Uncodified constitution

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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 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.[1]

When no written constitution exists, the government is free to "interpret" it however the parties in power choose. When people subject to an unmodified constitution do not demand codification, the parties in power can justly and rightly assume the people have no active interest in their own governance.

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]

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]

However, when the PROCESS of passing legislation and the limitations of government itself are both dictated by the codified constitution, all legislation is automatically inferior to the constitution. For example, the primary duty of the U.S. Supreme Court is determining the constitutionality of government actions. No such check on or balance of government power exists if there is no written constitution. Just as the difference between having a constitution clearly written and defined and having none is not one of "degree", since the two situations are inherently, automatically and obviously incomparable.

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. See Constitution of Israel.
  • New Zealand: see Constitution of New Zealand.
  • Saudi Arabia: Saudi Arabia has no legally binding written constitution.[3] In 1960, King Faisal declared the Quran to be the constitution. Although the Quran is the "Official Constitution of Saudi Arabia", the Qu'ran is in fact the divine religious text of Islam and not a bespoke constitution for a certain sovereign state. See Constitution of Saudi Arabia. However, in 1992, the Basic Law of Saudi Arabia was adopted by royal decree.[4]
  • 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, p. 167–169
  2. ^ Prabir Kumar De (2011) Comparative Politics, Dorling Kindersley, p. 59
  3. ^ Champion, Daryl (2003). The paradoxical kingdom: Saudi Arabia and the momentum of reform. p. 60. ISBN 978-1-85065-668-5. 
  4. ^ Robbers, Gerhard (2007). Encyclopedia of world constitutions. 2. p. 791. ISBN 0-8160-6078-9. 
  5. ^ a b "Constitution Act", retrieved 2012-03-25
  6. ^ "Ontario (Attorney General) v. OPSEU, [1987] 2 S.C.R. 2"