What Is a Constitution?

Topics: United States Constitution, Constitution, Law Pages: 7 (1922 words) Published: July 16, 2013
WHAT IS A CONSTITUTION?

Andrew Heywood

A constitution can broadly be defined as a set of rules, written and unwritten, that seek to establish the duties, powers and functions of the various institutions of government, regulate the relationships between them, and define the relationship between the state and the individual. The balance between written (legal) and unwritten (customary or conventional) rules nevertheless varies from system to system. However, the term is also used more narrowly to refer to a single, authoritative document - a 'written' constitution - that attempts to codify major constitutional provisions and constitutes the highest law in the land. Since not all major provisions can be covered by a single document, a constitution in this sense is not co-extensive with constitutional law

Traditionally, constitutions were seen as important for two reason. First, they were believed to provide a description of government itself, a neat introduction to key institutions and their roles. Secondly, they were regarded as the linchpin of liberal democracy, even its defining feature. Sadly, neither view is correct. While constitutions may aim to lay down a framework in which government and political activity is conducted, none is entirely successful in this respect. Inaccuracies, distortions and omissions can be found in all constitutions. Similarly, although the idea of constitutionalism is closely linked to liberal values and aspirations, there is nothing to prevent a constitution being either undemocratic or authoritarian. In the case of communist and some developing states, constitutions indeed have been profoundly illiberal. Why, then, bother with constitutions? Why begin an account of the machinery of government with a discussion of constitutions? The reason is that constitutions aspire to lay down certain meta-rules for the political system. In effect, these are rules that govern the government itself. Just as government establishes ordered rule in society at large, a constitution attempts to stability, predictability and order to the actions of government.

Classifying constitutions

Written or unwritten constitutions

Traditionally, considerable emphasis has been placed on the distinction between written and unwritten constitutions. This was thought to draw a divide between constitutions that are enshrined in law and ones that are embodied in customs and traditions. The former are human artefacts, in the sense that they have been 'created', while the latter have been seen as organic entities that have evolved through history. This system of classification, however, has now been largely abandoned. In the first place, an overwhelming majority of states now possess basic, written documents that lay down major constitutional provisions. Only three liberal democracies - Israel, New Zealand and the UK - continue to possess 'unwritten' constitutions, together with a handful of non-democratic states like Bhutan, Saudi Arabia and Oman. Moreover, the classification has always been misleading. No constitution is entirely written, in the sense that all its rules are formal and legally enforceable; few constitutions, for instance, specify the role of, or even mention, political parties and interest groups. Similarly, no constitution is entirely unwritten, in the sense that none of its provisions have legal substance, all of them being conventions, customs or traditions.

Every constitution, then, is a blend of written and unwritten rules, though the balance between them varies significantly. In countries such as France and Germany where constitutional documents serve as state codes, specifying in considerable detail the powers and responsibilities of political institutions, the emphasis is clearly on written rules. The US Constitution, the world's first 'written' constitution, is, however, a document of merely 7,000 words, which confines itself, in the main, to broad principles...
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