Omar Bennett
An unwritten constitution is a type of constitution where the fundamental rules take the form of customs, usage, precedent, statutes, and legal instruments. While the rules are not set in writing, they are documented. Countries with unwritten constitutions include the United Kingdom, New Zealand, Israel, Sweden, and Canada. The UK's constitution, for example, is largely unwritten, rooted in historical documents, laws, and traditions like the Magna Carta, the Bill of Rights, and common law principles. Similarly, Sweden's unwritten constitution is made up of four legislative acts that cover the organization of the government, free press, free expression, and succession.
| Characteristics | Values |
|---|---|
| No single document | Multiple documents, court decisions, laws, and traditions |
| Dynamic and flexible | Evolves with the changing needs and values of society |
| No set rules | Subject to multiple interpretations |
| No formal amendment process | Easier to change the interpretation of a legal principle or rule |
| No specific moment of creation | Evolves according to political and social forces |
| No inherent superiority | All laws are treated the same |
| No clear status | No single document with higher legal status |
| No clear division of powers | Ambiguity between the executive, legislative, and judicial branches |
| No fixed procedures | Precedent or passing legislation resolves new situations |
| Historical customs and conventions | Rooted in historical documents, laws, and traditions |
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What You'll Learn
The UK's living constitution
The UK's constitution is a unique and complex amalgamation of written and unwritten elements, often referred to as a "living constitution". Unlike countries with a codified constitution, the UK's political system has evolved gradually over time, shaped by acts of parliament, court decisions, and historical traditions. This uncodified nature means there is no single document that serves as the supreme law of the land, but rather a collection of sources that guide the country's governance.
The UK's constitution is deeply rooted in essential historical documents such as the Magna Carta, the Bill of Rights, and common law principles. Over time, various acts of parliament have contributed to the constitution, including the Parliament Acts of 1911 and 1949, the Human Rights Act 1998, the Freedom of Information Act 2000, and the Dissolution and Calling of Parliament Act 2022. These acts, along with court decisions and conventions, form the basis of the UK's constitutional framework.
One of the key advantages of the UK's living constitution is its adaptability. Unlike written constitutions that require formal amendment processes, the UK's constitution can evolve through changes in interpretation and the addition of new statutes. This flexibility allows the constitution to reflect changing social attitudes, such as the legalisation of same-sex marriage in 2013. The absence of a rigid, supreme law also grants judges and lawmakers greater interpretative freedom, enabling them to make nuanced legal decisions that adapt to societal needs and values.
However, the unwritten nature of the UK's constitution also presents challenges. The lack of a single, overarching document can lead to ambiguity and uncertainty regarding the powers of the executive, legislative, and judicial branches. This ambiguity may result in conflicts between these pillars of government and potentially expose the system to abuses of power. Additionally, the absence of a clear and established set of rules can make it difficult to ascertain what is legal and what is not, potentially undermining the legitimacy of the constitution.
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Advantages of an unwritten constitution
An unwritten constitution is a type of constitution that is not contained or documented in a single document. Instead, it is based on a collection of laws, customs, and precedents. It is often found in countries with strong legal traditions and a long history, such as New Zealand, Israel, and the United Kingdom.
Flexibility and Adaptability
One of the main advantages of an unwritten constitution is its flexibility. Because it is not codified in a single document, it can be more dynamic and adaptable than a written constitution. It can evolve over time to meet the changing needs, values, and customs of society. For example, the UK's unwritten constitution has allowed it to adapt to changing social attitudes, such as the legalization of same-sex marriage.
Ease of Amendment
Unwritten constitutions are generally easier to amend than written ones. Instead of going through a lengthy and difficult constitutional amendment process, it is often simpler to change the interpretation of a legal principle or rule. This flexibility can be advantageous in times of urgency, allowing for quick and easy decision-making by the government.
Judicial Creativity
The lack of a single, written document may provide more room for interpretation, allowing judges and lawmakers to be creative in their legal decisions. They can base their interpretations on a nuanced understanding of the country's traditions, practices, and case law.
Avoiding Legal Rigidity
Written constitutions can sometimes lead to legal rigidity, where the Supreme Court is frequently called upon to resolve constitutional issues. In contrast, an unwritten constitution may provide more flexibility, allowing the judiciary to interpret and apply the laws made by Parliament without constant reference to a written document.
Evolving with History
Unwritten constitutions evolve over time, reflecting the political and social forces that arise throughout a country's history. This allows for a more gradual and nuanced development of constitutional principles, rather than a sudden change through a revolutionary event or collapse of government.
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Disadvantages of an unwritten constitution
An unwritten constitution is a type of constitution that is not contained or documented in a single document. Instead, it is based on a collection of laws, customs, and precedents that have evolved over time. While some countries, like the United Kingdom, New Zealand, and Israel, have unwritten constitutions, most countries have written constitutions.
Lack of Clarity and Uncertainty
An unwritten constitution may lack clarity and lead to uncertainty regarding what is and is not constitutional within the legal system. Without a clear and established set of rules, it can be challenging to determine the constitutionality of certain matters, leading to disputes and disagreements. This uncertainty may also make it more difficult to enforce the law and protect the rights of citizens.
Vulnerability to Abuse of Power
The absence of a written constitution may make the legal system more vulnerable to abuse of power and authority. Without a codified set of rules and checks and balances, there may be insufficient constraints on the government's power, potentially leading to an abuse of authority or a drift towards dictatorship.
Difficulty in Federal Systems
Unwritten constitutions may not work effectively in federal systems, where power is distributed between a central government and federal units, such as states or provinces. The lack of a clear distribution of powers in an unwritten constitution can lead to frequent disputes between the central government and the federal governments.
Challenges in a Heterogeneous Society
An unwritten constitution may face challenges in a heterogeneous society with diverse social, cultural, and political groups. In such a context, the flexibility of an unwritten constitution may lead to unnecessary alterations to accommodate different interests, potentially resulting in instability and a lack of consistent guidelines.
Limitations in a Unitary State
While written constitutions are not advisable in unitary states, unwritten constitutions may also present challenges in such contexts. The flexibility and ease of amendment of an unwritten constitution in a unitary state could potentially lead to a concentration of power in the central government and a lack of checks and balances.
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Unwritten constitutions in New Zealand and Israel
An unwritten constitution is a type of constitution where the fundamental rules take the form of customs, usage, precedent, statutes, and legal instruments. While the elements of an unwritten constitution are typically written down in official documents, they are not codified in a single document.
New Zealand's constitution is made up of several documents, court decisions, laws, and traditions that work together to guide the country. It is an uncodified constitution, sometimes referred to as an "unwritten constitution", although it is an amalgamation of written and unwritten sources. The Constitution Act 1986 plays 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. There is no technical difference between ordinary statutes and law considered "constitutional law", and no law is accorded higher status.
New Zealand's legislative, executive, and judicial branches function in accordance with the Constitution Act 1986 and various unwritten conventions, derived from the Westminster system. The country's constitution includes, but is not limited to, formal legal documents, decisions of the courts, and practices (some of which are described as conventions). New Zealand's constitution increasingly reflects the Treaty of Waitangi as a founding document of government.
Israel, on the other hand, has no written constitution. Instead, it has a series of Basic Laws that are quasi-constitutional laws originally intended as the basis for a future constitution. The Basic Laws of Israel outline the structure and function of the government, individual liberties, and civil rights. The Israeli Declaration of Independence promised a constitution by 2 October 1948, but due to irreconcilable differences in the Knesset, no complete codified constitution has been written. Israel's unwritten constitution is an interesting situation, as the Basic Laws have been acting as the constitution since 1950.
Like New Zealand, the United Kingdom also has an unwritten constitution. The UK's constitution is continuously being defined by acts of parliament and decisions of the courts. The closest the UK has come to a constitutional code is the Treaty of Union 1707.
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The Basic Laws of Israel
Israel is often cited as an example of a country with an unwritten constitution. While Israel does have a formal, written declaration of independence and some basic laws with constitutional significance, it does not have a single, unified document that outlines the country's fundamental laws and principles. Instead, Israel's constitutional framework is made up of a variety of sources, including basic laws, court rulings, and informal conventions and practices.
The first basic law, known as the "Law of Return," was enacted in 1950 and grants all Jews the right to immigrate to Israel and gain citizenship. Other basic laws establish the powers and responsibilities of the president and prime minister, define the structure and authority of the government and its various branches, and protect certain fundamental rights, such as human dignity and liberty. One of the most important basic laws is the "Basic Law: Human Dignity and Liberty," which grants constitutional status to human rights and freedoms and has been used by the Supreme Court to strike down discriminatory laws and uphold the rights of minorities.
Despite the absence of a formal constitution, Israel's system of government is characterized by a number of democratic principles, including the rule of law, separation of powers, and judicial review. The Basic Laws are interpreted and enforced by an independent judiciary, with the Supreme Court serving as the highest judicial authority. The court has the power of judicial review, meaning it can strike down laws or government actions that it deems unconstitutional or violate fundamental rights.
While Israel's system of unwritten constitutionalism has been relatively stable and effective, there have been ongoing debates and efforts to codify a formal, written constitution. Some argue that a written constitution would provide greater clarity and protection for individual rights, while others believe that the current system allows for more flexibility and adaptability. Nonetheless, any changes to Israel's basic laws or efforts to enact a formal constitution require a special majority in the Knesset (Israel's parliament), reflecting the importance and weight given to these fundamental laws.
In conclusion, Israel's unwritten constitution, as embodied in its Basic Laws and other constitutional sources, demonstrates that a country can have a functioning and robust constitutional framework even without a single, unified document. The Basic Laws of Israel play a crucial role in defining the country's governmental structure, protecting citizens' rights, and guiding the interpretation and application of constitutional principles.
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Frequently asked questions
An unwritten 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. An unwritten constitution is not set out in a single document but is instead made up of several documents, court decisions, laws, and traditions that work together to guide the country.
Examples of countries with unwritten constitutions include the United Kingdom, New Zealand, Israel, Sweden, and Canada.
One advantage of an unwritten constitution is that it is more dynamic and flexible than a written constitution. It can adapt to the changing needs and values of society, evolving to reflect shifts in social attitudes. Unwritten constitutions may also be easier to change than written constitutions, as the interpretation of a legal principle or rule can be altered without going through a formal amendment process.
