Unwritten Constitutionalism and Informality Conference @ Masaryk University

Panel discussions on themes such as constitutional culture, constitutional resilience and informal constitutional practices highlighted the complex interplay of law and politics, demonstrating the value of interdisciplinary and comparative dialogue in enriching our understanding of constitutional law and the operation of state institutions. The conference comes at a critical time when we are witnessing an era of democratic backsliding, and the potential for unwritten constitutional norms to resist democratic erosion was a recurring theme in panel discussions.  

Some key questions that were discussed were: 

• How is the unwritten interpreted and understood?  

• Are judges guardians or gatekeepers of democracy? How do judges view their own role in a democratic society, and how do others perceive them?  

• How does judicial resistance and resilience relate to constitutional culture? What happens if there is no visible resistance or resistance fails?  

• What compels political actors to observe and respect constitutional conventions? Does it matter whether they are normatively good reasons or self-interested?  

• How do informal constitutional practices affect transparency and perceptions of transparency?  

• How might technology and digitisation reshape our understanding of constitutional law and governance?  

• What might we be losing as we trend towards increasing formalisation and codification?  

Some key takeaways that emerged were:  

• Constitutional orders are complex and terms such as “unwritten” and “informal” should be understood as a spectrum rather than binary categories. Even in highly codified constitutions, there are gaps which unwritten facets of the constitution fill. 

• Constitutional values and ethos should inform interpretation, rather than a strictly textualist approach. Our understanding is shaped by practice too: how political actors engage with - and to what extent they respect - unwritten constitutional norms, conventions and principles.  

• The ambiguity of what is unwritten can be used to both protect constitutional values and undermine or sidestep constitutional guardrails.  

• Powers granted to informal constitutional bodies on paper may not align with their influence in practice – we should draw a distinction between constitutional authority and political recognition.  

• Safeguarding democratic constitutional values should be a shared responsibility between all institutional actors, the courts do not bear sole responsibility.