The ubiquity of unwritten constitutionalism Free

When we think about unwritten constitutionalism, our minds are immediately drawn to the United Kingdom, New Zealand, and Israel which famously lack a “canonical constitutional master-text”¹ with superior legal status over all other laws. Instead of enshrining the main ground rules for governance in a single sacred text, the constitutional rules of the game are dispersed throughout the legal and political system like a series of islands and archipelagos where it is hard to know where dry land ends and wide ocean begins.² In these countries, constitutional norms can be found in statutes enacted by the legislature, case-law crafted by the courts, customary law such as the tikanga in Aotearoa New Zealand,³ and unwritten constitutional norms which frame and shape political behavior. Writing in the nineteenth century, Albert Venn Dicey famously described these unwritten norms as “constitutional conventions”⁴—“a body of constitutional or political ethics,”⁵ “a whole system of political morality. . . maxims or practices”⁶ which regulate the system of government and the relationship between the key constitutional actors. Though legally non-binding and unenforceable by the courts, these political rules, norms, and practices of constitutional government are “accepted as obligatory by those concerned in the working of the constitution.”⁷

Of course, a moment’s reflection reveals that many of these norms are written down in some form. Therefore, it is more accurate to say that “the unwritten constitution” is partly written and partly unwritten, albeit that no single text is given canonical or supreme legal status. As Janet McLean puts it, unwritten constitutions are “written differently”⁸ and more divergently than in countries with codified constitutional texts. However, there is no doubt that the lack of a canonical master text makes the United Kingdom, New Zealand, and Israel constitutional outliers when viewed in global and comparative perspective. Indeed, their exceptionally “unwritten” character leads some commentators to question whether they even qualify as constitutions at all.⁹ But there should be no doubt. It is a conceptual truth that all legal systems have a constitution in the sense of basic ground rules for governance.¹⁰ Whether those rules are written down—and, if so, how and to what extent—are second-order questions about constitutional means.

But rather than probing the peculiarities of unwritten constitutions, I want to focus here on the unwritten dimensions of written constitutional orders. After all, even in countries with a codified constitutional text, the normative force of that text—its efficacy and capacity to shape and constrain political action—depends crucially on whether the key constitutional actors treat that text as normative and binding on their behavior. This is the signature insight of Hartian jurisprudence that all law bottoms out in non-law, and at that level what matters most is whether the people in power commit to the constitutional rules of the game.¹¹ Even the most comprehensively crafted written constitution ultimately rests on political buy-in and “constitutional commitment”¹² by the key political actors to the painstaking project of governing under a democratic constitution. Absent that commitment, the codified constitution becomes a hollow hope—a “parchment barrier”¹³ devoid of authority and operative force. It becomes a “constitution without constitutionalism.”¹⁴ From East to West, and from North to Global South, the success and sustainability of constitutional democracy depends on this underlying commitment to play by the constitutional rules of the game.

Furthermore, no constitution can function without unwritten constitutional norms which frame and shape political behavior. True, written constitutions typically enunciate the key principles on which the constitutional order is based. But no constitution can specify those principles in sufficient detail to regulate the roles and relationships between the branches of government in a multiplicity of interactive settings. Though the written constitution may announce the fundamental principles of the constitutional order—including separation of powers, the rule of law, democracy, rights, and constitutionalism itself—the hard work of articulating, analyzing, and implementing those principles is carried out in the realm of the unwritten.¹⁵ For example, all constitutions rely on political practices and principles which determine the dynamics of political accountability, the peaceful transition of power, the regulation of parliamentary decision-making and electoral procedure, and the relative allocation of authority within and between the Executive and legislative branches of government. But when we look for these norms in the written constitution, we are often struck by the sound of silence. Thus, political norms and “constitutional conventions” are no mere peculiarity of the “unwritten constitution.” Instead, they are a cornerstone of all constitutional systems.¹⁶ Though the written constitutional text outlines the powers of the branches in broad terms, it is the unwritten norms which give shape to the constitutional responsibilities which attach to those powers. These norms of political engagement are the “hidden wiring”¹⁷ on which constitutional democracy depends.

When we turn to the adjudicative realm, a similarly mixed picture of written and unwritten elements comes to the fore. Of course, the power of the courts to engage in constitutional review is sometimes—though not always—set out in the written constitution.¹⁸ However, the multiple ways in which that onerous power is exercised are typically left to judges to determine when interpreting the constitutional text. Doctrinal tools such as proportionality and strict scrutiny—not to mention justiciability doctrines such as the “political questions” doctrine—are typically developed by judges in the realm of the unwritten constitutional order.¹⁹ Therefore, instead of being the esoteric ephemera of the exotic “unwritten constitution,” unwritten norms have a foundational and pervasive role in all constitutional orders. Far from being anomalous, unwritten constitutionalism is in fact ubiquitous.

The salience and significance of unwritten constitutional norms is put into stark relief in contemporary times, as we witness the appalling spectre of constitutional corrosion and democratic decay across the globe.²⁰ But when we look closely at what exactly is decaying, it is not the quality of written constitutional texts. Nor is it the formal structure of established institutions. Instead, it is the unwritten constitutional norms which frame and shape political behavior in any constitutional order worthy of the name. When today’s authoritarians come to power, they typically keep the canonical text in pristine condition, whilst stripping out the “hidden wiring” on which a living constitutional democracy depends.²¹ They engage in “constitutional cheap talk,”²² but fail to commit to the constitutional rules of the game, quickly clamping down on the constitutional checks and balances designed to hold the Executive in check. In an age of elected authoritarians, powerful leaders preserve the forms—but undermine the norms—of a well-functioning constitutional democracy.

In the literature on democracy decay, the deepest lament is that powerful political figures violate “the unwritten democratic norms”²³ of mutual toleration, respect, restraint, and forbearance on which a well-functioning constitutional democracy depends. Leading American scholars observe that “much of today’s most vexing political behaviour challenges not the interpreted Constitution, but the unwritten norms that facilitate comity and cooperation in governance.”²⁴ Donald Trump’s flagrant violation of inherited norms and received constitutional wisdom highlighted the fundamentality and fragility of these unwritten norms in a well-functioning democracy—norms which had been relatively invisible to a previous generation of American constitutional scholars precisely because they had been taken for granted. They were simply “the done thing.” In an insightful analysis, Steven Levitsky and Daniel Ziblatt emphasize the pivotal importance of norms of respect for the constitutional rules of the game and the “shared codes of conduct”²⁵ required to keep a constitutional democracy working as it should. Without respect for these foundational norms—which they describe as constitutional “guardrails”²⁶—the constitutional order descends into chaos and corrosive conflict. Indeed, if the key political actors stop observing these norms, then the constitutional checks and balances we rely on for security against tyranny and abuse of power “cannot serve as the bulwarks of democracy we imagine them to be.”²⁷ Though we look to the sacred constitutional text to deliver us from all evil, we forget that the normative force of that text—its efficacy and capacity to shape and constrain political action—hinges on whether the key constitutional actors treat it as binding on their behaviour.

This underscores the point that beneath the constitutional forms lie norms; and beneath the constitutional architecture lie attitudes—a “constitutional cognitive frame”²⁸ which takes constitutional democracy seriously as a constrained, mediated, and disciplined democratic activity.²⁹ By appreciating the ubiquity of unwritten constitutionalism, we can dig beneath the formal idea of “constitution as architecture”³⁰ to explore the deeper terrain of “constitutionalism as mindset.”³¹ Moving from parchment to politics and from architecture to attitudes, we can see that constitutional democracy is grounded in the beliefs and behaviour of diverse constitutional actors. Beneath the parchment promises lie cultural commitments.

The ubiquity of unwritten constitutionalism has a number of important consequences for comparative constitutional law. First, it deepens our scholarship by forcing us to grapple with the fundamental constitutional commitments on which constitutional democracy depends. It forces us to make “the invisible constitution”³² visible. Particularly in a time of democratic decay, we need to move beyond the surface text to excavate the normative foundations of a constitutional order which strengthen constitutional resilience and minimise the chances of democratic decay.³³

Second, it broadens our scholarly inquiry to include political as well as legal constitutionalism as core components of the constitutional canon. This forces us to grapple with “the constitution outside the courts,”³⁴ engaging with the myriad modes and mechanisms of the political constitution. Of course, as lawyers, we are inevitably primed to study the legal dimensions of the constitutional order, especially the ways in which judges adjudicate rights and interpret the canonical constitutional text. But no constitution is exhausted by its law.³⁵ A central task of all constitutions is to constitute the main organs of government and regulate the relationships between them. And this task is necessarily carried out in the political realm. Therefore, if we are serious about studying constitutional democracy, we must look beyond the courts to embrace the pluralist array of constitutional actors, including the Executive, legislature, civil servants, bureaucrats, government legal advisers, civil society actors, NGOs, electoral commissions, parliamentary watchdogs, etc.³⁶ This has the salutary effect of decentering sacred texts and supreme courts in our study of constitutional democracy. It also highlights the value of studying political science and political theory in order to shed light on constitutional phenomena. Instead of merely studying constitutional law, we can rise to the interdisciplinary challenges of “comparative constitutional studies.”³⁷

Of course, once we mention “the political constitution,” it is tempting to juxtapose it with “the legal constitution,” and posit a bitter rivalry between political and legal actors over who will get “the last word” in a struggle for constitutional supremacy.³⁸ The language of “taking the constitution away from the courts”³⁹ bespeaks this rivalrous and dichotomous perspective, suggesting a binary choice between either courts or legislatures as the sole and supreme guardian of our rights. But by broadening and pluralizing the constitutional domain, we need not succumb to this false dichotomy.⁴⁰ Instead of a Manichean narrative of “courts versus legislature” and “politics versus law,” we can view political and legal constitutionalism as complements, not substitutes. Adopting a pluralist vision of institutional dynamics, we can envision both political and legal actors making potentially valuable—though necessarily imperfect—contributions to “an institutionally diverse constitutional order.”⁴¹

Third, attending to the unwritten constitution encourages us to view constitutionalism as relational, i.e., as grounded in the working relationships between the branches of government.⁴² Rather than viewing the political and legal realms as hermetically sealed constitutional domains, we can explore the iterative interaction between them. This recalls a previous Editorial by Marta Cartabia who called on constitutional scholars to focus on constitutional relationships, moving them “from the periphery to the center of legal and political thought.”⁴³ Should courts defer to the democratically elected actors? Or should they instead oppose majoritarian preferences in a bid to protect minority rights? Should political actors comply with judicial rulings? Or should they override them in the name of democracy? Does the separation of powers require interbranch conflict or constitutional collaboration? These are the crux questions of constitutional theory—and they are deeply relational in character. None of them are adequately answered in written constitutional texts.

In many ways, my book—The Collaborative Constitution—is a response to the Cartabian call.⁴⁴ Arguing that the relationship between the branches of government is collaborative rather than conflictual in nature, it urges all three branches of government to work together in a spirit of comity, collaboration, and conflict avoidance. In making the case for the collaborative constitution, I seek to uncover the norms of constructive engagement, mutual respect, and dynamic reciprocity which frame and shape the working relationships between the branches of government. Recasting the separation of powers in relational rather than purely rivalrous terms, I examine a multiplicity of actors operating within a dense collaborative network framed by the norms of reciprocity, repeat-play, and reputation.⁴⁵ Instead of a conflictual relationship marked by “constitutional showdowns,”⁴⁶ I foreground the disciplining dynamic of “constitutional slowdown,”⁴⁷ where the branches of government must agree to play by the rules of the game in a spirit of constitutional fair play. To be clear, the collaborative constitution does not naively deny or ignore the inevitability of inter-institutional conflict. Nor does it occlude the constitutional need for creative tension and robust checks and balances which contribute to an enduring constitutional scheme. Nonetheless, it articulates the norms and principles which frame and shape that conflict in a painstaking partnership over time. Not everyone will agree with the idea of collaborative constitutionalism. Nonetheless, it seeks to capture the complexity of constitutional relationships which form the lifeblood and beating heart of a healthy body politic.

Attending to the unwritten foundations of constitutional orders also reveals the abiding truth of Wojciech Sadurski’s warning about “the relative irrelevance of formal constitutional design.”⁴⁸ Reflecting on Poland’s constitutional breakdown, Sadurski observed that if “authoritarians of a populist ilk. . . enjoy significant support from a large part of the population, there is very little that even a well-crafted constitution can do.”⁴⁹ In making this point, Sadurski was not denying the value of good constitutional design. On the contrary, he fully acknowledged that a well-designed constitutional structure can help the system to function in constitutionally compliant ways.⁵⁰ However, when push comes to shove—and it is coming to shove in many countries across the world—no amount of beautiful design or intricate structure can save a constitutional democracy.⁵¹ Therefore, despite our disciplinary focus on constitutional design, we should be humble about what design can deliver and cautious before offering design solutions to constitutional problems. Without a political commitment to the discipline of democracy⁵² and the constitutional constraints of horizontal accountability, a beautifully crafted constitutional design is an empty shell. It consecrates the forms but contradicts the norms of a well-functioning constitutional democracy.

Finally, embracing the importance of unwritten constitutionalism has significant implications for the discipline of comparative constitutional studies. If we accept that constitutions are partly if not pervasively unwritten—and that the strength and resilience of the relational dynamics which underpin constitutional government hinge on extra-textual and extra-legal factors—then the project of comparing constitutions becomes more challenging. It necessarily requires a deep engagement with the political, social, cultural, institutional, ethical, and legal forces which shape constitutional law. Appreciating constitutionalism as a rich combination of architecture and attitudes, forms and norms, mechanics and mindset, we are inevitably drawn into the practice of “fine-grained, contextual comparativism”⁵³ where constitutional law is viewed in the context of constitutional culture.⁵⁴ Even as we broaden our horizons beyond “the usual suspects,”⁵⁵ we should simultaneously deepen our field of vision to ensure that we truly understand the real drivers of difference and commonality in the living constitution.

Attending to the unwritten dimensions of constitutional government leads us to appreciate constitutionalism as a combination of text and tradition, forms and norms, mechanics and mindset. This puts us on high alert that formal powers and sacred texts do not tell the whole story. They may not even tell the whole truth. Far from it. The constitutional text can be a tissue of lies. This calls on scholars from every corner of the globe to engage in deep comparison of diverse jurisdictions, attentive to the fact that written text and grand designs are merely the starting points. It is culture and context where the real action occurs. By casting our gaze beyond, beneath, and between the lines of the sacred written text, we get to glimpse the complete constitution in all its complexity.

Footnotes