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Differences between written and unwritten constitutions

17 November 2016 - By Edward Willis

Sir Geoffrey Palmer and Dr Andrew Butler’s new book, A Constitution for Aotearoa New Zealand, provides a very useful account of many of the key constitutional issues that we face as a country.

It deals with a number of perceived shortcomings of our current constitutional arrangements, and provides tangible recommendations for reform. As something of a bonus, it is drafted in very accessible prose. This makes it an excellent catalyst for debate among ordinary New Zealanders.

The most dramatic of the reforms proposed is that New Zealand should depart from 176 years of tradition and adopt a written constitution.

The idea of a written constitution – a uniquely authoritative document that purports to govern the entire legal and political system – is a novel one in this corner of the world. Instead, we have a relatively successful “unwritten constitution” – a somewhat unhelpful term which simply means we can get by just fine without a single point of higher constitutional authority, thank you very much.

Why should we entertain such a fundamental change to the bedrock of our constitutional arrangements?

Palmer and Butler’s book does not go into detail on the differences between written and unwritten constitutions. Given that the ultimate goals of each constitutional structure (stable, effective government; respect for democracy and the rule of law; protection of human rights and other fundamental values) are often the same, the difference can be obscure. I think it might be helpful to think about the difference in one of three ways.

Architecture

First, it can be helpful to think of constitutions in architectural terms.

A written constitution focuses on the things it can describe, which tend to be the formal features of law and government. It tells you where the foundations are, and what they’re made of. It tells you where the walls go (because it’s important to keep the kitchen and the wash room separate). And it tells you how the roof should be constructed, to protect the entire edifice.

These are all important things, and an unwritten constitution must deal with them, too. But an unwritten constitution approaches things differently.

Instead of focusing on the floors, walls and ceilings, its primary interest might be described as the spaces in between those structures. It is concerned with how people interact within the constitutional spaces we create, and the things they want to get done. Trying to write down what a “space for interaction” looks like is understandably a bit challenging, which is probably why written constitutions focus on tangible things like walls and floors. But in doing so they might risk overlooking something vital.

Maps v guide books

A second way to think about constitutions is in terms of their informational dimension.

It is instructive to think of written constitutions as a kind of map. If you are exploring a foreign city, a good map will set out the key features in a visual way that helps you navigate strange streets and find unfamiliar buildings. Maps help us get where we want to go by following a definite path. And while all maps abstract from reality to some extent, they are a very accurate way of understanding the terrain.

If written constitutions are like maps, unwritten constitutions might be more like guide books. A guide book won’t tell you where every street is, but it will provide a good indication of the major ones. They are also very good if you want to pick up a few tips and tricks to navigate your interactions with the locals. What are the customs you should observe? How do you appropriately greet people, or show appreciation? Maps won’t tell you any of this, but a good guide book might.

Of course, you need a dose of common sense and a willingness to give it a go to be successful, and you don’t always know where you’ll end up. But you can have some confidence knowing roughly how things in that foreign city might actually work.

Extrovert v introvert

A third way to think about constitutions is in terms of personalities.

A written constitution might be understood as an extroverted constitution. It can be assertive, and obvious, and it signals loud and clear what’s going on and what will happen as a result.

An unwritten constitution is more like an introverted constitution. It is reflective, and perhaps a bit enigmatic. It considers the consequences of actions carefully. It doesn’t signal its inner workings as clearly, so you might need to ask it what it’s thinking. But if you do, and you’re patient enough, you are likely to get a satisfying response.

Operation in practice

From these three analogies we can get a bit of a sense of how written and unwritten constitutions operate in practice.

A written constitution is structured; an unwritten constitution is organic. A written constitution is an abstraction; an unwritten constitution is abstract. A written constitution is definitive; an unwritten constitution is adaptable and nuanced. And I would argue that these differences have an impact in practice. At the very least, they change the way that legal and political actors – judges, politicians, ministers – think about the power they have and what they can do.

The obvious caveat is that this type of binary comparison tends towards caricature.

To be sure, every real-world constitution needs to balance these aspects of written or unwritten constitutions carefully to try and maximise the benefits of both. That’s why we write down our Bill of Rights in statutory form, for example, even where we manifestly rely on unwritten conventions in so many areas.

But given that there are differences, is Palmer and Butler’s wholesale written constitution inherently better than the unwritten one we already have?

Only New Zealanders can answer that question, but in doing so they should have a sense of what they may give up as well as what they may gain. Hopefully the three ways of thinking about the differences offered in this article provide a “way in” for starting debate on this important topic.


Edward Willis is a solicitor with Tompkins Wake in Auckland. He is an expert in public law (how government works), regulation (how government affects individuals and businesses) and civic engagement (how New Zealanders can change government for the better).

Last updated on the 17th November 2016