Relationship between constitution and constitutionalism

relationship between constitution and constitutionalism

Source for information on Constitutions and Constitutionalism: International of a constitution as the organization of a government, its offices, and the relation of the offices. . The distinction between private and public law is essential and is “ a. The concepts of constitution and constitutionalism refer to the legal framework of a country. While constitution is often defined as the “supreme. Constitution is a set of rules and precedents through which a country is governed. In most countries, the constitution is written. However, British constitution is.

In this discussion, the constitutional aspect became increasingly explicit. From William of Ockham to Nicholas of Cusathe idea of consent as a vital ingredient of law gained ground, and the question of how to organize the expression of such consent was faced.

Constitutionalism - Wikipedia

Church councils appeared in analogy to feudal representative assemblies, such as the English Parliament, and their traditional participation in establishing the law was claimed to be applicable to the government of the church. Even though the conciliar movement failed, there can be little doubt that it spread some of the key ideas of constitutionalism. Thus reinforced, constitutionalism might have triumphed throughout Europe in a broader secular form, had it not been thwarted by the countervailing arguments arising from religious dissension and civil war.

For against these divisive tendencies, the ineluctable demand arose for a concentration of power in the hands of a ruler—the famous doctrine of sovereignty as first enunciated by Jean Bodin [see Bodin ]. Although this doctrine was perfected and radicalized by Thomas HobbesEngland's insularity made the demand seem less urgent [see Hobbes ]. Richard Hookerin his celebrated Laws of Ecclesiastical Polity —developed a careful elaboration of Aquinas' philosophy of law and the need for general consent, if it is to hold.

But the consensus in terms of which both Smith and Hooker wrote and argued gradually declined, and the more poignant issues of modern constitutionalism presented themselves in the course of the revolution and its aftermath which filled much of the seventeenth century.

Probably the most significant and certainly the most lasting legal contribution to the modernization of medieval constitutionalism was made by Edward Coke. With all the skill of a great lawyer and an extraordinary capacity for historical learning, combined with a striking lack of historical sense, he brought medieval precedent to bear upon the issues arising between the king and Parliament or, more realistically, between Puritans and Anglicans, between old wealth and new wealth, between landed property and trading interests.

Coke, more than any other man, made Magna Charta the battle cry of those who insisted on man's rights [see Coke ]. The Petition of Rights ofwhile the first major official declaration of such rights, was still preoccupied with the rights of Englishmen, as prescriptively recognized since Magna Charta. As the revolutionary movement gained momentum after the calling of the Long Parliament inthe historic and legal guarantees were reinforced by the idea that these rights derive from the very essence of man's nature.

And while the Petition of Rights had been concerned with property rights, the right to a man's freedom of conscience—the right, that is, of freely confessing one's religious conviction—moved into the foreground. It was at the heart of Oliver Cromwell 's outlook and was given eloquent expression in John Milton 's Areopagitica The so-called Agreement of the People proposed by Cromwell's more radical following was the first of a series of attempts toward effectively institutionalizing these rights through the protection of a constitutional system.

Cromwell's desperate efforts were accompanied by two striking theoretical efforts, each reflecting, in a sense, one horn of his dilemma.

relationship between constitution and constitutionalism

Thomas Hobbesthe philosopher, rejecting outright the idea of constitutionalism, pleaded in his Leviathan for a radical concentration of powers in the hands of the sovereign. They must concur in making laws, and together constitute the legislative power.

A third power, the magistracy, must execute the laws. Soon after Cromwell's death, English sentiment swung back to its traditional constitution and in the course of the Restoration recaptured a measure of that consensus upon which it had rested.

John Locke was, of course, the theorist of these events, who skillfully summed up and generalized English constitutional thought. His Two Treatises of Governmentalthough they antedate the Glorious Revolution by nearly a decade, have long and rightly been taken to be a justification of this proceeding; for, especially in the second treatise, Locke plainly asserts a people's right to give itself its own constitution [see Locke ]. This right, although first stated by John Miltonwas part of a congeries of rights that Locke held to be natural and universal, and epitomized in the formula of the rights of life, liberty, and property.

Property was, of course, dear to the rising bourgeoisie; but in Locke's understanding, it still was very broadly construed to mean virtually the entire personal sphere of what is a man's own. Constitutional government was a government in which the crucial power to make laws was divided between king, Lords, and Commons, while the other two powers, the executive and federative, distinguished by Locke from the legislative one, were attributed to the king along with his share of the legislative power.

Only in the Act of Settlement in was the independence of the judiciary recognized, thus laying the basis for Montesquieu's interpretation of the separation of powers in more strictly functional terms.

His formulation of the doctrine, distinguishing the legislative, executive, and judicial functions and attributing each to a separate individual or group, achieved universal acclaim, was institutionalized in the American and French revolutions, and became the basis of nineteenth-century constitution making. These three functions still revolved around the idea of law: By this curious phrase, Montesquieu did not, of course, wish to suggest that the judiciary had no function but, rather, that this function depended for its implementation upon sanctions which ultimately required force.

relationship between constitution and constitutionalism

The French revolutionary movement, which far transcended the governmental and constitutional sphere, did not stop to consider such niceties. Between the Declaration of the Rights of Man and Citizenissued inand the dictatorship of Napoleon, the French ranged through all the phases of revolutionary violence; and the truly constitutional beginnings, inspired by Montesquieu and Mirabeau, soon yielded to a concentration of powers in support of a program of social transformation and renewal carried out with religious zeal.

Even so, the French more fully grasped the key notion of a constituent power than had previously been the case. Very different and sharply contrasting was the evolution of constitutional thought in America. Starting from English precedent and utilizing the experience derived from colonial charters, the fathers of American constitutionalism were anything but revolutionary in outlook.

Washington, Adams, Jefferson, Hamilton, and Madison—to mention only the most illustrious names—were all men who believed in order as well as progress. To them, the position which independence had occasioned required orderly resolution without delay.

The two successive constitutions which they helped fashion were both inspired by the ideas of Locke and Montesquieu and of the entire constitutionalist tradition which they represented and embodied.

We Don't Need a Written Constitution but Constitutionalism: Faizan Mustafa

But such inspiration as the American constitutionalists received was tempered by their knowledge that concrete and unprecedented problems were facing them. As a result, they discovered a number of highly significant institutional solutions which past constitutionalism had failed to resolve, notably federalism, judicial review of legislation, and the process of constitutional amendment. This achievement was theoretically reinforced by its skillful defense in The Federalist, in which Hamilton, with the help of Madison and Jay, expounded the doctrine of modern constitutionalism in such elaboration that it could become the basis of nineteenth-century constitution making.

In spite of lingering doubts which the notion of organic growth instilled in the minds of the more conservative elements, European nations undertook the task of constitution making. Belgium, the Netherlands, the Scandinavian kingdoms, the several German kingdoms, Switzerland, Spain, Austria-Hungary, and Italy all fashioned constitutions in the image of those of Britain and the United States.

Constitutionalism became the battle cry of all progressive forces; and broadly based popular movements, such as that of German unification, were conceived in terms of making a constitution. The unsuccessful attempt, into achieve such a constitutional order on a broadly representative and liberal basis was, to be sure, replaced by an authoritarian solution in the Reich of Bismarck's creation; but even then a constitution crowned the newly won unity.

relationship between constitution and constitutionalism

While imperfect as a realization of constitution making, it was nonetheless a step in the direction of establishing restraint on government, through autolimitation.

Monarchical constitutionalism was, in the sense of autolimitation, government according to law. As the democratic forces gained ascendancy in the course of the nineteenth century, such monarchical constitution making became outmoded.

It lacked the legitimacy of a constitution based upon popular approval. In Switzerland and other countries, democratically based procedures, similar to those used in the United States, were generally adopted. Making constitutions of this democratic kind generally calls for a representative constituent assembly in which the constitution is debated and eventually adopted. The work of such an assembly may be reinforced by submitting the constitution to popular referendum, but such plebiscites are of doubtful value.

Rejections have been few, the most striking recent instance being that of the first postwar constitution, submitted to the French electorate in April In the case of federal systems, there is also likely to be some procedure for securing the assent of a majority of the member units, through either legislative action or referenda.

Indeed, preparatory commissions have often been established to draft a constitutional proposal, as was done in the case of Puerto Rico in and the several German Lander under American occupation in Experts, whether jurists or political scientists, can be most effectively employed at this formative stage of constitution making.

The problem confronting the modern constitution maker is that of fitting past experience with constitutional government to the particular circumstances of time and place. In the emergent nations, this task often involves complicated problems of cultural adaptation. But such adaptations apart, there is the more general problem of determining the components of a model constitution.

Within a particular cultural context, such models have been laid out for municipalities and states in the United States. Whether it is possible to formulate a broadly conceived common denominator of universal validity is an open question. Contemporary problems It remains to delineate briefly some aspects of contemporary constitutionalism in Europe, the emergent nations, and the Soviet sphere. By these revolutions a defunct and generally rejected totalitarian fascist past has been negated and replaced by a more or less conventional constitutional order.

The constitutions of the Fourth Republic, of the Italian Republic, and of the Federal Republic of Germany closely resemble the orders which existed prior to the seizure of power by Mussolini, Hitler, and the Petain Laval group. There were and are significant differences, of course: Moreover, the Fourth Republic has yielded to the Fifth, which is characterized by a vigorous presidential system with little more than the trappings of parliamentarism remaining.

At the same time, its colonial empire has all but vanished. Both changes together constitute a more radical and revolutionary transformation than has occurred in either Italy or Germany.

The constitution under which they have occurred did not envisage them, even though it has permitted them. It has proved a feeble restraint upon de Gaulle's determination to govern the country as he sees fit. While the Italian and German constitutions have more nearly achieved the functional purpose of restraint, they, too, have been bent and twisted in various ways.

Thus all three constitutions serve to illustrate the weakening of constitutionalism in Europe. This decline is not to be wondered at when one observes the lack of interest in and support for constitutionalism among the citizenry. Beyond the national borders, constitutionalism has played a certain role in the broad movement for the unification of Europe. Within the European movement, there has been considerable discussion about the most suitable constitution, with federalism and parliamentarism as the key issues.

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Beyond the initial Council of Europethe Community of the Six emerged. A radical group of European federalists has pleaded for a popularly elected constituent assembly—so far without any significant result. In the meantime the unification has gone forward slowly within the context of cultural and economic life, sanctioned by international treaties and enforced by international institutions.

Even a European bill of rights has been agreed upon within the broader and looser framework of the Council of Europeand its enforcement machinery has been ratified by a number of states. The role of constitutionalism in all these developments has been limited. To some extent, the lingering conviction of its importance has actually been a hindrance rather than a help to progress, because of its tendency to formalize and institutionalize before the underlying political and social realities justify such actions.

Although constitutionalism is apparently weakening in its heartland, it has been a factor of considerable importance in the emergent nations. To most of them, the fashioning of a constitution for their political order has been significant as a symbol of their newly won freedom. Some of the constitutions are of extraordinary complexity and formal sophistication, notably that of India. Here the task of organizing a whole culture of continental dimensions presented problems never before solved by Western constitutionalism.

Working with European and American precedents, India had to add totally new provisions. It is, however, widely felt that the Indian constitution does not really express political reality—a criticism which could, of course, also be applied to most other constitutional systems.

Only those parts of politics which can be expressed in legal rules can be reflected in a constitution. Behind the formal organization, an informal one will always operate. It is an essential part of the living constitution, which could not function without it. Such arguments usually overlook some of the most obvious counter-arguments. Terms of office, modes of election, territorial divisions, and many other provisions in modern constitutions are descriptive of at least part of the political reality.

relationship between constitution and constitutionalism

Clearly they do not exhaust that description and may not even mention certain important political institutions—for example, parties. In many of the emergent nations constitutionalism cannot fulfill even this more modest function, and does not restrain the government because it is not the expression of a firm belief in the importance of doing so.

More especially, bills of rights remain empty paper declarations because the ruling party or clique readily identifies itself and its power with the public interest. This tendency is enhanced by the practice in totalitarian communist states. The purely formal character of such documents as the successive constitutions of the Soviet Union is revealed by the fact that they do not evolve.

They remain what they are, on paper, until one day they are completely altered by the effective rulers of the dominant party. They embody essentially what the regime wishes the world outside and its own people to believe about the political order.

relationship between constitution and constitutionalism

They therefore invariably contain extended bills of rights devoid of all enforcement machinery or possibility of implementation. The bill of rights is seen as a declaration of principle, and its function was summed up in by the Soviet scholar A.

The Soviet constitution embodies the principles of socialist democracy, it is a genuinely democratic constitution. The broad tradition of constitutionalism has in this century been projected onto the world plane. The constitution provides the foundation of the government, structuring the political organization and guaranteeing individual and collective rights and freedoms. Constitutionalism is a system of governance in which the power of the government is limited by laws, checks and balances, in order to reconcile authority with individual and collective freedoms.

The idea of constitutionalism and of constitution is strictly linked with the progress and spread of democracies. In monarchic, totalitarian and dictatorial systems there is generally no constitution or, if it exists it is not respected. Individual and collective rights are often disregarded in dictatorial regimes, and the government cannot be held accountable as there is no legal document that defines its limits.

The concept of constitutionalism has evolved during the last few centuries thanks to political changes and progress of democratic ideals. Similarities between Constitution and Constitutionalism Constitution and constitutionalism are overlapping concepts, although the first refer to a written body of laws and legislation and the second is a complex principle and system of governance.

Some of the similarities between the two include: Both refer to the limits and features of the system of governance of a country. Constitutionalism would not exist without a constitution, and a constitutional way of governing a country requires limits and boundaries to the central authority; Both influence the actions of both government and population.

Besides providing a framework for political and institutional structure, the constitution sets out the main rules that all citizens should respect. Difference between Constitution and Constitutionalism The main difference between constitution and constitutionalism lies in the fact that the constitution is generally a written document, created by the government often with the participation of the civil societywhile constitutionalism is a principle and a system of governance that respects the rule of law and limits the power of the government.

  • Constitutions and Constitutionalism
  • Difference Between Constitution and Constitutionalism

Most modern constitutions were written years ago, but laws and norms had already been evolving and mutating for centuries, and continue to do so. The constitution and laws in general is a living entity that should adapt to the changing features of the modern world and of modern societies. Failing to adapt the constitution — without losing its core principles and values — may lead to an obsolete and unadapt governance system.

Constitutionalism

Other differences between the two concepts include: Constitutionalism is based on the principles outlined in the constitution — or in other core legal documents — but it is also a principle of its own. The idea of constitutionalism is opposed to the concept of authoritarian and despotic rule and is based on the belief that the power of the government should be limited in order to prevent abuses and excesses; The constitution is often a written document, while the principles of constitutionalism are generally unwritten.

Both constitution and constitutionalism evolve with the promulgation of democratic ideals — although they do not always proceed at the same speed. There can be a constitutional form of governance — that respects the rights of the citizens and promotes democratic values — even though the national constitution is outdated.

At the same time, an inefficient democratic government may not be able to rule in a constitutional way, despite the existence of a constitution.