Jonah Patel
An unwritten constitution is one that is not codified in a structured manner, instead of consisting of several documents, laws, and traditions that work together to guide the country. Six countries are currently operating under unwritten constitutions, including Israel, Canada, Saudi Arabia, New Zealand, Sweden, and San Marino. These countries' constitutions are made up of various documents, including court decisions, laws, and unwritten principles, traditions, and conventions.
| Characteristics | Values |
|---|---|
| Number of countries with unwritten constitutions | 6 |
| Countries with unwritten constitutions | Canada, Israel, New Zealand, San Marino, Saudi Arabia, Sweden |
| Other countries with uncodified constitutions | Andorra, Finland, Hungary, United Kingdom |
| Definition of unwritten constitution | A constitution that is not contained in a single document but consists of several different sources, which may be written or unwritten |
| Advantages of unwritten constitution | Elasticity, adaptability, and resilience |
| Disadvantages of unwritten constitution | Controversies may arise due to different understandings of the usages and customs that form the fundamental provisions of the constitution |
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What You'll Learn
Israel's Basic Laws
An "uncodified constitution" is a constitution made up of rules found in various documents, rather than a single document or written constitution. The uncodified constitution is sometimes referred to as an "unwritten constitution", although this is not entirely accurate as its elements are written down in several official documents. Six countries currently operate entirely or in part according to an uncodified constitution: San Marino, New Zealand, Saudi Arabia, Canada, the United Kingdom, and Israel.
The State of Israel has an uncodified constitution. In accordance with the Harari Decision of 13 June 1950, which was adopted by the Israeli Constituent Assembly (the First Knesset), Israel has enacted several Basic Laws that function as its constitution. The Israeli Supreme Court president, Aharon Barak, ruled that the Basic Laws should be considered the state's constitution, and this became the common approach during his tenure (1995-2006). Barak's interpretation was opposed by his colleague, Supreme Court Justice Mishael Cheshin.
The delay in adopting a formal constitution resulted primarily from the inability of different groups in Israeli society to agree on the purpose and identity of the state, as well as a long-term vision. Another factor was the opposition of David Ben-Gurion, Prime Minister from 1948 to 1954 and 1955 to 1963, who thought that a formal written constitution would allow the Israeli Supreme Court to overrule his socialist policies. Various bodies in Israel have called for the enactment of a formal constitution, and these calls increased during the 2023 anti-judicial reform protests.
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Canada's multiple governing documents
An "uncodified constitution" is a constitution made up of rules found in various documents, rather than a single document or written constitution. The uncodified constitution is sometimes referred to as an "unwritten constitution", although this is not entirely accurate as its elements are written down in several official documents. Six countries currently have unwritten constitutions, or "uncodified constitutions". These include Canada, the United Kingdom, Sweden, San Marino, Israel, and New Zealand.
Canada's constitution is a combination of written acts and unwritten conventions. It is not a single document but several that work together to function as a constitution. This is laid out in the Constitution Act of 1982, as well as affirmed by the courts. The Constitution Act of 1982, in conjunction with the Constitution Act of 1867, their amendments, and the acts and orders contained in Section 52(2) of the Constitution Act of 1982, form the basis of Canada's constitution.
Canada's constitution also includes various treaties, unwritten principles, traditions, and conventions. The oldest Canadian constitutional documents were enacted before Confederation and originated from the English or British government. These documents were received, along with many sub-constitutional laws, into Canadian law by means of Section 129 of the Constitution Act of 1867, then called the British North America Act of 1867.
Two key pre-Confederation documents of the English Parliament that continue to govern the powers and the line of succession of the Canadian monarch are the Bill of Rights of 1689 and the Act of Settlement of 1701. In addition, the Revised Statute of Canada of 1970 contains a list of constitutional documents, although it is not an official list.
Canada's constitution sets forth the system of fundamental laws and principles that outline the nature, functions, and limits of Canada's system of government, both federal and provincial. It prescribes which powers—legislative, executive, and judicial—may be exercised by which level of government, and it sets limits on those powers. It also lays out the powers and authorities of the office of the Governor General, as well as those of the Senate and the House of Commons.
Canada is a constitutional monarchy and a parliamentary democracy, rooted in the Westminster tradition. The system involves three main components: the Crown, the Senate, and the House of Commons. Responsibilities for lawmaking are shared among federal, provincial, and territorial governments, with judicial oversight ensuring constitutional adherence. The Executive Branch, led by the Prime Minister and Cabinet, implements laws and policies, with Cabinet ministers being collectively and individually accountable to Parliament.
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Sweden's four legislative acts
An "uncodified constitution" is a constitution made up of rules found in various documents, rather than a single document or written constitution. The uncodified constitution is sometimes referred to as an "unwritten constitution", although this is not entirely accurate as its elements are written down in several official documents. Six countries currently have unwritten constitutions, or "uncodified constitutions". These include Canada, New Zealand, the United Kingdom, San Marino, Israel, and Sweden.
Sweden's unwritten constitution is made up of four legislative acts: the Instrument of Government, the Freedom of the Press Act, the Fundamental Law on Freedom of Expression, and the Act of Succession. These acts cover the organization of the government, free press, free expression, and succession. These acts are considered fundamental laws and are held above other laws.
The Instrument of Government, enacted in 1719, marked the transition from autocracy to parliamentarism in Sweden. It established a separation of powers between the executive branch (the king) and the legislative branch (the Riksdag of the Estates), giving them joint power over legislation. The king still plays a central role in the government but is no longer independent of the Privy Council. The Instrument of Government also sets out that Sweden shall have a King or Queen as the head of state.
The Freedom of the Press Act, enacted in 1949, is one of Sweden's fundamental laws. It regulates the right for everyone to publish books, newspapers, and journals as they wish. While it gives people the right to express themselves freely, it also protects against defamation and insulting language or behavior.
The Act of Succession, enacted in 1810, is the oldest of Sweden's four fundamental laws. It contains the rules on who shall succeed to the throne.
The Fundamental Law on Freedom of Expression allows for the freedoms of speech and expression in Sweden.
One fascinating feature of Sweden's constitution is that amendments to fundamental laws must pass twice. When Sweden's parliament, called Riksdag, passes an amendment to a fundamental law, it must then pass again in the next term after a general election.
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UK's uncodified constitution
The UK's constitution is uncodified, meaning it is not contained in a single document but is instead drawn from several sources, including statutes, court decisions, and conventions. It is sometimes referred to as "unwritten," but this is not entirely accurate as its elements are written down in various official documents. The UK's constitution is founded on four sources: statutory law, common law, political convention, and works of authority.
The UK's uncodified constitution has several advantages. Firstly, it is flexible and adaptable, allowing for a pragmatic approach where different things can be tried, tested, and developed over time. This flexibility has enabled the UK to make various changes, such as the removal of hereditary peers from the House of Lords, the introduction of the Human Rights Act, and devolution to Scotland, Wales, and Northern Ireland. Additionally, an uncodified constitution is more democratic as it allows each successive generation to influence the constitution through their elected representatives.
However, there are also disadvantages to an uncodified constitution. One of the main criticisms is that it leaves the political system open to abuse, with few checks on the power of a government with a majority in the House of Commons. There are concerns that a powerful government could alter the rules in its favor, abolish devolved legislatures, or repeal the Human Rights Act. Another disadvantage is that an uncodified constitution can be confusing and ambiguous, making it challenging for citizens to fully understand and monitor the government's actions.
The UK's uncodified constitution is unique among most countries, as codified constitutions are typically produced following significant historical turning points, such as revolutions or collapses of government. However, the UK's political system evolved gradually, and there has never been a pressing need to codify its constitution.
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New Zealand's multiple documents
An "unwritten constitution" is a misnomer, as it does not mean that a constitution is not written down, but rather that it is not written into law. Six countries currently have uncodified constitutions.
New Zealand is one of the six countries with an unwritten constitution. It is a set of laws and principles that define the country and its citizens, outlining the relationship between the individual and the state, and how the government should function. New Zealand's constitution is not found in a single document, but in multiple documents, court decisions, laws, and traditions.
The Constitution Act of 1986 is a key formal statement of New Zealand's system of government, in particular, the executive, legislature, and judiciary. The Act recognises the King as the Head of State of New Zealand and the Governor-General as his representative. The three branches of the government of New Zealand and their functions are founded on the Constitution Act of 1986. The Constitution Act 1986 has a central role, alongside a collection of other statutes, orders in Council, letters patent, decisions of the courts, principles of the Treaty of Waitangi, and unwritten traditions and conventions.
The Treaty of Waitangi is considered a founding document for the government, and increasingly, New Zealand's constitution reflects this. Other laws that outline the powers and functions of the three branches of government in more detail include the State Sector Act 1988, the Electoral Act 1993, the Judicature Act 1908, the Senior Courts Act 2016, and the District Court Act 2016.
New Zealand's constitution is also influenced by British laws, such as parts of the Magna Carta (1297), the Bill of Rights (1688), the Act of Settlement (1701), and the Royal Marriages Act (1772), which have been incorporated into New Zealand law by the Imperial Laws Application Act 1988.
In 2010, the National Iwi Chairs Forum, a group made up of people from Iwi organisations across New Zealand, created a constitutional working group to develop a conversation with Māori about how to create a constitution for New Zealand from a Māori perspective. The findings were launched in 2016 in a document called Matike Mai Aotearoa.
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