Meaning of Unwritten Constitution

Quick Summary

• Unwritten constitution means laws are not in one document
• Laws come from statutes, court cases, customs, and conventions
• UK, New Zealand, Israel, and Canada (partially) have unwritten constitutions
• Nigeria has a written constitution (1999 Constitution)
• Unwritten constitutions are usually flexible and easy to change

What is an Unwritten Constitution?

An unwritten constitution does not mean there are no written laws. It means there is no single document called “The Constitution” that contains all the fundamental laws of the country.

Think of it like this: if you want to know Nigeria’s fundamental laws, you read the 1999 Constitution – one book with everything. But if you want to know Britain’s fundamental laws, you must read many different documents, court decisions, and understand their customs. That is an unwritten constitution.

The laws are scattered across different sources. Some are written (like Acts of Parliament), some are unwritten (like customs and conventions). All these sources together form the constitution.

Written vs Unwritten Constitution

Sources of Unwritten Constitution

1. Statutes (Acts of Parliament)

These are laws passed by the legislature. In Britain, important Acts like the Magna Carta (1215), Bill of Rights (1689), and Parliament Act (1911) form part of the constitution.

Unlike Nigeria where the National Assembly cannot pass a law that contradicts the Constitution, the British Parliament can pass any law. There is no higher law above Parliament. If Parliament passes a new Act that changes constitutional practice, that becomes the new constitutional rule.

2. Common Law (Judge-Made Law)

These are legal principles developed by courts over centuries. When judges decide cases, they create legal rules. Future judges follow these rules (this is called precedent).

For example, British courts developed the rule that “the Crown cannot do wrong.” This principle protects the monarch from being sued. It came from judges, not from any written constitution.

3. Conventions (Customs and Traditions)

Conventions are unwritten rules that everyone follows because of tradition, not because any law says they must.

Example: In Britain, the monarch must approve all laws passed by Parliament. But by convention, the monarch always approves them – the last time a monarch refused was in 1708. This convention is not written anywhere, but everyone follows it.

Another convention: The Prime Minister must be a member of the House of Commons (not the House of Lords). No law requires this, but it has been the practice since 1902.

4. Works of Authority (Expert Books)

In countries with unwritten constitutions, respected books by legal experts become sources of constitutional law. When courts or Parliament are unsure about a constitutional issue, they consult these books.

Examples include books by Erskine May (on parliamentary procedure) and A.V. Dicey (on constitutional law). These authors’ opinions carry weight because of their expertise.

Features of Unwritten Constitution

1. Not Contained in One Document

The most obvious feature is that you cannot point to one book and say “this is the constitution.” The constitution comes from many sources.

2. Evolved Over Time

Unwritten constitutions develop gradually through history. Britain’s constitution evolved over more than 800 years, from Magna Carta (1215) to modern times.

Nigeria’s constitution, by contrast, was written at specific times (1960, 1963, 1979, 1999). Each was created at once, not evolved slowly.

3. Flexible and Easy to Amend

Because there is no special constitutional document, changing the constitution is easy. Parliament can pass an ordinary law that changes constitutional practice.

In Nigeria, amending the Constitution requires two-thirds majority in National Assembly and approval by at least 24 state Houses of Assembly (Section 9, 1999 Constitution). In Britain, a simple majority in Parliament is enough.

4. Based on Conventions

Many important rules are conventions, not laws. Courts cannot enforce conventions. People follow them because of tradition and political pressure.

If the British monarch refused to approve a law passed by Parliament (breaking the convention), courts could not force the monarch to approve it. But the political crisis would be so serious that it never happens.

5. Supremacy of Parliament

In countries with unwritten constitutions, Parliament is usually supreme. No law is higher than Acts of Parliament. Parliament can pass any law, even one that changes the constitution.

This is different from Nigeria, where the Constitution is supreme (Section 1, 1999 Constitution). If the National Assembly passes a law that contradicts the Constitution, courts will strike it down.

Examples of Countries with Unwritten Constitutions

1. United Kingdom

The UK is the most famous example. Its constitution includes the Magna Carta (1215), Petition of Right (1628), Bill of Rights (1689), Act of Settlement (1701), Parliament Acts (1911 and 1949), and many other statutes, plus conventions and common law.

2. New Zealand

New Zealand has no single constitutional document. Its constitution comes from several Acts (like the Constitution Act 1986), conventions, and court decisions.

3. Israel

Israel has Basic Laws passed by the Knesset (Parliament) that function like a constitution. But there is no single document called “The Constitution of Israel.”

4. Canada (Partially Unwritten)

Canada has written Constitution Acts (1867 and 1982), but many important rules are unwritten conventions. For example, the roles of the Prime Minister and Cabinet are based on convention, not written in the Constitution Acts.

Advantages of Unwritten Constitution

1. Flexibility

The government can quickly adapt to new situations. When circumstances change, Parliament can easily pass new laws to deal with them.

During World War II, Britain quickly changed many constitutional practices to deal with the emergency. With a rigid written constitution, this would have been harder.

2. Grows with the Nation

As society changes, the constitution evolves naturally. New conventions develop to meet new needs. Old conventions disappear when they become outdated.

The role of the British monarch has gradually reduced over centuries without any constitutional amendment. This happened naturally through changing conventions.

3. Less Likely to Become Outdated

Written constitutions can become obsolete if they are not amended regularly. Unwritten constitutions automatically adjust to changing times.

4. Respects Tradition

Unwritten constitutions preserve historical customs and practices. This provides continuity with the past and respects the nation’s heritage.

Britain’s Parliament still follows procedures from medieval times, but they have adapted to modern democracy. This links present democracy to historical tradition.

Disadvantages of Unwritten Constitution

1. Uncertainty and Confusion

Because constitutional rules are scattered across many sources, it can be hard to know what the law is. Citizens may not understand their rights or how government should work.

In Nigeria, if you want to know whether the President can dissolve the National Assembly, you read Section 64 of the 1999 Constitution (answer: no, he cannot). In Britain, you must study history, conventions, and expert opinions to answer similar questions.

2. Too Easy to Change

The same flexibility that is an advantage can be a disadvantage. A government with a parliamentary majority can change constitutional rules to suit itself.

In 2005, the British Parliament abolished the office of Lord Chancellor (a position that existed for over 1,400 years) with an ordinary Act of Parliament. No special procedure was needed.

3. Depends on Convention

Because conventions are not legally enforceable, a determined government might break them. Courts cannot stop violations of conventions, only violations of statutes.

4. Difficult to Learn

Students and citizens must study many different sources to understand the constitution. There is no one book they can read.

Nigerian students can read the 1999 Constitution and understand the fundamental laws. British students must study centuries of history, statutes, cases, and conventions.

Why Nigeria Has a Written Constitution

As a former British colony, Nigeria inherited some British legal traditions. However, Nigeria adopted a written constitution (first in 1960) for several reasons:

• Federal System: Nigeria needed a written constitution to clearly divide powers between federal and regional (later state) governments. An unwritten constitution would create too much uncertainty.
• Diverse Population: With over 250 ethnic groups, Nigeria needed clear written rules that all groups could see and trust. Unwritten conventions might favor some groups over others.
• Post-Colonial Reality: New nations needed written constitutions to establish legitimacy and show the world they were organized states.
• Prevent Military Rule: Written constitutions make it clearer when government acts illegally. This helps resist military coups and dictatorship.

Common Exam Mistakes

WAEC Chief Examiners report that students often:

• Say unwritten constitution has no written laws: Wrong. Unwritten constitution includes many written laws (statutes), just not in one document
• Cannot give correct examples: Students write “France” or “Germany” as examples. Correct examples: UK, New Zealand, Israel, Saudi Arabia, Canada (partially)
• Confuse flexible with unwritten: Most unwritten constitutions are flexible, but not all flexible constitutions are unwritten (some written constitutions are also flexible)
• Fail to explain conventions: When asked to explain conventions, students just say “customs” without giving examples or showing understanding
• Poor organization: Mixing up advantages with features, or disadvantages with sources

Practice Questions

Multiple Choice Questions

1. An unwritten constitution is one in which:
a) There are no laws at all
b) All laws are spoken, not written
c) Fundamental laws are not in one single document ✓
d) Citizens cannot read the laws

2. Which of the following countries has an unwritten constitution?
a) Nigeria
b) United States
c) United Kingdom ✓
d) Ghana

3. Conventions in an unwritten constitution are:
a) International agreements
b) Unwritten customs followed by tradition ✓
c) Court decisions
d) Written statutes

4. Unwritten constitutions are usually:
a) Rigid
b) Federal
c) Flexible ✓
d) Presidential

Essay Questions

1. Explain FOUR sources of an unwritten constitution. (10 marks)

Tips for answering:

• Name the four sources: statutes, common law, conventions, works of authority
• Explain each source in 2-3 sentences
• Give an example for each source (e.g., Magna Carta for statutes, principle of precedent for common law)
• Show how each source contributes to the constitution
• Write in clear paragraphs

2. State FIVE advantages and FIVE disadvantages of an unwritten constitution. (10 marks)

Tips for answering:

• Command word “state” means list concisely – 1 mark per point
• Advantages: flexibility, grows with nation, less outdated, respects tradition, easy to amend
• Disadvantages: uncertainty, too easy to change, depends on convention, difficult to learn, no clear limits on government
• Write brief explanations (one sentence each)
• Don’t write long paragraphs when question says “state”

3. Distinguish between written and unwritten constitutions, giving TWO examples of each. (8 marks)

Tips for answering:

• Define both types clearly
• Explain at least 3 differences (document form, amendment procedure, clarity)
• Examples of written: Nigeria, USA, India, Ghana, South Africa
• Examples of unwritten: UK, New Zealand, Israel, Saudi Arabia
• Use a comparison table if possible (examiners like tables)

Memory Aid

Remember sources of unwritten constitution with “SCOW”:

• Statutes (Acts of Parliament)
• Conventions (customs and traditions)
• Opinions (works of authority by experts)
• Written judgments (common law from courts)

Remember examples with “UNIC”:

• United Kingdom
• New Zealand
• Israel
• Canada (partially)

Related Topics on Keypoint.ng

Learn more about related Government topics:

• Definition of Constitution – Understand what a constitution is and its basic meaning
• Advantages of Written Constitution – Benefits of having all laws in one document
• Disadvantages of Written Constitution – Limitations of written constitutions
• Advantages of Flexible Constitution – Why easy amendment can be beneficial
• Advantages of Rigid Constitution – Benefits of constitutions that are hard to change
• Constitutionalism – How government must follow constitutional rules