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 and so only lays down a loose
framework for government. Institutions of
undoubted constitutional significance, like congressional committees, primary
elections and the bureaucracy have therefore simply evolved over time. Other constitutions, though not entirely
unwritten, nevertheless place considerable stress on conventions. For example, the ability of British ministers
to exercise the powers of the Royal Prerogative (technically, the monarch's
powers) and their responsibility, individually and collectively, to Parliament
is based entirely on convention.
Codified or uncodified constitutions
More helpful - and more accurate -
than the 'written'/'unwritten' distinction is the idea of codified and uncodified constitutions.
A codified constitution is one in which key constitutional provisions
are collected together within a single legal document, popularly known as a
'written constitution' or 'the Constitution'.
As pointed out earlier, most constitutions can be so classified, even
though they may differ in the degree to which constitutional detail is
specified and the extent to which other provisions are unwritten. The significance of codification is,
nevertheless, considerable.
First, the document itself is authoritative
in the sense that it constitutes 'higher' laws, indeed the highest law of the
land. The Constitution binds all
political institutions including those that enact ordinary law. The existence of the codified constitution
thus establishes a hierarchy of laws. In
unitary states a two-tier legal system exists with the Constitution standing
above statute law made by the national legislature; in federal states a third
tier exists, in the form of 'lower' state or provincial laws. Secondly, the status of the codified document
is ensured by the fact that at least certain of its provisions are entrenched,
so firmly established that it is difficult to amend or abolish them. The procedure for establishing the
Constitution and for subsequently revising it must therefore be in some way
more complex and difficult than the procedure for enacting ordinary statute
law. Finally, the logic of codification
dictates that since the Constitution sets out the duties, powers and functions
of government institutions in terms of 'higher' law it must be justiciable,
meaning that all political bodies are subject to the authority of the courts
and, in particular, a supreme or constitutional court. This substantially enhances the importance of
judges, or at least senior judges, who become, in effect, the final arbiters of
the constitution and thereby acquire the power of judicial review.
Uncodified constitutions, though small
in number, have very different characteristics.
The UK constitution, properly thought of as an uncodified but part written constitution, draws on a variety
of sources. Chief amongst these are
statute law (law made by Parliament), common law (based on custom and
precedent), conventions and various works of authority, whose role is to
clarify and explain the constitution's unwritten elements. The absence of a codified document implies,
most importantly, that the legislature enjoys sovereign or unchallengeable
authority in that it has the right to make or unmake any law whatsoever, no
body having the right to override or set aside its laws. By virtue of their legislative supremacy,
bodies like Parliament in the UK and Knesset in Israel are able to function as
the ultimate arbiters of the constitution - the constitution means what they
say it means. Parliamentary sovereignty
is therefore the chief characteristic of the UK constitution, implying the
absolute and unlimited authority of Parliament, reflected in its ability to
make, amend or repeal any law it wishes.
The UK constitution has stimulated
deep controversy and mounting criticism.
Parliamentary sovereignty has been held responsible for what Lord
Hailsham termed 'elective dictatorship', the capacity of a government, so long
as it maintains majority control of the House of Commons, to act it any way it
pleases. The concentration of power in
the hands of the executive that this leads to, and the consequent threat that
this poses to individual rights and liberties, has encouraged some to argue
that Britain has no constitution at all.
If governments once elected can act however they wish, they are surely
at liberty to enlarge their own powers at will and are thereby unconstrained by
constitutional rules of any kind. In
this sense, the constitution in the UK is 'what happens'. Such an analysis clearly fuels the campaign
in the UK for constitutional reform, either in the form of a revision of the
constitutional structure to ensure a wider dispersal of government power - by
the introduction of proportional representation, on elected devolution, freedom
of information and so forth - all through the introduction of a codified
constitution embodying an entrenched Bill of Rights.
Rigid and flexible constitutions
An alternative form of
classification is to distinguish between rigid
and flexible
constitutions. What procedures exist for
amending the constitution? How easily
does the constitution adapt to changing circumstances? On the face of it, codified constitutions are
likely to be relatively inflexible because their provisions are in some way
entrenched in 'higher' law. By the same
token, uncodified ones appear to be flexible and adaptable, because laws of constitutional
significance can be changed through the ordinary legislative process and
conventions are, by their very nature, based on conduct and practice. Nevertheless, there is no simple relationship
between 'written' constitutions and rigidity or between 'unwritten' ones and
flexibility.
Flexibility is a matter of degree,
and is, surprisingly, not clearly linked to formal procedures and rules. Whereas the US Constitution has endured,
albeit amended, since 1787, France over the same period, has had no fewer than
17 constitutions. Similarly, amendment
procedures may be more or less complex or difficult. In states like Australia, Denmark, Ireland
and Spain, referendums are used to introduce constitutional amendments or
ratify ones endorsed by the legislature.
In other cases, special majorities must be achieved in the
legislature. In the United States, in
addition to two-thirds majorities in both Houses of Congress, constitutional
amendments must be ratified by three-quarters of the states, a requirement that
has meant that a mere 26 amendments have been passed, 10 of them (the so-called
'Bill of Rights') introduced in the first two years of the constitution's
existence.
The rigidity that this seems to
imply is, however, misleading. Although
the words of the US and other codified documents may change little, their
meanings are subject to constant revision and updating through the process of
judicial interpretation and re-interpretation.
Nevertheless, just as written provisions can provide for flexibility,
unwritten ones can, at times, be rigid.
While in the UK the conventions of individual and collective
responsibility have proved to be so adaptable that they can almost be re-shaped
at the convenience of the government of the day, other conventions are so
deeply engrained in political culture and popular expectations that their
abandonment or modification is virtually unthinkable. This certainly applies in the case of
conventions that restrict the political role of the monarchy and prevent
monarchs challenging the authority of Parliament.
Strengths and
weaknesses of a codified constitution
The strengths of a codified or
'written' constitution are usually seen to include the following:
§ Major
principles and key constitutional provisions are entrenched,
safeguarding them from interference by the government of the day.
§ The
power of the legislature is constrained, cutting its sovereignty down to
size.
§ Non-political
judges are able to police the constitution to ensure that its provisions
are upheld by other public bodies.
§ Individual
liberty is more securely protected and authoritarianism kept at bay.
§ The
codified document has an educational value, in that it highlights the
central values and overall goals of the political system.
The drawbacks of codification may
nevertheless include the following:
§ The
constitution is more rigid and may therefore be less responsive and
adaptable.
§ Government
power may be more effectively constrained by regular elections than it
is by a constitutional document.
§ Constitutional
supremacy passes from publicly accountable politicians to non-elected
judges.
§ Constitutional
provisions enshrined in custom and convention may be more widely respected
because they have been endorsed by history and not 'invented'.
§ Constitutional
documents are inevitably biased because they endorse one set of values
or principles over another, meaning that they may precipitate more conflicts
than they resolve.
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