Constitution &

Constitutionalism
 Ref: Heywood, Andrew (1997), “Constitutions, the Law and
Judiciary,” Politics, pp.317-325
 Sweet, Alec Stone (2008), “Constitutions and Judicial
Power,” in Carmani, Daniele, Comparative Politics, OUP,
pp.217-225
 Constitution?
 Broadly speaking constitution is a set of rules, Written or
unwritten, that seek to establish the duties, powers and
functions of the various institutions of government, regulate the
relationship between them, and define the relationship between
the state and individual. The balance between written (legal) and
unwritten (customary or conventional) rules varies from system
 The term constitution is also used more narrowly to refer to a
single, authoritative document (a ‘written’ constitution), the aim
of which is to codify major constitutional provisions can be
covered in a single document, a constitution, in this sense, is not
co-extensive with constitutional law
 Yet another broad definition: A constitution is a body of
meta-norms, those higher order legal rules that specify how
all other legal norms are to be produced, applied, enforced,
and interpreted (Sweet, 219)
 Traditionally, Constitution were seen as imp for two reasons:
1. Provide a description of government, a neat introduction to key
institutions and their roles. (but none constitution has been
successful in this sense)
2. Linchpin of the liberal democracy/ defining feature (but in the
absence of constitutionalism it may fall pray to authoritarianism)
Evolution:
Idea of code of rules traditionally derived from idea of higher moral
power, usually religious in character, to which worldly affairs were
supposed to conform (Shari’a ).
But constitution relatively recent in origin: Britain-Magna Carta
(1215), Bills of Rights (1689), the Act of Settlement (1701)
18th C: Age of Constitution: First Written Constitution-The USA
(1787); French Declaration of Rights for Man and the Citizens
(1789)
 Series of political upheavals such as war, revolution or national
independence. Constitutions are above all a means of
establishing a new political order following the rejection,
collapse or failure of an old order. In this light, the revival of the
interests in constitution since the 1970s (with new constitution
being in the countries such as Portugal, Spain, Canada, Sweden,
and Netherlands, and the issue of constitutional reforms
becoming more prominent.
 Classifications
1. Form of Constitution or status of its rules: written vs Unwritten. Or
codified vs uncodified
2. The ease which can be changed: rigid vs Flexible
3. The content of the Constitution/insititutional structure:
monarchical/republican, Federal/Unitary, presidential/parliamentary
4. Degree with it is observed: effective, nominal, façade

 The Written/Unwritten distinction has been becoming irrelevant as

1. unwritten in only three liberal democracies (UK, Israel, New Zealand) &
in handful of non-democracies like Oman, Saudi Arabia, and Oman.
Number of written growing day by day
2. No constitution is entirely written (blend of both)
 Better to use codified versus uncodified:
 Codified- key constitutional provisions are collected together in a
single legal document known as ‘written constitution’ or the
‘constitution’. Significance b/c
 The codified document itself is authoritative-the highest law of the
land, that binds all the institution including those which enacts the
ordinary laws..hierarchy of laws
 Certain provisions are entrenched- difficult to be amendeded
 On the contrary British constitution uncodified but partly written
draws from various sources: statute laws (enacted by parliament),
Common Law, conventions and various works of authorities

 Rigid Versus Flexible: codified rigid but uncodified flexible

 No relationship with length: USA endured; France 17 constitutions
 The Purpose of Constitutions
1. Empowering States
2. Establishing Values and Goals
3. Providing Stability to Government: “Organizational Charts,”
“Definitional guides”
4. Protecting Freedom : limited govt, negative vs postitive
rights
5. Legitimizing Regimes
Constitutionalism
 Narrower sense: Practice of limited government ensured by
the existence of a constitution. (govt insitutions & political
processes are effectively constrained by constitutional rules)
 Broadly: a set of political values and aspirations that reflect
the desire to protect liberty through the establishment of
internal and external checks on government power ( a species
of political liberalism) …support constitutional provisions that
achieve this goal: codified constitution, a bill of rights, a
separation of powers, bicameralism, federalism or
decentralization. (Heywood)
 Constitutionalism refers to ‘limited government’, situations
wherein the constitution ‘effectively restrains’ those of
controls the coercive instruments of the state (Carl Friedrich)
 ‘Limited govt operating under the rule of law’ (Keon)
1. Commitment, on the part of any given political community,
to accept the legitimacy of, and to be governed by,
constitutional rules and principles. So Constitutionalism is a
variable as varies across the countries
2. Those practices and understanding of government that are
derivable from, or inhere in, any constitutional order
(Sweet)

‘Modern Constitutionalism requires imposing limits on the

powers of government, adherence to the rule of law, and
the protection of fundamental rights.” (Michel Rosenfield,
1994, in Sweet)
 New Constitutionalism
 Institutions of the state are established by, and derive their
authority from, written constitution
 The constitution assign ultimate power to the people by way of
elections or referenda
 The use of public authority, including legislative authority, is
lawful only in so far as it is conforms with constitutional laws
 The constitution provides for catalogue of rights, and a system
of constitutional justice to defend those rights
 The constitution itself specifies how it may be revised