Malcolm Rivera
While most countries have a well-written, codified constitution, a few rely on multiple documents for decision-making. An uncodified constitution is a set of rules found in various documents in the absence of a single written constitution. Countries with uncodified constitutions include the United Kingdom, Canada, and Israel. Saudi Arabia is also often mentioned in this context, as it bases its legal system on Sharia laws derived from the Quran and Sunnah of Prophet Muhammad.
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What You'll Learn
- Canada's constitution is a combination of written acts and unwritten conventions
- Israel's Basic Laws are thought of as a constitution, but they can be overruled
- Saudi Arabia's legal system is based on uncodified Sharia Law
- The UK's constitution is made up of written documents and unwritten arrangements
- Andorra didn't have a codified constitution until 1993
Canada's constitution is a combination of written acts and unwritten conventions
While some sources claim that Canada does not have a constitution, others state that Canada's constitution is a combination of written acts and unwritten conventions. The Canadian constitution is influenced by its historical ties to the United Kingdom, which also has an uncodified constitution. The UK's constitution is not embodied in a single document but is continuously being defined by acts of parliament and court decisions. Similarly, Canada's constitution is an amalgamation of codified acts, treaties with Indigenous Peoples, and uncodified traditions and conventions.
The Canadian constitution comprises core written documents and provisions that take precedence over other laws and limit government action. These include the Constitution Act of 1867 (formerly the British North America Act, 1867) and the Canadian Charter of Rights and Freedoms. The Constitution Act of 1867 outlines Canada's system of government, which combines Britain's Westminster model with a division of sovereignty (federalism). It also recognizes Canada as a constitutional monarchy and affirms the rights of Indigenous Peoples.
The unwritten components of the Canadian constitution include constitutional conventions and fundamental principles such as federalism, democracy, constitutionalism, the rule of law, and respect for minorities. These unwritten conventions are not judicially enforceable but hold significant sway. The Supreme Court of Canada has affirmed that the constitution includes pre-Confederation acts and unwritten elements.
The Canadian constitution has evolved over time, with amendments and additions made through various acts and agreements. The British North America Act of 1867, for example, was an act of the British Parliament that outlined Canada's system of government. Previously, the Canadian constitution could be amended by an act of the British parliament or by informal agreements between federal and provincial governments. Now, textual amendments must conform to specified provisions in the written portion of the constitution.
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Israel's Basic Laws are thought of as a constitution, but they can be overruled
Israel's Basic Laws are a set of quasi-constitutional laws that are considered a de facto constitution. There are 14 such Basic Laws, which were intended to be draft chapters of a future Israeli constitution. These laws deal with the formation and role of the principal institutions of the state, the relations between the state's authorities, and the protection of civil rights in Israel.
However, Israel's Basic Laws can be overruled. This is because they are uncodified, meaning they are not written and entrenched in a single document. Instead, they are a collection of official documents, with no protection against change. While the Supreme Court can veto attempts to change these laws, the government can overrule the veto.
The lack of a formal, unitary, written constitution in Israel has been a point of contention. According to the country's Declaration of Independence, a constituent assembly should have prepared a constitution by 1 October 1948. However, this deadline was missed due to the war between Israel and its Arab neighbours, and the inability of different groups in Israeli society to agree on the purpose and identity of the state.
In July 2021, the Supreme Court ruled that the Basic Law: Israel as the Nation-State of the Jewish People was constitutional and did not negate Israel's democratic character. The court's majority opinion stated that this Basic Law was "one chapter in our constitution taking shape" and did not detract from the individual rights of non-Jewish citizens.
In addition to Israel, several other countries operate with uncodified constitutions, including the United Kingdom, Canada, New Zealand, and Germany. These countries' constitutional rules are found in various official documents rather than a single text.
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Saudi Arabia's legal system is based on uncodified Sharia Law
Saudi Arabia, the Vatican, and, arguably, Canada, are the three countries that do not have a constitution. Canada's constitution is based on the British North America (BNA) Act, a British parliamentary act that created a United Colony. However, some argue that the BNA Act was never a true constitution.
Now, let's focus on Saudi Arabia's legal system, which is based on uncodified Sharia Law.
Sharia Law, or Islamic law, is derived from the Quran and the Sunnah, which are the traditions of the Islamic prophet Muhammad. Saudi Arabia's interpretation of Sharia is influenced by medieval texts from the Hanbali school of Fiqh. Unlike other Muslim countries, Saudi Arabia has adopted Sharia in its entirety as the law of the land, without codifying or modernizing it. This means that all aspects of Sharia, including those that are typically unenforceable in other countries, are considered legally valid in Saudi Arabia.
The lack of codification results in considerable variation in the interpretation and application of Sharia Law. This is further exacerbated by the absence of a system of judicial precedent. Saudi judges are forbidden from engaging in taqlid, or the unquestioning adoption of the interpretation of others. Instead, they are expected to use independent reasoning (ijtihad) to reach their decisions. This has led to criticism from organizations such as Amnesty International and Human Rights Watch, which have pointed out issues such as the number of executions, the range of offenses punishable by death, and the lack of safeguards for the accused in the criminal justice system.
In recent years, there have been efforts to bring about some standardization in the interpretation and application of Sharia Law in Saudi Arabia. In 2018, the Saudi government published a sourcebook of legal principles and precedents. Additionally, the government has issued regulations and royal decrees that address modern issues such as intellectual property and corporate law while remaining compatible with Islamic principles.
The Saudi judicial system consists of Sharia Courts and the Board of Grievances. The Sharia Courts handle criminal, civil, and personal status cases, while the Board of Grievances serves as an administrative body.
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The UK's constitution is made up of written documents and unwritten arrangements
While the UK does have a constitution, it is different from those of most other countries. The UK's constitution is made up of written documents and unwritten arrangements, rather than being codified in a single document. This is because the UK's political system evolved gradually over time, without any sudden changes or ruptures. The closest the UK has come to a constitutional code is the Treaty of Union 1707, which united England and Scotland into a single legislature: the Parliament of Great Britain.
The UK's constitution can be found in various places, including specific Acts of Parliament, such as 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. It is also found in particular understandings of how the system should operate, known as constitutional conventions, and in various decisions made by judges that help determine how the system works.
Constitutional conventions are unwritten agreements that are not legally enforceable but hold significant sway. Examples include the leader of the party with a majority becoming Prime Minister, the House of Lords not vetoing secondary legislation, and judges remaining impartial on government policy.
The UK's constitution is also influenced by treaties, such as international treaties that created the British Parliament, and the Treaty and Acts of Union of 1706-1707, which provided for the union of Scotland and England.
Proponents of the UK's uncodified constitution argue that it allows for flexibility and adaptability, enabling a pragmatic approach where different options can be tried and tested. They also believe that it is more democratic, as each generation can influence the constitution through their elected representatives, rather than being bound by the decisions of past generations.
On the other hand, critics argue that a codified constitution would strengthen legal protection for democracy and freedom. They also point out that the lack of a single constitutional document can make it more difficult to identify and understand the UK's constitution.
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Andorra didn't have a codified constitution until 1993
Andorra, a small country nestled in the Pyrenees mountains between France and Spain, did not have a codified constitution until 1993. The lack of a formal constitution did not mean that Andorra was without laws or a political system. The country functioned based on the two Andorran paréages of 1278 and 1288, which served as the basic laws of the land. However, this situation changed in the 20th century as the need for a formal constitution became apparent.
The process of drafting and adopting Andorra's constitution was a collaborative effort involving various stakeholders. The final version of the constitution was adopted by the Consell, the country's legislative body, in a solemn session held on February 2, 1993. Following its adoption by the Consell, the constitution was put to a referendum, allowing the Andorran people to have a direct say in their country's foundational document. On March 14, 1993, the Andorran people approved the constitution in a referendum, demonstrating their support for the new framework.
The Andorran Constitution of 1993 established a parliamentary Coprincipality, with sovereignty vested in the Andorran people. It outlines the form of the state, declaring it to be a diarchy with the Bishop of Urgell and the President of France as joint heads of state. It also specifies the official name of the country as "Principat d'Andorra," with Catalan recognised as the official language. The constitution guarantees fundamental rights and freedoms for Andorrans, including the intangibility of human dignity, equality before the law, freedom of religion, and freedom of expression.
The constitution also addresses the structure of the judiciary and the court system. It emphasises the importance of an independent judiciary, with judges serving renewable six-year terms and being elected by those with law degrees. The Constitutional Tribunal is established as the supreme authority for interpreting the Constitution, and its decisions are binding on both the "public powers" and private individuals. The amendment procedures for the constitution are straightforward, allowing for initiatives for change to come from the co-princes or one-third of the members of the General Council.
The adoption of the 1993 Constitution marked a significant step forward in Andorra's political evolution, providing a clear framework for the country's governance and ensuring the protection of the rights and freedoms of its citizens.
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