The Unwritten Constitution
An uncodified 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. An understanding of the constitution is obtained through reading commentary by the judiciary, government committees or legal experts.
In such a constitutional system, all these elements may be (or may not be) recognized by courts, legislators and the bureaucracy as binding upon government and limiting its powers. Such a framework is sometimes imprecisely called an “unwritten constitution”. However, all the elements of an uncodified constitution are typically written down in a variety of official documents, though not codified in a single document.
An uncodified constitution has the advantages of elasticity, adaptability and resilience. A significant disadvantage, however, is that controversies may arise due to different understandings of the usages and customs which form the fundamental provisions of the constitution.
A new condition or situation of government may be resolved by precedent or passing legislation. Unlike a codified constitution, there are no special procedures for making a constitutional law and it will not be inherently superior to other legislation. A country with an uncodified constitution lacks a specific moment where the principles of its government were deliberately decided. Instead, these are allowed to evolve according to the political and social forces arising throughout its history.
When viewed as a whole system, the difference between a codified and uncodified constitution is one of degree. Any codified constitution will be overlaid with supplementary legislation and customary practice after a period of time.
Israel is an example of a state that has an unwritten constitution. The 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 yet. There are several Basic Laws, however.
Merits of Unwritten Constitution:
- An unwritten constitution, being flexible, is able to deal with the changes in the conditions of the country.
- As an unwritten constitution grows over a long period, it gains in wisdom and maturity.
- There is not much fear of rebellion or revolution in a country having an unwritten constitution.
- In a country with an unwritten constitution, customs, traditions and conventions receive due importance.
Demerits of Unwritten Constitution:
- An unwritten constitution is unclear and ambiguous. It is full of doubts. As a result, it also contains some elements of contradiction and undermines the performance of government.
- As it is very easy to bring about changes in a political system with an unwritten constitution, many undesirable changes take place resulting in a lot of instability.
- An unwritten constitution does not clearly express fundamental rights of individuals. They cannot enjoy their freedoms and they cannot actively take part in the democratic process. Therefore, an unwritten constitution is not so good for democracy.
- An unwritten constitution is not so good for a federal system, as it does not provide for proper distribution of powers between the centre and federal units – states or provinces. Because of this, many disputes occur between the central government and state or provincial governments.
The differences between written and unwritten constitutions, stated so far, are more theoretical than actual. Though most countries have opted for written constitutions, written constitutions are not necessarily superior to unwritten constitutions.
Also, in many countries having written constitutions, the performance of the governments there are not so good and people are deprived of their basic rights. The basic rights of individuals in Britain which has an unwritten constitution are as protected as the basic rights of individuals in America where there is a written constitution.
The constitutions can also be divided into two other categories, namely rigid constitution and flexible constitution which we will look at next.