Constitutionalism And Defining of Constitutions

Constitutionalism And Defining of Constitutions.Most commonly, the term constitution refers to a set of rules and principles that define the nature and extent of government. Most constitutions also attempt to define the relationship between individuals and the state, and to establish the broad rights of individual citizens.

The Concept of Constitutionalism:-

‘Constitutionalism’ is the doctrine which governs the legitimacy of government action. By constitutionalism is meant in relation to constitutions written and unwritten conformity with the broad philosophical values within a state. Constitutionalism implies something far more important than the idea of legality which requires official conduct to be in accordance with pre-fixed legal rules. A power may be exercised on legal authority; however, that fact is not necessarily determination of whether or not the action was ‘constitutional. The doctrine of constitutionalism suggests, at least, the following:

  • That the exercise of power is kept within the legal limits conferred by parliament the concept of intra vires and that those who exercise power are accountable to law;
  • That the exercise of power irrespective of legal authority  must conform to the notion of respect for the individual and the individual citizen’s rights;
  • That the powers conferred on institutions within a state  whether legislative, executive or judicial be sufficiently dispersed between the various institutions so as to avoid the abuse of power; and
  • That the government, in formulating policy, and the legislature, in legitimating that policy, are accountable to the electorate on whose trust power is held.

In summary, constitutionalism suggests the limitation of power, the separation of powers and the doctrine of responsible accountable government. It is against these conceptual and practical requirements that the constitution of the United Kingdom must be studied and evaluated.

What is s Constitution?

In lay terms, a constitution is a set of rules which governs an organization. Every organization, whether social club, trade union or nation state, which has defined objectives and departments or offices established to accomplish those objectives, needs a constitution to define the powers, rights and duties of the organizations members. This set of rules, in addition to regulating the internal working of the organization, will also make provision for the manner in which the organization relates to outside bodies. It can therefore be said that a constitution looks to both internal and external regulation of the body to which it relates.

In addition to the function of defining powers and duties and relationships with other bodies, a constitution fulfills two related purposes those of definition and evaluation. In its defining function, the constitution is both descriptive and prescriptive (or normative).

Differently expressed, the constitution will both define the manner in which the rules in fact operate and dictate what ought to happen in a given situation. As such, the rule or normative statement in question sets a standard of conduct or behavior which is regarded as correct and which is expected to be adhered to by those to whom the rules are addressed. These constitutional rules whether written or unwritten facilitate the stability and predictability of behavior.

Further, when such normative rules exist, they provide a standard against which actual conduct can be judged or evaluated. If the accusation is made that members of an organization have acted unconstitutionally, the speaker is claiming that those accused have acted in a manner which breaches the required standards of behavior as laid down in the body of generally accepted predetermined normative rules. In this sense, a constitutional rule, in addition to being descriptive, normative and predictive, is evaluative and judgmental.

When examining the rules of any organization, it becomes apparent that individual rules have differing levels of importance and, moreover, that rules may have differing degrees of specificity or generality. The manner in which the rules are expressed may also differ; some may be written down, whereas some may be discernible only through observation of actual conduct. And thus it is with the constitution of a state, and particularly that of the United Kingdom, in which the sources of constitutional law are varied.

The legal sources are represented by a mixture of statute and judicial precedent, and these legal sources are supplemented by the binding, nonlegal, conventional rules and practices. The rules of constitutional law will also reveal differences in the manner in which they may be changed to adapt to changing circumstances.

Under a written constitution, the constitution will itself define the procedure for amendment and may provide for varying degrees of ease or difficulty in amendment in relation to particular rules. The rules regarded as the most important are characterized by the greatest degree of difficulty in the process of amendment.

Under the United Kingdom’s constitution, by way of contrast, the manner in which constitutional change is effected will be dependent not upon clearly defined written rules but, rather, by accepted constitutional practice which has evolved over time.

Defining Constitutions:-

Professor KC Wheare defines the constitution of a state as:

… the whole system of government of a country, the collection of rules which establish and regulate or govern the government. [1966, p 1]

An older definition, that of Thomas Paine, reveals a more complex set of ideas:

A constitution is not the act of a government, but of a people constituting a government, and a government without a constitution is power without right… A constitution is a thing antecedent to a government; and a government is only the creature of a constitution. [1792, Pt II, p 93]

From this second definition, it can be discerned that a constitution is something which is prior to government, or, as Paine expresses it, antecedent to government, giving legitimacy to the government and defining the powers under which a government may act. As such, the constitution sets limits both to the powers which can be exercised and to the manner in which they may be exercised.

Accordingly, the constitution defines the legality of power. This notion is particularly apposite in a country with a written constitution and a Supreme Court which is conferred with jurisdiction to rule on the legality of government action. Under such a constitutional arrangement, it can be said that everything which the government does is either lawful or unlawful depending upon whether or not the contested conduct is held to be constitutional or not.

Under a largely unwritten constitution, the position is less clear-cut, and it may often be the case that conduct will be adjudged to be unconstitutional and yet not be unlawful, This distinction will be returned to in a subsequent discussion of the legal and non-legal sources of the constitution. At chis introductory stage, it need only be noted that the unwritten nature of the United Kingdom’s constitution has given rise to argument as to whether or not a constitution as generally understood in the majority of states  exists.

Sir Ivor Jennings, author of The Law and the Constitution, offers a balanced evaluation of this apparent paradox:

If a constitution means a written document, then obviously Great Britain has no constitution. In countries where such a document exists, the word has that meaning. But the document itself merely sets out rules determining the creation and operation of governmental institutions, and obviously Great Britain has such institutions and such rules. The phrase ‘British constitution’ is used to describe those rules.

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