Constitutions and constitutional law
Constitutional law is a set of rules, doctrines, and practices that govern the functioning of political communities. In modern times, the state was the most important political community. Modern constitutional law is the offspring of nationalism, as well as the idea that the state should protect certain fundamental rights of the individual. As the number of states increased, so did the constitutions, and with them the body of constitutional law, although sometimes such law comes from sources outside the state. The protection of individual rights, in turn, has become the concern of supranational institutions, especially since the mid-20th century.
The nature of constitutional law
In its broadest sense, a constitution is a set of rules governing the affairs of an organized group. Parliament, a church community, a social club, or a trade union may act in accordance with the terms of an official written document called a constitution. Not all rules of the organization are contained in the bylaws; There are also many other rules (such as statutes and customs). By definition, the rules established in the constitution are considered fundamental in the sense that until they are changed in accordance with the appropriate procedure, all other rules must comply with them. Thus, the president of the organization may be forced to declare a proposal null and void if it conflicts with the provisions of the bylaws. Implicit in the concept of the constitution is the idea of a “higher law” prevailing over all other laws.
Every political community, and therefore every state, has a constitution, at least insofar as its important institutions operate according to some fundamental set of rules. With this understanding of the term, the only conceivable alternative to a constitution is a state of anarchy. However, the form a constitution can take varies considerably. Constitutions can be written or unwritten, codified or uncodified, complex or simple, and can provide for very different models of government. In a constitutional monarchy, for example, the powers of the sovereign are limited by the constitution, while in an absolute monarchy, the sovereign has unlimited powers.
The constitution of the political community formulates the principles that define the institutions entrusted with the task of governing, together with their respective powers. In absolute monarchies, as in the ancient kingdoms of East Asia, the Roman Empire, and France of the sixteenth and eighteenth centuries, all sovereign powers were concentrated in the hands of one person, the king or emperor, who exercised them directly or through agencies. who acted according to their instructions? In ancient republics such as Athens and Rome, the constitution provided, like the constitutions of most modern states, the distribution of powers among various institutions. But whether it concentrates these powers or distributes them, the constitution always contains at least the rules that determine the structure and operation of the government that governs society. 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 must be limits to the power a state can exercise is deeply rooted in Western political philosophy. Long before the advent of Christianity, Greek philosophers believed that positive law, the law that actually applies in society, must reflect the principles of a higher ideal law known as natural law in order to be just. Similar views were spread in Rome by Cicero (106–43 BC) and the Stoics (see Stoicism). Later, the Church Fathers and scholastic theologians held that positive law is binding only if it does not contradict the precepts of divine law. These abstract reasonings have been, to a certain extent, adopted in the ground rules of positive legal systems. In Europe during the Middle Ages, for example, the power of political rulers did not extend to religious matters, which were strictly within the jurisdiction of the church. His powers were also limited to those granted to at least some classes of subjects. Disputes over the scope of such rights were not uncommon and were sometimes settled by solemn legal “agreements” between claimants, such as the Magna Carta (1215). Even the “absolute” monarchs of Europe did not always possess truly absolute power. The king of France in the seventeenth or eighteenth century, for example, could not single-handedly change the fundamental laws of the kingdom or dissolve the Roman Catholic Church.
Against this backdrop of existing legal limits on the powers of governments, a decisive turning point 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 one of the earliest proponents of this doctrine. Others followed Locke, and in the eighteenth century, the views they expressed became the banner of the Enlightenment. These thinkers argued that every person is endowed with certain rights, including the right to worship in conscience, to publicly express his opinion, to acquire and own property, and to be protected from retroactive punishment and unjust laws. criminal procedures that governments cannot “take away” because they were not created by governments in the first place. In addition, they proceeded from the fact that governments should be organized in such a way as to ensure the effective protection of the rights of the individual. Thus, it was considered that, as a minimum requirement, state functions should be divided into legislative, executive, and judicial; executive actions must comply with the rules established by the legislature, and remedies administered by independent judiciaries should be available against unlawful enforcement actions.
The doctrine of natural rights was a powerful factor in changing the constitutions of Western countries in the 17th, 18th, and 19th centuries. An early stage in this process was the creation of the English Bill of Rights (1689), a product of the Glorious Revolution in England. All these principles concerning the division of state functions and their proper correlation were included in the constitutional law of England and other Western countries. England also soon changed some of its laws to give more adequate legal effect to the newly enunciated personal liberties.
In the United States, the doctrine of natural rights has been even more successful. As soon as the American colonies became independent states (1776), they faced the problem of providing themselves with a new political organization. They took the opportunity to enshrine in legal instruments, which could only be amended by special procedure, the basic principles of the distribution of public functions among the various public authorities, and the protection of individual rights, as required by the doctrine of human rights. natural. The federal constitution was drafted in 1787 at the Philadelphia Constitutional Convention to replace the failed Articles of Confederation, and the subsequent Bill of Rights (ratified in 1791) did the same at the national level. By formally conferring, through these devices, a status above the norms that determined the organization of government and limited its legislative and executive power, American constitutionalism demonstrated the essential nature of all constitutional rights: the fact that they are “basic” to all other laws. legal system. This characteristic made it possible to establish institutional control over the compliance of legislation with a set of norms that are considered paramount in the system.
The American idea that the basic rules governing government should be set out in a complete and orderly document quickly caught on. Since the late 18th century, dozens of countries in Europe and elsewhere have followed the example of the United States; Today, almost all states have constitutional documents that describe the main organs of the state, their methods of work, and, in general, the rights they must respect, and sometimes even the goals they must pursue. However, not all constitutions were inspired by the individualistic ideals that pervade modern Western constitutional law. The constitutions of the former Soviet Union and other communist countries subordinated individual freedoms to the goal of creating a classless society. However, despite the great differences between modern constitutions, they are similar in at least one respect: they are intended to express the essence of the constitutional law that governs their respective countries.
