between a written and unwritten constitution may depend on various factors, including historical context, cultural traditions, and the specific needs and characteristics of the polity or organisation in question.

The role of constitutions in the rule of law

The rule of law is a durable system of laws, institutions, norms, and community commitments that deliver four universal principles: accountability, just law, open government, and accessible and impartial justice. The rule of law is closely related to constitutionalism, and the two concepts share a long history. The earliest-known code of justice was issued by the Sumerian king Urukagina of Lagash around 2300 BCE. This document, though not discovered, is known to have granted rights to citizens, including tax relief for widows and orphans and protections for the poor.

The idea of the rule of law can be traced back to ancient civilisations in Greece, Mesopotamia, India, and Rome. The Indian epics Ramayana and Mahabharata, which date back to the 8th or 9th centuries BCE, deal with concepts of Dharma (law and duty), Rajdharma (the duty of the king), and Dharmaraja. In 1215, the Magna Carta, or "Great Charter," established the rule of law in England by restricting the powers of King John and future sovereigns and preserving ancient liberties. The United States Constitution, which is the oldest and shortest written constitution still in force, was influenced by the ideas contained in the Magna Carta.

The development of modern constitutional theory can be traced back to the English Civil War and the subsequent establishment of a short-lived republic from 1653 to 1657. The Instrument of Government, promulgated by Oliver Cromwell, provided a legal rationale for the increasing power of the state after Parliament consistently failed to govern effectively. The theory was further developed by Alexander Hamilton, James Madison, and John Jay, who published a series of essays promoting the ratification of the United States Constitution, now known as the Federalist Papers. In Federalist No. 78, Hamilton argued for the superiority of a written constitution, stating that "a limited constitution can be preserved in practice no other way" than through courts that can declare void any legislation contrary to it.

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The influence of the US Constitution

The United States Constitution has had a profound influence on the history of ideas and legal thinking worldwide, although it has also faced criticism. Its impact has been observed in the similarities of phrasing and borrowed passages in other constitutions, as well as in the principles of the rule of law, separation of powers, and recognition of individual rights. The US Constitution has influenced the creation of other constitutions and legal systems around the world, with its ideas and principles serving as a source of inspiration for many nations transitioning to self-governance and democratic models of government.

The US Constitution's influence can be traced back to its signing on September 17, 1787, in Philadelphia. This event marked a significant shift from monarchical rule to representative and democratic government, with laws drafted by the people's representatives rather than a sovereign ruler. The US Constitution's principles, such as popular consent, limiting the power of rulers, and the recognition of individual rights, have had a lasting impact on the development of modern political systems.

One notable example of its influence is the work of nationalists such as Jose Rizal of the Philippines and Sun Yat-sen of China. Rizal drew inspiration from the US Constitution in his calls for political reform, citing it to push for Filipino representation in the Spanish Parliament. Similarly, Sun Yat-sen was heavily influenced by American democracy and the US Constitution when forming a provisional Republican government in China in the early 20th century. The influence of the US Constitution was particularly prominent at the turn of the 20th century, as former European colonies began their journey towards self-governance and adopted federal and parliamentary models of government.

The US Constitution has also had an impact on the American experience of fundamental law with amendments and judicial review. This has motivated foreign constitutionalists to reconsider the possibilities for their nations, with figures like Abraham Lincoln and Benito Juarez of Mexico being influenced by its principles during their respective civil wars. Additionally, the US Constitution's influence extends to similarities in phrasing and entire passages in other constitutions, reflecting its impact on transnational history, foreign translations, and exchanges between Americans and their international counterparts.

However, it is important to note that the influence of the US Constitution has been waning since the 1980s as countries create new constitutions or update older ones. The process of amending the US Constitution is believed to be more challenging than in other nations. Nonetheless, the US Constitution's impact on legal thinking and the development of democratic governments around the world remains significant, with its principles continuing to shape political systems and legal frameworks internationally.

Amending and updating constitutions

Amending and updating a constitution is a complex process that varies across different countries. In the United States, the authority to amend the Constitution is derived from Article V, which outlines the amendment process. An amendment can be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of the state legislatures. The President does not have a direct role in this process, and the proposed amendment takes the form of a joint resolution. Once an amendment is proposed, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), administers the ratification process. The amendment becomes part of the Constitution when it is ratified by three-fourths of the states (38 out of 50). This process has resulted in 27 amendments to the US Constitution.

In other countries, such as Ireland, Estonia, and Australia, constitutional amendments originate as bills and become laws through acts of parliament, sometimes requiring approval through a referendum. In contrast, the former constitution of Alabama was amended 977 times between 1901 and 2022, demonstrating the varying levels of difficulty in amending constitutions across different jurisdictions. For example, in Japan, none of the proposed amendments have been passed, while in Australia, only eight out of 44 proposed amendments have been successful.

The process of amending a constitution can also vary in terms of the manner in which amendments are recorded. The most common method is for amendments to be incorporated as revisions to the previous text, resulting in portions of the original text being deleted or new articles being inserted. Alternatively, amendments can be appended to the end of the main text as special articles, leaving the original text intact.

Some constitutions have specific requirements for modification. For example, the Constitution of Ethiopia can only be modified by a two-thirds majority of its regions and a two-thirds majority of a joint session of the Federal Parliamentary Assembly. Certain chapters and articles of the Ethiopian constitution, pertaining to human and democratic rights, are even more challenging to amend, requiring total consensus from the federal regional states and a two-thirds majority in each house of Parliament.

The history of a constitution's amendments is an important aspect of understanding its evolution and the societal context in which it operates. For instance, the US Constitution was amended to allow the federal government to impose an income tax, reflecting a shift in fiscal policy. Studying these amendments provides insight into the political and social landscape of a country and highlights the dynamic nature of constitutional law.

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