Constitution and

Constitutionalism

Definitions of Constitution
The word derives from Latin constitutio
meaning establishment
Aristotle: states way of life.
C. F. Strong: system of fundamental
institution.
K. C. Wheare: written document outlining
the basic elements of the state, their
powers, and rights and privileges of
citizens.
Bolingbroke: assemblage of laws,
institutions and customs [not necessarily
always written.

 Fundamental law of the land. It

determines the state structure,
distribute power among various
branches of government and dictates
the right and duties of the citizen.

Methods of Establishing
Constitution
1. Kings decreeformal document in
which the Monarch agrees to exercise
power according to certain
rules/principles.
2. Evolutiongradual evolution, e.g.,
when the Monarch transfers power to
institutions/peoples representatives.

Methods of Establishing
Constitution

3. Revolutione.g., USSR 1917, Egypt

1954, Iran 1979.
4. Constituent assemblywhere
constitution is drafted by a
committee [commission] or an
assembly, and then presented to
the people [or their representatives]
for adoption [rejection]. Malaysia,
India, Canada, USA, Bangladesh.

Classification of Constitution

Based on its nature:

1. Written
2. Unwritten

Based on methods of amendment:

1. Flexible
2. Rigid

Written Constitution

Where most of the fundamental

principles of governmental
organization are written down in a
document or a series of documents.
Advantages:
1. Certain and definite
2. Difficult to violate.

Unwritten Constitution
Where most fundamental rules, regulations,
rights and liberties were not written down in a
document,
but
scattered
in
various
documents or in customs, traditions and
conventions of the country.
Worked in Britain because of its long tradition
of government, its relatively homogenous
society, and its small size.
Weaknesses:
1.Less certain,
2.Unclear distinction between constitutional
and ordinary laws.

Written or Unwritten
Constitution?
Every written constitution has some
unwritten elements, and vice versa.
E.g., in the US, the organization of
political parties, methods of electing
the president, and the procedure of
Congress are based on conventions. In
the UK, Bills of Rights (1689)are
written down.
The difference, thus, is a matter of
degree rather than of kind.

Rigid Constitution

Where the constitution cannot be

changed easily like passing ordinary
laws.
Methods of amendment: through
referendum, or ratification by
constituent parts.
Merits:
1. Limits to governments power,
2. Constitutional stability,

Rigid Constitution
3. Clear divisions of power [especially in
federalism],
4. Fundamental rights of citizens are
guaranteed.
Demerits:
1. Inability to cope with dynamic society
and changing conditions,
2. Slow response to constitutional crisis,
3. Too much power to the judiciary to
interpret laws.

Flexible Constitution
Where the constitution can be changed
easily by legislature like passing
ordinary laws. Normally through twothirds majority in the legislature.
Merit: its dynamismability to cope
with social, economic and political
changes.
Demerit: possibility of abuse by the
government.

Good Constitution

1.
2.
3.
4.
5.
6.

Characteristics:
Definite, and clear in meaning,
Written,
Comprehensive,
Incorporate all fundamental rights of
people,
Must limit the power of the government,
Should correspond to the actual
conditions of the state.

Constitutionalism
A political order governed by laws and
regulations. Supremacy of law and not of
individuals.
Constitutionalism
by
dividing
power
provides a system of effective restraints
upon
the
governmental
action.
Friedrich.
Objectives: to limit the arbitrary action
of the government, to guarantee the
rights of the governed, and to define
the operation of the sovereign power.
Relates with limited government: where
the power of the government is limited by
constitutional provisions.