The Unwritten Constitutional Norms and Principles project examines those elements of a constitutional order which are not fully contained, captured or reflected in its text. Some of these principles or norms are ambiguous components of the constitution, while others emanate from - but go beyond - the formal, textual elements of the constitution.

Research Streams

The project centres around three jurisdictions, each of which has very different experience of unwritten constitutional norms and principles: Canada, the UK, and Germany. In particular, the project centres around the following questions:

(1) What is the relationship between the degree of codification of the written constitution, judicial development of unwritten constitutional norms and principles, and how unwritten rules are defined and enforced?

(2) What factors influence apex courts’ willingness to recognize, define and enforce unwritten constitutional norms and principles? To what extent is their approach to unwritten norms influenced by the role of unwritten rules in sub-constitutional law, such as parliamentary law and administrative law and procedure?

(3) What are the alternatives to judicial enforcement when political actors flout the constitution’s fundamental unwritten norms and principles? How do these alternatives compare to judicial enforcement as a means of protecting fundamental constitutional norms?

(4) What does the study of unwritten constitutional norms and principles reveal about the authority of the constitution in both its written and unwritten forms, or about how the constitution frames the issue of constitutional change?

(5) What do unwritten constitutional norms and principles tell us about the deep normative structure of constitutions, and about how individual constitutional orders conceive of the relationship between law and politics?

Funding

The project is funded by the Open Research Area (ORA) 7, a special agreement for social sciences research between the French National Research Agency (ANR), the Deutsche Forschungsgemeinschaft (DFG) of Germany; the Economic and Social Research Council of UK Research and Innovation (ESRC) from the UK, and the Social Sciences and Humanities Research Council (SSHRC) in Canada. The ESRC has awarded the UK group £487, 871.

Dr Se-shauna Wheatle of Durham University is the Project Lead and leader of the project's UK team. Professor Vanessa MacDonnell of the University of Ottawa will lead the project’s Canada team and the project’s Germany team will be led by Professor Florian Meinel of Georg-August-Universität Göttingen.

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