Constitutional Law

Constitutional Law, the fundamental law of a state that defines the powers of the state, constitutes and
delineates the organs of government, and limits governmental powers. In addition to dealing with the
organization of state and government, constitutional law also concerns itself with the relationship
between government and citizens, more specifically with the rights and privileges of the individual vis-vis the state.
Scope and Function
Because of its fundamental character, constitutional law is legally superior to other types of law. Most
commonly, constitutional law is laid down in a special, written document or set of documents, a
constitution, that is regarded as the supreme law of the land. A constitution almost always contains a
special procedure for amendment in order to prevent facile alteration.
Separation of Powers.
The idea of separation of powers plays an important role in delineating the powers of the state and
the government. Two variants of this theory of politics can be distinguished: one variant concerns the
different branches of government; the other relates to a territorial division of state power. The first
asserts that liberty can be safeguarded only in a political system in which governmental power is divided
into three different functional brancheslegislative, executive, and judicial. Each of these branches is
assigned different organs that are expected to adhere to their own functions. There is, however, one
exception to this rule: under some constitutions the courts (or a special court) are explicitly or implicitly
authorized to review statutes in light of the constitution's mandates.
The second variant, called division of powers, refers to the territorial division of state power,
which has been established in most contemporary states between a central and a local level. In the
constitutional system of the United States (a federal constitutional system), this division of power
resulted in a distinction between the organization of power on a national and a state level. In addition to
being governed by the Constitution of the United States (the federal constitution), each state adheres to a
state constitution in which its official powers are defined. In other constitutional systems, national
government can be divided into a central and a decentralized level (such as in France, which has a
unitary constitution) or between a decentralized level of states or regions and one central organ with
limited powers (such as in Switzerland, which has a confederate system).
Bills of Rights and Other Sources.
Nations that have written constitutions usually also have an incorporated bill of rights containing
basic individual rights, such as freedom of speech and press, freedom of religion and worship, and
freedom of association and assembly, among others. These rights aim to protect the individual from state
interference. Many modern constitutions have incorporated other rights as wellsuch as the right to
shelter, to employment, and to health carerequiring the state to undertake positive action for their
implementation.
The constitutional law of a country is not strictly limited to the rules of the constitution; it also
encompasses statutes concerning the structure and functions of central and local governments and their
relations with the citizens. In addition, it incorporates judicial decisions (particularly those concerning
the interpretation of individual rights and privileges), constitutional conventions, and political practice.
In a number of countries certain provisions of international treaties to which these states are a party are
now considered part of constitutional law as well.

Constitutional Law versus Statutory Law.

Certain features distinguish constitutional law from ordinary statutory law. First, constitutional
law is the fundamental higher law that governs statutory law. It determines basic matters pertaining to
the political system, whereas statutory law applies these matters to specific categories. Second,
constitutional law, or rather a specific constitution, springs from a distinct source and is enacted or
changed by a special procedure (amendment), either in an extraordinary manner by ordinary bodies or by
extraordinary bodies such as constitutional conventions. Sometimes the final adoption of a constitution
or its amendment requires the approval of the electorate, to whom it is submitted by referendum. The
latter procedure has been and continues to be used in some of the states of the United States. Some
constitutions expressly forbid specific constitutional provisions from being amended, such as the
principle of the liberal-democratic political order that formed a part of the Federal Republic of
Germany's constitution or the republican form of government that is stipulated by the French
constitution.
Types of Constitutional Law
Two main types of constitutional law are found around the world, the determining factor being
whether the constitution is. Although the United Kingdom is usually cited as the classic example of a
state without a written written or unwritten constitution, many other countries, including Israel, New
Zealand, Oman, and Saudi Arabia, do not have a basic written document. Such countries do, however,
have a number of (written) rules pertaining to the organization of government and the rights of citizens.
The standard distinction between written and unwritten constitutions is therefore of considerable
but nevertheless limited use. Another distinction was introduced by the British legal scholar James Bryce
in 1884. He identified flexible constitutions, for which the amending process takes place by simple
majority, and rigid constitutions, which involve a special amending procedure. A shortcoming of Bryce's
typology is, nevertheless, that it does not take into consideration the fact that constitutions and
constitutional law can change not only through formal procedures but also through judicial interpretation
and changes in the relationships among political institutions.
Unwritten and Written Constitutions.
Along with its American counterpart, the British constitutional system has been considered the
cradle of constitutionalism and an extremely influential model, notably among its former colonies. The
sources of British constitutional law are threefold: (1) statutes, such as the Magna Carta (1215), the Bill
of Rights (1689), and the Parliament Act (1911); (2) judicial decisions settling aspects of constitutional
practice, such as those concerning the interpretation of rights, among them freedom of speech and of
assembly; and (3) conventions, practices, or rules that derive from political processes. Thus the principle
that a government must resign if defeated on a vote of confidence in the House of Commons is a
constitutional custom.
The 19th-century British constitutional scholar A. V. Dicey distinguished two principles that
underlie the British system: parliamentary sovereignty and the rule of law. The first principle refers to
the rule that Parliament can legislate on any topic and can pass any laws (including fundamental laws) it
sees fit. When laws are passed, the courts must enforce them, which is to say that judicial review does
not exist in the United Kingdom. A number of restraints have been placed on the British Parliament,
however. The second principle of the British constitutional system is the rule of law. This means that
every person, including public officials, will be judged according to the ordinary law of the land. A
complex body of administrative law has developed in the United Kingdom even though it lacks a regular
system of administrative courts, such as that present in France.
The second major type of constitutional law concerns all those states that have adopted a formal
written constitution. In this case, too, a further distinction can be made based on the status of the

judiciary. In some systems, constitutions explicitly grant the judiciary the power to strike down
legislation that is inconsistent with the constitution. In others the judiciary may interpret the constitution
in such a way as to invest itself with the power of constitutional review. An example of the first category
is the German system; those of the United States and Norway exemplify the second category.
Constitutional Review.
In all systems of constitutional law, the importance of the judiciary in delineating the powers of
governments and the scope of individual rights and privileges cannot be overestimated. Three principal
models of constitutional review can be identified. In the first, the "diffuse" or "decentralized" model, all
the judges and courts of a given country are authorized to act as constitutional judges. Thus when a
dispute that depends on a particular law is brought before them, the courts are permitted to consider the
validity of the law and validate or reject it. The most well-known example of a diffuse system of judicial
review is that of the United States. Its provisions were largely copied by the majority of the former states
of the British Commonwealth: Canada, India, Australia, and Ireland. It was also adopted in Japan and,
formally, at least, in a number of Latin American nations.
The second, the "concentrated" or "centralized" model, is characterized by the presence of only a
single organ to act as constitutional judge. This institution can be either a supreme judicial court or a
special constitutional court organized outside of the ordinary judicial hierarchy. The model finds its
origins in Austria and was adopted in many continental European states, such as Germany, Italy, France,
Spain, and Belgium.
A further distinction that should be made when discussing constitutional review concerns the
method of review. It is possible to distinguish between abstract (ex ante) and concrete (ex post) review of
laws. Concrete review takes place when a lawsuit or some other kind of litigation is brought before the
court, as in the case of the U.S. system, in which the Supreme Court hears specific cases. Abstract
review, on the other hand, takes place without a specific case or controversy. Such review is the rule in
France and occurs to a limited extent in Germany.
Finally, a third type of system distinguishable on the basis of constitutional review is that in which
the judiciary is not authorized (more or less explicitly) to review statutes in light of the constitution. Both
the Netherlands and Finland have followed this pattern. Since 1953, however, the Dutch courts have
been authorized to set aside any constitutional-law provision that may be deemed incompatible with a
rule of international law.
History of Constitutional Law
Whether written or unwritten, based primarily on political or territorial divisions, or encompassing a
diffuse or concentrated model of constitutional review, constitutional law has played a fundamental role
in the development of political systems throughout history.
Ancient History.
The roots of modern Western constitutional law stretch back to ancient Greece. Plato originally
introduced the notion that government must be guided by law (nomos). At the same time, he insisted that
lawmaking power should be concentrated in the hands of philosophers, men wiser than ordinary people
and therefore more capable of ruling. Aristotle distinguished between a nation's basic governmental
structure (politeia), its laws, and its changeable policies. His notion of a mixed constitution, a balance of
power among monarchy, aristocracy, and democracy, foreshadowed the modern doctrine of separation of
powers. Somewhat later, during Roman times, the notion of the equality of all human beings came to the
fore, despite the widespread practice of slavery under the Roman Empire.
Middle Ages and the Era of Absolutism. Building on the ancient heritage, medieval thinkers
developed new theories of governance. The king was considered the supreme source of

government in the realm. All matters of government were under his control. Unless it fell beyond
the physical boundaries of his jurisdiction, or encroached on religious dogma, no edict or rule
could be considered illegitimate. The only means to keep the king in check was through
resistance. This situation did not change significantly until the advent of the Renaissance and the
Reformation. Whereas the king in feudal society was regarded as primus inter pares (the first
among equals) and had, to some extent, to respect the rights and privileges of his vassals,
gradually the monarchy freed itself from these restraints. By about 1600 the era of absolute
monarchy had dawned, with even more unfettered control being enjoyed by the crown.
The Enlightenment.
The next phase in the development of constitutional law occurred in the 17th and 18th centuries,
or the Age of Reason (or Enlightenment). During this period important new elements of constitutional
law emerged.
First among such new elements were the theories of natural law, which evolved as a reaction to
the legal principles of medieval society. The English political philosophers Thomas Hobbes (15881679)
and John Locke (16321704) based their theories on the notion that, before the emergence of state and
civil society, human beings lived in a hypothetical state of nature. In this state each human being was a
potential threat to others. Locke described the rise of civil society as being the result of a social contract
among citizens who agreed to turn over their natural rights to the state in exchange for protection of life,
liberty, and property. The notion of natural law became political reality in the constitutions of the British
colonies in America. The first of these, the constitution of Virginia of 1776, contained a catalog of
natural, inalienable rights. Later, individual rights and privileges became the cornerstone of virtually all
constitutions.
This point serves to introduce a second key trend in constitutional law. During and following the
Revolutionary period (17761799), many political systems, following the model of the United States,
began to lay down the basic structure of government in a special document, a constitution, that was
assigned a higher status than ordinary law.
The foundation for the doctrine of separation of powers was laid in the 18th century. The French
political philosopher Montesquieu (16891755) formulated the doctrine by distinguishing three different
branches of governmentthe legislative, executive, and judicial departmentsand assigning each to a
separate individual or group. This doctrine was institutionalized in the American and French
constitutions of the 18th century and, to this day, remains one of the central ideas of constitutional law.
Contemporary Developments.
The development of constitutional law, and of individual constitutions, in the 20th century has
been characterized by paradoxy. On the one hand, constitutions have by now become universally
accepted as a means of laying down the law of the land. On the other hand, constitutions are no longer
exclusively linked to constitutionalism, or the idea of limited government in service to high principles.
Not only do liberal democracies have written constitutions but so too do authoritarian and one-party
systems. In some cases a constitution serves primarily as a means of legitimizing the existing political
order, as in the case of some Latin American countries. Furthermore, it is not uncommon for
discrepancies to exist between constitutional precepts and their exercise in actual circumstances. The
constitution of the Weimar Republic (1919), which technically was a model of liberal-democratic
principles, proved unfit to prevent the Nazi regime from taking power. Liberal faith in constitutions
ended up severely shaken by this event.
The fall of communism in the 1980s brought a revival of constitutional law, with many countries
in Eastern Europe and former states of the Soviet Union adopting liberal-democratic constitutions that
limited the power of government and, in some cases, restricted or prohibited the participation of

communists. The process of transition did not, however, come easily, to which many armed conflicts in
the region attested.
In Africa, as many countries gained independence from their former colonial overlords,
constitutional developments were initially characterized by a clear commitment to the idea of
constitutionalism and the rule of law. At the same time, however, the notion of limiting the power of the
state or its sovereign was rejected, both formally and in practice. Recent developments in Africa have
demonstrated a search for adapting European constitutional principles to African political and social
circumstances, but the success of such efforts remains unclear.
In the United Kingdom one of the major contemporary questions is whether to adopt a written
constitution and enshrine a bill of rights with a system of judicial review. In the United States, discussion
has focused on the position of the Supreme Court as a countermajoritarian institution within the
constitutional system. The question is whether the judiciary should adhere to a narrow, or strict,
interpretation of the Constitution or play a more activist role. This problem is not exclusively American,
however. In many European countries the growing importance of the judiciary is a hotly contested issue
as well, raising the intriguing question of the politicization of the judiciary or the "judicialization" of
politics.