Unwritten Constitution: Examples And Their Impact

An unwritten constitution is a type of constitution where the fundamental rules often take the form of customs, usage, precedent, and a variety of statutes and legal instruments. Unwritten constitutions are often found in countries with strong legal traditions and a long history, such as New Zealand, Israel, and the United Kingdom. The United States also has an unwritten constitution, which is difficult to understand without a thorough knowledge of its unwritten counterpart. The unwritten constitution of the US includes the two-term limit set by George Washington, who refused to run for a third term, believing that ruling longer might give one man too much power and influence. Other examples of unwritten constitutions include Sweden, which is made up of four legislative acts covering the organization of the government, free press, free expression, and succession, and San Marino, whose constitution incorporates documents and traditions dating back to the 1300s.

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The UK's living constitution adapts to changing values and societal needs

The UK's constitution is referred to as a "living constitution" due to its ability to adapt and evolve to reflect changing social attitudes and values. Unlike other countries with written constitutions, the UK's constitution is uncodified, meaning it is not written in a single document but is a collection of written and unwritten sources. This includes Acts of Parliament, court decisions, laws, traditions, and conventions that have evolved over time.

One example of how the UK's living constitution has adapted to changing values is the Marriage (Same-Sex Couples) Act 2013, which legalised same-sex marriage. This reflected a shift in societal attitudes towards LGBT+ rights and equality. The unwritten nature of the UK's constitution allowed for a more dynamic and flexible interpretation of the law, enabling judges and lawmakers to incorporate evolving customs and traditions into legal decisions.

Another illustration of the UK's living constitution is the evolution of parliamentary sovereignty. The UK Constitution upholds parliamentary sovereignty as a fundamental principle, meaning that the laws passed by Parliament are supreme and cannot be overturned by other sources of law. However, the UK's membership in the European Union (EU) introduced a new dimension to parliamentary sovereignty. EU laws and regulations became part of UK law, and in some cases, took precedence over domestic laws. This dynamic between UK and EU law demonstrated the adaptability of the UK's living constitution in accommodating international obligations and the evolving nature of sovereignty.

The UK's living constitution also adapts to societal needs through the interpretation and application of human rights. While the UK does not have a written bill of rights, human rights protections are found in various sources, including the Human Rights Act 1998, the European Convention on Human Rights, and common law traditions. This unwritten approach to human rights allows for flexibility in interpreting and applying rights to meet the changing needs of society. For example, the right to privacy has been interpreted to include digital privacy and data protection, reflecting the increasing importance of technology in modern life.

In addition to adapting to societal values and needs, the UK's living constitution also provides stability and continuity. The absence of a single, written document means that constitutional change occurs gradually and is often informed by historical precedents and traditions. This continuity can provide a sense of stability and consistency in the legal system, even as society evolves. The living constitution ensures that the UK's political system remains responsive to the needs and values of its citizens while preserving the core principles and traditions that underpin the country's governance.

The US Constitution is hard to understand without its unwritten counterpart

The US Constitution is a written document that was ratified in 1788 and has since undergone 27 amendments. However, it is incomplete without its unwritten counterpart, which comprises historical customs, conventions, judicial decisions, and the shared understanding of the nation's people about governance. This unwritten constitution holds profound implications for governance, legal interpretation, and the preservation of societal norms.

The unwritten constitution of a country often includes constitutional conventions, royal prerogatives, or unwritten principles, such as references to other nations' methods of governing. For example, the US Constitution does not mention the two-term limit for presidents, which became a part of the written constitution in 1951 with the 22nd Amendment. This custom was established by George Washington, the first president of the United States, who refused to run for a third term to prevent too much power and influence from being vested in a single individual.

Another example of the unwritten constitution in action is the formation of a cabinet to advise the president, also set by George Washington. He appointed heads, or secretaries, of each of the executive departments and called regular meetings to seek their advice. This precedent has become a vital aspect of the executive branch's functioning, despite not being explicitly mentioned in the written Constitution.

The unwritten constitution also includes precedents set by early presidents and Congresses, common practices of modern American citizens, and venerable judicial decisions. For instance, the Supreme Court has passed several de facto amendments, including the 1954 amendment banning racial segregation in public schools and the 2015 ruling legalizing same-sex marriage nationwide.

The US Constitution is challenging to interpret without considering these unwritten elements. As legal scholar Akhil Reed Amar argues, the written document must be understood in conjunction with the values, precedents, and practices that complement and complete it. This dynamic and flexible nature of an unwritten constitution allows it to adapt to the evolving needs and values of society, strengthening the country's cultural identity.

Sweden's unwritten constitution is made up of four legislative acts

An unwritten constitution is a type of constitution where the fundamental rules often take the form of customs, usage, precedent, and a variety of statutes and legal instruments. While these elements are typically written down in official documents, they are not codified in a single document. Unwritten constitutions are often found in countries with strong legal traditions and a long history, such as the United Kingdom, New Zealand, and Israel.

Sweden's constitution, also known as the Basic Laws of Sweden, is made up of four legislative acts:

• The Instrument of Government (Regeringsformen): This act establishes a separation of powers between the executive branch (the king) and the legislative branch (the Riksdag of the Estates). It sets out the fundamental principles of Swedish democracy, describing how the country is to be governed and protecting the rights and freedoms of all citizens.
• The Freedom of the Press Act (Tryckfrihetsförordningen): This act guarantees freedom of expression and publication without censorship. It allows individuals to publish books, newspapers, and other printed documents freely, as long as they follow the law.
• The Fundamental Law on Freedom of Expression: This law further reinforces freedom of expression and protects against defamation and insulting language.
• The Act of Succession (Successionsordningen): This act contains the rules regarding who can become King or Queen of Sweden and their rights and duties. It also includes historical references to the Uppsala Synod, giving it constitutional status.

These four acts together constitute a basic framework that stands above other laws and regulations in Sweden, defining which agreements supersede normal Swedish law. While Sweden's constitution is not codified in a single document, it is nevertheless a fundamental part of the country's legal system, regulating the Swedish political system and protecting its democracy.

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Israel's unwritten constitution is a draft with no formal constitution

Israel is one of the few countries in the world without a formal, written constitution. Instead, it has a series of Basic Laws that act as quasi-constitutional laws. These laws are based on the individual liberties outlined in the Israeli Declaration of Independence and deal with the formation and role of the state's institutions, the relations between the state's authorities, and the protection of civil rights. The Basic Laws were intended to be draft chapters of a future Israeli constitution, but due to irreconcilable differences in the Knesset, no complete codified constitution has been written yet.

The absence of a written constitution in Israel has been a topic of debate, with some critics arguing that a formal, written constitution would better protect the country's democratic nature. On the other hand, proponents of the unwritten constitution argue that it allows for more flexibility and adaptability to changing needs and values. It is worth noting that Israel's unwritten constitution includes not just written laws but also "conventions" or unwritten agreements, which can be difficult to define but are based on shared understandings and principles.

The Israeli Supreme Court has played a significant role in interpreting and enforcing the Basic Laws. Former President Aharon Barak ruled that the Basic Laws should be considered the state's constitution during his tenure, and this became the common approach. This ruling empowered the High Court to strike down legislation that contradicted a Basic Law, thereby broadening constitutional protections even without a formal written constitution.

However, there have been moves from the Knesset to limit and override the High Court's power of judicial review, which has sparked concerns about potential undemocratic abuses of power. As a result, calls for the codification of the Basic Laws into a formal constitution have increased, especially during the 2023 anti-judicial reform protests. Various bodies in Israel have submitted ideas and drafts for a potential formal constitution, but the process has been challenging due to the country's diverse society and political landscape.

In conclusion, Israel's unwritten constitution, consisting of the Basic Laws and unwritten conventions, has served as a draft with no formal constitution for over 75 years. The advantages of this system include flexibility and adaptability, but there are also concerns about democratic vulnerabilities and the need for clear, codified protections. The ongoing debate surrounding Israel's constitution reflects the complex nature of governance and the challenges of achieving consensus in a diverse society.

San Marino's unwritten constitution includes traditions dating back to the 1300s

San Marino is a unique constitutional republic with a long history, claiming to be the oldest extant sovereign state. Its constitution is considered unwritten, incorporating documents and traditions dating back to the 1300s. The country was officially formed on October 8, 1600, and its constitution has evolved alongside it, with the most recent significant change being the Declaration of Citizen Rights, adopted in 1974 and amended in 2002.

San Marino's constitution is comprised of several documents, including the six books of The Statues of 1600 and the Declarations of Citizen's Rights. The country's constitutional structure is also unique, with a democratically elected legislature, the Grand and General Council, selecting two heads of state, known as Captains Regent, every six months. This council is a unicameral legislature with 60 members, and elections are held every five years through proportional representation in nine administrative districts.

The unwritten constitution of San Marino reflects the country's rich history and traditions. The absence of a single, written document as its constitution allows for flexibility and adaptability to changing social needs and values. This dynamic nature enables the incorporation of customs and traditions, strengthening the country's cultural identity over time.

The unwritten constitution holds profound implications for governance, legal interpretation, and the preservation of societal norms. It encompasses historical customs, conventions, judicial decisions, and the shared understanding of San Marino's people about governance. While providing benefits such as adaptability, an unwritten constitution may also face challenges in terms of legitimacy and potential abuse of power due to the absence of a clear set of rules.

The constitution of San Marino, with its deep roots in the country's past, serves as a testament to the country's enduring values and traditions. The unwritten nature of this constitution allows for a living, evolving framework that adapts to the changing societal landscape, contributing to the country's rich and unique character.

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