PSIR 101

Week X
Fall 2022

Fatih Erol
Overview
o Definition
o Classification
o Purposes
o Relevance
o Law v. Morality, Law v. Politics
o International Politics
o Judiciary
Definition
Definition
Constitution ~ written or unwritten set of rules,
(i) establishing the governmental organization,
(ii) regulating the relationships within the government institutions, and
(iii) defining the engagement between the state and the individual.

18th century creation, initiated by the first written constitutions:

o the US constitution of 1787
o the French Declaration of the Rights of Man and the Citizen in 1789

Constitutions as a means of establishing new political order (e.g.,

reappointment of power and political authority).
Classification
Classification of Constitutions
[1] Written v.
Unwritten

[2] Rigid v.
Flexible
Classification
[3] Effective v.
Nominal
(Facade)
[4] Rival
Institutional
Structures
[1] Written v. Unwritten
o Written: Enshrined in laws.

o Unwritten: Enshrined in customs and traditions.

• Understanding the constitution by reading commentary by the judiciary, government committees, legal
experts, …

• Conventions: Non-legal rules upheld by a sense of constitutional propriety (what is “correct”) or by

practical circumstances (what is “workable”).

 Organic entities evolved through history.

 Liberal democracies: Israel, New Zealand, the UK
 Non-democratic democracies: Bhutan, Saudi Arabia, Oman

• BUT trend towards adoption of written and formal rules

 Israel, 1950, the Knesset voting to adopt a written constitution some time
 the UK, 1996, the Question on Procedure for Ministers
 New Zealand, 1990, A bill of rights
 A more informed distinction needed
[1] Codified v. Uncodified
Codified: Presence of a single authoritative text, the written
constitution.
1. Authoritative: the highest law of the land.

Co
nsti
Unitary tuti
State on
Statute law Federal
(enacted by the
legislative) State

State law or provincial law

[1] Codified v. Uncodified
Codified: Presence of a single authoritative text, the written
constitution.
1. Authoritative: the highest law of the land.
2. Entrenched: harder and complex to establish and revise than
the statute law.
3. Justiciable: all political bodies subject to the authority of the
courts, in particular the supreme court.
[1] Codified v. Uncodified
Uncodified: No single authoritative text. Reliance on a variety of sources:
o Statute law
o Common law (based on custom and precedent such as the offence of murder)
o Conventions and other marks of authority

The absence of codified text means the legislative enjoys the sovereignty or
unchallengeable authority in having the right to override or set aside the laws.
o Parliamentary sovereignty (the absolute authority of a legislature):
• the uncodified constitution
• the supremacy of statute law over others
• the absence of rival legislatures
• the convention that no parliament can bind its successors
o The example of Brexit: the EU laws outranking all other forms of law in member
states.
[1] Codified v. Uncodified

A Codified Constitution
Pros Cons
 [1] Codified v. Uncodified
A Codified Constitution
Pros Cons
Prevention of government interference into major
Rigid, less responsive to the conditions.
principles.
It should be the election, not the constitution, that
Restraining the power of the legislature.
constrain government power. Text above the general will!
Constitutional supremacy in the no—elected judges,
Non-political judges upholding the constitution.
rather than the publicly accountable politicians.
Greater respect for customs and conventions (based on
Greater guarantee of individual liberties
history).
Constitutional documents being biased, endorsing one set
Circulation of the central values and goals of the political
of values or principles over others, precipitating more
system over years (political culture, learning).
conflicts than resolving.
[2] Rigid v. Flexible
o Flexibility of constitutional amendment ≠ Lacking
codification
• Referendums to ratify the constitutional amendments or those
endorsed by the legislature (in Australia, Denmark, Ireland, Spain)
• Special majorities in the legislature
 2/3s in Bundestag + Bundesrat in Germany
 2/3s in the Congress and the Senate + ratification by 3/4 of the 50 states
in the US
[3] Effective v. Nominal (Facade)
o 2 criteria for an effective constitution:
• the existence of constitutional rules; provisions of the constitutions
determining the practical affairs of the government.
• the capacity of the constitution to constrain the governmental power.
 Leading to constitutionalism: a practice of limited government, ensured by a
constitution. More broadly, a set of political values and devices creating a network
of checks and balances (e.g., codified constitutions, bills of rights, separation of
powers, bicameralism, federalism).

o However, all constitutions are violated to some extent. The question

is on those violations’ extent of regularity and magnitude.
• In authoritarian countries countries, reference to individual rights and
liberties, but not actual realization.
• Let’s visit the Constitute Project.
[4] Rival Institutional Structures
o Monarchical v. Republican
• Monarchical, implementing constitutional supremacy in a dynastic ruler.
• Republican, deriving political authority from the people.

o Unitary v. Federal
• Unitary, concentrating sovereignty in a single national body.
• Federal, dividing national sovereignty between two levels of government.

o Parliamentary v. Presidential
• Parliamentary. The executive is derived from and accountable to the parliament.
• Presidential. Two branches of the government (the executive and the legislative) functioning independently.

o Pluralistic v. Monopolistic
• Pluralistic. In liberal democracies. Political power is dispersed through guarantees of participatory rights
and party competition.
• Monopolistic. In communist or authoritarian systems. Unquestionable authority of a ruling party or
supreme leader.
Purposes
[1] Empowering states
o Marking out the existence of states.
o Claiming the sphere of independent authority.
• New state creation <> Constitution

Do you know the first four articles of the Turkish Constitution?

[1] Empowering states
[1] Empowering states
o Marking out the existence of states.
o Claiming the sphere of independent authority.
• New state creation <> Constitution

o The need for empowerment also applies to subnational and supranational

entities.

• In federal systems, states with their own constitutions to guarantee their spheres of
activities from the central government.

• In supranational organizations such as the EU, the treaties (e.g., Treaty of Rome in
1957, the Single European Act in 1986, the Treaty of European Union in 1993)
have constitutional effects, authorizing the EU bodies to intervene in various ways
in the affairs of member states.
 [2] Establishing values and goals
o Constitutions entangled with ideological priorities,
statements with national ideals.

Which ideological orientation is

predominantly visible in the fifth
article here?
[3] Providing government stability
o Constitutions as organizational charts, formalizing and regulating the relationships
between political parties and providing mechanism through which conflicts can be
resolved.

o Introducing stability, order, and predictability in the workings of the government.

Montesquieu (1689-1755), the Spirit of Laws (1748):

“11.6.—In every government there are three sorts of power: the legislative; the executive in respect to
things dependent on the law of nations; and the executive in regard to matters that depend on the civil law.
By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates
those that have been already enacted. By the second, he makes peace or war, sends or receives embassies,
establishes the public security, and provides against invasions. By the third, he punishes criminals, or
determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the
other simply the executive power of the state.”
[3] Providing government stability
o Let’s go over the items of PART THREE in the
Turkish Constitution.

o Constitutional government (where everyone knows “the

rules of the game” and so maintain complex pattern of social
interaction) v. Arbitrary government.
[4] Protecting freedom
o Negative freedom
o Positive freedom

Bill of Rights (the legal extent of civil liberties).

o Entrenched (enshrined in higher law and providing the basis for
judicial review, breaching parliamentary sovereignty) or
o Statutory (amended or repealed by the legislative)
[5] Legitimizing regimes
o Constitutions as a prerequisite for a state’s membership in
the international community and recognition by other states.
• Constitution > Codes and statutes (kanunlar) > international
treaties (uluslararasi sozlesmeler) > statutory decrees (kanun
hukmunde kararname) > regulations (yonetmelik) > by-law
(tuzukler)

o Constitutions to build legitimacy within a state through provocation

of respect and compliance amongst the domestic population.
Relevance
A Couple of Factors
o Constitutions must correspond to and be supported by the political culture.
• Liberal constitutions guaranteeing individual rights and political competition might be irrelevant in societies
with deeply collectivist values and traditions, particularly when there are struggles over basic social and
economic development.
• Any political culture values you know leading to questions about the relevance of the constitution?

o Whether the constitution is respected by rulers and accords with the interests of and values of the
dominant groups?
• Weimar Republic constitution of 1919 with impressive set of rights and liberties (proportional representation,
universal suffrage among those >= 20 years olds) BUT set aside by Hitler. HOW?
 By being in conflict with the interests of the Nazis and conservatives in business and the military.
 Poorly supported by the population facing economic crisis and little accustomed to representative democracy.
 State of emergencies

o Adoptability of a constitution and ability to remain relevant despite changing political conditions.
• Flexible constitutions being able to accommodate and change and remain relevant.
• BUT being too flexible can serve the interests of the populists, the “strongmen.”
 Anti-institutionalist view: direct, unmediated link between the leader and the people, such as looking for constitutional loopholes
to extend the presidential term limits.
Law v. Morality, Law v. Politics
Law v. Morality
o Law, concerned about “what may or may not be done?”
• Objective character that law is a social fact.

o Morality, ethical, “what should or should not be done?”

• Law being subjective entity, a matter of personal opinion/judgement.
• Natural law theories dating back to Plato and Aristotle: law should be based on some
moral system.
 Natural rights ~ civil liberties / human rights

o 19th century onward, legal positivism (a legal philosophy defining law by the
capacity to establish and enforce law, not by moral character).
• “the law is the law because it is obeyed”
• H. L. A. Hart, the Concept of Law (1961), the law stemmed from
 primary rules: regulating social behavior (i.e., content of the legal system such as criminal law)
 secondary rules: conferring powers on the institutions of government
Law v. Politics
o Liberalism, law being above politics.
• State of nature > Social contract to protect the individual from other
threatening individuals and to prevent power of the Leviathan over the
individual.
• Assuming and expecting independent judges, above and outside the
government machinery.
• Rule of law, the liberal-democratic principle that the law establishes a
framework for all conduct/behavior in the society (private citizens +
government officials).
International Law
Soft v. Hard Law
o Soft law, not binding, cannot be enforced, quasi-legal
instruments imposing moral obligations only.

o Hard law, binding and can be enforced.

o Why would a state abide by the soft law of the International Court of
Justice, regarding the war crimes?
Soft v. Hard Law
o Soft law, not binding, cannot be enforced, quasi-legal
instruments imposing moral obligations only.

o Hard law, binding and can be enforced.

o Why would a state abide by the soft law of the International Court of
Justice, regarding the war crimes?
• Reciprocity.
Judiciary
Judiciary
o Function: empowered to decide legal disputes, to interpret or construct
law between the major institutions of government, between the state and
the individual, and between the individuals.

o Question 1: Are judges political?

• Neutrality: Absence of political sympathies and ideological leanings.
• Liberal constitutions: judges independent and impartial.
• Orthodox communist regimes: judges dictating the regime ideology.

• External bias: Political bodies (e.g., the executive, the assembly) exerting influence on the
judiciary. Violation of judicial independence. Example of political appointments.

• International bias: Exclusionary values and culture of the judiciary (i.e., the question is not
about how judges are recruited but who are recruited). Bias against women and racial
minorities.
Judiciary
o Function: empowered to decide legal disputes, to interpret or
construct law between the major institutions of government,
between the state and the individual, and between the individuals.

o Question 2: Do judges make policies?

• Broadly defined laws or constitutional principles allow greater scope for judicial
interpretation.
• Codified constitution, allowing judicial review (reviewing, invalidating the laws,
decrees, actions of other branches of the government).
• Uncodified constitution, with no legal standard against which to measure the
constitutionality of the political actions and government actions.
 the UK, parliament sovereign, judiciary subordinate. BUT examples of ultra vires principle
(beyond the powers; declaring actions of ministers unlawful).
 The Human Rights Act of 1998, judges’ capacity to protect civil liberties in relation to the war on
terrorism.