Unwritten Rules in Constitutional System: Constitutional Custom, Established Constitutional Practice and Constitutional Convention
Abstract
Unwritten rules are an indispensable and natural element of any constitutional system, including the Czech Republic. However, opinions differ significantly as to their character and significance for the functioning of Czech constitutional law.
The outcome of the existing academic debate is thus rather a persistent uncertainty as to what constitutional customs actually are, what term to use to describe them and what status to assign to them in the constitutional legal system. This article uses the method of functional analysis to identify and define three distinct constitutional legal constructs, which, although they share some common features (unwritten nature, usus longaevus, opinio necessitatis, relevance to the functioning of the constitutional system), differ in other respects.
Each of them thus playing a unique role in the Czech constitutional system. The first construct, which we refer to as constitutional custom, has a norm-forming function and is therefore capable of creating new constitutional norms independently of the text of the constitution.
The second construct, established constitutional practice relevant to the interpretation of the constitution, has an interpretative and argumentative function because it serves to fix one of the originally pluralistic possible interpretations of the written provisions of the constitution. Finally, the third identified construct, referred to as constitutional convention, has a preventive and moderating function: while not legally binding, it can be very effectively enforced by extra-legal, typically political, instruments.
We are convinced that the identification of three separate constructs with different functions will help to bridge the existing ambiguities that surround unwritten rules in Czech constitutional law and at the same time prevent potential problems arising from the substitution or hybridization of these constructs. We also distinguish all three of these constructs, together referred to as unwritten rules in the constitutional system, from mere constitutional traditions, which differ in that they lack a sufficient degree of relevance for the functioning of the constitutional system.