The term constitution is derived from the Latin word ‘constitutio’, meaning ‘regulating’ or ‘establishment’. In principle, a constitution is defined as a set of rules that govern an organised group. This set of rules, usually in the form of a document, serves as the fundamental terms under which a certain group operates. It defines specifically how the different roles and powers are divided among actors within an organisation or society. In a way, every official organisation and society has a constitution, either written or unwritten, given that all of them have agreed on a certain way of regulating their actions and powers.
It is important to note, however, that not every type of regulation or (by)law falls under the term ‘constitution’, since the term is specifically used to describe core principles that all other rules should abide by. A constitution is, in that sense, a form of ‘higher law’, meaning it precedes all other laws. This also means that when a law or decision is not in accordance with the principles of a constitution, the author may be obliged to withdraw it. The constitution is usually also a protected document, that can only be altered through an official, set procedure that is different from that of regular laws. When that is the case, on can speak of a ‘rigid’ constitution.
The characteristics of a constitution highly depend on the way of governing it describes, however a few components are similar throughout societies. The most important one being that a constitution always describes the institutions and their respective competences within a society. In an absolute monarchy, the constitution will define all power as concentrated in a single monarch, whilst in a constitutional monarchy it will describe how the power is dispersed over several institutions. Similarly, a constitution describes how these institutions are put together and how they relate to one another. A constitution can demand democratisation of certain bodies of government and set requirements for their functioning, as well as put in place a system of checks and balances. [] More importantly, a constitution can also put limits on the power of the specific institutions it describes.
Modern day constitutions can however be identified by a very specific characteristic, which found its origin in Western philosophy during 17th century Enlightenment: the idea of individual freedom. Mostly under the influence of the philosophy of John Locke and his work “Two Treatises of Government”, there came into existence the idea that every individual had the same basic, inalienable and unconditional rights. Locke used these rights to legitimise a central sovereign power -the state-, since without a central objective authority to safeguard the individual’s rights and freedom, they would not exist. In a situation of anarchy, each individual would fight for their own prosperity and freedom by taking exactly those away from others. The only way to ensure that each individual can exist with the same basic freedoms and rights, an objective entity that transcends personal gain should overlook the rights of all citizens. In Locke’s idea, the individual should hand part of their freedom to this authority, providing that by doing this, the individual will be ensured the rest of their freedoms. On the basis of exactly this philosophy, modern day constitutions were built to safeguard these basic, inalienable and, most importantly, individual, rights. []
Only in recent times, have constitutions been designated to one specific, comprehensible document. The type of constitution that is laid down in one specific document, is referred to as a ‘codified’ constitution. For most of history and still some countries today, the constitution exists in the combination of many statutes and documents, this can be referred to as an ‘uncodified’ constitution.
An important nuance when speaking of constitutions is the difference between ‘constitutional law’ and ‘the (codified) constitution’. Whilst ‘constitutional law’ describes the ideas and principles on which a society is based, ‘the (codified) constitution’ usually refers to an actual document in which these principles are written down comprehensively. The constitution does in many cases encapsulate the essence of a society’s constitutional law. However, it does not describe all of constitutional law a community might have. The entirety of constitutional law is spread across primarily the constitution, but also other statutes and legal doctrines. The interpretation of the (codified) constitution in the form of jurisdiction also plays a major role in putting in practice the actual constitutional law of a society. Therefore, it is crucial to keep in mind that constitutional law and the (codified) constitution are not one and the same.
B. Historical Background
i. Constitutions in Antiquity
In the vastly advanced city-states of Ancient Greece, and the society of the ancient Roman Empire, there was already the idea that there was a form of ‘ideal law’ that all decisions and rules should conform to. This ‘ideal law’, later referred to as ‘natural law’, existed of legal maxims and principles that were inherent to a just human civilisation. They formed the basis of thinking about society and the justice system specifically.
Ancient philosophers such as Cicero (106-43 B.C.) and the Stoics described this law of higher order that arises from nature and reason and is the ideal and only source of properly made human laws. ,
Ancient Rome did not have a codified or even stable constitution. Its constitution was a largely unwritten set of moral and judicial principles on which governing was based. However, many of these principles have survived their way through millennia and can still be found in constitutions today. Already in Ancient Rome, the different institutions and offices of government were clearly distinguished by law and handed their specific, as well as limited, competences. Example of an institution was that of the Senate, a long-standing political institution throughout Roman history. It consisted of a group of (mostly) elderly men who served as the ultimate repository of the executive power of the king, emperor or consuls. The offices described by the roman constitution were for example those of consuls, the main executive powers within the Roman Republic. Equally progressive was the well organised democratisation of some of these offices, such as the consuls, who were elected by a select group of Roman citizens every 5 years.
The Roman constitution also clearly distinguished a judicial power as being led by distinct judicial officers, called praetors. They were either army commanders, or Roman magistrates, who played a decisive role in cases of equity.
ii. The rise of sovereign states
The state- an organisational entity that exercises sovereign control over a people in a specific territory- is a relatively recently developed concept. It sprouted as an idea of theocracy in the Middle Ages (5th to 15th century A.D.) . The theocratic government was centred around a single monarch, who derived their power from God. Because the monarch’s legitimacy came from God, they were the centre of all power and therefore stood above law and people. This hierarchal system of government regarded the rights of individuals as emanated from a monarch in the form of a temporary favours: individuals only had rights, because a monarch allowed them to.
Opposing this hierarchal view of government was the -then popular- opinion that a monarch ought to be limited in their competences by “natural law”. Natural law is a set of legal maxims that arise from nature. A monarch should be in service of natural law and enforce this law for the common good. This view clearly distinguished a rightful monarch, whose actions were based on natural law; and a tyrant, who created laws that were not based on natural law and only to benefit themselves. Thomas of Aquino (1225-1274) illustrates a similar view by writing the iconic words: “a law that does not stem from natural law, is not a law: it is a depravation of law”.
In reality, a monarch in the Middle Ages was by far not as powerful as the theocratic ideology suggests. Monarchs lacked the resources and military power to demand such authority. Instead, a monarch usually exchanged lifelong ownerships of land to vassals in return of their military service. This gave vassals a great share of power over the monarch. The relation between suzerain (the monarch in this case) and vassal under the feudalistic system was based on mutual rights and duties, laid down in contracts. This can be seen as the first stepping stone for the creation of modern-day constitutions.
An example of such contracts was the famous Magna Carta (1215) in which the relations between the English king, as suzerain, and the barons, as vassals, was agreed on and put down.
iii. The rise of absolute powers
After the 16th century reformation, great civil wars on religion broke out throughout Northern and Western Europe. An example of these is the bloody civil war between the protestant lords and catholic king in the German regions, which left 25 percent of its people dead. The horrors of these times gave rise to a greater support of the theocratic way of government. In these years, the dominant view was that Europe needed powerful leaders whose core task was to protect political order. This meant that a leader must have authority over the creation of laws and even decide to counter common law , if that would increase stability in the region. For the first time in modern history, law had become “positive”, meaning designed by an official branch of government to purposely impose a judicial order. Law became a tool rather than solely a set of rules.
In the prominent view at the time, a leader also needed to transcend religious bias in order to ensure and maintain religious peace.
With the expansion of European power overseas, under influence of explorers and colonisers, came the many resources and wealth to reinforce