There are arguments as to whether an unwritten constitution is the best type of constitution or not. Some political scientists are of the view that; since an unwritten constitution is flexible and can be easily amended, it is the best because it will work more efficiently in times of urgency. On the other hand, some scholars argue against this. For them, an unwritten constitution allows for dictatorship and easy altering of the provisions of the constitution.
Apparently, these arguments are correct but i would like to settle with the point that, the best type of constitution depends, so much, on the political nature of the state or country in which it is practiced. I explained this statement in my article on the advantages and disadvantages of a written constitution last week.
Take for instance, it is apparently foolhardy to have an unwritten constitution in a federal and heterogeneous state. This is because, an unwritten constitution may not work properly in a federation.
Accordingly, it is not wise or advantageous to have a written constitution in a unitary state. Based on this, I think it is clear that unwritten constitution has its own advantages (merits) and disadvantages (demerits).
In this article, i will comprehensively discuss the advantages and disadvantages of an unwritten constitution. This will help you to understand why some countries have a written constitution and others have an unwritten constitution.
Meanwhile, before I will move to the crux of this work, i would like to define what an unwritten constitution is. This will understand the content of this article in depth. So, what is an unwritten constitution?
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Definition of an unwritten constitution
Simply put, an unwritten constitution is a type of constitution that is not contained or documented in a single document. Unlike a written constitution, an unwritten constitution is flexible and easy to amend.
A similar definition has been given by Merriam-webster dictionary, which defines an unwritten constitution as a constitution that is not embodied in a single document but based chiefly on custom and precedent as expressed in statutes and judicial decisions.
Here, the rules and regulations guiding the state is usually found in case law by the judiciary.
Below are some of the countries in the world that have an unwritten constitution:
- Britain (British constitution)
- New Zealand
- Saudi Arabia
- United Kingdom
- Israel and more.
Advantages of an unwritten constitution
Below are some of the merits of an unwritten constitution:
1. It is flexible and easy to amend
This is evidently one of the known advantages of an unwritten constitution. An unwritten constitution is flexible, it does not pose problems of amendment and it can easily be adapted to meet the changing social, economic and political development of the country. This is why nations like Canada, Israel etc, stll have an unwritten constitution to today.
It is elastic to meet the present and future needs of the country. Its flexible nature allows for compromise between organs or government in appropriate situations for the interest of the country.
It should be noted, however, that this can also be a disadvantage of an unwritten constitution too. The reason is because the flexible nature of the constitution will allow an unnecessary alterations on the constitution.
2. Easy and quick decision making in time of urgency
Another advantage of an written constitution is that it allows for easy and fast decision making by the government in time of urgency where the constitution needs to be amended.
An unwritten constitution allows easy and quick decisions to meet exigencies of the government and national life. An unwritten constitution is based on the way of life of the people. It grows over a long time from the way of life of the people. It is to a large extent written on the heart of the people and is based on the principles of justice, fairness and equality.
3. Unwritten constitution grows with the people
An unwritten constitution just like common law, grows over a long time from the way of life of a people, it is unsuitable for a multilingual and a multi religious or diverse people or population such as Nigeria.
This is another key advantage of a written constitution you should know. It’s flexibility makes the law to grow with the social life, trends, customs and tradition of the people. It is not so when the constitution is written because the law is always what the constitution says it is.
4. Unwritten constitution does not give rise to much litigation
In addition to the points already made, an unwritten constitution is also advantageous because it does not give rise to so much litigation. The laws guiding the state are not contained in a single document so not every citizen even have access to it and so, most people don’t know their rights and obligations.
The law is usually based on what is interpreted by the judiciary in previous decisions. Thus, many people don’t bring actions in court because they cannot predict the outcome of the courts decision which is not based on a written law.
Now that you have known some of the key advantages of an unwritten constitution, it will be wise to also discuss some of the disadvantages of an unwritten constitution. Like i said before, an unwritten constitution is not free from flaws. It has its own disadvantages and that is what we will be looking at below.
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Disadvantages of an unwritten constitution
Below are some of the demerits of an unwritten constitution:
1. It is usually unclear and uncertain
Since the rules and regulations guiding the state are not contained in one single document, there is always uncertainty as to what the law actually is. Its unwritten nature may make the ascertainment of its precise provisions and content uneasy and subject to individual opinion and level of enlightenment.
The uncertainty of its provisions does not allow easy reference and may encourage the infringing of the rights of citizens who are not enlightened enough to know what the position of the law is. This is a disadvantage of an unwritten constitution and it is mostly criticized by scholars.
An unwritten constitution is usually unclear, uncertain or unintelligible. The uncertainty of the provisions of an unwritten constitution is one of its major disadvantages. As you many know, a good constitution is supposed to be clear, unambiguous and certain. These are the major characteristics of a good constitution. An unwritten constitution is not always clear because the constitution is not contained in one single document. In other words, to understand the provisions of the constitution, one may have search for other laws that explains the constitution.
This leaves a larger part of the job of interpreting the law to the discretion of the judiciary. In this case, the provisions of the constitution will become uncertain, and very difficult for anyone to decode what the purpose of a particular provision is.
Unlike a unwritten constitution, a written constitution contained in a single document. The provisions of this type of constitution usually make reference to other provisions to ensure that the actual intent of the lawmakers are understood.
2. Difficult to ascertain the unconstitutionality of an act
In the absence of education and enlightenment of the people, an unwritten constitution does not allow individuals to know their rights and duties or the obligations which the government owe them. This is actually one of the biggest disadvantages of having an unwritten constitution in a state.
Its unwritten nature makes it uneasy to quickly ascertain the unconstitutionality of an act. It may encourage the rise of dictatorship through manipulation and exploitation of its imprecise or unwritten provisions. As already stated, where the constitution is not written, the law is usually what the judiciary says it is. This may not be based on any legal principle or statute. No doubt, this is a disadvantage of an unwritten constitution you should know too.
3. Not suitable for a federal system of government
As a result of being partly written and partly unwritten, most unwritten constitutions rely on many practices or conventions, that is, constitutional practices which are not necessarily legal rules (E.g the constitution of Britain). This is one of the major feature of an unwritten constitution and it may not be suitable for a federal system of government.
An unwritten constitution cannot sustain a federal government system because a federal government structure requires a clear decision of powers and duties between or among the different tires of government and separation of power and duties between and among the different arms of government. This is equally a disadvantage of an unwritten constitution.
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By way of conclusion, i must point the fact that an unwritten constitution is always the best type of constitution in time of emergency because it can be easily amended. Currently, it is practiced in most of the homogeneous states in the world to foster unity and economic development. Examples of countries where this type of constitution is used are: Israel, Canada, Saudi Arabia, New Zealand etc.
Hope this article was helpful? If there is any part of this educating topic you do not understand or have doubts about, kindly let me know using the comment section. I will try as much as possible to clear your doubts and help you understand the topic better. Examples are: Britain,
Edeh Samuel Chukwuemeka ACMC, is a Law Student and a Certified Mediator/Conciliator in Nigeria. He is also a Developer with knowledge in HTML, CSS, JS, PHP and React Native. Samuel is bent on changing the legal profession by building Web and Mobile Apps that will make legal research a lot easier.