Unwritten Constitution – Definition, Examples, Advantages and Disadvantages
To say that a constitution is unwritten does not meant the constitution is not writing as the name tends to imply. An unwritten constitution is one, which is partly written and partly unwritten. The parts that are unwritten are called conventions or customs. In other words, an unwritten constitution consist of customs and conventions which are reinforced by judicial precedents.
The British Constitution, for example, is said to be unwritten largely because many of the written laws are not codified; second, many of the laws are not writable (they cannot be written), and finally, the British people have not sat down to deliberately write a constitution. The which is practice has been the result of customs, practices, precepts and other usages which have developed with time.
New Zealand and Israel are also countries which have unwritten constitution. In the case of Israel, H.E. Baker points out that there are basic laws, but there is no constitution drawn up.
Thus, an unwritten constitution is not totally unwritten. In the case of Britain, there are many written aspects which are vital to the administration of the state. They include:
- The Magna Carta (1215) which actually led to the constitutional provision for the rights and liberties of the people under feudalism e.g no person could be imprisoned without due process of the law.
- The Petition of Rights (1628) which declared that taxes could not be levied without the consent of the Parliament.
- The Bill of Rights (1689) which established certain rights e.g the right to elect and be elected.
- The Act of Settlement (1701), which regulates succession to the British throne.
- The Principle of Primogenitural Inheritance, which stipulates that the oldest male child succeeds the reigning king or queen.
- The Parliamentary Acts of 1911 and 1949 which limit the power of the House of Lords e.g. that all finance bills should be passed by the House of Commons (i.e. the lower house).
Advantages of Unwritten Constitution
The main advantages of unwritten constitution are:
- It can easily be changed to meet changing circumstances.
- The constitution can be adapted to meet the needs of all classes of people in the country. That is, since it is based on compromise, it can adequately take care of special interests.
- It provides ample opportunity for the leaders and the people to learn and correct themselves in a process of trial and error.
- Since an unwritten constitution develops from the actual experience of the people, it may therefore be more relevant to their needs than a written constitution.
- It allows for quick decision making and love making.
- It is suitable for administering a small homogeneous state
Disadvantages Of Unwritten Constitution
The unwritten constitution has the following disadvantages.
- Because an unwritten constitution is not definite, an ambitious leader may abandon it and rule according to his own whims and caprices thereby encouraging dictatorship and abuse of power. For example, President Franklin Roosevelt ran for a third term in 1944 and the unwritten rule that an American President should not run for a third term was ignored. This invariably resorted in the amendment of the USA constitution to limit the power of the president to a maximum of two terms of four years.
- It is not suitable for a large heterogeneous state like Nigeria, which has different peoples, cultures, languages and religions.
- An unwritten constitution does not adequately protect minority interests.
- Since there are so many laws, customs, conventions and precedents, it may be difficult for the citizens to know their rights and duties.