Jonah Patel
While most countries have a single, official, written constitution, a few nations rely on multiple documents for decision-making. These are known as uncodified constitutions and are sometimes imprecisely referred to as unwritten constitutions. However, the elements of uncodified constitutions are typically written down in a variety of official documents, though not codified in a single text. Examples of countries with uncodified constitutions include the United Kingdom, Canada, Israel, New Zealand, and Saudi Arabia.
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What You'll Learn
Israel's lack of a constitution
Israel's constitutional process has been ongoing since the formation of the first Knesset. The country's political history and the ongoing Israeli-Palestinian conflict have influenced the development of a constitution. The Declaration of Independence, issued in 1948, stated the intention to establish a democratic constitution. Elections for a constitutional assembly were held in January 1949, but the assembly was tasked with both drafting the constitution and enacting ordinary laws, leading to delays and compromises.
The lack of a constitution in Israel has resulted in challenges regarding the legitimacy of different branches of government and their relationships. Without a rigid constitution, each branch operates with a certain level of independence, sometimes resulting in conflicts and inconsistencies. Critics argue that a proper constitution, with a Bill of Rights and judicial review, could have resolved many of these issues.
Israel's legal framework is instead governed by a set of Basic Laws, which serve as the country's fundamental legislation. These Basic Laws are similar to a constitution in that they outline the country's core principles and provide a framework for governance. However, they lack the comprehensive nature and entrenched protection typically associated with a formal constitution.
While some countries, like Germany, have successfully operated with a set of basic laws or an uncodified constitution, the lack of a formal constitution in Israel has been a point of contention. It has been cited as a factor contributing to the 2023 judicial protests and ongoing debates surrounding the country's political system.
In summary, Israel's lack of a constitution has been a complex issue with historical, political, and legal implications. The ongoing debates and attempts at compromise reflect the challenges of establishing a constitution in a country with a diverse population and a complex political history.
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Saudi Arabia's religious text as constitution
While some countries, such as Canada, Israel, and the United Kingdom, are considered to have unwritten or uncodified constitutions, Saudi Arabia is unique in that it officially recognizes its religious text, the Quran, and the Sunnah (or traditions) of the Prophet Muhammad, as its constitution. This is known as the Basic Law of Governance or the Basic System of Governance, enacted in 1992, and consists of 83 articles across nine chapters.
Article 1 of the Basic Law states that "God's Book and the Sunnah of His Prophet" are the country's constitution, with Arabic as the official language and Riyadh as the capital. The Law of Governance outlines the rights and duties of the monarch and citizens, with Article 7 proclaiming the rights of the monarch, and Article 8 stating that "justice, consultation, and equality" shall be in accordance with Sharia Law.
The Basic Law also addresses issues such as citizenship, security, privacy, and freedom of expression. For example, Article 36 guarantees security for all citizens and residents, while Article 37 protects the inviolability of dwellings. Article 38 ensures that no one shall be punished for another's crimes, and Article 39 prohibits acts that lead to disorder and division, affecting state security and human rights.
Saudi Arabia is an Islamic absolute monarchy, with Sunni Islam as the official state religion. The country follows Sharia Law, which applies to all people within its borders, regardless of their religious affiliation. While non-Muslims are generally allowed to practice their religions in private, proselytizing for religions other than Islam is illegal, and public non-Muslim religious activities are prohibited.
The Basic Law of Governance serves as a constitution-like charter, providing a framework for governance and outlining the rights and duties of citizens and the monarch. However, it is rooted in Islamic religious texts and interpreted through the Sunni Salafi School understanding of Islamic law. This religious foundation sets Saudi Arabia apart from other countries with uncodified constitutions, which typically have a secular basis.
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Canada's quasi-constitutional laws
Canada, the United Kingdom, and Israel can be considered countries that do not have a formal constitution. While Israel has a list of laws codified as "Basic Laws", it lacks a formal constitution. The United Kingdom has an uncodified constitution, meaning its constitutional rules are not written in a single document but are instead found in various official documents. Similarly, Canada's constitution is uncodified, and the term "quasi-constitutional" is used for laws that remain paramount even when subsequent statutes that contradict them are enacted.
The Canadian Bill of Rights, a quasi-constitutional law, states that no law of Canada shall abrogate, abridge, or infringe upon the rights and freedoms recognized in the Bill, unless expressly declared by an Act of the Parliament of Canada. This means that the rights outlined in the Canadian Bill of Rights take precedence over other laws, even if they are newer or more specific. The Supreme Court of Canada has deemed this law and other similar ones as "fundamental" to the Canadian legal system.
Other examples of quasi-constitutional laws in Canada include Québec’s Charter of Human Rights and Freedoms, the federal Official Languages Act, privacy legislation, and access-to-information legislation. These laws are interpreted using the same principles of statutory interpretation as other statutes, according to the Supreme Court of Canada. The Federal Courts Act has also been suggested to be a quasi-constitutional statute due to its vital role in ensuring the legality, rationality, and procedural propriety of diverse areas of law.
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UK's unwritten constitution
The UK is often said to have an 'unwritten' constitution, but this is not strictly true. While the UK does have a constitution, it is not codified; that is, it is not brought together in a single document. Instead, the UK's constitution is spread across various sources, including specific Acts of Parliament, constitutional conventions, and judicial decisions. This dispersal can make it more challenging to identify and understand.
The UK's unwritten constitution has several implications. Firstly, it means that the UK Parliament is sovereign and can make or unmake any law without being limited by a constitutional text. This parliamentary sovereignty is commonly regarded as the defining principle of the British Constitution. Secondly, the lack of a codified constitution makes it easier to amend than countries with written constitutions, as there are no special procedures for amending it. For example, a 'constitutional statute' can be repealed or amended by a simple majority vote in Parliament, like any other legislation. This flexibility has enabled the UK to introduce various reforms, such as the Human Rights Act, devolution to Scotland, Wales, and Northern Ireland, and the creation of the Supreme Court.
However, the absence of a codified constitution also has its disadvantages. One significant drawback is that controversies may arise due to differing interpretations of the usages and customs that form the fundamental provisions of the constitution. Additionally, the unwritten nature of the UK's constitution can make it harder to understand and identify, as it is not contained in a single legal source.
The UK's unwritten constitution has historical roots. Unlike countries such as France and Italy, the UK did not experience a revolution or political rupture in the late eighteenth or nineteenth centuries, when written constitutions gained popularity after the American Revolutionary War. Additionally, codified constitutions are typically produced following major historical turning points, such as the grant of independence, revolution, or collapse of the previous government. None of these events have occurred in the UK, which helps explain why it has never felt the need to codify its constitution.
While the UK, Canada, and Israel are often cited as countries without a written constitution, it is more accurate to describe them as having uncodified constitutions. This means that their constitutional rules are not written in a single document but are found in various official documents.
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New Zealand's amalgamation of written and unwritten sources
While countries like Canada, Israel, and Germany are said to have no formal constitution, New Zealand, on the other hand, has an amalgamation of written and unwritten sources that form its constitution.
New Zealand's constitution is an uncodified constitution, which means it is not written in a single document. It is a collection of laws and principles that govern the country, including the Constitution Act 1986, statutes, orders in Council, letters patent, court decisions, principles of the Treaty of Waitangi, and unwritten traditions and conventions. The country's legislative, executive, and judicial branches function in accordance with these written and unwritten sources, which are derived from the Westminster system.
The term "unwritten" in relation to New Zealand's constitution does not imply the absence of writing, but rather the absence of any truly supreme law. The country's constitution is flexible, adaptable, and resilient, with the New Zealand Parliament having the power to perform "constitutional reform" and change or abolish elements of the constitution by passing acts of Parliament.
The unwritten nature of New Zealand's constitution has been a subject of academic exploration, particularly in the context of common law and the Maori dimension. The Treaty of Waitangi, signed in 1840 between the United Kingdom sovereign and the indigenous Maori people, continues to have implications for New Zealand's constitution. The global renaissance of human rights and the recognition of indigenous rights have also led to a reimagining of New Zealand's constitution, with common law playing an important role in updating and writing down unwritten aspects.
New Zealand's constitution, with its amalgamation of written and unwritten sources, provides a unique framework for the country's governance, allowing for flexibility and adaptability while also drawing on historical traditions and conventions.
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Frequently asked questions
While several countries have an uncodified constitution, only two countries—Saudi Arabia and the Vatican—do not have a constitution in any form.
An uncodified constitution is a type of constitution where the fundamental rules take the form of customs, usage, precedent, statutes, and legal instruments. These rules are typically written down in a variety of official documents but are not codified in a single document.
Yes, several countries have an uncodified constitution, including the United Kingdom, Canada, China, Israel, and New Zealand.
