Anuncodified constitution is a type ofconstitution where the fundamental rules often take the form ofcustoms,usage,precedent and a variety ofstatutes andlegal instruments.[1] An explicit understanding of such a constitution can be developed through commentary by thejudiciary, governmentcommittees orlegal experts. In such a constitutional system, all these elements may be (or may not be) recognized bycourts,legislators, and thebureaucracy as binding upon government and limiting its powers. Such a framework is sometimes imprecisely called an "unwritten constitution"; however, all the elements of an uncodified constitution are typically written down in a variety of official documents, though notcodified in a single document. However, there may be truly "unwritten"constitutional conventions which while not usually legally enforceable may hold just as much sway as the letter of the law.
An uncodified constitution has the advantages of elasticity, adaptability, and resilience.A. V. Dicey described the uncodified constitution as "the most flexible polity in existence."[2] A significant disadvantage, however, is that controversies may arise due to different understandings of the usages and customs that form the fundamental provisions of the constitution.[1]
A new condition or situation of government may be resolved by precedent or passinglegislation.[1] Unlike acodified constitution, there are no special procedures for making aconstitutional law, and it will not be inherently superior to other legislation. A country with an uncodified constitution lacks a specific moment where the principles of its government were deliberately decided. Instead, these are allowed to evolve according to the political and social forces arising throughout its history.[3]
When viewed as a whole system, the difference between a codified and uncodified constitution is one of degree. Any codified constitution will be overlaid with supplementary legislation and customary practice after a period of time.[1] Conversely, customs and practices that have been observed for long periods in an uncodified manner may be added to the written constitution at various junctures, such as in the case of the two-term limit for presidents of the United States. This custom was observed for nearly a century and a half, unbroken, without any enforcement mechanism until it wasignored byFranklin D. Roosevelt, after which it wasadded to the written Constitution as mandatoryde jure.
The following states can be considered to have uncodified constitutions.
| Uncodified constitutions | Form | States that have this form of constitution |
|---|---|---|
| Fully uncodified |  San Marino Israel Saudi Arabia | |
| Partially codified (in few documents) |  Canada China New Zealand United Kingdom |
Although there are Constitution Acts, important aspects of the constitutional system are uncodified. The preamble to theConstitution of Canada declares it to be "similar in principle to that of the United Kingdom" (which is uncodified).[4]
This applies at the federal level and to theprovinces,[5] although each does have the power to modify or enact their own within their exclusive areas of responsibility. To date only British Columbia has enacted a codified provincial constitution (seeConstitution of British Columbia), though the other provinces' roles and powers are spelled out in section 93 of theConstitution Act, 1867, and through amendments to it dealing with particular provinces such as theManitoba Act and theNewfoundland Act.
Some Chinese academics including legal theoristJiang Shigong have argued that China has both a writtenconstitution and an unwritten constitution based on the comprehensive leadership of theCommunist Party.[6]
TheIsraeli Declaration of Independence promised a constitution by 2 October 1948, but due to irreconcilable differences in theKnesset, no complete codified constitution has been written yet. However, there are severalBasic Laws.
New Zealand has no single constitutional document.[7][8] It is sometimes referred to as an "unwritten constitution", although the New Zealand constitution is in fact an amalgamation ofwritten and unwritten sources.[9][10]
TheConstitution Act 1986 has a central role,[9] alongside a collection of otherstatutes,orders in Council,letters patent, decisions of thecourts,principles of the Treaty of Waitangi,[7][11] and unwritten traditions andconventions.
San Marino has several documents that make up its constitution, including some lasting centuries. These documents include six books of The Statues of 1600 and the Declarations of Citizen's Rights. It is, in its oldest parts, the oldest surviving constitution in the world.
Saudi Arabia has no legally binding written constitution.[12] In 1960,King Faisal declared theQuran, the religious text of Islam, to be the constitution. However, in 1992, theBasic Law of Saudi Arabia was adopted byroyal decree.[13]
In the United Kingdom, there is no defining document that can be termed "the constitution". Because the political system evolved over time, rather than being changed suddenly in an event such as a revolution, collapse of government or overthrow of monarchy, it is continuously being defined by acts ofparliament and decisions of thecourts. The closest the UK has come to a constitutional code has been theTreaty of Union 1707.
Due to the United Kingdom having an uncodified constitution, many acts have been added to the collection ofconstitutional statutes,[clarification needed] such as theParliament Acts 1911 and 1949, theFreedom of Information Act 2000, theHuman Rights Act 1998 and theDissolution and Calling of Parliament Act 2022. This means the United Kingdom's constitutional rules are not written in a single document.[14]
TheBailiwick of Jersey andBailiwick of Guernsey areCrown Dependencies with a complex relationship to theUnited Kingdom embodied in unwritten constitutions.
