Eleanor Finch
While most countries have a codified constitution, a handful of nations, including Israel, Canada, the United Kingdom, New Zealand, and Saudi Arabia, have uncodified constitutions. An uncodified constitution is not a single document but a set of rules found in various official documents. This gives it the advantages of elasticity, adaptability, and resilience. However, it may also lead to controversies due to different interpretations of usages and customs that form the constitution's fundamental provisions.
| Characteristics | Values |
|---|---|
| Countries without a codified constitution | Israel, New Zealand, Saudi Arabia, Canada, China, United Kingdom |
| Countries with an uncodified constitution | Andorra (until 1993), Finland |
| Other names | Unwritten constitution |
| Description | A constitution made up of rules found in various documents in the absence of a single document |
| Example of a written constitution | Constitution of India |
| Advantage | Elasticity, adaptability, and resilience |
| Disadvantage | Controversies may arise due to different understandings of the usages and customs that form the fundamental provisions of the constitution |
| Example of a country with a codified constitution | Germany |
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What You'll Learn
Israel's Basic Laws
The Israeli Declaration of Independence stated that a formal constitution would be formulated and adopted by 1 October 1948. However, due to irreconcilable differences in the Knesset, no complete constitution was ever agreed upon. Instead, the Harari Decision of 13 June 1950, adopted by the Israeli Constituent Assembly (the First Knesset), enacted several Basic Laws of Israel.
The Basic Laws do not cover all constitutional issues, and there is no deadline for merging them into a comprehensive constitution. There is also no clear rule determining the precedence of Basic Laws over regular legislation, and interpretation is often left to the judicial system.
During his tenure as Supreme Court president from 1995 to 2006, Aharon Barak ruled that the Basic Laws should be considered the state's constitution. This view was opposed by his colleague, Supreme Court Justice Mishael Cheshin. Opponents of a formal written constitution, such as David Ben-Gurion, argued that it would allow the Israeli Supreme Court to overrule certain policies.
Calls for the enactment of a formal constitution increased during the 2023 anti-judicial reform protests, with multiple opposition figures and civil society organizations proposing the codification of the Basic Laws into a single document.
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UK's flexible polity
The UK's constitution is uncodified, meaning it is not a single document but a set of laws, principles, and conventions that define the people and the country. This includes statute law, common law, political convention, and works of authority. The laws passed by Parliament are the final source of law and can be used to change the constitution.
The UK's flexible polity, as described by A. V. Dicey, is considered "the most flexible polity in existence." This flexibility provides several advantages, including elasticity, adaptability, and resilience. For example, new situations or conditions of government may be resolved through precedent or passing legislation, without the need for special procedures to make constitutional law.
However, the lack of a codified constitution can also lead to controversies due to differing interpretations of customs and provisions. The UK's constitution is also based on the principle of parliamentary sovereignty, where laws passed by Parliament are supreme and cannot be overturned by the courts. This further contributes to the flexible nature of the UK's polity, as it allows for easier amendments and adaptations to the constitution through the legislative process.
In contrast, a codified constitution, such as those found in the US or France, is a single, written document that outlines the fundamental principles, structures, and rules of a country's government. It typically includes provisions on citizens' rights and freedoms, the organization of the state, and the distribution of powers. Codified constitutions often include procedures for their amendment and are considered legally supreme, providing a clear framework for governance.
While the UK's flexible polity offers benefits in terms of adaptability, it also presents challenges in terms of clarity and consistency. The absence of a single, unified document can make it difficult for citizens and even legal experts to understand the full scope of the constitution. Additionally, the interpretation and application of constitutional conventions and principles may vary, leading to potential inconsistencies in their implementation.
In conclusion, the UK's flexible polity refers to the country's uncodified constitution, which provides a high degree of adaptability and resilience. This flexibility allows for easier changes and updates to constitutional provisions through legislative processes. However, the lack of a single, written document can also lead to challenges in interpretation and understanding, highlighting the complex nature of the UK's constitutional arrangements.
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Canada's written acts and unwritten conventions
Canada's constitution is a combination of written acts and unwritten conventions. It is similar in principle to the uncodified constitution of the United Kingdom, which is based on a set of laws and principles defining the people and the country. The Canadian constitution comprises core written documents and provisions that are constitutionally entrenched, take precedence over all other laws, and place substantive limits on 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 recognises Canada as a constitutional monarchy and federal state and outlines the legal foundations of Canadian federalism.
The written component of Canada's constitution is supreme law, with any inconsistent law considered null and void. The Canada Act 1982, which includes the Constitution Act 1982, and any amendments to these documents, are also written elements of Canada's constitution.
The unwritten components of Canada's constitution are rooted in the country's constitutional history. These unwritten principles are necessary, as Canada's written constitution does not cover every problem or situation that could arise. They are also important for the process of constitutional evolution, allowing the constitution to adapt to new circumstances. For example, an unwritten constitutional principle ruled that if a clear majority of Quebecers voted to secede from Canada, then federal and provincial governments would be required to negotiate the terms of that secession.
Constitutional conventions are unwritten political rules that govern the conduct of public officials. While technically unwritten and non-legal, they are alluded to in the preamble of the Constitution Act of 1867, which states that Canada is to have a constitution ''similar in principle to that of the United Kingdom'. These conventions are the product of accumulated practice and are underpinned by a rationale grounded in principle. They are understood to be the preserve of political actors rather than courts.
Canada's constitution sits somewhere between a fully codified written and partially codified unwritten constitutional order. The differentiation between the written and unwritten elements is important for understanding Canada's constitutional system.
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New Zealand's multiple documents
New Zealand's constitution is not contained in a single document. Instead, it is made up of several documents, including the Constitution Act of 1986, Acts of Parliament, court decisions, and established constitutional practices known as conventions.
The Constitution Act of 1986 is a key formal statement of New Zealand's system of government, including 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. Other important legislation that makes up New Zealand's constitution includes the Treaty of Waitangi Act 1975, the Ombudsmen Act 1975, the Official Information Act 1982, the Public Finance Act 1989, the New Zealand Bill of Rights Act 1990, and the Human Rights Act 1993.
New Zealand's constitution also includes some 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.
The Constitution Act of 1986 also covers the three branches of the New Zealand government and their functions: the Executive (including the Executive Council and the Cabinet), the Legislature (including the House of Representatives and the Sovereign in Parliament), and the Judiciary (the court system).
New Zealand's constitution is an uncodified constitution, sometimes referred to as an "unwritten constitution", although this is not entirely accurate as it is an amalgamation of written and unwritten sources. The uncodified nature of New Zealand's constitution provides elasticity, adaptability, and resilience, but it may also lead to controversies due to different interpretations of usages and customs that form the fundamental provisions of the constitution.
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Saudi Arabia's Sharia law
Saudi Arabia's legal system is based on Sharia law, derived from the Quran and the traditions of Prophet Muhammad contained in the Sunnah. The Sunnah refers to the teachings and actions of the Prophet, which are compiled and interpreted by Islamic scholars. Sharia law also includes ijma, or scholarly consensus on the interpretation of the Quran and Sunnah, and qiyas, or analogical reasoning applied to these principles.
Saudi Arabia's application of Sharia is generally in accordance with the Hanbali school of thought, which only allows qiyas when absolutely necessary. The Saudi royal family and state follow the Wahhabi Islamic movement, which is based on the Hanbali school. However, critics argue that Wahhabi beliefs practised in the country diverge from this school in certain respects.
Sharia law has been adopted in Saudi Arabia in an uncodified form. This means that while the Quran and Sunnah are considered the constitution, the specific laws are not codified in a single document. Instead, judges interpret and apply Sharia law with considerable variation, and are not bound by judicial precedent. This leads to uncertainty in the scope and content of the law. Saudi Arabia's court system includes general and summary Sharia courts, as well as extra-Sharia government tribunals that handle disputes related to royal decrees.
Sharia courts have jurisdiction over criminal, civil, and personal status cases. Judges preside alone or in panels of three, and their judgments can be appealed to specialised courts of appeal. The Board of Grievances, for example, has jurisdiction over disputes involving the government and certain criminal cases. Final appeal from both Sharia courts and government tribunals is made to the King. Punishments in criminal law include public beheading, stoning, amputation, and lashing.
In recent years, there have been efforts to codify governing Islamic law and legal and procedural rules in Saudi Arabia. Additionally, the country has acceded to several UN human rights conventions and established a body to monitor their implementation. However, critics argue that the country's human rights record falls short, and the government points to its special Islamic character to justify a different social and political order.
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Frequently asked questions
Some of the countries without a codified constitution include the United Kingdom, Canada, New Zealand, Saudi Arabia, and Israel.
An uncodified constitution is a set of rules found in various documents in the absence of a single document or written constitution. It is sometimes referred to as an uncodified constitution, although this is not entirely accurate as its elements are typically written down in several official documents.
An uncodified constitution offers advantages such as elasticity, adaptability, and resilience. It allows for flexibility and does not require amendments or special procedures for making constitutional laws.
One of the main disadvantages of an uncodified constitution is the potential for controversies and different interpretations due to varying understandings of usages, customs, and fundamental provisions. It may also lack the same level of protection and clarity provided by a codified constitution.
