GOOD

AFTERNOON
!!
 Thomas Paine and Dc Tocqueville:
according to them Constitution
means the aggregate of only those
written principles which regulate the
administration of the state. If the
Constitution cannot be produced in
a visible document, it cannot be said to
be a Constitution at all.
• A written document which defines the
basic rights of the Governed and the
limitation of the government. 
• A document which contains (those) rules
which provide the framework for
government.
Sir Ivor Jennings, author of The Law and
the Constitution, offers a balanced evaluation
of this apparent paradox by saying:
If a constitution means a written
document, then obviously Great Britain has
no constitution. In countries where such a
document exists, the word has that meaning.
But the document itself merely sets out rules
determining the creation and operation of
governmental institutions, and obviously
Great Britain has such institutions and such
rules. The phrase ‘British constitution’ is used
to describe those rules.
According to Lord
Bryce –“Constitution is the
aggregate of laws and customs under
which the life of the state goes on “. 
According to K.C. Wheare, Hood
Phillips and Gilchrist, the term
“Constitution” is used to denote all
written and unwritten principles
regulating the administration of the
State. 
Professor KC Wheare defines the
constitution of a state as:
 
“... the whole system of government of a
country, the collection of rules which
establish and regulate or govern the
government.”
Aristotle defines a Constitution as
“the way of life the state has chosen for
itself “.  

According to C.F Strongs, “A

Constitution may be said to be a
collection of principles according to
which the powers of the government,
the rights of the governed and relation
between the two are adjusted“. 
CONSTITUTION AND
CONSTITUTIONALISM

CONSTITUTION –
(a) The fundamental and organic
laws and principles of a country or
state that create a system of
government and provide a basis
against which the validity of all
other laws is determined. 
CONSTITUTION –
(b) The fundamental and organic law
of a nation or state that establishes
the institutions and apparatus of
government, defines the scope of
governmental sovereign powers,
and guarantees individual civil rights
and civil liberties. 
CONSTITUTIONALISM –
Constitutionalism is the idea, often
associated with the political theories
of John Locke and the "founders" of
the American republic, and equated
with the concept of regula iuris, the
"Rule of Law", that government can
and should be legally limited in its
powers, and that its authority depends
on enforcing these limitations.
CLASSIFICATION OF
CONSTITUTION
Generally the following are the
classifications of the constitutions:
 (1) Evolved and Enacted;
 (2) Legal and Real;
 (3) Written and Unwritten;
 (4) Flexible and Rigid;
(1) Evolved and Enacted Constitution:

An evolved constitution is the

result of the historical development. It is not
framed at a particular time. For example,
the British Constitution has neither been
enacted by any special Constituent
Assembly at a particular time nor has the
Monarch given it to the people.
Constitutionally, England is still an absolute
kingship, but in practice her position is
different.
 Enacted constitutions are
framed at a particular time, like the
American Constitution which was framed by
a Constituent Assembly after the declaration
of Independence. In France, the first
constitution was framed in 1830, the second
in 1848, the third in 1871, the fourth in 1946
and the fifth in 1958. After Second World
War, new Constitution of India was
completed on November 26, 1949 and it was
introduced on January 26, 1950.
(2) Legal and Real Constitution:
The written elements of the constitution
constitutelegal constitution and
when the conventions and decisions of the
courts are added to it, it becomes the
real constitution. For example,
the Constitution of America can be read in a
few hours, but one cannot get real and
complete information about the constitution
in this way.
 Real knowledge can only be
acquired when besides the
constitution; we study the decisions
of the judges, and also customs and
conventions. The Constitution of
America was very rigid, but because
of conventions and a liberal
interpretation of the constitution by
the judges, it has become quite
viable.
(3) Written and Unwritten
Constitution:
unwritten
An
constitution is one whose
major portion is not written. Mostly
it includes customs and the
decisions of the courts. Such type of
constitutions is not framed by any
Constituent Assembly.
 Written constitution is
one whose basic principles are
written. According to Dr. Gamer, “A
written constitution is generally an
instrument of special sanctity distinct
in character from all other laws,
proceeding from the different
sources, having a higher legal
authority and alterable by a different
procedure”.
(4) Flexible and Rigid Constitution:
The second difference between the written
and unwritten constitution generally relates to
the ordinary and constitutional laws. In
England, the Parliament has the right to amend
both the ordinary and constitutional laws but in
America, France and India this is not the case,
because in these countries there is a special
procedure to amend the constitutional laws.
Generally an unwritten constitution is
flexible, while a written constitution is
rigid.
 Flexible or Elastic
The
Constitution is the kind of
constitution that can easily be changed
(usually, an Unwritten Constitution, i.e. a
constitution that has few or no special
amending procedures. The Parliament can
alter constitutional principles and define
new baselines for government action
through ordinary legislative processes,
e.g. UK and Canada Constitution.
 Rigid or Inelastic
The
Constitution is the kind of
constitution that cannot be easily amended
(usually, a Written Constitution). Moreover, it
is a constitution whose terms cannot be
altered by ordinary forms of legislation, only
by special amending procedures. That is to
say, if the constitution itself provides that
particular amendment, then it could be
possible to amend the Constitution, e.g.
Article 98 of the Tanzania Constitution, 1977.
 In broad sense, the term constitution is
refers to “that body of rules and principle in
accordance with which the powers of
sovereignty are regularly exercised”. As thus
defined it covers both the written and
unwritten constitutions.
Nature and purpose of constitution:
Serve as the supreme or universal law
A constitution is a charter creating the
government. It has the status of the supreme or the
fundamental law as its speaks for the entire people
from whom it derives its claim for obedience.
Universal Law
maybe defined as the branch of the public law
which treats of constitutions, their nature,
formation, amendment and interpretation.
As to contents, it should contain at least three sets
of provision:
a. That dealing with framework of government and
its powers and defining the electorate. This
group of provision has been called the
constitution of government.
b. That setting forth the fundamental the
fundamental rights of the people imposing
certain limitations on the powers of government
as a means of securing the enjoyment of these
rights. This group has been referred to as the
constitution of liberty.
 c. that pointing out the mode or
procedure for amending or revising the
constitution. This group has been called
constitution of
the
sovereignty.
CONSTITUTION DISTINGUISHED
FROM STATUTE
1. A constitution is a legislation
direct from the people, while a
statute is legislation from the
people’s representative.
2. A constitution merely states
the general framework of the law
and the government, while a
statute provides a details of the
subject of which it treats.
3. A constitution is intended not only
to meet the existing conditions but to
govern the future, while the statute is
intended primarily to meet existing
conditions only
4. A constitution is the supreme or
fundamental law of the State to which the
statutes and all other laws must conform.
FUNCTIONS OF CONSTITUTION
 (a) Legitimizing/regulate state powers
• It creates basic legal framework within which
vital state powers can be exercised 
• Giving legitimacy to the government and
defining the powers under which a government
may act. As such, the constitution sets limits
both to the powers which can be exercised and
to the manner in which they may be exercised.
(b) Ideological
Set out basic state economic, political,
religious ideologies; e.g. socialism,
multiparty democracy, secularism, and
etc. (see, Article 3 and 9).
(c) Organizing 
Establishing offices, political positions
and key state institutions or
machineries; e.g. the office of the
Controller and Auditor General (CAG),
CHRAGG, Army (TPDF), and etc.
(d) Distributing 
Separating and control legislative,
executive and judicial powers (Article 4).
SUMMARY: A constitution of the state has the following
main functions:-
 
• To declare the existence of the state, its name, people,
character, political ethos and system;
• To declare the territorial boundaries of the state (Article 2);
• To establish organs of governance, provide for recruitment,
disciplining of public officials and provide for the
management of the state;
• To provide for and guarantee the basic rights and freedoms
of the subjects;
• To provide for the security and defense of the state;
• To manage and run public service and the economy;
• To conduct foreign affairs and take part in global
governance;