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.[1] An explicit understanding of such a constitution can be developed through in 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. However, there may be truly "unwritten" constitutional conventions which while not usually legally enforceable may hold just as much sway as the letter of the law.
An uncodified constitution has the advantages of elasticity, adaptability and resilience, A. V. Dicey described the uncodified constitution as "the most flexible polity in existence."[2] A significant disadvantage, however, is that controversies may arise due to different understandings of the usages and customs that form the fundamental provisions of the constitution.[1]
A new condition or situation of government may be resolved by precedent or passing legislation.[1] 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.[3]
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.[1] Conversely, customs and practices that have been observed for long periods in an uncodified manner may be added to the written constitution at various junctures, such as in the case of the two-term limit for presidents of the United States. This custom was observed for nearly a century and a half, unbroken, without any enforcement mechanism until it was ignored by Franklin Roosevelt, after which it was added to the written Constitution as mandatory de jure.
Current states
The following states can be considered to have uncodified constitutions.
Although there are Constitution Acts,[4] important aspects of the constitutional system are uncodified. The preamble to the Constitution of Canada declares it to be "similar in principle to that of the United Kingdom" (which is uncodified).[4]
This applies at the federal level and to the provinces,[5] although each does have the power to modify or enact their own within their exclusive areas of responsibility. To date only British Columbia has enacted a codified provincial constitution (see Constitution of British Columbia), though the other provinces' roles and powers are spelled out in section 93 of the Constitution Act, 1867, and through amendments to it dealing with particular provinces such as the Manitoba Act and the Newfoundland Act.
Some Chinese academics including legal theorist Jiang Shigong have argued that China has both a written constitution and an unwritten constitution based on the comprehensive leadership of the Communist Party.[6]
New Zealand has no single constitutional document.[7][8] It is sometimes referred to as an "unwritten constitution", although the New Zealand constitution is in fact an amalgamation of written and unwritten sources.[9][10]
San Marino has several documents that make up its constitution, including some lasting centuries. These documents include six books of The Statues of 1600 and the Declarations of Citizen's Rights. It is the oldest surviving constitution in the world.
In the United Kingdom, there is no defining document that can be termed "the constitution". Because the political system evolved over time, rather than being changed suddenly in an event such as a revolution, collapse of government or overthrow of monarchy, it is continuously being defined by acts of parliament and decisions of the courts. The closest the UK has come to a constitutional code has been the Treaty of Union 1707.
Hungary had an uncodified constitution prior to 1949.
Sweden: What written and unwritten elements made up the Swedish constitution was the subject of much uncertainty and debate, until the Instrument of Government 1809 (1809 års regeringsform) made a point of expressly superseding “all more or less valid constitutions ... as well as ... any other such laws, acts, ordinances, statutes or decisions, however ancient or new, as have previously been included under the name of constitution”.[15] As of 2021, the Instrument of Government specifies at paragraph 3 that the constitution of Sweden (rikets grundlagar) consists of the Instrument of Government, the Freedom of the Press Act, the Fundamental Law on Freedom of Expression and the Act of Succession.
By the late 19th century leading Finnish intellectuals—liberals and nationalists, and later, socialists as well—had come to consider Finland as a constitutional state in its own right in a mere real union with Russia. This notion clashed with emerging Russian nationalism and with Russian calls for a unitary state for Slavs only, which eventually came into conflict with Finnish separatism and constitutionalism in the form of "russification policies", which restricted Finland's extensive autonomy from 1899 onwards, excluding a brief interruption between 1905 and 1908, all the way to the February Revolution in 1917.
Andorra did not have a codified constitution until 1993 and until that date, there was no clear separation of powers. The two Andorran paréages of 1278 and 1288 were the basic laws of the country until the promulgation of the 1993 Constitution.[16]
^Prabir Kumar De (2011) Comparative Politics, Dorling Kindersley, p. 59
^ abConstitution Acts, 1867 to 1982, being The Constitution Act, 1867 (UK), 30 & 31 Vict., c. 3, and The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c. 11.
^ abEichbaum, Chris; Shaw, Richard (2005). Public Policy in New Zealand - Institutions, processes and outcomes. Pearson Education New Zealand. pp. 32–33. ISBN1877258938.
^Champion, Daryl (2003). The paradoxical kingdom: Saudi Arabia and the momentum of reform. Hurst & Company. p. 60. ISBN978-1-85065-668-5.
^Robbers, Gerhard (2007). Encyclopedia of world constitutions. Vol. 2. p. 791. ISBN978-0-8160-6078-8.
^King, A (2007). The British Constitution. Oxford: Oxford University Press. p. 6.
^Bull, Thomas; Sterzel, Fredrik (2020). Regeringsformen: en kommentar (4th ed.). Lund: Studentlitteratur. p. 52.
^Govern d'Andorra. "History". The Embassy of Andorra to the Benelux, Denmark and Slovenia. Archived from the original on 20 July 2007. Retrieved 14 December 2010.
