Introduction
The principles and practices of constitutionalism are not always framed around the assumption of a central, authoritative text. Constitutionalism in these circumstances is best described as ‘unwritten’. The primary examples are jurisdictions such as New Zealand or the United Kingdom where there is no single, codified text that sits above other types of law. In this article, we offer a vision of unwritten constitutionalism as a vital counterpoint to the dominant tradition of liberal constitutionalism premised (albeit sometimes implicitly) on compliance with canonical text, arguing that states can still display a strong commitment to constitutionalism when operating without reference to a constitutional master-text. In doing so, we reject the still too-common view that the study of unwritten constitutions and unwritten constitutionalism has little of value to add because ‘no substantive consequences flow from the fact that the constitution is written’ or unwritten.Footnote 1
The conceptual relevance of unwritten constitutionalism is broad, even ubiquitous to a certain extent,Footnote 2 and deserves more considered academic engagement. This is already happening in some areas,Footnote 3 and we seek to synthesise the established literature and emerging scholarship to provide a coherent definition of this distinctive version of constitutionalism with reference to how it operates and the qualities it possesses. We support our analysis throughout with examples of unwritten constitutional practice. Additionally, we argue for the wider utility of unwritten constitutionalism by suggesting specific ways that it has relevance for written constitutions. Our motivation in doing so is a belief that a better understanding of unwritten constitutionalism can contribute to the heath and endurance of constitutional democracy. In a world where populism, authoritarianism and political polarisation are commonplace, defenders of constitutional government ought to have a full range of tools at their disposal, including the concepts and techniques offered by unwritten constitutionalism.
We start by addressing terminological issues in Part II. We then defend our choice to analyse unwritten constitutionalism when writtenness is the dominant paradigm in Part III before narrowing our focus to examine why it is so difficult to coherently analyse unwritten constitutions (Part IV) and what features make unwritten constitutions distinctive (Part V). While our conceptual focus throughout is squarely on unwritten constitutionalism, which is appropriate given that we are concerned to explore the particular theories and ideologies that explain and justify specific constitutional arrangements and practices, our analysis in Parts II, IV and V often addresses unwritten constitutions, drawing on experience from the United Kingdom and New Zealand. The simple reason for this is that unwritten constitutions exhibit unwritten constitutionalism in a broader, systemic way, making our descriptive and normative claims more overt. As we make clear in Part VI, our analysis also has important implications for written constitutions. Finally, Part VII offers a brief conclusion: that constitutional scholarship and practice should take unwritten constitutionalism more seriously.
Terminology
We use the terms ‘written’ and ‘unwritten’ to capture the distinction between constitutions or individual constitutional practices that rely on a central authoritative text and those that do not. This choice of terminology is intentional and important, as it plugs us into the historical and contemporary debates regarding written and unwritten constitutions that have animated this area of study, many of which are currently developing. We are part of this discussion, and wish to remain firmly rooted in this space.
In doing so, we accept that this terminology is not free from controversy and also exposes us to various criticisms. Some deny that unwritten constitutions are ‘constitutions’ at all.Footnote 4 This reflects an impoverished view that entirely conflates constitutionalism with a constitution’s textual expression, but thankfully this view is not the dominant one. It is more common to question the semantic accuracy of each term on the basis that all constitutions draw on both textual and non-textual sources. We of course accept that all constitutions contain both written and unwritten elements.Footnote 5 As we explain in Part III, unwritten constitutions have increasingly become more written for a variety of reasons. Written constitutions also contain significant unwritten elements. The United States is often considered to be the ‘paradigmatic example of a state built on a written constitution’,Footnote 6 but its governmental operation still relies on the ‘political construction of authoritative norms’ (or as we might call them from a Westminster perspective ‘constitutional conventions’).Footnote 7 The classic example from United States history is the presidential two-term limit,Footnote 8 although the more contemporary example of routine agreement in the US Senate to requests for unanimous consent is another.Footnote 9
What we do not find convincing are the alternative language choices proposed to address this semantic discomfort.Footnote 10 A common approach replaces the written/unwritten distinction with the terms ‘codified’ and ‘uncodified’.Footnote 11 These terms capture the connotations of a single, authoritative document without suggesting a complete absence of textual sources of constitutional authority in unwritten constitutional contexts. But to us, codification implies a level of detail and prescription unreflective of the reality of most written constitutions. Classically, written constitutions were contrasted with the ‘prolixity of a legal code’ in that ‘only [their] great outlines should be marked’.Footnote 12 Any necessary detail and prescription was left to be deduced from the constitution’s nature as much as its text. This reflects a pragmatic reality: constitutional issues are by their nature varied, changeable and unpredictable, and no single legal instrument is capable of addressing all such issues fully. A constitutional code may be an aspiration, but it cannot describe a real-world constitution.
Another approach is to classify constitutions in terms of their ‘flexibility’ or ‘rigidity’.Footnote 13 The appeal here is a focus on constitutional substance rather than form. However, this approach has itself been criticised as too formalistic, given that the success of any constitutional amendment is likely to depend as much on the prevailing constitutional culture as any formal constitutional requirements.Footnote 14 It also leaves other substantive aspects of constitutionalism unaddressed. The increasing need to account for the unwritten in constitutional government has led to the use of a number of more colourful metaphors, where ‘unwritten’ is styled as ‘invisible’Footnote 15 or ‘silent’.Footnote 16 Other suggestions include replacing the term ‘unwritten constitution’ with ‘customary constitution’ or ‘common law constitution’.Footnote 17 None of these alternatives has a common currency that has superseded the traditional written/unwritten distinction.
Other choices were considered but ultimately rejected. We thought hard about using ‘Westminster constitutionalism’ but ultimately dismissed this based around the term’s widespread and confused usage in the literature.Footnote 18 The same authors who note its muddled status also recommend using ‘more precise attributes’ when making comparisons, something that we have taken into consideration in focusing on the presence or absence of a canonical text.Footnote 19 We also explored using our own unique term to what we are examining in this paper. One option here was ‘endogenous constitutionalism’. This captures the essential notion that unwritten constitutions are required to establish constitutional legitimacy without reference to a standard external to the practice of constitutional government itself. But we also recognise that written constitutional settings may also contain endogenous features,Footnote 20 and that this terminology may be just as muddled as other terms. Thus, rather than blaze a new path,Footnote 21 we decided to plug into the terminology that we are most familiar with.
We consider the conventional labels ‘written’ and ‘unwritten’ to be rather elegant and intuitive because they speak to the authoritative nature of an identified constitutional text that exists in some jurisdictions but not others. In our view, this type of authoritative text matters. At the very least, it plays a highly pragmatic role in identifying and symbolising a nation’s constitutional principles and ideals. Collecting together key constitutional ideas and ideals, making them tangible by committing them to writing in one place and labelling the product ‘the Constitution’ communicates the importance of those ideas and ideals and provides a focal point for addressing questions about the structure of a constitutional order – questions like what is foundational, how can the constitution be amended, how is authority defined and limited. Creating this focal point for consideration and debate is something that written constitutions, by definition, do extremely well, but unwritten constitutions struggle with. The fact that unwritten constitutions function as constitutions at all is the key ‘mystery’ here, as we explain later in Part IV. Jurisdictions like the United Kingdom and New Zealand still practice constitutional government, but they do so without reference to a conceptual tool – an authoritative constitutional text – that is seen as critical in many jurisdictions. Constitutionalism in jurisdictions without such a text is both literally and conceptually unwritten.
Our understanding of ‘unwritten’ differs from the way that the term is sometimes used in US constitutional scholarship. Recognition of textual and non-textual forms of expression has led to analysis of whether the United States has an ‘unwritten’ constitution in addition to its famous constitutional charter.Footnote 22 In an unwritten constitutional context, however, things proceed differently because non-textual expression of constitutional principles arises in the absence of an authoritative guide for constitutional thought and action. The dominance of written constitutionalism, particularly in the United States, means that the study of unwritten constitutionalism often amounts to simply reading textual and non-textual sources together. In this article, our focus is on something more fundamental – a working out of constitutional desiderata without the tangible guidance of an authoritative instrument. This is how the nature and relevance of unwritten constitutionalism can be best understood.
Why unwritten constitutionalism, and why now?
Even if it is accepted that unwritten constitutionalism offers a counterpoint to the dominant tradition based explicitly on constitutional text, some may question the significance of the contribution that unwritten constitutionalism can make. Writtenness dominates the constitutional landscape, both from a practical perspective and in the scholarship. Unwritten constitutions are so exceptional so as to appear anomalous. Furthermore, those holdout jurisdictions have undeniably gravitated towards more writtenness.Footnote 23 For example, codes of practice for various constitutional actors have proliferated in the United Kingdom over the past few decades.Footnote 24 Following the Nolan Report, a new code of conduct for those in public life was produced, including the principles of selflessness, integrity, objectivity, accountability, openness, honesty and leadership.Footnote 25 These principles eventually made their way into the Ministerial Code.Footnote 26 But new codes can be seen elsewhere. The UK civil service received their own code in 2006, and the judiciary eventually received their own Guide to Judicial Conduct.Footnote 27
Some may feel that the movement towards more writtenness is inevitable. After all, the written constitution has been described in terms of technological advancement, signalling the advent of modernity as it that has been embraced by nations across the world.Footnote 28 The pressure to conform to the international ‘standard’ of writtenness comes from a range of sources including ‘revolution, decolonisation, glasnost and political fashion’.Footnote 29 And yet some jurisdictions have not embraced this new technology, or at least not fully embraced it, and that is worth exploring. At any point over the past two plus centuries, the United Kingdom could have chosen to enact a single written document. It has consistently chosen not to. In fact, England did have two written constitutions during the interregnum period: the Instrument of Government in 1653 and the Humble Petition and Advice in 1657. Although both of these documents failed significantly for various reasons,Footnote 30 they demonstrate that an alternative choice was indeed available. After the Glorious Revolution, Parliament could have gone down the route of establishing a written constitution. But Parliament chose a statute, the Bill of Rights 1689, rather than a fundamental document that would explicitly sit over other types of law. This route was perceived as the best way to formally acknowledge the new monarchs, William III and Mary II, and also to provide limitations on the powers of the Crown.Footnote 31 More recently, New Zealand wrestled with whether the New Zealand Bill of Rights Act should be enacted as fundamental law before deciding that it should take the form of an ordinary statute.Footnote 32 Whether to draft a written constitution remains a choice, but it is a choice that some jurisdictions have decided against – at least for the time being.
Even so, the unwritten constitution’s characteristic reliance on ordinary law and politics to promote constitutional ends has undoubtedly been influenced by the forms and norms of written constitutionalism. In the United Kingdom, Thoburn and HS2 introduced a kind of higher order law, where ‘constitutional’ statutes must be expressly repealed in order to be overridden by subsequent legislation.Footnote 33 New Zealand has made use of manner and form restrictions to protect certain ‘reserved provisions’ in New Zealand’s Electoral Act 1993 deemed essential for the maintenance of democracy, which may only be amended or repealed by a majority of 75% of the House of Representatives or a majority of electors polled at a referendum. These are ‘soft’ forms of constitutional protection, in that they qualify rather than directly challenge parliamentary sovereignty. In each case, they fall short of more far-reaching developments such as the Bank Mizrahi case, where Israel’s Supreme Court declared the Basic Law had ‘supra legal’ status, turning Israel into a so-called ‘constitutional state’ rather than one based on parliamentary sovereignty.Footnote 34 Constitutional statutes and reserved provisions do not point unambiguously to either written or unwritten constitutionalism, but seem to borrow something from each constitutional tradition. To our minds, these developments call for explanation and considered analysis.
The existing scholarship on unwritten constitutions is also ripe for intervention. Jurisdictions with unwritten constitutions do not receive as much coverage in the literature on comparative constitutional law.Footnote 35 When unwritten jurisdictions are mentioned, it is often not to celebrate or analyse their uniqueness but to characterise them superficially as exceptions or chastise them for not following suit.Footnote 36 Significant scholarship has recently come forward that seeks to downplay or ignore the differences between written and unwritten constitutions. Albert argues that most constitutions are ‘multi-textual’ in form, and that the ‘false distinction’ between written and unwritten constitutions is ‘incorrect and misleading’.Footnote 37 He classifies the constitutions of the United Kingdom and New Zealand as multi-textual on the basis that constitutional practice in those jurisdictions is underpinned by a number of textual sources. We accept Albert’s basic descriptive claim that unwritten constitutions engage multiple textual sources of authority, although we differ in respect of whether this observation erodes the utility of the distinction between written and unwritten constitutions. The absence of a foundational text with special authority has important effects on how these constitutions operate, and these effects cannot be written-off by simply classifying the underlying constitutions as ‘multi-textual’. Interestingly, Albert’s theory of multi-textual constitutionalism is so ubiquitous that he even classifies the United States constitution as multi-textual.Footnote 38 To us, this classification appears rather contrived. It suggests that constitutional status is derived from text itself, rather than how enacted rules and powers are received.Footnote 39 Written constitutions may have supplementary texts – perhaps even some that are equal in supremacy – but unwritten constitutions lack this basic, foundational item. Thus, we take Albert’s work as less of an argument about how constitutions should be understood as opposed to a demonstration of how constitutions should be studied: even a supposedly ‘authoritative’ constitutional text is not the end of the story.
Conversely, scholarship demonstrating that all constitutions rely on unwritten rules and practices has become increasingly prominent. One line of argument is jurisprudential. Gardner, for example, takes from Hart’s rule of recognitionFootnote 40 that ‘unwritten’ acceptance by officials of constitutional law can underpin interpretation of a constitutional text.Footnote 41 From a more comparative perspective, Kavanagh has recently written about how features usually associated with unwritten constitutionalism are present in every jurisdiction, including those that contain written constitutions.Footnote 42 This scholarship provides a number of hard truths for constitutional scholars, especially those that champion the importance of these fundamental texts to the success or longevity of any constitutional setting. Her message resonates with Albert’s in the sense that constitutional researchers should not stop merely at the written constitution and its interpretation. Again, we agree, and we find Kavanagh’s focus on constitutional norms, attitudes and behaviour more convincing than Albert’s text-centric focus. This, and similar work, indicates that unwritten constitutionalism is having a moment in constitutional scholarship.Footnote 43 We differ from Kavanagh, however, in that we are focused on the distinctive nature of unwritten constitutionalism rather than its ubiquity.
Then there are political realities. There is increasing evidence that written constitutions are failing to live up to their implicit promise of constraining state power and preventing authoritarian government. Authoritarians have come to power in many states using methods of ‘abusive constitutionalism’Footnote 44 or even by just ignoring or downplaying the Constitution’s existence,Footnote 45 with constitutional rights and adjudication proving insufficient to constrain their conduct. Unwritten constitutions are vulnerable here too, of course, with similar challenges impacting all constitutions globally: widespread polarisation, an increase in extreme or fringe parties being elected and significant evidence of democratic apathy amongst the population. We would make two points here. First, states with unwritten constitutional setups can perform as well as the best exemplars with written constitutions, providing adequate levels of democracy, solid economies and healthy participation within the international community.Footnote 46 Second, unwritten constitutionalism explicitly contains a range of tools beyond positive law to respond to authoritarianism and other urgent challenges encountered by constitutional governments. For example, the ‘good chap’ theory of government, based on Gladstone’s belief in ‘the good sense and good faith of those who work it’, has been long thought of as foundational to the Westminster model of constitutional government.Footnote 47 But it may not be such a distinctive trait: its implicit relevance to written constitutions is apparent in the constitutional failings that follow when prominent political actors ignore conventions and norms.Footnote 48 Uncovering how unwritten constitutions address these types of issues is where we find the tools for improving constitutional democracy.
Finally, the question of constitutional reform in unwritten settings is a live one. Sustained calls and proposals to adopt a written constitution have been seen in both the United KingdomFootnote 49 and New Zealand.Footnote 50 Too often these reform proposals simply assume the superiority of the written constitutional form. If we want to consider this reform debate credibly, we need an account of how the unwritten constitution operates, both in terms of its virtues and drawbacks. That is what analysis of unwritten constitutionalism seeks to provide.
The ‘mystery’ of the unwritten constitution
Written constitutions are tangible ‘things’. Unwritten constitutions are less definitive and more abstract, which makes them difficult to study. This has long been recognised in UK constitutional scholarship. Dicey characterised the attitude of the English towards their constitution in the following way: they ‘venerate, where they are not able presently to comprehend’.Footnote 51 His mid-Century antagonist, Jennings, seemed to be at one with Dicey on this point when quoting Baldwin: ‘it would be very difficult for a living writer to tell you at any given period in his lifetime what the Constitution of the country is in all respects’.Footnote 52 Griffith famously said that, ‘the constitution is no more and no less than what happens. Everything that happens is constitutional. And if nothing happened that would be constitutional also’.Footnote 53 Provocative, but not exactly helpful when it comes to considering what the UK constitution consists of. More poetically, in his classic book, Hennessy calls the UK constitution the ‘great ghost’.Footnote 54
This abstract and obscure nature of the unwritten constitution matters for constitutional theory. As McLean poignantly argues, ‘it is not clear what exactly “the thing” is that we are theorising’ and as a result ‘even less clear where we might find the theory relating to such a “thing”’.Footnote 55 One conventional answer is to look to history. Bogdanor claimed that the ‘fundamental peculiarity’ of unwritten constitutions is that it seems possible to analyse them only ‘as a summation of past experience’.Footnote 56 This is a primarily descriptive approach to constitutional analysis, leaving the recognition of normative principles to one side. Scholars have read Griffith’s essay on the political constitution in a similar way.Footnote 57 Whether or not that assessment is accurate,Footnote 58 there has since been a normative turn in political constitutionalism that augments the descriptive account with republican ideals of self-government and political equality.Footnote 59 This gives rise to a second possible answer to the riddle of the unwritten constitution – the ‘thing’ that we are theorising, and the object of our study, is politics.
There is now a rich scholarship on ‘political constitutionalism’.Footnote 60 While there is much nuance in this scholarship, we take its core tenets to be a working out of constitutional standards as part of political practice, vindication of those standards primarily through political accountability rooted in representative democracy and preservation of the capacity for self-correction. These tenets also imply a rejection of a higher-order law as a means for resolving constitutional disputes. Political constitutionalism offers a justification for constitutional principles and arrangements that might otherwise seem anomalous from the perspective of liberal constitutionalism, such as the UK Parliament’s traditional claim to unlimited legislative authority. Political constitutionalism also helps bring into focus that Parliament is representative and democratic,Footnote 61 its decision-making is respectful and considered (at its best)Footnote 62 and the government is responsible to Parliament.Footnote 63 Parliament’s legislative sovereignty may therefore be acceptable if it is exercised in a context of meaningful political accountability.
We take the political dimension of constitutional government seriously, and particularly value representative democracy.Footnote 64 However, political constitutionalism does not solve the mystery of the unwritten constitution, or at least not entirely. The contingent and contextual nature of constitutionalism writ as politics is also present in aspects of unwritten constitutions that are more legal in form and more liberal in their normative orientation. Despite the influence of the political constitutionalist literature, the reality is that law and courts perform hugely significant constitutional functions in both the United Kingdom and New Zealand. But in our view, the issue is less about a choice between law or politics than it is about understanding the way in which law and politics serve constitutional ends. For instance, Elliott perceptively argues that legislative rights instruments such as the New Zealand Bill of Rights Act 1990 and the UK’s Human Rights Act 1998 are deliberately opaque with respect to basic questions regarding the ultimate (political or legal) source of constitutional authority and any constitutional limits that may be imposed in the name of rights protection.Footnote 65 Elliott suggests that this opacity is a feature of unwritten constitutions more generally. We agree. There is, of course, much scholarship that characterises legislative rights protection instruments as a ‘third way’ between legislative and judicial supremacy, with forthright judicial scrutiny of rights issues in legal terms subject to legislative consideration and override.Footnote 66 Elliott is, we think, pointing to something different and deeper here. This is not just legislative-judicial dialogue in the sense of working out the constitutional position, but an ambiguous (legal and political) framework that keeps constitutional fundamentals uncertain even as definitive answers are needed in the crucible of the instant case.Footnote 67
In our view, a key part of the ‘mystery’ of the unwritten constitution is that its form – ambiguous, uncertain, contextual, contingent and flexible – seems on its face so set against achieving desirable constitutional outcomes. If we take ‘constitutionalism’ in its most straight-forward sense as constitutional control over public power, then that term quickly becomes associated with a more or less accepted list of common features. That list includes the normatively superior expression of constitutional values, the holding to account of government as against those values (often legally) and protection (via entrenchment) against ordinary legal or political change.Footnote 68 This account of constitutionalism aligns neatly with the written constitutional form. A commitment to constitutional values can be made express through text. The effort implied in determining and articulating a set of fundamental values should not be lightly disturbed.Footnote 69 Standards for constitutional propriety have the measure of an objective reference point. Furthermore, amending a written constitution requires actually changing something tangible – a text. It should be of no surprise that there is such a close association between liberal constitutionalism and written constitutions.
Unwritten constitutions are different. In the absence of an authoritative master-text, it might be argued that the means for realising the ends of constitutionalism are unclear and presumptively ineffective. The mystery of the unwritten constitution is how something so amorphous and uncertain can achieve these positive outcomes without embracing some of the ‘essential’ features of written constitutionalism.
Unwritten constitutionalism in practice
Unwritten constitutionalism involves taking seriously a commitment to constitutionalism in the absence of a constitutional master-text. The lack of a written constitution produces indicative features in unwritten settings that may be either less pronounced or absent in jurisdictions that operate on written constitutionalism. In this section, we seek to identify those features.
Ambivalence towards fundamental law
A key feature of unwritten constitutionalism is ambivalence towards fundamental law. We understand this is a provocative statement, especially for those who are unfamiliar with the detail of unwritten constitutions. Ever since Marbury v Madison,Footnote 70 it has been almost axiomatic that fundamental law is the bedrock of constitutionalism. But in unwritten constitutions, there is no source of law analogous to a written constitution that is fundamental in nature or of a ‘higher order’. There is, of course, a strand of common law thinking that has long claimed that fundamental principles within the constitutional order are justiciable.Footnote 71 But the notion of fundamental law has never been uncritically accepted. Indeed, where law is engaged in the unwritten constitution, it is often formally treated as ordinary law. Put another way, law does not readily manifest as justiciable constitutional limitations in an unwritten constitution.
But unwritten constitutionalism does not reject outright the idea of fundamental law either.Footnote 72 Constitutionalism implies the regulation of public power, and unwritten constitutionalism broadly accepts this as a desirable goal of the constitutional order. Law is a key means – although certainly not the only, or even the primary means – through which this regulation is achieved. As a result, law and the courts who develop and enforce it have never been subjugated within the constitutional order. There is, for example, a continuing respect for cases such as Entick v Carrington,Footnote 73 which established that government officials cannot breach individual rights without lawful authority, and New Zealand Māori Council v Attorney-General,Footnote 74 which restricted the New Zealand government’s action when this was inconsistent with the principles of the Treaty of Waitangi (New Zealand’s founding document). Law informs expectations of what is constitutionally significant and appropriate, even if it is not determinative or controlling of those matters. The unwritten constitution loses something if its meaningful respect for constitutional law is absent.
Where this takes us is that a constitution being ‘unwritten’ in nature does not ignore the importance of constitutional law but connotes something more abstract than prescribed legal limits. Part of the inquiry here must be to ask how law is understood and institutionalised within the political framework of the constitution.Footnote 75 But it is equally significant to inquire into how law shapes the very same political framework within which it takes effect. Law may not stand as enforceable limitation on constitutional power, but it still has the potential to constrain and guide. It does constitutional work.
One way of understanding the ambivalence of unwritten constitutionalism towards fundamental law is to focus on method rather than the substance of particular norms.Footnote 76 Because the unwritten constitution does not expressly articulate a commitment to a set of substantive values, it is more fruitful to focus on how the law operates in a constitutional context rather than what it protects. So, for example, application of interpretative presumptions affords the law a meaningful role in securing constitutionally appropriate outcomes through softer forms of judicial review that do not turn on substantive constitutionality.Footnote 77 There is no need to claim a foundational role for the law as a limit on constitutional action to achieve this.Footnote 78
Plurality of constitutional sources
Because law does not predominate, unwritten constitutionalism more readily draws on a range of constitutional sources and authorities. This is partly practical: the lack of a constitutional master-text means that constitutional sources must be found elsewhere. However, in another sense, this plurality is purposeful: unwritten settings contain an emphasis on alignment between sources that are not commensurate, such as law and politics, or institutions with independent claims to authority, such as Parliament and the courts, rather than positing an ultimate source of controlling constitutional authority.Footnote 79 This differs from the idea of constitutional supremacy, which ‘confers the highest authority in a legal system on the constitution’.Footnote 80
The lack of a written constitution also means that non-textual sources play a crucial role. This is most evident through aspects such as constitutional conventions, which touch on the activities of major constitutional entities, such as Cabinet, the Prime Minister or the monarch.Footnote 81 Many of these conventions now feature in documents like the Cabinet Manual and Ministerial Code, but some – such as the duties of the monarch when inviting a PM to form a government – remain elusive. Even where conventions have been recorded in writing, these documents tend to function like ‘a dictionary’ rather than as a constitutional instrument, with the unwritten conventions themselves continuing to perform prescriptive constitutional work ‘independently’ of the written documents.Footnote 82
A genuine plurality of constitutional sources also means that no single institution is able to definitively say what the constitution is or sanction people for constitutional violations.Footnote 83 The obvious rejoinder is that parliamentary sovereignty is the controlling principle in unwritten settings such as New Zealand and the United Kingdom.Footnote 84 But this is not because Parliament has passed a law indicating this or because the courts, the monarch or any other institution has proclaimed this to be the case. The more likely explanation of parliamentary sovereignty operating in unwritten settings is that it aligns with the customs, traditions and developments within these jurisdictions. Parliamentary sovereignty is a ‘manifestation of democracy’, and its presence ensures there is a ‘common democratic basis’ in the constitution.Footnote 85 But parliamentary sovereignty has also shifted in its scope and operation as the constitution has evolved through manner and form restrictions, EU membership, devolution and the like.Footnote 86 These shifts provide evidence of the tensions present in an unwritten constitutional set-up that does not contain a fundamental law. They are also evidence of shifting constitutional sources.
This lack of institutional hegemony on the constitution contains several implications. It means that no one particular institution is more authoritative on the constitution than another institution. Indeed, each institution may possess equal authority when it comes to certain issues.Footnote 87 Unwritten constitutionalism respects the democratic imperative that informs claims that Parliament is sovereign, but recognises that other constitutional values also have relevance. This is evident in the fact that Parliament’s exercise of its legislative authority is always less controversial when it respects the institutional role afforded to other constitutional actors, including the courts.
And this respect is mutual. The courts respect the institutional role of Parliament and its democratic credentials. But neither Parliament nor the courts have an inherently superior claim to constitutional authority. We see a manifestation of a very similar idea in recent ‘collaborative’ accounts of Westminster constitutionalism, which posits a shared authority between the political and legal branches of government. Kavanagh has recently developed this line of analysis in considerable detail, and she argues persuasively in the context of statutory rights instruments that ‘the branches of government are partners in a collaborative enterprise where they each play distinct but complementary roles, whilst working together in mutually respectful, constructive and supportive ways’.Footnote 88 There is an important lesson here that the unwritten constitution is not structured exogenously, through rules and specifications in an aloof document, but endogenously through the actual interactions, alignments and tensions among key institutional actors. This is a distinctively unwritten aspect of constitutionalism – the working out of political and legal accommodations to ensure the constitution functions in practice.
Flexible approach to constitutional change
The lack of defined structure associated with the unwritten constitution, both in terms of an organising symbolic document and the unavailability of entrenchment, can lead to an ad hoc approach to constitutional issues. Sudden or unexpected constitutional change can be a result.
For example, Palmer suggests that repeal of section 21 of New Zealand’s Constitution Act 1986, by way of the Statutes Amendment Bill (No 4) 2005, occurred essentially unnoticed.Footnote 89 The underlying reason, he suggests, is that New Zealand’s unwritten constitution does not clearly differentiate constitutional from ordinary change. Similarly, the proposal to dissolve the Law Lords and establish the UK Supreme Court was initially done via press release, with little discussion amongst Cabinet ministers and no formal consultation with the senior judiciary.Footnote 90 Although the full extent of the proposals in the press release did not come to fruition,Footnote 91 these significant constitutional changes came about differently than they would have in written constitutional settings. In those jurisdictions, formal entrenchment and amendment procedures mean that constitutional change is more readily identified.Footnote 92
We take no view as to whether the ad hoc nature of unwritten constitutional change is detrimental or advantageous. We simply note that it is an indicative feature of unwritten constitutionalism. What we can say is that it often results in a responsive and practical approach when addressing certain constitutional issues. Compare the ways that New Zealand and Australia dealt with the implications that some MPs may hold dual citizenship, thus disqualifying them from their respective legislatures. In 2017, Australia experienced the ‘world’s most ridiculous constitutional crisis’.Footnote 93 Several sitting members of the federal Parliament were discovered to hold dual citizenship, sometimes unknowingly, and so were ineligible for office.Footnote 94 The High Court interpreted the eligibility criteria as set out in Australia’s written constitution strictly.Footnote 95 The very fact of citizenship was disqualifying. Those members who had not already resigned from Parliament were immediately disqualified, with by-elections held to fill the ensuing vacancies. This legalistic approach to constitutional compliance left open questions of the validity of ministerial decision-making,Footnote 96 and possible repayment of government salaries and benefits.
A similar issue emerged in New Zealand when Minister Harry Duynhoven received Dutch citizenship and a similar provision in New Zealand’s Electoral Act required that his seat be vacated.Footnote 97 Before that could occur, Parliament enacted remedial legislation under urgency deeming no vacancy to have arisen.Footnote 98 A parliamentary inquiry was then initiated into eligibility for election, with updated rules being adopted quickly. In this pragmatic way, constitutional difficulties like those faced in Australia were avoided.Footnote 99
The flexible approach to constitutional change also means that constitutional changes can be reversed. The normative structure of an unwritten constitution lends itself to there are no binding procedural or substantive limits. This has been especially noticeable in the United Kingdom of late. One example is the Fixed-term Parliaments Act 2011, which regulated how early elections were to come about.Footnote 100 The Act took power away from the PM to call an election, and through one method gave the decision to Parliament if 2/3 of members agreed. This threshold was easily reached in 2017, but in 2019 became much more troublesome. Both Labour and the Conservatives campaigned on scrapping the law, and it was eventually replaced by the Dissolution and Calling of Parliament Act 2022, which gave the power to call elections back to the PM.Footnote 101 Of course, a more contentious example of constitutional reversal in the United Kingdom was Brexit, which reversed the UK’s membership within the EU. We say a bit more on Brexit later.
The reality in unwritten constitutions is that parliamentary sovereignty frames much of the debate about constitutional change.Footnote 102 But what all this really tells us is that the scope of potential change is broad; it does not tell us what type of change is necessary or desirable. We need to look beyond the legislative capacity for change if we are to seriously address these pivotal constitutional questions.
Respect for constitutional politics
Finally, unwritten constitutionalism displays a respect for non-legal constitutional considerations and processes. Most prominently, this includes a respect for politics and political decision-making that is often absent in written contexts. In recognising this, we come into partial alignment with political constitutionalists. We agree that politics can, and sometimes should, do constitutional work. But the exact nature of that constitutional work requires some explanation.
We do not, for instance, necessarily adhere to the view that the normative dimension of constitutionalism framed as politics is ‘prescriptive without prescribing much’.Footnote 103 While sometimes political standards can be diffuse or uncertain, they can also be exacting. The convention that the UK Government must continually hold the support of the Commons is a political standard that deliberately extends beyond mere legal compliance.Footnote 104 The Government could fail to meet that political standard at any time for innumerable reasons, and so is disciplined in its conduct in a more meaningful and consistent way than could be achieved via ad hoc legal challenges. Indeed, this kind of reliance on convention is often seen as a key example of the non-legal content of the unwritten constitution. But we think the distinctive nature of convention sometimes goes under-appreciated. Sometimes convention is simply interpreted as standing political practice, something which of course written constitutions can also point to. But convention, properly understood, is more than this. It shapes the distribution and exercise of constitutional power in ways that often run counter to the legal constitution. Written constitutions can perhaps rely on non-enforcement or under-enforcement, but the working assumption is that the written constitution is legally binding. Unwritten constitutionalism contemplates the political displacing the legal.
There are often important reasons for this. In both the United Kingdom and New Zealand, for example, the caretaker convention provides that an outgoing executive should not initiate major new policies except on the advice of the incoming government.Footnote 105 This maintains democratic and political accountability. Compare the US Constitution, which does not address what powers a president may exercise in an interregnum. Thus, when George HW Bush sent US troops to Somalia during the interregnum prior to Bill Clinton’s inauguration,Footnote 106 that decision caused an immediate political crisis for Clinton. The legal power-holder was effectively unaccountable as a result. Levinson argues that it should have been Clinton’s decision from the outset in order to preserve political accountability.Footnote 107 But the written constitution does not easily accommodate this type of solution.
Beyond convention, the political context still matters. Where a written constitutionalist perspective may simply observe an absence of hard law,Footnote 108 unwritten constitutionalism sees a flexible and fertile environment for contextual engagement with constitutional principles. Political struggle is important,Footnote 109 but so too is a willingness to accept and engage with ‘substantial compliance with unwritten constitutional principles’.Footnote 110 MacDonnell argues that while they often go unnoticed, unwritten constitutional principles shape government decision-making even where legal standards are not determinative.Footnote 111 This becomes most obvious when there is a failure of compliance.Footnote 112 But where compliance is forthcoming, decisions are reasonable and justified, and lines of accountability are clear. There is still much work to do to uncover and explain the non-legal principles and structures that shape legitimate and responsible government decision-making, but they are all part of the unwritten constitutionalist framework.
An interlocking theme: creative tension rather than prescription
Unwritten constitutionalism has a very different orientation from its written counterpart. Whereas written constitutionalism leverages authoritative rules to promote order and stability, unwritten constitutionalism embraces the messy reality of government by promoting working arrangements that are both contingent (liable to be revisited) and contextual (specific to the institutional relationships and values in play). This dynamic produces a creative tension that focuses on practical, realistic and sometimes unique solutions. Written constitutionalism’s implicit claim is that a clear course of action can be arrived at deductively from textually rendered starting premises and is conventionally understood in terms of entrenched, foundational limits on state authority. By contrast, unwritten constitutionalism recognises that the exercise of public power is always contested and proceeds inductively from what works (or does not work) in practice. It can be understood in terms of maintaining the interaction, collaboration and evolution of various sources of public power, where a creative tension underlies the relationships between various branches and actors.
Here, we present two examples that typify unwritten constitutions promoting constitutionalism in distinctive ways. In doing so, we highlight what we believe is an interlocking theme of unwritten constitutionalism: creative tension rather than prescription. In this sense, we conceive of constitutionalism in terms of being an ongoing practice rather than a constraint mechanism. Our first example is the Ngaronoa v Attorney-General decision by the New Zealand Supreme Court. For some time, it has been a matter of debate whether the ‘manner and form’ restrictions protecting the ‘reserved provisions’ in New Zealand’s Electoral Act are in fact binding on Parliament.Footnote 113 On the face of the legislation, these identified ‘reserved provisions’ may only be repealed or amended by a 75% super-majority in the House of Representatives or by a simple majority of electors voting directly in a referendum on the issue. But the issue has never been tested judicially.
In 2018, the New Zealand Supreme Court was asked to rule directly on the legal enforceability of these manner and form provisions. The Court declined to do so.Footnote 114 We think that this decision would be surprising from the perspective of written constitutionalism, which would tend to view manner and form restrictions as a legally enforceable form of entrenchment. But this is not entrenchment in a written constitutional sense,Footnote 115 and we consider that the decision can be explained with reference to unwritten constitutionalism. The Court’s approach deliberately sustained ambiguity over the legal effectiveness of these provisions, and in keeping with the unwritten nature of New Zealand’s constitution left space for both politics and law to play a meaningful role.Footnote 116 Judicial assertation of a clear power to enforce manner and form restrictions at a time when the point was not squarely in issue may have crowded out the less-direct but pervasive informal restrictions on the use of legislative power, such as mutual political commitment and parliamentary process. The Court apparently decided against taking that risk, but reserved a role for the law in the future if that might prove necessary. It is in the working accommodations within this uneasy tension between law and politics that the unwritten constitution subsists.
Our second example concerns the UK constitution. Under the Human Rights Act 1998, UK courts can issue ‘declarations of incompatibility’ in relation to legislation but cannot strike it down.Footnote 117 The court declarations have no impact on the legal force of the legislation, as any provisions that have fallen under a declaration remain in force, and it is up to the government of the day to remedy the legislation. The declarations merely put the government on notice that the legislation is incompatible with the UK’s human rights obligations. This means that if the government disagrees with a declaration, then it may not be remedied immediately, and could take time for the institutional tensions to play out.
This was definitely the case with prisoner voting rights in the United Kingdom over the past couple of decades. Section 3 of the Representation of the People Act 1983 prevents those that have been convicted and detained in prison from voting in UK general and local (including devolved) elections. This was challenged by John Hirst and other prisoners in 2001. The case ended up getting thrown out by the High Court,Footnote 118 but was eventually taken to the ECtHR, which issued a violation in 2005.Footnote 119 The government disagreed with the decision. Meanwhile, the Scottish Court of Session issued a declaration of incompatibility in 2007, again putting the government on notice.Footnote 120 These court decisions were not enough. Subsequent governments refused to change the law. Meanwhile, both domestic and the international cases came forward on the issue, putting more pressure on subsequent governments to remedy the situation.Footnote 121 The controversy with the Council of Europe was remedied in 2018, with the government allowing prisoners on remand, on temporary licence and in other non-custodial situations to vote.Footnote 122
The HRA has not been all peaches and cream. Several rights judgements have been highly controversial, sparking strident backlash from ministers and the media. Some governments have even mooted leaving the Convention altogether. But in setting up a system of dialogue rather than institutional dominance, the government may have laid the foundation for a more collaborative type of institutional interaction.Footnote 123 And during a period where the United Kingdom has adhered to a stricter separation of powers than in previous eras, more institutional collaboration is vital. Indeed, this has ultimately led to a system that values creative tension without prescription, which is a healthy feature of unwritten constitutionalism.
Thus far, we have been concerned with demonstrating the relevance of unwritten constitutionalism on its own terms. But we also believe that it has value for written constitutional settings, and subsequently we explore some of these areas.
Implications for written constitutional settings
Paying close attention to the features of unwritten constitutionalism can help open up new ways of thinking about the operation, mechanics and direction of all constitutions. Subsequently, we outline three specific ways that written constitutional settings may benefit from constitutionalism as an ongoing practice rather than as an authoritative mechanism of constraint: accentuating the here and now; less can be more and embracing the wider constitutional project.
Accentuating the here and now
Unwritten constitutionalism values precedent, tradition and custom, but it ultimately accentuates the present.Footnote 124 Without a written text chaining it to the views, cultures and individuals of the past, unwritten constitutions are true living constitutions. They are not beholden to judges updating them through interpretation (although that may happen in certain cases), they do not place historical figures above contemporary citizens and they possess low barriers for essential constitutional change to take place. In short, unwritten constitutionalism provides more opportunity for constitutional maintenance, thus allowing current generations to significantly change or tweak their constitutional setups.Footnote 125 In contrast, as we have already emphasised, written constitutions are constraint mechanisms by design.Footnote 126
This difference means that unwritten constitutions can confront contemporary problems without the baggage that written constitutions carry. The lack of a written constitution means a lack of constitutional founders, and in some sense a lack of constitutional authors. Authorship within an unwritten setting could encapsulate a wide range of individuals, from MPs and judges to civil servants and ordinary citizens. This contrasts starkly with some written constitutional settings, where the constitutional authors (as well as founders) can be distinctly identified. In the United States, for example, it would be those individuals that participated in the 1787 Constitutional Convention in Philadelphia. The views of these individuals can often provide a stranglehold over constitutional debate and discussion.Footnote 127 Although the influence of historical figures is not lost in unwritten constitutional settings – indeed, far from it – these actors do not carry the same weight when it comes to debating and adjudicating constitutional issues. Ultimately, when it comes to constitutional change in unwritten contexts, the debates are less about the constitutional design of previous eras and more about the functionality of the current arrangements. Constitutional reform stems from constant assessment of functionality, and the need to make changes to particular institutions or processes. Less necessity will decrease the likelihood of reform, whilst an increase in necessity is likely to bring forward change. This practical focus on necessity is predominantly a focus on the here and now.
One the most significant examples of focusing on the here and now is the Parliament Act 1911, which continues to impact the operation of the UK constitution. This legislation came forward after a period of constitutional crisis, where the Conservative majority in the House of Lords rejected the Liberal government’s ‘People’s Budget’.Footnote 128 The 1911 Act removed the Lords’ power to reject money bills and stripped their veto over other public bills, reducing the latter to a delaying power. This allowed the government to significantly change part of the constitution in response to an active controversy. Additionally, because of the low threshold, the change did not have to stick, and could have been repealed.Footnote 129 But it has stuck and was further strengthened in the Parliament Act 1949, which decreased the delaying power of the Lords from two years to one year.Footnote 130 Far from constitutional design being untouchable, the unwritten constitution allowed for practical changes to come forward. The same could be said about more contemporary developments, such as: devolution, the Constitutional Reform Act 2005 or even Brexit. Additionally, the interpretation of statutes and the adjudication of executive decision-making do not need to be tied to a particular constitutional text or to some pre-ordained view of constitutional interpretation.Footnote 131 Again, this is in stark contrast to other jurisdictions, where progressive or adaptable interpretations of their constitutional documents compete with originalist interpretations.Footnote 132 Although there are valid reasons to investigate the intentions and understandings of those associated with constitutional origins, this approach takes the focus off the here and now in terms of necessity and functionality.
What can written constitutional settings do to accentuate the here and now? Significant barriers to constitutional change should be rethought. This is especially true for constitutional change that requires supermajorities within various institutions or via referendums. Citizens should be allowed to experiment with constitutional change, and generations should be allowed to make their mark on the constitution. Not all constitutional change will stick, and wrong turns will be taken. But that is part of the process. If liberal democracy is serious about reversing the tide of authoritarianism and stemming populism, then it must provide citizens legitimate opportunities within their democracies to enact meaningful constitutional change.
Less can be more
Jurisdictions with written constitutions should heed the maxim that less can be more. This mantra has been advocated and demonstrated in numerous ways by constitutional scholars.
Less legal certainty can allow space for politics, and more space for politics is often needed.Footnote 133 This aligns with the ‘constitution as framework’ conception of constitutional operation, where constitutional authority is cultivated through tradition and custom and where political negotiation and political management are keys to success.Footnote 134 Less writing can also produce other positive effects, such as better managing relations between constitutional actors, allowing a more diverse set of voices in areas of contestation, and reducing both decision costs and error costs.Footnote 135 Beyond this, brevity of constitutional texts has been shown to enhance GDP output and decrease levels of corruption,Footnote 136 increase social trustFootnote 137 and also help with democratic consolidation and rights protection.Footnote 138 Finally, some authors have even argued that less writtenness could mean increased rule of law.Footnote 139 Later we highlight a couple of examples that demonstrate less can be more.
Our main concern is with the increased space for politics that constitutional silence or constitutional brevity can provide. Perhaps the most significant example of this is the position of Prime Minister, which has no formal statutory basis in the United kingdom and operates by convention. This lack of statutory basis gets criticised occasionally, but recent events have shown that less certainty may be advantageous to deposing problematic PMs. For instance, if there was a statute dealing with Prime Ministerial duties, it would probably also articulate how Prime Ministers were expelled from office. Thus, certain procedures would likely have to be followed, which may delay or even halt the process of deposing problematic Prime Ministers. And yet, the cases of Boris Johnson and Liz Truss demonstrate that a lack of legal certainty allowed for constitutional politics to remedy these situations.Footnote 140 Although some may have been frustrated with how slowly Johnson was deposed or with how quickly Liz Truss was, the lack of formal procedures left room for political solutions in both situations.Footnote 141 A more legalised or prescriptive method could have caused substantial problems.Footnote 142
Brexit also demonstrates that constitutional silence may prove advantageous, if not irritating. Although the constitutional silences that preceded Brexit may have aggravated tensions amongst constitutional actors, so too did these silences allow for resolution of many contentious issues throughout the process. For instance, the tensions present between parliamentary sovereignty and popular sovereignty created almost three years of intense parliamentary debate and discussion, and even allowed the courts to play a role in the discussion over exiting the European Union. Ultimately, the silences allowed a variety of constitutional actors to take part in crucial constitutional debate and discussion, including: national political actors and courts, devolved political actors and courts and citizens (both in their national capacities and devolved capacities). The lack of legal certainty can be found when examining other areas of the UK constitution.Footnote 143 This means that politics can flourish and resolve disputes on its own, or with legal interventions proving influential but not decisive when resolving such disputes.
The idea that less can be more flies in the face of current constitution making, which is charging towards more writing, more constitutions and therefore more written constitutionalism.Footnote 144 But allowing space for politics to resolve issues and negotiate disputes is also needed within constitutional states. It seems impossible to ignore the widespread depoliticization that has taken place throughout much of the democratic world and the fact that many citizens now feel powerless and shut out of the political process.Footnote 145 Could a focus on less formal constitutional law – rather than more – actually lead to more political negotiation, more variety of voices being heard and citizens feeling they are actually listened to? Accentuating the textuality of constitutions often does not bode well for ordinary politics, as increasing textuality has only made courts and judicial processes more relevant, and ordinary politics less relevant. Additionally, a recognition that all constitutions have ‘hidden wiring’ and that norms matter just as much – if not more than – formal documents does not really matter if there is no place for ordinary politics to resolve high-level political and constitutional issues. In fact, it may only encourage politicians who have decreased influence to push the boundaries of constitutional norms and engage in ‘constitutional hardball’.Footnote 146
Embracing the wider constitutional project
One of our core themes is that the constitutional project does not stop at the written text or even at judicial interpretations of the written text. This point is worth repeating and highlighting as one of the major lessons that unwritten constitutionalism has given to constitutional studies. The unwritten features of constitutions can have just as much impact, or at times even more, than the written features. And beyond this, constitutional success relies on a host of unwritten behaviours that simply cannot all be written down. Fortunately, scholars are beginning to take this seriously, and there is much more research going into this critical area of constitutional studies.Footnote 147
But embracing the wider constitutional project goes further than studying unwritten norms, principles or other items that have previously flown under the radar. It also involves a recognition that protecting and defending constitutions does not just occur within one particular branch or set of actors, but ‘rel[ies] on a range of human actors for success’.Footnote 148 Nowhere has this been more evident recently than in New Zealand.
In 2022, the New Zealand Government passed a last-minute amendment to legislation about water infrastructure in an effort to place and manner and form restrictions on the privatisation of that infrastructure.Footnote 149 Amendment or repeal of the ownership requirements would have required a super-majority of 60% in the House (reflecting the majority of the Government and its support parties in the House at the time of enactment) or a referendum. The change appeared to attempt to entrench a partisan policy preference and avoided opportunities for meaningful public and Parliamentary scrutiny by not being included in the initial legislative proposal. On these grounds, the restrictions appeared rather cynical. But all procedural rules applying to the legislation had been met.
To the credit of the New Zealand Government, the last-minute amendment was reversed when several constitutional scholars publicly drew attention to the amendment and its implications.Footnote 150 Constitutional restrictions on the legislative authority of Parliament were purportedly being applied in the absence of a constitutionally sensitive process, and the normative gravity of the constitutional principles in play had not been appreciated by the Government. Both aspects would have risked eroding the legitimacy and efficacy of manner and form restrictions as a stabilising tool in respect of other constitutional matters, such as those dealt with under the reserved provisions. Ultimately, the government abandoned attempts to protect ownership through the legislation, and Parliament’s Standing Orders were amended to better clarify when manner and form entrenchment might be appropriate. What this example demonstrates is that respect for constitutionalism is not something text can artificially manufacture. That respect has to be accepted and performed by those who exercise political power. Unwritten constitutions, which have no choice but to rely on unwritten constitutionalism’s embrace of less structured and more fluid control mechanisms, demonstrate how this can occur.
Conclusion
An unwritten constitution provides inherent recognition that ‘[a] nation’s life is much richer than the terms we use to express it’.Footnote 151 While written constitutionalism is currently the dominant paradigm, history recognises that unwritten constitutions have sustained stable, mature democracies just as well or better than written constitutions have done. For that reason alone, constitutional scholarship and practice should take the form of constitutionalism that underpins unwritten constitutions more seriously. But we are realistic. Constitutional text continues to play a dominant role in most jurisdictions and this is unlikely to change. Even so, we hope we have carried the analysis in this article far enough to demonstrate that the primacy afforded to the constitutional text in a written constitutional system should not be allowed to detract from the need to investigate the ambiguous institutional relationships, responsiveness to attempts at constitutional change and the shared commitment among the branches of government to respect substantive values that inform constitutional government. After all, this exploration into the practices, indicative features and wider understandings of unwritten constitutionalism may be vital to the maintenance of constitutional government in the twenty-first century and beyond. There is no ‘end of history’, only new challenges and developments.Footnote 152 A written constitution may sometimes be desirable, but it is neither a necessary nor sufficient condition for constitutional government.
Acknowledgements
The authors would like to thank Graham Gee, Michael Gordon, Dean Knight and Vanessa MacDonnell for valuable comments on an earlier draft of this paper, subject to the usual disclaimer.
Competing interests
The authors declare that they have no competing interests.
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