Piotr Mikuli
It is now widely acknowledged that even in constitutional systems where the primary source of norms regulating the behaviour of public authorities and the status of individuals is the written constitution and other codified laws, there exists a broad spectrum of unwritten rules. These rules may vary in nature — from strictly legal norms to political, moral, and interpretative norm and principles.
One may distinguish several types of unwritten norms. These may coexist with the written norms expressed in the Constitution. Among them are norms derived from customary law (including common law in the Anglosphere), various constitutional conventions — which may have a strictly legal character or remain within the realm of political obligations — customs, and, most controversially, norms that emerge through legal interpretation in judicial rulings.
In this latter context, as it seems two approaches are possible. The first one, traditional in the continental (especially German) legal culture, views interpretation as a specific process in which the meaning of a norm is constructed on the basis of various interpretative rules, with the legal text as the foundation. In this view, it is difficult to speak of true “unwrittenness.” The second approach assumes that legal interpretation reveals certain unwritten understandings of legal institutions, including doctrinal developments — elements that go beyond the legal text itself. This is particularly relevant when the constitutional text explicitly opens itself to other normative orders, referring to customary or moral principles.
Such a situation arises both in the context of relationships between constitutional state organs and in matters concerning individual rights and freedoms. One lesson civil law systems can draw from common law traditions is that unwritten rules concerning the individual’s legal situation can also be effective. The constitutional guarantee function may prove insufficient in the face of the autocratisation of the political system. In this context, the effectiveness of unwritten norms need not be weaker; sometimes it is even the opposite. Autocrats who come to power and violate the rule of law can disregard both types of norms. However, unwritten norms, having developed over time, are often less controversial and — through psychological habituation — may be more difficult to violate, even for those who disrupt the rule of law.
Therefore, in protecting the rule of law in the political system and rights and freedoms, it is crucial — however banal it may sound — to continuously develop political and legal culture and raise awareness of the existence and protection of human rights. Owing to the mere fact of being deeply rooted in collective consciousness, unwritten norms may be less susceptible to violation or circumvention. In this context one may argue that in protecting human rights and upholding the rule of law, it is also helpful to refer to values widely recognised as the moral foundations of a democratic state. This is especially important when attempting to restore the rule of law after a period of autocratic governance. In this sense, one can speak of certain values that, although encoded in constitutional texts, are not explicitly stated. From this perspective, they may be considered unwritten — or at least not fully written — norms.
Obviously, the claim that certain principles derived from constitutional texts have a primarily extra-textual character will always be somewhat controversial. Such references to general ideas typically appear in judicial rulings and are tied to the ongoing debate about the limits of judicial activism.
There are many examples of broad constitutional interpretation that either confirm the existence of an unwritten norm or directly create one. We would like to highlight two that have recently gained importance in the context of the rule of law crisis:
a) The principle of constitutional necessity, which allows for deviation from the constitutional text in order to defend more fundamental norms or principles upon which the entire constitutional order is based.
b) The principle of non-regression, which prohibits the deterioration of existing legal standards or the weakening of rights protections.
One example of this issue was discussed in Poland in the context of assigning general jurisdiction courts (common courts) the competence to review the constitutionality of statutes, particularly in light of the politicisation and complete discrediting of the Constitutional Tribunal. The origin of this idea is partly linked to the situation in Cyprus after its division, when Turkish judges could no longer sit on the Constitutional Court in accordance with the constitutionally mandated parity. The inability of the Constitutional Court to function led to judicial recognition of the Supreme Court’s competence to review the constitutionality of laws, even though the constitution did not explicitly grant it such authority. Similarly, in Poland, the Constitution does not grant courts the power to review constitutionality; on the contrary, it has traditionally been interpreted as assigning a monopoly on constitutional review to the Constitutional Tribunal. However, the collapse of constitutional justice would undermine the supremacy of the Constitution in the Polish legal system. Therefore, to protect constitutional norms — by invoking a state of constitutional necessity — it may be argued that other courts should assume this role, particularly to ensure the protection of individual rights and freedoms.
The second example illustrates a rather broad interpretation (akin to the American concept of “reading in”) or, considering the earlier remarks on the judiciary’s role in shaping unwritten norms, an example of an unwritten layer of a constitutional-level act. In this context, one might refer to the principle prohibiting the deterioration of rights and freedoms or certain standards of a democratic state governed by the rule of law. This principle appears to have been developed by the Court of Justice of the European Union (CJEU), particularly in relation to Article 19 of the Treaty on the European Union (TEU; which plays a role similar to that of a national constitution), in cases concerning the judiciary in Poland and Malta. The CJEU stated (Case C-896/19, Republika) that legislative or institutional changes that exacerbate existing guarantees of judicial independence are impermissible. The principle of non-regression can also be interpreted more broadly (including in the context of human rights), meaning that lowering the existing standard or level of rights protection is unacceptable. This interpretation may also stem from Article 2 of the TEU, which states that the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights.
These examples demonstrate that legal texts, by their very nature, are not entirely precise and must be interpreted within a broader normative context. This context includes a complex conglomerate of written and unwritten norms — both legal and extra-legal — some of which are embedded at the constitutional level in the normative hierarchy. These extra-textual norms also include doctrinal findings, which must be referenced for the wording of the text to make sense. This shows that the division between written and unwritten constitutions is gradually becoming obsolete. In reality, every legal system contains features characteristic of a material constitution, both in the traditional Polish sense — as a conglomerate of norms derived from various sources — and in the more modern understanding, as a set of institutions, social relations, and fundamental political objectives. These forces constitute the substance and dynamics of constitutional ordering, in internal relation with the formal constitution.
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.