Constitutional law, the body of rules, doctrines, and practices that govern the operation of political communities. In modern times the most important political community has been the state. Modern constitutional law is the offspring of nationalism
as well as of the idea that the state must protect certain fundamental
rights of the individual. As the number of states has multiplied, so
have constitutions
and with them the body of constitutional law, though sometimes such law
originates from sources outside the state. The protection of individual
rights, meanwhile, has become the concern of supranational
institutions, particularly since the mid-20th century.
Constitutions and constitutional law
The nature of constitutional law
In the broadest sense a constitution is a body of rules governing the
affairs of an organized group. A parliament, a church congregation, a
social club, or a trade union
may operate under the terms of a formal written document labeled a
constitution. Not all of the rules of the organization are in the
constitution; many other rules (e.g., bylaws and customs) also exist. By
definition the rules spelled out in the constitution are considered to
be basic, in the sense that, until they are modified according to an
appropriate procedure, all other rules must conform to them. Thus, the
presiding officer of an organization may be obliged to declare a
proposal out of order if it is contrary to a provision in the
constitution. Implicit in the concept of a constitution is the idea of a “higher law” that takes precedence over all other laws.
Every political community, and thus every state, has a constitution,
at least insofar as it operates its important institutions according to
some fundamental body of rules. By this conception of the term, the only conceivable alternative to a constitution is a condition of anarchy.
Nevertheless, the form a constitution may take varies considerably.
Constitutions may be written or unwritten, codified or uncodified, and
complex or simple, and they may provide for vastly different patterns of
governance. In a constitutional monarchy, for example, the sovereign’s powers are circumscribed by the constitution, whereas in an absolute monarchy the sovereign has unqualified powers.
A political community’s constitution articulates
the principles determining the institutions to which the task of
governing is entrusted, along with their respective powers. In absolute
monarchies, as in the ancient kingdoms of East Asia, the Roman Empire, and France
between the 16th and 18th centuries, all sovereign powers were
concentrated in one person, the king or emperor, who exercised them
directly or through subordinate agencies that acted according to his
instructions. In ancient republics, such as Athens and Rome, the
constitution provided, as do the constitutions of most modern states,
for a distribution of powers among distinct institutions. But whether it
concentrates or disperses these powers, a constitution always contains
at least the rules that define the structure and operation of the
government that runs the community.
A constitution may do more than define the authorities endowed with
powers to command. It may also delimit those powers in order to secure
against them certain fundamental rights of persons or groups. The idea
that there should be limits on the powers that the state may exercise is
deeply rooted in Western political philosophy.
Well before the advent of Christianity, Greek philosophers thought
that, in order to be just, positive law—the law actually enforced in a
community—must reflect the principles of a superior, ideal law, which
was known as natural law. Similar conceptions were propagated in Rome by Cicero (106–43 bc) and by the Stoics (see Stoicism). Later the Church Fathers and the theologians of Scholasticism
held that positive law is binding only if it does not conflict with the
precepts of divine law. These abstract considerations were received to a
certain extent in the fundamental rules of positive legal systems. In
Europe during the Middle Ages, for example, the authority of political rulers did not extend to religious matters, which were strictly reserved to the jurisdiction
of the church. Their powers also were limited by the rights granted to
at least some classes of subjects. Disputes over the extent of such
rights were not infrequent and sometimes were settled through solemn
legal “pacts” between the contenders, such as Magna Carta
(1215). Even the “absolute” monarchs of Europe did not always exercise
genuinely absolute power. The king of France in the 17th or 18th
century, for example, was unable by himself to alter the fundamental
laws of the kingdom or to disestablish the Roman Catholic Church.
Against this background of existing legal limitations on the powers
of governments, a decisive turn in the history of Western constitutional
law occurred when political philosophers developed a theory of natural
law based on the “inalienable rights” of the individual. The English philosopher John Locke (1632–1704) was an early champion of this doctrine. Others followed Locke, and in the 18th century the view they articulated became the banner of the Enlightenment. These thinkers asserted that every human being is endowed with certain rights—including the rights to worship according to one’s conscience, to express one’s opinions in public, to acquire and possess property, and to be protected against punishment
on the basis of retroactive laws and unfair criminal procedures—that
governments cannot “take away” because they are not created by
governments in the first place. They further assumed that governments
should be organized in a way that affords effective protection for
individual rights. Thus, it was thought that, as a minimal prerequisite,
governmental functions must be divided into legislative, executive, and judicial; executive action must comply with the rules laid down by the legislature; and remedies, administered by an independent judiciary, must be available against illegal executive action.
The doctrine of natural rights was a potent factor in the reshaping
of the constitutions of Western countries in the 17th, 18th, and 19th
centuries. An early stage of this process was the creation of the
English Bill of Rights (1689), a product of England’s Glorious Revolution.
All these principles concerning the division of governmental functions
and their appropriate relations were incorporated into the
constitutional law of England and other Western countries. England also
soon changed some of its laws so as to give more-adequate legal force to
the newly pronounced individual freedoms.
In the United States
the doctrine of natural rights was even more successful. Once the
American colonies became independent states (1776), they faced the
problem of giving themselves a fresh political organization. They seized
the opportunity to spell out in legal documents, which could be amended
only through a special procedure, the main principles for distributing
governmental functions among distinct state agencies and for protecting
the rights of the individual, as the doctrine of natural rights
required. The federal Constitution—drafted in 1787 at a Constitutional Convention in Philadelphia to replace the failing Articles of Confederation—and its subsequent Bill of Rights
(ratified 1791) did the same at the national level. By formally
conferring through these devices a higher status on rules that defined
the organization of government and limited its legislative and executive
powers, U.S. constitutionalism
displayed the essential nature of all constitutional law: the fact that
it is “basic” with respect to all other laws of the legal system. This
feature made it possible to establish institutional controls over the
conformity of legislation with the group of rules considered, within the
system, to be of supreme importance.
The American idea that the basic rules that guide the operations of government should be stated in an orderly, comprehensive
document quickly became popular. From the end of the 18th century,
scores of countries in Europe and elsewhere followed the example of the
United States; today nearly all states have constitutional documents
describing the fundamental organs of the state, the ways they should
operate, and, usually, the rights they must respect and even sometimes
the goals they ought to pursue. Not every constitution, however, has
been inspired by the individualistic ideals that permeate modern Western
constitutional law. The constitutions of the former Soviet Union and other communist countries subordinated individual freedoms to the goal of achieving a classless society.
Notwithstanding the great differences between modern constitutions,
however, they are similar at least in one respect: they are meant to
express the core of the constitutional law governing their respective
countries.
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