Eleanor Finch
An unwritten constitution is a misnomer; it does not refer to a constitution that is not written down, but rather one that is not written into law. Six countries are currently operating with unwritten constitutions, including San Marino, whose constitution is unwritten due to its age, incorporating documents and traditions that date back to the 1300s. Canada's constitution is similarly made up of several documents, court decisions, laws, and traditions that work together to guide the country. New Zealand, Sweden, Israel, Saudi Arabia, Oman, the United Kingdom, Jordan, and Libya are also considered to have unwritten or partially unwritten constitutions.
Countries with Unwritten Constitutions
| Characteristics | Values |
|---|---|
| Number of countries with unwritten constitutions | 6 |
| Countries with unwritten constitutions | Canada, Israel, New Zealand, Saudi Arabia, San Marino, United Kingdom |
| Reason for unwritten constitution | War, mass immigration, austerity, flexibility, adaptability, resilience |
| Documents that form the constitution | Various statutes, orders in Council, letters patent, court decisions, treaties, unwritten traditions, conventions, historical documents, common law, commentaries by judiciary and legal experts |
| Process of change | Amendments to fundamental laws must pass twice, changes through new laws or reforms |
| Advantages | Elasticity, adaptability, resilience, flexibility |
| Disadvantages | Controversies may arise due to different understandings of usages and customs |
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What You'll Learn
Israel's Basic Laws
Israel is one of a small number of countries that operate without a formal, written constitution. Instead, it has a series of Basic Laws, which together act as its constitutional framework. These laws are the foundation stones of Israel's legal system and outline the country's governmental structure and key principles. While not as comprehensive as a single, unified constitution, these Basic Laws are an important part of Israel's unique constitutional makeup.
The first of these laws was enacted in 1958, and since then, a further thirteen have been added. They cover a range of topics, from the powers of the presidency to the role of the Knesset (Israel's parliament). One of the most significant is the Basic Law: Human Dignity and Liberty, which guarantees basic human rights and freedoms, and forms the basis for Israel's robust system of rights protection. This particular law also grants the Supreme Court the power to strike down any law it deems unconstitutional, a power usually associated with countries with a formal, written constitution.
Other Basic Laws include the 1984 law, which outlines the role and authority of the government, and the 1992 law, which establishes Jerusalem as Israel's capital and seat of government. There is also a Basic Law that sets out the process for amending these laws, requiring a special majority in the Knesset, thus ensuring a level of stability and continuity.
While these laws provide a framework for governance, the absence of a single, unified document has led to some challenges and complexities. For example, there is no clear mechanism for resolving conflicts between different laws, and the relationship between the legislative, executive, and judicial branches of government is not always clearly defined. Nonetheless, Israel's system of Basic Laws has been praised for its flexibility and adaptability, allowing the country to navigate a range of political and social changes since its founding.
There have been efforts to consolidate these laws into a single constitution. In 2003, a Constitutional Committee was formed with the task of drafting a formal, written constitution. However, this process stalled, and the committee was disbanded in 2006 without completing its task. Despite this, Israel's Basic Laws continue to serve as the country's constitutional foundation, and any changes to them are carefully considered and debated by Israel's political and legal institutions.
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Canada's multiple governing documents
Canada's constitution is not a single document but a collection of several documents, court decisions, laws, and traditions that work together to function as a constitution. This is laid out in the Constitution Act of 1982, as well as affirmed by the courts.
Canada is a constitutional monarchy and a parliamentary democracy, founded on the rule of law and respect for rights and freedoms. The system involves three main components: the Crown, the Senate, and the House of Commons. The Executive Branch, led by the Prime Minister and Cabinet, implements laws and policies, with Cabinet ministers being collectively and individually accountable to Parliament. The government acts in the name of the Crown but derives its authority from the Canadian people.
Canada's oldest constitutional documents were enacted before Confederation and originated from the English or British government. These include the Bill of Rights 1689 and the Act of Settlement 1701, which govern the powers and the line of succession of the Canadian monarch. The Constitution Act 1867 (then called the British North America Act, 1867) also contains older Canadian constitutional documents.
Other governing documents include various treaties, unwritten principles, traditions, and conventions. For example, while Section 15(1) of the Constitution Act 1982 does not explicitly list sexual orientation as a ground against which people may not be discriminated against by the government, numerous provincial superior court cases have ruled that it is an unwritten protected ground.
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New Zealand's multiple documents
New Zealand's constitution is uncodified, or "unwritten", in the sense that it is not found in a single document. Instead, it is an amalgamation of written and unwritten sources, including various documents, court decisions, laws, and traditions that work together to guide the country.
The Constitution Act 1986 is a key formal statement of New Zealand's system of government, particularly concerning 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. However, it is important to note that the Act is descriptive rather than constitutive, meaning that it does not truly constitute or constrain the legislative branch.
Other laws that outline the powers and functions of the three branches of government include the State Sector Act 1988, the Electoral Act 1993, the Judicature Act 1908, the Senior Courts Act 2016, and the District Court Act 2016. Additionally, 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, have been incorporated into New Zealand law through the Imperial Laws Application Act 1988.
The Treaty of Waitangi is also increasingly recognised as a founding document of the New Zealand government and is considered part of the country's "constitutional canon". The unwritten constitution allows for elasticity, adaptability, and resilience, but it may also lead to controversies due to differing interpretations of customs and practices.
New Zealand's unwritten constitution reflects its pragmatic nature, where constitutional reform is not often pushed, and changes are instead accomplished within the realm of ordinary politics and law.
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Saudi Arabia's Sharia law
Saudi Arabia is one of six countries that do not have a codified constitution. Instead, the Quran, the religious text of Islam, is considered the country's constitution. In 1960, King Faisal declared the Quran and the Sunnah (the teachings and actions of the Prophet Mohammed) to be the constitution of Saudi Arabia. The Hanbali school of Islamic jurisprudence, which was preferred by the Wahhabi movement, is the most common interpretation of Sharia in the country.
Sharia law, or Islamic law, is the primary source of law in Saudi Arabia. It is based on the Quran and the Sunnah, as well as Islamic scholarly consensus developed after the Prophet's death. The interpretation of Sharia law in Saudi Arabia is influenced by the medieval texts of the literalist Hanbali school of Islamic jurisprudence. Sharia has been adopted by Saudi Arabia in an uncodified form, which has resulted in uncertainty in the scope and content of the country's laws.
The Saudi legal system consists of two main branches: the Sharia courts and the Board of Grievances. The Sharia courts handle criminal, civil, and personal status cases, while the Board of Grievances handles disputes involving the government, certain criminal offenses, and the enforcement of foreign judgments. To become a judge in the Sharia Courts, candidates must have a degree in Sharia or Islamic law, complete a postgraduate program at the Institute of Higher Judiciary, and pass examinations administered by the Supreme Judicial Council.
In recent years, there have been efforts to codify governing Islamic law and legal and procedural rules in Saudi Arabia. In 2018, a sourcebook of legal principles and precedents was published by the Saudi government. Additionally, the Saudi government has introduced regulations and royal decrees that address criminal and commercial matters in line with Islamic principles. These regulations have the force of law but are not referred to as legislation or laws.
Despite these efforts, Saudi Arabia's legal system has been criticized by human rights organizations such as Amnesty International and Human Rights Watch. They have highlighted issues such as the high number of executions, the range of offenses subject to the death penalty, the treatment of women and homosexuals, the use of torture, and the lack of religious freedom. A leaked draft of Saudi Arabia's first written penal code has also been criticized for falling short of universal human rights standards and codifying repressive practices.
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UK's collection of written documents
The United Kingdom has never had a written constitution embodied in a single document. Instead, it has a collection of written documents and unwritten arrangements that establish the country's principles. The UK's constitution is spread across several places, including specific Acts of Parliament, understandings of how the system should operate (constitutional conventions), and various decisions made by judges that help determine how the system works.
The foundational constitutional text for what is now the UK is the Magna Carta, issued by King John of England in 1215. The Magna Carta is often looked to as a foundational document, though its impact has been debated. It inspired future developments, such as 'habeas corpus', which states that a person may not be detained without legal reason.
The UK's present constitution encompasses landmark statutes, such as the Bill of Rights of 1689, as well as many conventions or unwritten rules of constitutional practice. For example, the relationship between the monarch and Parliament is governed by these unwritten but binding conventions.
The UK's uncodified constitution has been described as confusing and ambiguous, making it challenging for citizens to fully understand and potentially enabling abuses of power. The lack of clarity can also make governing more difficult, as there may be doubts about the roles and responsibilities of different institutions.
Some have argued for a written constitution in the UK, stating that clearly stating all the rules in one place would enable better governance and engagement with the government. However, the UK's uncodified constitution has also been described as flexible, adaptable, and resilient.
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Frequently asked questions
Six countries currently have unwritten constitutions: Canada, Israel, New Zealand, Saudi Arabia, San Marino, and the United Kingdom.
An unwritten constitution is a misnomer. It does not mean that the constitution is not written down, but that it is not written into law. It is also known as an uncodified constitution.
A written constitution is a formal, well-structured document that outlines the basic rules, institutions, and regulations of a country in a planned manner. It is rigid and has to be amended. An unwritten constitution is adaptable and flexible, and amendments do not need to follow any laws. It is not prepared by a group of elected representatives.
The United Kingdom has operated for more than a millennium without a written constitution. Its constitution is based on laws, common law, conventions, and key historical documents like the Magna Carta and the Bill of Rights of 1689.
An unwritten constitution is elastic, adaptable, and resilient. However, controversies may arise due to different interpretations of customs and provisions. Unlike a codified constitution, there are no special procedures for making a constitutional law, and it is not inherently superior to other legislation.
