4/19/2021 Concepts of Constitution, Constitutional Law, and Constitutionalism

SUBMIT CONTENT ABOUT US

About Us

Articles

Book Review

Courses

Moot Court Competitions

Resume Guide

Sponsored Post

Write an Article

Contact Us

Home  »  Constitutional Law   »   Concepts of Constitution, Constitutional Law, and Constitutionalism

Concepts of Constitution, Constitutional Law, and

Constitutionalism Privacy - Terms

https://www.legalbites.in/concepts-of-constitution-constitutional-law-and-constitutionalism/ 1/6
4/19/2021 Concepts of Constitution, Constitutional Law, and Constitutionalism

By Meenakshi Chahar | October 14, 2019 4 Comments

The article deals with the Concepts of Constitution, Constitutional Law, and Constitutionalism. A
state cannot govern itself on an ad hoc basis without there being some norms to regulate its basic
institution. There must be a predictable body of norms and rules from which the governmental
organs must draw their power and functions. The purpose of having a Constitution is to have a
framework of government which is likely to endure through vicissitudes of a nation.

The Constitution of a country is a document that has its own legal sanctity; it could be any-written or
unwritten. Constitution seeks to establish its fundamental or basic or apex organs of government
and administration, describe their structure, composition, powers and principle functions, de ne the
inter-relationship of these organs with one another, and regulate their relationship with the people,
more particularly, the political relationship.[1]

Note that the term “Constitutional law” is much extensive in nature with its concept than the term
“Constitution”. The Constitutional law includes the Constitution, judicial precedents, relevant
statutory laws, and conventions.

The constitutional law of a country comprises of di erent ‘legal’ and ‘non-legal’ norms. ‘Legal’
norms are those which can be enforced by the courts if there is any violation whereas ‘non-legal’
Privacy - Terms

https://www.legalbites.in/concepts-of-constitution-constitutional-law-and-constitutionalism/ 2/6
4/19/2021 Concepts of Constitution, Constitutional Law, and Constitutionalism

norms arise in course of time as a result of practices which are followed over and over again for
years.

Besides the concept of the Constitution, there is an important idea of Constitutionalism. A country
may have a Constitution, but not necessarily ‘Constitutionalism’ for example, a country where the
dictator’s word is the law can be said to have Constitution, but not Constitutionalism.[2]

The concept of Constitutionalism is not new, it is somewhere deeply embedded in human thoughts.
The Magna Carta (1215) has always strengthened and promoted the traditional view that “law is
supreme”. It has endorsed having certain limits on the powers of the king. Some natural law
philosophers like Hobbes, Locke, Aquinas, Grotius, and Rousseau have promoted this idea in their
theories for example, ‘Social Contract’.

Constitution ought to be saturated with Constitutionalism and have certain restrictions on the
powers of di erent organs of government in order to safeguard some basic rights of an individual
like freedom, and maintain the personal liberty and dignity of an individual.

There is an underlying di erence in both the concepts that a constitution should not merely grant
powers to di erent organs of government, but additionally seek to limit those powers.
Constitutionalism perceives the requirement for the government with powers to have social control
but demands limitations being set upon governmental powers with checks and balances.

It visualizes balanced governance where the powers of executive and legislature are under some
limitations; else, it would jeopardize the freedom and opportunity of individuals and lead to a
tyrant, oppressive and authoritative government.

Constitutionalism is an antithesis to arbitrary powers.[3] ‘Constitutions spring from belief in limited

government’.[4] According to Schwartz, the word Constitution means “a written organic
instrument, under which governmental powers are both conferred and circumscribed”.[5]

Remark from Professor Vile:[6]

“Western institutional theorists have concerned themselves with the problems of ensuring
that the exercise of governmental power, which is essential to the realisation of the values
of their societies, should be controlled in order that it should not itself be destructive of the
values it was intended to promote”.

Elements of Constitutionalism

Privacy - Terms
Written Constitution
https://www.legalbites.in/concepts-of-constitution-constitutional-law-and-constitutionalism/ 3/6
4/19/2021 Concepts of Constitution, Constitutional Law, and Constitutionalism

Independent Judiciary
Judicial Review
Rule of Law
Separation of Powers
Free and Fair Elections
Responsible Government
Fundamental Rights
Federalism
Decentralisation of Powers

Therefore, all the three: Constitution, Constitutional Law and Constitutionalism are interrelated
with the linked idea of democracy and limited powers. These concepts refer to the legal system of
the country which grants collective rights and allows people to enjoy their freedom and promote
the principle of “Rule of Law”.

[1] K.C. Wheare, Modern Constitutions, 1 (1971).

[2] Jain MP, Indian Constitutional Law, (7th ed, 2016), page 6.

[3] Charles H. Mcilwain, Constitutionalism: Ancient and Modern, 21.

[4] Jain MP, Indian Constitutional Law, (7th ed, 2016), page 6.

[5] Schwartz, Constitutional Law: A Text Book, 1 (1972).

[6] M.J.C. Vile, Constitutionalism and Separation of Powers, 1.

1. Features Of The Constitution and its Comparison to Various Constitutions(Opens in a

new browser tab)

Constitutional Law

Privacy - Terms

https://www.legalbites.in/concepts-of-constitution-constitutional-law-and-constitutionalism/ 4/6
4/19/2021 Concepts of Constitution, Constitutional Law, and Constitutionalism

Author: Meenakshi Chahar

Related Posts

Limited Government in India | Explained

Writ of Quo Warranto: History, Scope, Evolution, and Landmark Judgements

Writ of Certiorari: History, Scope, Evolution, and Landmark Judgements

Writ of Prohibition: History, Scope and Evolution, and Landmark Judgements

4 thoughts on “Concepts of Constitution, Constitutional Law, and Constitutionalism”

These notes are really good nd helpful for law students. Reply↓

Saumya Shukla Privacy - Terms

May 22, 2020

https://www.legalbites.in/concepts-of-constitution-constitutional-law-and-constitutionalism/ 5/6
4/19/2021 Concepts of Constitution, Constitutional Law, and Constitutionalism

Very good and qualitative content. Helped me a lot to understand the Reply↓
concept.

Disha Dagar
May 29, 2020

Good job meenakshi Reply↓

Imran shah
December 25, 2020

its nice to read and understand the importance of the constitution Reply↓

Prabhakar
March 23, 2021

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Legalbites Our Policies Contribute

About Us Disclaimer Write an Article

About the Founder Privacy Policy Write Internship

Experience
Advertise with Us Terms of Service
Post Event
© 2020 Legal Contact Us
Bites - Law And Collaborate

Beyond .

Privacy - Terms

https://www.legalbites.in/concepts-of-constitution-constitutional-law-and-constitutionalism/ 6/6