The foundations of the legitimacy of the unwritten constitution | ||
| پژوهش حقوق عمومی | ||
| Article 2, Volume 26, Issue 83, August 2024, Pages 33-65 PDF (1.03 M) | ||
| Document Type: Research Paper | ||
| DOI: 10.22054/qjpl.2024.75391.2926 | ||
| Authors | ||
| Ayat Mulaee1; Maedeh Soleymani Dinani* 2 | ||
| 1Associate Prof, Public Law, Faculty of Law and Social Sciences, University of Tabriz. Tabriz, Iran | ||
| 2Ph.D . Public Law, Faculty of Law and Social Sciences, Tabriz University, Tabriz, Iran | ||
| Abstract | ||
| Introduction The constitution, as the supreme law of a nation, ensures the rule of law and citizens’ rights, protects human rights, and reduces the likelihood of arbitrary government actions. The establishment of the constitution is commonly considered the most effective means of upholding constitutional values and protecting the individual’s fundamental rights. However, the absence of a written document of the constitution does not necessarily imply the absence of the rule of law or of the guarantee of human rights or even of control over government actions. Nor does it conclusively indicate the full implementation of constitutional principles and values in societies governed by a written constitution. Therefore, the concept of constitutional law and the associated principles extend beyond written documents. It is now recognized that the written constitution is not the sole authoritative source of constitutional norms. Yet going beyond legal formalism and embracing the institution of the unwritten constitution requires careful examination of its foundations and functions. Simply incorporating this concept without critical reflection on its origin and functions risks incomplete understanding. The contemporary conception of the constitution is imbued with its unwritten norms, so overlooking this aspect of any legal system results in a flawed understanding of the constitution. However, introducing ideas and concepts into the national legal system requires a thorough understanding of their origins and foundations, as well as the consideration of the feasibility of aligning domestic institutions with new concepts. Otherwise, newly introduced concepts may create a patchwork in political and legal structures, thus adversely affecting society and causing significant harm. To attain a precise understanding and prevent potential abuses, emerging concepts in public law, such as the unwritten constitution, must be rigorously analyzed and explored with an eye to their origin. Upon closer analysis, it becomes clear that the concept of unwritten constitution is not boundless, but rather operates within a specific framework and scope. Failing to grasp the foundations of this concept and inadequately explaining it can lead to increased reliance on discretionary opinions, thus causing ambiguity over the nature of practices, procedures, and rules within the constitutional law system. Consequently, certain political practices or actions may erroneously be considered part of the constitution— albeit in an unwritten form—and subsequently legitimized by being foregrounded in the political arena. Concerning the unwritten constitution, there are some scholarly efforts to clarify and dispel ambiguity surrounding this concept, yet it remains relatively unexplored in the Iranian context. There is thus a need to examine the foundations of legitimacy of the unwritten constitution, and distinguish it from merely political and ephemeral principles, rules, and procedures. In this respect, the present study tried to gain a deeper understanding of the unwritten constitution as a legal institution, shedding light on its most significant foundations through description and analysis. It aimed to address the following research question: What is the origin and source of legitimacy of the principles, regulations, and norms that do not derive their authority from the text of the constitution but nonetheless underpin the rights and freedoms enshrined in the text? Materials and Methods As a descriptive–analytical inquiry, the present study used a library research method and note-taking to collect the data from different sources in order to examine the foundations of legitimacy of the unwritten constitution. Results and Discussion The research highlighted the necessity of a comprehensive understanding of the unwritten constitution, as a relatively nascent concept within Iran’s constitutional law system. Such an understanding would necessitate the examination of foundations of constitutional legitimacy and their analysis beyond the confines of the national constitutional framework. The approach or methodology employed in identifying the nature of the constitution plays a crucial role in narrowing down or broadening its scope and substance. For example, the formalist approach would focus on the structure and contents as delineated in the codified document, with the constitution being perceived as synonymous with its official, written provisions. The approach towards constitutional legitimacy can significantly influence both interpretation and implementation of the constitution. Therefore, adopting an extratextual approach and embracing the overarching concept of the constitution beyond its textual confines can open pathways to a broader scope of individual and public rights and freedoms. Consider, for instance, the reason-based legitimacy approach, which rests upon the justice or efficacy of constitutional provisions. This approach bridges the divide between constitutional theory and practice, bolstering the legitimacy of unwritten principles and values. From this perspective, the constitution derives its validity and legitimacy not from its form nor the procedure of ratification, but rather from its substantive content and valuable objectives. Consequently, the legitimacy of the unwritten constitution rests upon the same fundamental principles and substance codified in the written constitution. Across all legal systems, it is inevitable to acknowledge the presence of an additional layer of the unwritten law alongside the written one. Unwritten principles exert influence on the implementation of written regulations, thereby limiting or broadening their scope. In this context, it becomes crucial to delve into the foundational reasons underpinning the binding nature of the unwritten constitution. The binding nature is rooted in the substantive realization of the rule of law, reliance on the requirements of natural and human rights, as well as the roles of key judicial bodies and the public in acknowledging and endorsing true principles and values of the constitution. This can delineate the boundaries of the unwritten constitution. Conclusion It is thus necessary to take heed of the concept of the unwritten constitution and its status within any legal system. The failure to provide a proper explanation of this concept can lead to increased discretionary opinions and decisions, thus causing ambiguity over the nature of practices, procedures, and rules within the constitutional law system. There is a risk that certain practices or official statements, when foregrounded in the political arena, might erroneously be perceived as integral components of the unwritten constitution, thereby gaining undue prominence. | ||
| Keywords | ||
| Unwritten Constitution; Rule of Law; Popular Sovereignty; Human Rights; Natural Rights | ||
| References | ||
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