No constitutional order has all its rules written down. This means that, though unwritten constitutional rules are often associated with Westminster systems, they are arguably a feature of all constitutional democracies, and a critical issue for constitutional law scholarship. At the same time, judicial recognition of unwritten constitutional norms and principles poses a challenge for the constitutional order. Unwritten norms and principles do not only create an interpretative challenge that complicates the court’s search for a formally correct decision. Their recognition and enforcement also raise concerns about the source and authority of unwritten rules. Moreover, they raise questions about the court’s legitimacy, particularly when it uses unwritten principles to overturn decisions made by democratically elected legislatures.
This project examines the phenomenon of unwritten constitutionalism from a comparative and interdisciplinary perspective, focussing on three jurisdictions: Canada, the United Kingdom, and Germany. The particular institutional, normative, and political features of these three countries provide a rich sample for analytical comparison. The project will expand the existing understanding of unwritten constitutionalism in three distinct ways. First, it will systematically examine unwritten constitutional norms and principles from a comparative perspective. This will provide a deeper, non-parochial understanding of the concept. Second, by understanding unwrittenness as a general issue for all constitutional orders, the project will challenge established categories of comparative constitutional studies, namely the juxtaposition of “written” (such as Germany’s) and “unwritten” (such as the UK’s) constitutions. This will allow the project to move towards a more fine-grained understanding of similarities and differences across constitutions. Third, the project’s comparative design will allow the project team to analyze the connection between judicial invocation of unwritten rules and apex courts’ authority in a more comprehensive way than with single-country studies.
This project locates itself within the growing body of comparative constitutional studies research that has emerged globally over the past three decades. It will create unique opportunities for transnational and interdisciplinary knowledge production in an area of considerable legal and political significance. This project is particularly timely as questions about the scope of constitutions and the role of courts increasingly enter mainstream political debate.