Editor: Piotr Mikuli; Contributors: Piotr Mikuli, Łukasz Jakubiak, Radosław Puchta
Unwritten norms often determine how written constitutions function in practice, yet their role in civil law systems remains insufficiently understood. This paper asks to what extent unwritten constitutional norms operate within written constitutions in the European civil law tradition, and why this interaction matters for institutional stability and constitutional practice. By outlining their key functions and briefly examining semi-presidential experience as an example, the paper shows why formally codified constitutional systems are difficult to understand without taking into account these informal norms.It is often noted that a written constitution theoretically aims to be a complete document. However, in reality such a constitution cannot account for all potential interactions between political actors. Furthermore, a constitution functions within a constantly changing political, social, and economic context, where institutional actors also adjust their behaviours and relationships with one another.
Amongst unwritten constitutional norms one can identify first of all various customary legal norms and constitutional customs (conventions). However, in the context of describing the role of unwritten norms, an important issue is also how to distinguish between the process of interpreting a constitutional provision and a situation in which the provision coexists with an unwritten rule, jointly creating its meaning. The boundary here is quite fluid and the answer to this question may vary depending on the philosophical and legal position adopted. Certainly, however, the unwritten layer appears where the text itself refers to extra-legal, unspoken values, using phrases that are not entirely specific.
The argument, which is significant in the context of the observations contained in this paper, boils down to the assertion already accepted in constitutional law that in systems where a formal written constitution is in place, there are a number of unwritten norms of a mixed (legal and political) profile that may fulfil the specific feature of the concept of a constitution, i.e. have special force within or outside the official system of sources of law. It may be argued that the unwritten aura surrounding the hard, i.e. written, core of the constitution may contribute to its greater protection, to the protection of the entire axiology of the constitutional system. The point here is that written norms, being anchored in the legal culture of a given state and society, in practice may be more readily accepted by participants in political life. Therefore, in this regard, three issues may be noted:
First, the claim that a written constitution, broadly understood, in itself always contributes to strengthening the rule of law is not supported by the facts, as constitutional provisions alone have not prevented the erosion of the rule of law in many countries, including Poland, in recent years.
Second, the rule of law is the result of the creation, enforcement and application of a whole range of written and unwritten norms, including cultural ones, and written constitutional norms are only one element of the whole.
Third, specific democratic effects can be achieved through the cooperative interplay between legal constitutionalism—which assigns primary importance to legal norms and to courts as guarantors of their enforcement—and political constitutionalism, in which political actors collaborate to develop mechanisms that safeguard the fundamental principles of democracy and the rule of law.
A certain degree of scepticism toward identifying unwritten constitutional norms within continental legal systems— a scepticism also discernible in the earlier writings of the co‑authors of this policy research paper —stems primarily from the strong civil law tradition of sharply distinguishing between law‑making and law‑applying functions, a distinction that is considerably more blurred in the legal culture of the Anglosphere. Yet recognising the significance of unwritten norms offers many advantages. As Wojciech Sadurski aptly observes, “[u]nwritten norms prevent interpreting legal rules in ways which would be contrary to their original and/or best rationales, so that written provisions are read and interpreted in accordance with the spirit, not always à la lettre. Articulating these norms may be controversial and some proposed meanings may be contested, but in a healthy democracy there is a degree of consensus on unwritten norms.” He further notes that “unwritten norms have a decisively moderating effect on written rules, and supplement them in ways that render written rules much more constraining on public officials than the mere reading of the textual rule would suggest.”
In this paper, we examine selected issues related to the functioning of unwritten constitutional norms. Our analysis focuses on unwritten norms and their enforceability within the framework of a written constitution, approached from the perspective of the European civil law tradition. We outline the role of constitutional conventions in states with codified constitutions as a factor contributing to the shaping of the system of government, using semi‑presidentialism as a limited, illustrative example.
In contemporary constitutional law scholarship, it is widely recognised that in constitutional systems in which written documents remain the primary source of regulations governing public authority and individual status, various unwritten rules and norms also exist. These norms may range from the strictly legal to political and moral, including rules regarding the interpretation of the law.
Until recently, these issues have primarily been discussed in countries rooted in the common law tradition, where unwritten norms have constituted a significant element of the legal system—even in cases where written acts, later qualified as constitutions, were adopted. In Anglosphere countries, informal arrangements within the political process have been highly valued. It was precisely in this context—particularly within the American system—that, in response to the rise of judicial activism in constitutional review, views distancing themselves from the dominant role of the judiciary and emphasising the importance of political processes began to gain popularity. These views are referred to as political constitutionalism. In countries of the civil law tradition, especially within the German cultural sphere, legal positivism developed with a cautious approach toward unwritten norms. This phenomenon was also linked to the limited use of precedent in judicial rulings. In Central and Eastern European countries, often influenced by this tradition—particularly in Poland, the Czech Republic, Slovakia, and Hungary—the approach to unwritten norms, including constitutional ones, has been distinctly sceptical. One manifestation of this is the closed catalogue of sources of universally binding law in the Polish Constitution, which—apart from customary international law—essentially excludes the recognition of unwritten norms. However, it is important to distinguish between dogmatic and practical approaches. In practice, the political process often complements constitutional norms. In Poland, even the Constitutional Tribunal has accepted certain customary elements as part of the legal system. It stated that “Unwritten principles and rules may have the character of constitutional customs, established practice of action, or may be derived from the canons of legal culture, especially—constitutional—developed in democracies.” (Decision of 20 May 2009, Kpt 2/08).
One can identify several types of unwritten norms that can coexist with the written norms expressed in the text of the constitution. While we take some inspiration from the British model, the typology is broad enough to encompass the phenomenon of unwritten constitutional norms across various legal systems. Therefore, we argue that the term ‘'unwritten norms’' refers to a vast category encompassing, among other things, the following:
I. Practice-based norms, such as: a) norms derived from customary constitutional law; b) constitutional conventions (whether regarded as purely political in nature or as possessing legally binding force); c) constitutional or parliamentary customs and other well-established constitutional practices.
II. Interpretation-based norms, including constitutional judge-made law developed through the creative jurisprudence (case law) of constitutional courts and apex courts, as well as norms established through interpretative processes, particularly in connection with the emergence of general clauses and indeterminate or evaluative expressions.
Customary law refers to a body of norms of conduct that have not been formally enacted by the state yet are in some way recognised by it. In other words, legal doctrine often associates customary law with situations in which a state authority—such as a court—formally acknowledges a given customary norm. Constitutional customary law may be perceived in various ways: as a value that transcends the constitution in a formal sense, reflecting the existence of fundamental constitutional principles; or alternatively, as a normative element that supplements or complements constitutional provisions.6 Customary constitutional law may also, depending on the specific legal system and the nature of the unwritten norm in question, be situated within the normative hierarchy on par with ordinary legislation.
Conventions or customs, on the other hand, typically do not constitute legal norms as such, however this may depend on a particular jurisdiction. In some cases, a particular type of custom is referred to as a convention—a constitutional norm with more political than legal connotations. This phenomenon is sometimes treated interchangeably with customary law, while in other instances scholars draw a clear distinction between the two. For example, Leszek Garlicki defines a constitutional custom as a stabilised (i.e., long-standing and repetitive) practice of conduct in a given situation, which gives rise to a presumption that when such a situation arises again in the future, the same course of action will be followed. In other words, although legal provisions may allow for several options in a given context, practice consistently favours only one of them.7
In academic discourse, a variety of terms—such as ‘conventions’, ‘customs’, ‘practices’, and ‘precedents’—are employed in different contexts and are sometimes used interchangeably. Particularly when referring broadly to multiple or all jurisdictions or political systems, it is nearly impossible to identify a clear distinction between the notions of ‘constitutional convention’ and ‘constitutional custom’. These expressions are frequently used to describe the same overarching idea: unwritten constitutional norms that guide political behaviour.
Against this backdrop, beyond the question of whether a given rule qualifies as a legal or political norm, one may ask whether it becomes a norm of constitutional law in the broad sense—i.e., relating to the structure of the state—or whether it possesses a strictly constitutional character. In the latter case, its rank would be equal to that of the formal constitution, provided such a document exists in the given country. This opens the door to doctrinal disputes, as exemplified by Polish debates concerning the unwritten principle of discontinuity in parliamentary work. The question arises of whether this principle holds a rank equal to the constitution or should be treated as a norm of statutory rank.
Another issue related to point II of our classification (norms derived from interpretation) concerns whether unwritten norms emerge from the interpretative process — that is, from the reading and application of written law, including judicial lawmaking. In this context, two types of classifications become relevant:
The first, traditional in continental legal cultures—particularly in Germany—views legal interpretation as a process in which the meaning of a legal norm is constructed using various rules, with the legal text remaining the primary basis. This makes it difficult to speak of true "unwrittenness."
The second approach argues that the process of legal interpretation can reveal certain unwritten understandings of legal institutions, influenced by legal doctrine—concepts extending beyond the text of the law itself. This is particularly evident when legal texts (such as constitutions) directly refer to other normative systems that draw from custom or morality. This applies mainly where the constitution contains so-called general clauses, that is, it explicitly refers to an extra-textual set of values and rules. For example, in the Polish Constitution of 1997, one may find references to such criteria as: justice, the common good, goodness, beauty, universal values, human values, human dignity (all of these appear in the Preamble), and further, for example: the common good (Art. 1, Art. 25), principles of social justice (Art. 2), public interest (Art. 17, Art. 22, Art. 213), public objectives (Art. 21), human good (Art. 25), human dignity (Art. 30), public order (Art. 31, Art. 45, Art. 53, Art. 61, Art. 146). Similar concepts can be found in many modern constitutions. This second approach allows for a broader perspective—even from the standpoint of unwritten constitutionalism—on legal systems deeply rooted in the positivist tradition. At the same time, however, it gives rise to an essentially irresolvable dispute between the traditional positivist approach and the scope of legal interpretation. This dispute, to some extent, goes beyond the framework of classical constitutional law scholarship and touches upon considerations within legal theory at a high level of abstraction.
Unwritten constitutional rules of conduct as a subject of doctrinal studies
Since the late 18th century, the written constitution has become the primary means of regulating the operation of public authorities, at least within the European continental legal tradition. It would constitute over time a necessary culmination of Western civilisational progress, during which the legal forms that were used to settle the organisation and functioning of the state evolved from customary institutions through the rule of law to written national constitutions8. In the aftermath of the French Revolution, it began to be commonly assumed that adopting a constitutional act in a special and solemn procedure could establish predictability and stability of conduct on the part political actors. Under this assumption, all state bodies and officials will feel bound by a constitutional text and, what has become the most important over time, any violation of such a text may result in proceedings leading not only to the imposition of a political sanction on an infringer, but also to hold him or her legally liable before an ordinary (criminal) court or another judicial body especially created for this purpose (such as a constitutional court). A written constitution – given its supreme legal force and the importance of the issues it usually regulates – appears thus as a ‘backbone’, i.e. a core of the entire legal and political system, and the principal source of the legitimacy of the latter. Yet each ‘backbone’ still needs numerous ‘muscles’, ‘tendons’ and ‘joints’ to set the whole ‘body’ in motion. And the same may be said about any written constitution, which is subject to sometimes radically different interpretations being adopted at the time of its application, requires multiple statutory arrangements aimed at operationalising the mechanisms it provides for, and is constantly developed through more or less creative case law. Therefore, a written constitution simply cannot constitute the only source of norms that govern the operation of public authorities.
In fact, even within the European systems based on written law, the existence of some kind of unwritten constitutional rules of conduct seems to be, in principle, acknowledged not only among scholars but also by political and bureaucratic elites whose representatives sometimes invoke such rules as part of institutional practice. Some theoreticians have denied even any possibility that a certain political and legal order could be effectively and durably established only through the adoption of a written constitution. Joseph De Maistre, one of the most fervent critics of the French Revolution, argued that all the authentic (unwritten) roots of any political constitution (constitution politique) inevitably predated a written law and that a constitutional act could not be anything more than a mere development of preexisting unwritten law. In his opinion, the things that are most important, most intrinsically constitutional, and therefore truly fundamental, have never been written down. René Capitant – even though he proceeded from completely different theoretical premises – claimed that the source of the constitution needed to be necessarily customary in the sense that as long as the sovereign power was being vested in the people, customary norms directly set up by the latter should prevail over any written law. Nevertheless, contemporary continental legal thought has been dominated by the paradigms of legal positivism, in light of which, in essence, there is no law except that which is written (i.e. positive law). Therefore, Raymond Carré de Malberg – taking into account merely a formalistic (procedural) point of view – noted that since the term ‘constitution’ might only refer to a (written) normative act that had its binding legal force enhanced and that could not be amended by virtue of an ordinary statute, there should be no place for ‘customary constitutional law’ (droit constitutionnel coutumier) mainly because revision of the latter would not require any special procedure. In other words, within this concept the notion of written and rigid constitution excludes the existence of customs or other unwritten norms possessing constitutional legal force. If even legal positivists recognise a certain role of unwritten rules of conduct in the functioning of state institutions, they firmly deny them any legally binding force. Only norms laid down in a written constitution may enjoy the status of supreme law.
Hence, it may appear rather surprising that – notwithstanding the dominance of these paradigms of legal positivism – the distinction between a ‘constitution in the formal sense’ (constitution formelle) and a ‘constitution in the substantive sense’ (constitution matérielle) is constantly made in the continental contemporary constitutional literature when analysing the concept of ‘constitution’. While the former term is associated with a set of norms explicitly provided for in a normative act adopted under a special procedure and having the highest legal force, the latter one is, instead, defined as an ensemble of norms governing the organisation and functioning of state authorities, regardless of the nature of the sources of such norms. The substantive approach to the concept of ‘constitution’, thus, enables the legal doctrine to discuss whether extratextual phenomena, such as constitutional conventions, customs, institutional practices or constitutional case law, might be treated as veritable sources of legally binding and enforceable constitutional norms. Especially in France, this issue has been repeatedly discussed in the context of the persistence after 1945 of certain institutional practices inherited from the Third Republic or the evolution of the political system of the Fifth Republic on the margin of the written Constitution of 1958. On the contrary, the topic remains, if not inexistent, then at least marginal for the legal doctrine in countries that do not have similar long-standing constitutional and democratic traditions, for instance in Central and Eastern Europe. In this region, after the collapse of communist regimes in the early 1990s and given the absence of such traditions, texts of written constitutions have necessarily played an almost exclusive role in determining the reference points for the operation of state authorities. Yet even there, after nearly three decades of democratic experience, the nuclei of the theoretical discussion about unwritten constitutional rules of conduct should be acknowledged.
Terminological and typological controversies related to unwritten rules of conduct
Even though the continental legal and political literature related to the issue of unwritten constitutional rules of conduct seems to be quite voluminous these days, there is no consensus on how such rules should be defined, how to classify them, or what their nature is. In general, unwritten rules of conduct do not provoke major controversies when they remain in line with the wording or at least the ‘spirit’ of a written constitution (so-called secundum constitutionem rules). That is usually the case when such rules constitute a manifestation of one among the plausible outcomes of the interpretation of a constitutional text. They reveal then the ‘normative potential’ of a constitution (so-called interpretative rules). For example, according to the Polish Constitution of 1997 the President of the Republic appoints judges on the motion of the National Council of Judiciary. Although the wording of relevant constitutional articles may suggest that it shall be compulsory for the president to accept every candidate submitted for a judicial post, the institutional practice has granted him or her the right to oppose a veto, enabling the Polish head of state to influence the composition of the judiciary. This institutional practice, though, has revealed a true ‘potential’ of the presidential prerogatives in Poland. In other cases, these secundum constitutionem customs or practices are even indispensable to ensuring the proper functioning of a constitutional mechanism in case of excessive imprecision of or evident gaps in a constitutional text (so-called supplementary rules of conduct). For instance, even though no article of the French Constitution of 1958 specifies the time limit within which the President of the Republic promulgates a law newly adopted by the parliament, it is commonly assumed that promulgation occurs no earlier than after the expiration of the time limit for referring such a law to the Constitutional Council for a preventive review of its constitutionality. Without this unwritten rule of conduct, it would be unworkable for the parliamentary opposition, among others, to exercise their constitutional right to bring a case before the Constitutional Council.
Much more controversial are customs or practices that give rise to some constitutional institutions or mechanisms which have not initially been envisaged and exist though beyond a constitutional text (so-called praeter constitutionem or extra constitutionem rules). Returning to the French experience, the existence and functioning of the Presidency of the Council of Ministers during the Third Republic were uniquely based on such unwritten extra-constitutional rules of conduct. Similar in nature are the Czech and Slovak formateur conventions, pursuant to which the head of state authorises a particular person to set up a new cabinet before formally appointing him or her as a new Prime Minister. One may argue that such unwritten praeter constitutionem customs and practices are legitimate as long as they serve to ensure the proper functioning of the entire political and legal order. But what if they result in mitigating or circumventing mechanisms or institutions provided for by a written constitution, evolving into so-called contra constitutionem conventions or practices? Given the basic premises resulting from the principles of rule of law and supremacy of any constitution (understood as a written normative act), it may be hard to accept a situation in which ‘a common error makes law’ (error communis facit ius). Nevertheless, under the French Constitution of 1958, based on the principle of the parliamentary responsibility of the cabinet, the institutional practice has evolved in such a way that the Council of Ministers has become politically accountable primarily to the President of the Republic, who may request their resignation at any time. And despite the fact that some legal experts still argue that this constitutional convention – somehow crucial for the system of the Fifth Republic – is incompatible with the constitutional text adopted in 1958, it seems to be commonly accepted by all the political actors and is consequently followed by each tenant of the Elysée Palace.
Problem of the enforceability of unwritten constitutional rules of conduct
The concept of unwritten constitutional rules of conduct may remain purely theoretical as long as there is no judge who, in practice, decides to apply such a rule as a legal basis for resolving a legal dispute between constitutional authorities. Although that kind of situation may seem highly improbable within the continental legal systems shaped by the school of legal positivism, in some countries with a long constitutional tradition one may observe the use of unwritten constitutional standards during the judicial review. In France, in particular, such ‘fundamental principles acknowledged in the laws of the Republic’ (principes fondamentaux reconnus par les lois de la République) serve the Constitutional Council to assess the constitutionality of laws. According to one of these unwritten ‘fundamental principles’, the independence of the administrative judiciary – which was not mentioned in the constitutional text adopted in 1958 – is constitutionally protected, and neither the legislature nor the executive can deprive decisions of these courts of effectiveness. In other words, the independence of the French administrative judiciary stems from an established constitutional practice that began with the adoption in 1872 of the ordinary law on the Council of State (Conseil d’État). Also, a persistent constitutional practice of the executive branch may give rise to a constitutional unwritten rule of conduct, existing on the margin of, or even notwithstanding a constitutional text. For example, even though the constitutional texts adopted in France in 1875 and 1946 provided that the government may issue normative decrees only to execute laws passed by the parliament, the Council of State always accepted a certain degree of autonomous regulatory powers at the disposal of the executive branch (for such purposes as protecting public order or ensuring the proper functioning of public services, among other things). Under the Constitution of 1958, and notwithstanding the explicit constitutional provision which gives the general regulatory powers to the Prime Minister, the Council of State – taking into account that unwritten constitutional convention which grants the President of the Republic primacy over the government – recognises that all government decrees signed by the head of state cannot be amended or revoked by decrees issued by the Prime Minister acting alone.
This quite current use of unwritten constitutional norms in the French case law would not be possible without the existence of long-standing institutional practices and a firmly rooted constitutional culture. Unfortunately, such conditions, however, could not materialise in Central and Eastern Europe, strongly as they were affected by the experience of totalitarianism. In the countries of this region, the process of democratic transformation relied principally on written constitutions as in fact the only tangible point of reference for political actors. Moreover, in some cases these young constitutions (adopted one-by-one in the 1990s) include provisions that define explicitly the sources of legally binding norms. For example, according to Article 87 of the Polish Constitution of 1997, the sources of universally binding law of the Republic of Poland are the Constitution itself, ordinary statutes, ratified international agreements, executive regulations and enactments of local entities. To be completely consistent with the theory of the “closed system” of legal sources, there is, though, no place for any customary law, including constitutional customary law. The Polish Constitution may only be amended by adopting a constitutional amendment law through a procedure specifically designed for this purpose and requiring a qualified majority in the parliament. Nevertheless, even in Poland, unwritten rules of conduct are not entirely extraneous or insignificant for the constitutional case-law. On the contrary, as was mentioned at the outset of this paper, the Constitutional Tribunal acknowledges that when applying the Constitution, one must take into account also the rules which are not provided for by this act explicitly, but which determine the essence of how to govern the state. In practice, the Tribunal makes use of unwritten customs or practices (especially when it comes to parliamentary ones) when establishing a constitutional standard relevant for the constitutional review of ordinary statutes and other normative acts. For example, in a case that required the finding of as precise a definition of ‘parliamentary amendment’ as possible, the Tribunal stated out that the meaning of this term should be determined by considering not only the wording of the constitutional provisions but also established customs and parliamentary practices. Such unwritten customs and practices may, though, reveal a true ‘normative potential’ of the written Constitution. The Constitutional Tribunal, however, firmly rejects any possibility that in a system of written law, such as the Polish legal system, there might exist customary law created in opposition to the norms resulting from the statutory law. According to its case law, it is not permissible to modify or derogate by means of customary law from any previsions contained in normative acts which are sources of universally binding law in the meaning given by the Polish Constitution of 1997.
Introductory remarks
The semi-presidential model has been generating numerous controversies related to agreeing on an appropriate definitional framework that would be relatively widely shared in the literature. The differences primarily concern the significance of presidential powers as a factor conditioning the existence or non-existence of semi-presidentialism. There is no doubt, however, as to basic conditions the system should meet: universal presidential elections and a dual executive structure. The same refers to the parliamentary responsibility of the government. These definitional elements are particularly emphasised by Robert Elgie, who describes semi-presidentialism without reference to any specific presidential competences. Hence, the approach blurs the difference between the parliamentary and semi-presidential models (the only significant difference is then the mode of electing the head of state). Such a liberal definition also means that semi-presidentialism is identified in a very large group of countries, including Poland, Czechia, Slovakia, Lithuania, Bulgaria and Romania.
Although this point of view does not have to be shared, it is a good starting point for drawing attention to two distinct types of semi-presidentialism. They differ in the scope of the collective political responsibility of the prime minister and ministers. This affects the position of the president, who may be able to change the government on his or her own initiative or have no real influence on the cabinet. Taking into account rather liberal definitions of semi-presidentialism, it can be assumed that there are two basic structural solutions within it. The first is much closer to the parliamentary model, as it means that governments are politically responsible only to parliaments. The second gives more power to heads of states and moves this system towards presidentialism because it requires the constitutionally guaranteed double responsibility of cabinets. The first (weaker) variant is referred to as premier-presidentialism, and the second (stronger) as president-parliamentarism.
When it comes to potential presidential constitutional conventions in this field, particular attention should be paid to the informal adoption of the principle of the government’s dual political responsibility. It may be hypothesised that in those countries with a semi-presidential system, where the position of the head of state is relatively strong but, in the light of constitutional provisions, the government is politically responsible only to the legislature, there may be a tendency to create informal political links between the president and cabinet, which would be based on the dependence of the latter on the former. It can be assumed that such informal dependence resulting in an increase in the position of the head of state could take, in the long run, the form of a presidential constitutional convention. The starting point for the analysis of this phenomenon may be the French semi-presidential system adopted in the Fifth Republic, as well as selected elements of constitutional practice in the countries of Central and Eastern Europe. An additional aspect that deserves attention is the process of the presidentialisation of politics. Its effect is the strengthening of individual political leaders. The phenomenon can occur in various systems of government32. In countries with semi-presidential constitutions, the effect of presidentialisation will mainly be to strengthen the head of state. These shifts occur outside constitutions, so they may also be rooted in informal conventional norms.
Constitutional conventions and governmental responsibility in France’s Fifth Republic
The Fifth Republic was established in the mid of 1950s., but semi-presidentialism did not appear in France until four years later, when the 1958 Constitution was amended to introduce universal presidential elections. The main feature of political practice became the quickly imposed pro-presidential interpretation of the Constitution. This informally moved the system far away from the parliamentary model that was initially present at its foundation. A special role in this respect was played by Charles de Gaulle, who was the first president and founder of the Fifth Republic. Hence, he was also the first political interpreter of constitutional provisions.
After 1962, a configuration known as majority presidentialism was formed and consolidated. It meant the existence of a presidential government supported by a stable parliamentary majority. Although the 1958 Constitution requires the resignation of the prime minister, which is necessary to change the cabinet, such resignations were in practice imposed by presidents, which meant that cabinets became subordinate to them. This practice had little to do with Article 8 of the Constitution, but it occurred under successive presidents, including those who did not come from the Gaullist camp and were even initially critical of the Fifth Republic. Moreover, prime ministers customarily stepped down not only after parliamentary elections, but also after presidential ones. The latter practice has no constitutional basis, so it can be seen at most as an unwritten norm that strengthens the power of a generally accepted and well-established constitutional convention. Its significance went well beyond filling a gap related to the permissible interpretation of a specific constitutional provision. This results from the fact that in this way a conventional pillar of a stronger version of semi-presidentialism was formed. Despite the stabilisation of this relationship between the government and parliament, the Constitution itself has not been changed to adapt the letter of the act to practice. It is worth mentioning that an unsuccessful attempt in this direction was made in 2007 by the so-called Balladur Committee, which was tasked with working out a broad programme of to work constitutional reform.
The conventional dependence of governments on presidents, thus constructed, experiences a significant breakdown in conditions of cohabitation. This is because prime ministers from outside the presidential camp does not feel politically subordinate to presidents. This is due to the fact that the former strive to realise the goals of their own camps in accordance with the letter of the Constitution. In such conditions, the conventional norm would have no rational justification. The need for such an interpretation of this political configuration was emphasised in 1986 by then-President François Mitterrand. In these circumstances, the semi-presidential system functions as a typical premier-presidentialism. The phenomenon of cohabitation is, however, an exception to the rule. What is more, since 2002 such a practice has not been adopted. To achieve this goal, there were even deliberate legal changes that served to reduce the probability of another cohabitation. This contributes to the strengthening of the convention described above. Last but not least, after the end of each period of cohabitation, French semi-presidentialism consistently returned to a practice that took into account the conventional component of the system of government. Hence its different phases are characterised by a different set of leading constitutional norms. This may be seen as a specific aspect of the flexibility of the French version of semi-presidentialism.
Informal factors influencing governments in Central and Eastern Europe: selected cases
When looking for examples of semi-presidential systems or parliamentary ones that are so effectively rationalised by strengthening presidents that they remain close to semi-presidentialism, the examples of Romania and Poland can become important points of reference. In the latter case, however, this primarily concerns the Small Constitution of 1992, which was to some extent inspired by the model implemented in France (the later evolution of the constitutional system of government moved Poland away from a semi-presidential structure). The Czech example can also be taken into account, although it must be borne in mind that this system can hardly be considered semi-presidential, unless the criterion is the most liberal definition of semi-presidentialism formulated by Elgie. If so, Czechia became semi-presidential after the 2012 constitutional reform introducing universal presidential elections. On the other hand, such an amendment may be a potential impulse to increase the position of the head of state and thus to initiate the full semi-presidentialisation of the system. However, this would certainly require further constitutional changes.
Romania seems to be one of the most semi-presidential among the Central and Eastern European countries that belong to the European Union. The system, regulated by the 1991 Constitution, was largely based on the French one, although the position of the head of state is undoubtedly weaker in Romania than in the Fifth Republic. This is even considered as the biggest difference between both systems. Either way, the powers given to the head of state are significant enough to provide grounds for stating the existence of presidential activism based on solid constitutional foundations. Although it is impossible to speak of such a strong influence of the head of state on the government as is the case in France, the Romanian practice indicates that in the process of appointing the government the role of the president usually goes beyond what results from the 1991 Constitution. This is related to a specific feature of the Romanian political system (and the party system itself), which is the frequent formation of minority cabinets. This is accompanied by a rather exceptional degree of governmental instability. This phenomenon is so characteristic that it is even described as stable instability. Suffice it to say that in the years 1990-2020, Romania had 17 prime ministers and as many as 34 cabinets. What is more, minority governments constituted a significant number of them. This, in turn, opened up the possibility for presidents to exercise further informal interference at the stage of government formation. This was done in particular by taking into account the head of state’s concern for the optimal position of the presidential party. The scale of this phenomenon, sustained by patterns of inter-party relations, seems to be so large that the special role of the head of state in the process of forming a new government may be treated as a kind of unwritten norm.
As far as the Polish case is concerned, the 1997 Constitution constituted a form of a parliamentarisation of the previously existing system of government. This effect was achieved by weakening presidential powers in comparison with the position of the head of state under the Small Constitution. Hence, the latter act deserves particular attention. President Lech Wałęsa imposed the interpretation that significantly increased his influence on the composition of the government. It refers to so-called presidential ministers, who, according to Article 61 of the Constitution, could be appointed only after consultations with the head of state (ministers of internal affairs, foreign affairs and national defence). During the Wałęsa presidency political practice in this respect went far beyond the Constitution interpreted literally. All these ministries were in fact subordinated to the head of state because Wałęsa effectively claimed the right to independently appoint politicians to lead them. Such a strategy certainly created a convenient starting point for the formation of a presidential constitutional convention. However, two factors stood in the way. First, Wałęsa lost the 1995 presidential election to Aleksander Kwaśniewski. The latter preferred a much more moderate model of presidency. Second, the 1997 Constitution weakened the position of the head of state, because it also did not contain an equivalent of Article 61. Therefore, there was no long-lasting constitutional support for any attempts to return to the practice described above.
Since the Czech system is the furthest from semi-presidentialism in comparison to the two cases mentioned, it is difficult to observe any repeated attempts to build far-reaching relationships between the head of state and government, that could lead to the formation of a relatively stable constitutional convention treated as a serious distortion of constitutional norms. However, it should be noted that the constitutional procedure for appointing a government gives the president some room to manoeuvre. As political practice has shown, when appointing a new cabinet the head of state can either assume that it will be formed by the party that won the election, or be guided primarily by the need to rely on the newly formed parliamentary majority (of which the winning party may not be part). This practice opens up greater opportunities for presidents to co-shape cabinets, and thus creates more space for unwritten norms to emerge. More importantly, a special situation occurred in 2013, when President Miloš Zeman appointed a technocratic cabinet led by Jiří Rusnok. This even gave rise to accusations of an attempt to create a presidential cabinet, and of a further extra-constitutional semi-presidentialisation of the system of government44. However, the extraordinary action mentioned above should rather be treated as an exception to the rule, which resulted from a specific political context existing at that time. Either way, it is a confirmation of at least situational presidential activism.
Final Remarks
To sum up, it seems that the structure of semi-presidentialism in a version without a constitutionalised political responsibility of governments to presidents (or a parliamentary system remaining quite close to semi-presidentialism) may be a good starting point in the formation of constitutional conventions strengthening the presidential influence on cabinets. An extreme form of such a phenomenon is the French Fifth Republic, but similar processes, although certainly not going so far, can be identified in other countries, including Central and Eastern Europe. In the latter countries, there are now (or were in the past) components of what can be seen as actions aimed at creating a stronger dependence of ministers on presidents. This phenomenon may be regarded as part of a broader process of the presidentialisation of politics. It may be concluded that one of its forms is the shifting of political systems towards stronger individual leadership of heads of states in the aftermath of the development and consolidation of constitutional conventions having pro-presidential properties.
The presence of both written and unwritten norms in constitutional systems shows that these systems are more complex than they may seem. Normative pluralism — the coexistence of legal rules, informal practices, political traditions, and cultural expectations — influences how constitutions work. It affects not only how laws are interpreted, but also how institutions behave and how society reacts.
That is why judges and political actors need to understand this complexity. Being aware of unwritten norms — like traditions, conventions, and silent agreements — helps protect constitutional stability and legitimacy, especially in times of political or legal uncertainty.
This topic also needs serious further academic research. Scholars should study how informal norms are learned, passed on, and used in practice. This can help us better understand how constitutional systems function beyond the written law — through shared habits and collective memory.
Legal text, by its very nature, is inherently imprecise and must operate in harmony with a broader normative environment. Within this environment, one encounters a complex conglomerate of both legal and non-legal norms, including unwritten norms, some of which are situated at the constitutional level within the hierarchy of normative acts.
Extra-textual norms also encompass doctrinal determinations, which must be taken into consideration for the wording of legal texts to attain coherent meaning. Consequently, the interpretation of legal provisions cannot be dissociated from the broader normative and doctrinal framework within which they operate.
Piotr Mikuli is a full professor of legal sciences and the head of the Chair in Comparative Constitutional Law of the Jagiellonian University. He graduated from the Faculty of Law and Administration of the University of Warsaw (MA) and the Law School of the University of Swansea, UK (LLM), He completed his doctoral studies at the Faculty of Law and Administration of the Jagiellonian University, where he also obtained his habilitation.
Łukasz Jakubiak is a political scientist and legal scholar, Associate Professor of Political Science at the Institute of Political Science and International Relations, Jagiellonian University in Krakow. His research interests include French constitutionalism, political institutions of the Fifth Republic of France, and constitutional law and party systems in former French colonies in Africa, as well as systems of government in a comparative perspective.
Radosław Puchta works currently as researcher and lecturer at the Faculty of Law of the University of Bialystok, Poland. In 2009, dr Puchta graduated in Law from the Faculty of Law and Administration of the University of Warsaw, where he completed his doctoral studies in 2015 and defended his PhD thesis in 2017. He publishes and lectures on Polish constitutional law, comparative constitutional law, constitutional review and human rights. His main area of interest remains the French public law.
This publication was prepared as a part of the dissemination of findings from the Future Democracy Lab Flagship Project funded by the Jagiellonian University's Excellence Initiative.
