Constitution

Concepts and Importance of Constitution

Constitutions are at the heart of democratic states—they describe the basic principles of the state, the structures and processes of government and the fundamental rights of the citizens.

The content and nature of a particular constitution, as well as how it relates to the rest of the legal, social and political systems, varies considerably across countries. For this reason, it is difficult to come up with a universally accepted definition of a constitution.

However, International IDEA (The International Institute for Democracy and Electoral Assistance) Opens in new window enumerates a number of characteristics that any broadly accepted working definition of a constitution would likely include.

Accordingly, a Constitution is a set of fundamental legal-political rules that:

  • are binding on everyone in the state, including ordinary lawmaking institutions;
  • concern the structure and operation of the institutions of government, political principles and the rights of citizens;
  • are based on widespread public legitimacy;
  • are harder to change than ordinary laws (e.g. a two-thirds majority vote or a referendum   Opens in new window is needed);
  • as a minimum, meet the internationally recognized criteria for a democratic system in terms of representation and human rights.
  • Source: The International Institute for Democracy and Electoral Assistance (International IDEA)

In democratic politics, constitutions act as the official “rules of the game” for a particular political system. A constitution includes the description Opens in new window of official major government bodies and positions, the powers these positions have, and the process for making new laws.

  • Constitutions include a list of positions of governmental authority, the specific powers of these positions, and other rules for making new rules (i.e., the process for creating laws or passing constitutional amendments).

As such, a constitution acts as the official “rules of the game” for a particular political system. If followed, the constitution prevents laws from being passed arbitrarily.

In addition to laying out the official powers of the various governmental institutions, a constitution also places restraints on government officials. In the U.S. Constitution Opens in new window, for example, certain powers are given only to the legislative branch Opens in new window. The president has no authority to exercise these particular powers. A president who tried would be subject to impeachment and removal from office.

Many formal rules and limits on governmental power are ignored by leaders, particularly in authoritarian and totalitarian systems. Yet, without doubt, a constitution is much more effective if it is followed. If its rules are adhered to, a constitution adds legitimacy to the system, conferring what Max Weber called rational authority. Citizens may not like a specific law, but they nonetheless accept it as legitimate because they believe that the process through which laws were made is itself legitimate.

Following the consistent process for passing laws is also an important part of the condition known as the rule of law—a condition in which laws are passed according to the constitution, government officials are not are not above the law, and society respects contracts as legally binding (Read further about rule of law here Opens in new window).

The Constitution at the Intersection of Legal, Social and Political Life

As legal, political and social documents, constitutions are at the intersection of the legal system, the political system and society.

Constitutions as legal instruments

A constitution ‘marries power with justice’ (Lutz 2006:17)—it makes the operation of power procedurally predictable, upholds the rule of law Opens in new window, and places limits on the arbitrariness of power. It is the supreme law of the land, and it provides the standards that ordinary statutes have to comply with.

Constitutions as social declarations

Constitutions often attempt, to varying degrees, to reflect and shape society—for example, by expressing the (existing or intended) common identity and aspirations of the people, or by proclaiming shared values and ideals. These provisions are generally found in preambles and opening declarations, but can also be found in oaths and mottos or on flags and other symbols that are defined by the Constitution. Other substantive provisions of the constitution, particularly those defining socio-economic rights, cultural or linguistic policy, or education, might also belong to this category (Lutz 2006: 16–7).

Constitutions as political instruments

The constitution prescribes a country’s decisionmaking institutions: constitutions ‘identify the supreme power’, ‘distribute power in a way that leads to effective decision making’ and ‘provide a framework for continuing political struggle’ (Lutz 2006: 17). The political provisions show how state institutions (parliament, executive, courts, head of state, local authorities, independent bodies, etc.) are constituted, what powers they have and how they relate to one another.

Why Have a Constitution?

Countries that have succeeded in establishing and maintaining constitutional government have usually been at the forefront of scientific and technological progress, economic power, cultural development and human well-being. In contrast, those states that have consistently failed to maintain constitutional government have often fallen short of their development potential.

This is because constitutional government ensures ‘the fair and impartial exercise of power’; it ‘enables an orderly and peaceful society, protects the rights of individuals and communities, and promotes the proper management of resources and the development of the economy’ (Ghai 2010: 3).

In providing fundamental rules about the source, transfer, accountability and use of political power in a society, a constitution introduces a separation between the permanent, enduring institutions of the state, on the one hand, and the incumbent government, on the other. The constitution ensures that the government does not own the state: it simply manages the state, under the authority of higher laws, on behalf of citizens.