Difference between Written and Unwritten Constitution

Ever wonder about the foundation of laws and principles that govern your country? Chances are there’s a constitution in place, the supreme law of the land that establishes the basic rules about how your government should operate. But did you know there are actually two types of constitutions written and unwritten? As a citizen, it’s important to understand the difference.

So which type does your country have? Read on to explore the key differences between written and unwritten constitution and why they matter to you.

Difference between Written and Unwritten Constitution

A written constitution is a formal document that outlines a nation’s system of law and governance. It’s codified in a single authoritative text. An unwritten constitution, on the other hand, refers to a set of laws and principles that evolve over time through custom and precedent.

While a written constitution provides more stability and security, an unwritten one allows for flexibility and adaptation to changing circumstances. There are pros and cons to each approach, but most democracies today have a written constitution to protect civil liberties and ensure an orderly transfer of power. Read on to learn more about the Written and Unwritten Constitution.

Defining Written Constitution

A written constitution is a formal document that lays out the rules and principles of a government.

The written constitution clearly defines the structure of the government, as well as the rights and responsibilities of citizens. It establishes the separation of powers across the executive, legislative and judicial branches. It also guarantees essential rights and civil liberties of Citizens that cannot be taken away.

Having a written constitution means there are fixed laws and procedures on how government institutions operate and interact with each other. It also gives citizens a reference point to understand their rights and hold the government accountable if those rights are violated.

While an unwritten constitution is flexible and evolves gradually over time based on customs and precedents, a written constitution provides more stability and continuity. It enshrines principles that shape a nation’s identity and values. Overall, a written constitution is vital for democracy and the rule of law.

Key Features of a Written Constitution

A written constitution has several key features that distinguish it from an unwritten one:

Supremacy of the Constitution: A written constitution is the supreme law of the land. Any law that violates the constitution can be struck down. This helps prevent tyranny of the majority.

Entrenchment: The procedures to amend a written constitution are typically more difficult than ordinary laws. This makes a written constitution more rigid and less susceptible to frequent changes based on temporary passions.

Fundamental Rights: Written constitutions often codify and protect essential civil liberties and fundamental rights of citizens that cannot be infringed upon by the government. These help safeguard citizens from potential abuse of power.

Separation of Powers: Most written constitutions incorporate mechanisms to separate government power across different branches (executive, legislative and judicial). This system of checks and balances prevents concentration of power in one branch.

Federalism: For large countries, a written constitution usually establishes a federal system of government that allocates powers between national and regional governments. This accommodates diversity across a large territory.

Amendments: Written constitutions can be amended to keep up with the times, but amendments typically require special majority votes and other procedural hurdles. This balances flexibility and stability.

Judicial Review: Many written constitutions empower the judiciary to review the constitutionality of laws and executive actions. This allows the courts to invalidate those that are inconsistent with the constitution.

Examples of Written Constitution

A written constitution clearly defines and limits the powers of the different institutions in a Nation. It lays down certain rules and norms which govern the functioning of various institutions.

Some examples of written constitutions are:

1. The Constitution of United States of America. It is the world’s first written constitution, adopted in 1787. It lays down the framework for the federal governance of the US.

2. The Constitution of India, adopted in 1950. It is the longest written constitution of any sovereign country in the world. It establishes the structure, procedures, powers and duties of the institutions of the Government of India.

3. The Canadian Constitution Act, 1982. It is Canada’s written constitution, enacted as law by the Canadian parliament. It lays out the system of government in Canada and the civil rights of all Canadians.

4. The Constitution of Ireland, adopted in 1937. It establishes the structure and system of government of Ireland. It sets out the principle of the separation of powers across the executive, legislative and judicial branches of government.

5. The Constitution of South Africa, adopted in 1996. It established the Republic of South Africa, replacing the earlier system of apartheid. It defines the structure and powers of the South African government and its relationship with the people.

6. The Constitution of Nigeria is the written Supreme law of the Federal Republic of Nigeria. There have been numerous constitutions in Nigeria. It was enacted in its current form on May 29, 1999, and Inaugurated the Fourth Nigerian Republic. The Constitution is organized into eight chapters and has 320 articles.

Advantages a Written Constitution

A written constitution has several key advantages:

1. It promotes stability by enshrining key principles that govern a nation. These principles stand the test of time and guide a country through periods of change.
2. It protects minority rights and prevents tyranny of the majority. Fundamental rights of all citizens are codified and protected.
3. It provides a framework for resolving disputes and clarifying ambiguous areas. The constitution is the highest law of the land.
4. It ensures continuity of policies and laws. There is consistency in governance even with changes in political leadership.
5. It increases legitimacy and status of a nation’s system of government both domestically and internationally. A constitutional government is widely respected.
6. It limits government overreach by distributing power across different branches. No one branch has absolute control or authority.
7. It gives citizens a sense of participation in governance. People feel invested in the system of government outlined in the constitution.
8. It increases stability and investor confidence. Businesses and investors prefer systems with strong rule of law and protections.
9. It protects federalism by delineating powers of national and state governments. There is a balance between centralized and decentralized authority.

Disadvantages of a Written Constitution

A written constitution also has some disadvantages:

1. Rigidity: A written constitution is rigid and inflexible. The procedures for amending are very complex. It does not adapt easily to the changing needs and circumstances.
2. Encourages Litigations: A written constitution gives rise to conflicting interpretations which lead to litigation and court cases. The courts have the power of interpreting the provisions of the constitution.
3. Creates Conservatism: A written constitution creates an orthodox spirit and conservatism in the country. People tend to worship it and are opposed even to the most necessary changes.
4. Obstructs National Progress: The rigidity and inflexibility of a written constitution may obstruct the natural growth of a nation and its smooth progress.
5. Gives Rise to Technicalities: A written constitution leads to many technicalities, legal complications and hair-splitting. The spirit of the constitution is lost in the maze of its letter.
6. Difficult to amend: The amendment procedure is too rigid and complicated. So, the constitution cannot be easily adapted to the changing needs of times.
7. Encourages Hypocrisy: A written constitution encourages hypocrisy. Politicians give lip-service to constitutionalism and ideals but violate them in practice.

Defining Unwritten Constitution

The unwritten constitution refers to the rules and laws that are not codified into a single document. Rather, they are based on conventions, customs and precedents built up over time through judicial decisions and political conventions.

Unlike the written constitution, the unwritten constitution is not enshrined in a definitive document. It evolves gradually through political conventions and customs. These unwritten rules and principles are as important as the written constitution in governing a nation. They provide flexibility and adaptability to the constitutional system.

Key Features of an Unwritten Constitution

An unwritten constitution has several key features:

• Flexibility: It can be amended easily to suit the changing needs of the society. Laws can be made and changed without any special procedure.
• Based on conventions: The rules of the unwritten constitution are based on customs and conventions built up over a long period of time. These conventions are not legally enforceable but have a strong binding force.
• Role of judiciary: The judiciary plays an important role in interpreting the conventions and customs. Through its judgments and decisions, the judiciary shapes the provisions of the unwritten constitution.
• Parliamentary supremacy: The parliament has absolute sovereign power. It can make or unmake any law. There are no legal restrictions on the powers of the parliament.
• Evolutionary: The unwritten constitution evolves gradually over a period of time. It is not deliberately and consciously designed at a particular point of time.
• Uncertainty: The unwritten constitution leads to uncertainty as conventions and customs can be interpreted differently by different people. There are no written documents to which a reference can be made in case of disputes.

Examples of Unwritten Constitution

Some examples of unwritten constitution are:

• United Kingdom: The UK is an example of a country with an unwritten constitution. Their constitution is dispersed over various documents like the Magna Carta, Bill of Rights, common law, and parliamentary conventions.
• New Zealand: New Zealand’s unwritten constitution is comprised of statutes, conventions, and traditions.
• Israel: Israel lacks a single written constitution and instead relies on a collection of Basic Laws that encompass fundamental concepts and rights.
• Saudi Arabia: Saudi Arabia’s constitution is substantially based on Islamic law (Sharia) and the Quran, with fundamental laws and regulations establishing governance.
• Canada (partially): While Canada has a codified constitution, unwritten traditions and constitutional conventions play an important role in its government.
• Netherlands: The Netherlands’ constitution is made up of a mix of written laws, legislation, and unwritten customs.
• Denmark: Denmark’s constitution combines written laws, statutes, and unwritten principles to reflect the country’s historical evolution.
• Sweden: Sweden’s constitution combines written laws and unwritten principles, which contribute to the country’s political framework.

Advantages of an Unwritten Constitution

An unwritten constitution has some key advantages over a written one:

1. Flexibility: An unwritten constitution can evolve gradually over time to meet changing circumstances and values. It is not set in stone but can adapt to shifts in political, social and economic conditions. This allows for a more responsive system of government.
2. Continuity: An unwritten constitution builds on historical precedents and conventions that establish stability and continuity in the system of government. There is respect for long-held traditions and the status quo.
3. Judiciary independence: The judiciary is not bound by a codified constitution and so has more flexibility in interpreting laws and conventions. Judges are freer to apply concepts like natural justice.
4. Democratic: An unwritten constitution relies more on consensus and convention. There is an assumption that it evolves to reflect the shared values and aspirations of citizens in a democracy. It is a more bottom-up than top-down system of rules.
5. Simplicity: Without a single written document, an unwritten constitution avoids complex legal jargon and convoluted phrasing. It relies more on straightforward conventions and understandings that most citizens can readily comprehend.
6. Stability: An unwritten constitution is less prone to sudden changes that could destabilize the system of government. Evolution is gradual, based on incremental adaptations to well-established conventions and precedents. There is an in-built conservatism.

Disadvantages of an Unwritten Constitution

The main disadvantages of an unwritten constitution are:

1. Uncertainty: The laws and rules are not documented which leads to uncertainty. People may interpret the constitution differently which can cause confusion.
2. Flexibility: An unwritten constitution is flexible and can be changed easily according to the circumstances. This flexibility can be misused by the people in power for their own benefits.
3. Lack of Supremacy: There is no supreme written document to which all other laws conform. This can lead to contradictions between different laws.
4. Difficulty in Amendment: It is difficult to amend an unwritten constitution as there is no concrete document which can be amended. Changes depend on conventions and customs.
5. Lack of Safeguards: There are no safeguards to protect the basic rights and freedom of the citizens as there are no written laws. The rights of the people depend on the goodwill of the rulers.
6. Interpretation Issues: There can be various interpretations of an unwritten constitution which can lead to ambiguity and confusion regarding various provisions.
7. Lack of Stability: An unwritten constitution lacks stability as it is subject to changes according to the will of the people in power. There is lack of permanence in the system of government.

Both forms of constitutions have their pros and cons, so countries choose what works best for their unique situation and governance needs.

The main Difference between Written and Unwritten Constitution

The main differences between a written and unwritten constitution are:

Clarity

A written constitution is a single, codified document that explicitly states the rules and principles of a government. An unwritten constitution, on the other hand, is not compiled in one document. It consists of separate documents, laws, customs and judicial decisions. As a result, an unwritten constitution tends to be unclear, ambiguous and open to interpretation.

Flexibility

An unwritten constitution is more flexible as it can be changed easily to adapt to the changing needs of the society. A written constitution is rigid and difficult to amend. The procedures of amendment are complicated requiring special majority.

Supremacy

A written constitution is the supreme law of the land. Any law inconsistent with it is void. An unwritten constitution lacks a definite and concrete form. So, it is not the supreme law and can be overridden by an ordinary law passed by the legislature.

Separation of Powers

A written constitution clearly demarcates powers and functions of different organs of the government like executive, legislature and judiciary. An unwritten constitution lacks such clear cut demarcation of powers. Different organs assume powers and there is possibility of encroachment of powers.

Protection of Rights

A written constitution incorporates a bill of rights to protect the basic rights of citizens from encroachment by the government. An unwritten constitution lacks specific provisions for protection of fundamental rights of citizens. Rights cannot be enforced in the court of law.

Conclusion

So there you have it. The key differences between a written and unwritten constitution are now clear. While an unwritten constitution relies on conventions and precedents, a written constitution provides a formal and codified supreme law of the land. Sure, an unwritten constitution has its charm and flexibility, but for a modern democratic nation, a written constitution helps safeguard civil liberties and establish clear rules of government.

At the end of the day, what really matters is that a constitution, written or unwritten, upholds the democratic values of justice, equality and fair representation. Whichever system a country adopts, the spirit behind its constitution should aim to empower citizens and limit potential government overreach. If a constitution can achieve that, it has done its job well. Whether written or unwritten, that’s the true measure of an effective constitution.