Uncodified constitution

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An uncodified constitution is a type of constitution where the fundamental rules of government take the form of customs, usage, precedent and a variety of statutes and legal instruments.[1] 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 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 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.[2]

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.[1]

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]

Current examples[edit]

The following states can be considered to have an uncodified constitution:

  • Israel: 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.
  • New Zealand: see Constitution of New Zealand.
  • Saudi Arabia: the Quran is cited by Basic Law as the supreme source of law. See Constitution of Saudi Arabia.
  • 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, it is continuously being defined by acts of Parliament and decisions of the Law Courts (see Constitution of the United Kingdom). The closest the UK has come to a constitutional code has been the Treaty of Union 1707, but this tends only to be subject to legal and academic scrutiny in Scotland, and has not received comparable attention in England and Wales. Due to the United Kingdom having an uncodified constitution it has meant that many acts have been added, e.g. The Freedom of Information Act 2000 and the Human Rights Act 1998.

Uncodified elements[edit]

Former examples[edit]

References[edit]

  1. ^ a b c d Johari, J.C (2006) New Comparative Government, Lotus Press, New Delhi, p167-169
  2. ^ Prabir Kumar De (2011) Comparative Politics, Dorling Kindersley, p59
  3. ^ a b Constitution Act, retrieved 2012-03-25
  4. ^ Ontario (Attorney General) v. OPSEU, [1987] 2 S.C.R. 2