The Evolution Of Constitutions: Written Or Unwritten?

A constitution is a legal document outlining the basic principles of ruling and governing a nation. Constitutions can be codified or uncodified. A codified constitution is written in a single document, while an uncodified constitution takes the form of customs, precedents, usage, and a variety of legal instruments and statutes. Many countries have some form of guidelines that function as a constitution, be it written or unwritten.

Characteristics of Countries with Constitutions

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What is a constitution?

A constitution is a legal document that outlines the basic rules and principles of governing a nation. It is the framework that defines the government's structure and its relationship with its citizens. All countries require a set of rules to function properly, and these rules can be in the form of a written or unwritten constitution.

A written constitution, also known as a codified constitution, is a single document that outlines the fundamental laws and principles of a nation. It is often the product of significant political change, and its legitimacy is derived from the process through which it is adopted. Countries with written constitutions include those that have experienced drastic political shifts, such as revolutions or transitions from authoritarian rule to democracy.

On the other hand, an unwritten constitution, or an uncodified constitution, consists of fundamental rules that take the form of customs, precedents, usage, and various legal instruments and statutes. While all the elements of an unwritten constitution are indeed written down, they are not codified in a single document. Instead, they are spread across different official documents, understood and interpreted by the government, judiciary, legal experts, and government committees. Examples of countries with unwritten constitutions include Canada, Israel, New Zealand, San Marino, Sweden, and the United Kingdom.

The territories of Abkhazia, Kosovo, Cyprus, Somaliland, South Ossetia, Taiwan, and Western Sahara also have constitutions, but they are not recognized as sovereign nations by the United Nations. While a constitution is a crucial component of a functioning state, it does not automatically confer sovereignty or independence to a territory.

What is a codified constitution?

A codified constitution is one in which key constitutional provisions are provided for within a single written document. This document sets out the rules by which the political institutions, including those who create the legislation, operate.

There are three key principles of a codified constitution:

• Authoritative: A constitution is considered a higher law than standard legislation. It is a foundation upon which the state is based and establishes the procedure and individuals with the power to make laws.
• Entrenched: A codified constitution is entrenched, meaning it is very difficult to amend or abolish. For example, the US Constitution has only had 27 amendments since 1787.
• Judiciable: As the constitution is a higher law, it allows other laws to be judged against it to determine their constitutionality. This function is performed by the judiciary, which can lead to judicial tyranny, where judges can 'legislate from the bench'.

Some of the oldest constitutions include the Code of Ur-Nammu of Ur (c. 2050 BC), the code of Lipit-Ishtar of Isin, the code of Hammurabi of Babylonia, the Hittite code, the Assyrian code, and Mosaic law. The Romans codified their constitution in 450 BC as the Twelve Tables, and the Constitution of Medina, drafted by the Islamic prophet Muhammad, dates back to 622 AD.

What is an uncodified constitution?

An uncodified constitution is a type of constitution where the fundamental rules are often based on customs, usage, precedent, statutes, and legal instruments. While the elements of an uncodified constitution are typically written down in various official documents, they are not codified in a single document. This means that an uncodified constitution is often referred to as an "unwritten constitution", although this label can be misleading.

The United Kingdom, for example, has an uncodified constitution. The UK's constitution is found in leading statutes, conventions, judicial decisions, and treaties. While the UK does not have a defining document termed "the constitution", it has many acts that are considered part of its collection of constitutional statutes. These include the Parliament Acts 1911 and 1949, the Freedom of Information Act 2000, the Human Rights Act 1998, and the Dissolution and Calling of Parliament Act 2022. The UK's political system evolved gradually over time, rather than being abruptly changed by a revolution, collapse of government, or overthrow of monarchy. As a result, the UK's constitution is continuously shaped by parliamentary acts and court decisions.

Proponents of an uncodified constitution argue that it offers flexibility, adaptability, and resilience. For instance, the UK's uncodified constitution has been modified frequently, allowing for a pragmatic approach where different policies can be tried, tested, and refined over time. This flexibility enables successive generations to influence the constitution through their elected representatives. In contrast, countries with codified constitutions may face challenges in updating their political systems to keep up with changing attitudes and political realities.

However, critics of uncodified constitutions argue that they can be confusing and ambiguous, making it challenging for citizens to fully understand and hold their governments accountable. The lack of a clear and unified framework can also create uncertainties regarding the roles and responsibilities of different political institutions. Additionally, an uncodified constitution may leave the political system vulnerable to abuse by those in power. For example, in the UK system, a government with a majority in the House of Commons could, in theory, amend rules to serve its interests.

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Can a country function without a constitution?

While it is uncommon, it is technically possible for a country to function without a formal, written constitution. An uncodified constitution is a type of constitution where the fundamental rules take the form of customs, usage, precedent, statutes, and legal instruments. These elements may be recognised by courts, legislators, and bureaucrats as binding upon the government and limiting its powers.

Countries with uncodified constitutions lack a specific moment where the principles of their government were deliberately decided. Instead, these principles are allowed to evolve according to the political and social forces that arise throughout their history. For example, the United Kingdom has no defining document that can be termed "the constitution". Its political system evolved over time, and it is continuously being defined by acts of parliament and decisions of the courts. Similarly, Saudi Arabia has no legally binding written constitution. In 1960, King Faisal declared the Quran, the religious text of Islam, to be the constitution.

Some countries, like Canada, have Constitution Acts, but important aspects of their constitutional system are uncodified. In the case of China, some academics argue that the country has both a written constitution and an unwritten constitution based on the comprehensive leadership of the Communist Party.

Andorra is an interesting case study in the evolution of constitutions. Until 1993, Andorra did not have a codified constitution, and there was no clear separation of powers. The two Andorran paréages of 1278 and 1288 served as the basic laws of the country until the promulgation of the 1993 Constitution.

What is an example of a country with a written constitution?

A constitution is a legal document that outlines the structure of a government and the basic principles of ruling and governing a nation. While many countries have some form of guidelines that function in a similar way, they may be written or unwritten constitutions. Written constitutions can be codified or uncodified. A codified constitution is written in a single document and often emerges from significant political change. Its legitimacy is tied to the process used to adopt it. Countries with codified constitutions may experience high constitutional turnover, but the constitution holds supremacy over ordinary statute law. This means that if there is a conflict between the codified constitution and a legal statute, the statute can be declared unconstitutional. On the other hand, an uncodified constitution is one where the fundamental rules take the form of customs, precedents, usage, and a variety of legal instruments and statutes. While all the elements of an uncodified constitution are written down, they are not codified in a single document.

The American Constitution was the first complete written national constitution. It remains influential, particularly for its system of checks and balances, but its exact provisions are rarely copied today. The American experience demonstrated how a long-lasting democratic government could be constructed through thoughtful design of political institutions. The model has inspired constitution-writers ever since.

Following the American Constitution, Poland adopted its first written constitution in 1791, followed by France later that year. Many 19th-century changes of government were marked by the adoption of written constitutions, and by the end of the century, it was clear that changes of government should be accompanied by new constitutions. In the 20th century, written constitutions became even more fashionable, especially after the Second World War. Almost all democratic governments now have written constitutions.

The American Constitution is a codified constitution, as it is written in a single document. The United States Constitution has served as a model for many other constitutions around the world. It establishes a federal system of government and enumerates certain fundamental rights. The document outlines the structure of the American government, including the three branches (legislative, executive, and judicial), and the system of checks and balances that ensures no one branch becomes too powerful.

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