Piotr Mikuli

The existence of unwritten constitutional norms in countries based on the dominance of written constitutions no longer comes as a surprise in constitutional law scholarship. The only problem is determining the status of these norms. This is important from the point of view of their validity and application. In this context, the question also arises as to the relationship between these norms and the concept of law.

In both the Anglosphere, shaped by the common law tradition, and continental civil law systems based primarily on statutory law, it is generally accepted that an unwritten norm becomes law when it is directly acknowledged by an authorised state body, most often a court. However, customary law has never been a significant component of such a system, and it is not formally recognised as such, as seen in the Polish Constitution, which treats it as the official source of law. Additionally, beyond customary law, there exists a range of norms that circulate within the political system, whose normative force stems from a shared belief in the necessity of their validity, even though this is not directly derived from any binding decision of a state authority. These norms are usually referred to as customs or conventions — and when they pertain to the structure of the state, they may be described as “constitutional.”

Both unwritten legal norms and those lacking formal legal status (though their classification is often debated) exist in specific relationships with the written constitution of a given state. Some may be considered equal in status to the written provisions of the constitution, while others may occupy a different place in the hierarchy of legal sources — for example, equivalent to statutory law — thereby contributing to the broader amalgam of norms that constitute the constitutional system.

A contentious issue remains the extent to which unwritten elements can be perceived as an element in the process of legal interpretation. This reveals the intersection between interpretative methods and the discovery of normative meaning within the text. The boundary is flexible, yet in traditional positivist approaches to legal theory, the source of law is always formally the text, and its complex modifications may only be seen as expressions of judicial activism, which is often criticised. Nevertheless, the text itself frequently opens up to normative values that are neither legal nor explicitly written, resulting in a blending of law with other normative frameworks that may acquire legal character through the process of norm creation.

In the Polish context, the Constitutional Tribunal in its judgment of 7 December 1999 (case no. K. 6/99) stated that the use of general clauses helps avoid the “over-legalisation” of legal texts and that their application by the legislator does not, in principle, violate the requirement of legal certainty. The Tribunal stressed out that it is primarily the independent courts that should determine the specific meanings of the so-called general clauses in individual cases.

The potential for recognising the significance of unwritten elements is also evident in the shaping of constitutional principles. By definition, principles are reconstructed based on non-textual elements, taking into account doctrinal achievements and the developed meanings of legal concepts. This means that interpretation reaches beyond the text itself. In this context, the position of principles within the legal system is also important. As we know, according to the theories of Dworkin and Alexy, such principles do not operate in an “all-or-nothing” manner but are subject to balancing and have an optimising character. The non-textual element may therefore further contribute to their flexibility and adaptation to specific cases within constitutional adjudication.

Unwrittenness also seems to appear, in my view, in the concept of the constitutional standard. Although this concept is not entirely clear-cut, it can be understood in several ways. First, as a normative model shaped by both constitutional provisions and generally accepted solutions in a democratic state ruled by law, constructed on the basis of constitutional traditions of various countries and international law, especially those concerning human rights. Such a model may also serve as a benchmark for constitutional review, as reflected in the jurisprudence of the Polish Constitutional Tribunal.

Second, the concept of a standard may refer to constitutional practice — that is, the actual functioning of a constitutional provision in the political and legal reality. This understanding is present in Polish legal scholarship, for example in the works of Ewa Łętowska, who emphasises the importance of practice in determining the real meaning of constitutional norms. 

Third, the standard may be understood as a norm derived from a provision — a product of legal interpretation. In this context, the Constitutional Tribunal has indicated that a standard may be constructed based on binding provisions, doctrinal views, and case law, allowing the content of the norm to be determined “clearly and reliably.” 

All these approaches take into account non-legal elements — such as practice and doctrinal views — and thus support the thesis on recognition of an unwritten dimension in the formation of constitutional standards.

The question of whether combining an expansive, activist interpretation with the phenomenon of unwritten constitutional rules and norms is methodologically justified remains controversial. In the project funded under the Future Democracy Lab, we do not resolve issues that go beyond constitutional law scholarship and instead touch upon legal theory. We adopt a descriptive approach, acknowledging the fact that the constitutional system reflects the validity and subsequent relevant application of various types of norms, including unwritten ones — regardless of their origin.

The clear recognition of an unwritten element in the abovementioned meaning is, in a sense, a novel perspective. The normative conclusion, however, is that this element cannot be ignored in the political systems, and its significance goes beyond the typical thesis that the constitution in action differs from the written text due to the practices of application and judicial interpretation. Thus,written constitutionalism intersects with unwritten constitutionalism. The unwritten dimension is not necessarily more vulnerable to disruption — quite the opposite. Informal legal or political institutions, if they are applied, owe their legitimacy to the fact that they are deeply rooted in the minds of those who apply them — often intuitively and without deliberation. In this, one may see — sometimes, regardless of a given legal culture — the advantage of clearly written rules.

Piotr Mikuli, MA (University of Warsaw), LLM (University of Swansea), Ph.D. Habil. (Jagiellonian University) is a full professor of law and the head of the Chair in Comparative Constitutional Law at the Jagiellonian University. His interests include judicial review of legislation, the judiciary and constitutional principles in comparative perspective.