Constitution Theory

DR. WALAAELDEEN IBRAHEEM

 Definition
 Aristotle, defined constitution; it is the way in which citizens who are the component parts of
the state are arranged in relation to one another.

 George Corn well, describes the constitution as the arrangement and distribution of
sovereign powers in the community or the form of the government.

 A constitution is the fundamental law according to which the relations of individuals or

normal persons to the community are determined.
 From the previous definitions, we can see constitution as follow:
A constitution is a basic design, which deals with the form of the state and the structure and
powers of the government and their interrelationship between each other. It also includes
rights and duties of citizens.
 Why the need for a constitution?

 A constitution is a necessity, and every state must develop and posses one.

 A constitution is necessary even in the case of despotism systems.

 A state without a constitution , means that there is no state, and consider a form of anarchy.

 A constitution is needed for a variety of reasons:

 To curb the powers of the government by a fundamental law.
 To protect the rights of individuals.
 To establish the principle of rule of law.
 To save the state from anarchy.
 To define the operation of the sovereign power of the state.
 To limit the vagaries of present and future generations.
Contents of constitution

 A constitution must have the following topics:

1- Organization and formulation of the state administration.
2- Functions of different organs of the government, their powers and its mutual relations.
3- Mention of the fundamental rights of the citizens.
4- The relation between government and population.
 Essentials for drafting a constitution

 1- Clarity or Definiteness:

This means that every clause of the constitution should be written in simple language.
It should express its meaning clearly without leaving any scope for confusion.

 2- Brevity:

The constitution should not be lengthy. It should contain only the important things
and unimportant should be left out and disregarded. But the brevity should not lead to
a gap in constitution that having some issues unexplained.
 3- Comprehensiveness:

The constitution should be applicable to the whole country. If it is a federation then it must
mention the structure and power of the center and the provincial government.

 4- Flexibility:

The constitution should not be too rigid to hinder the process of amendments when needed.
 5- Declaration of Rights:

A good constitution must contain the fundamental rights of people.

 6- Independence of Judiciary:

Independence of judiciary is another quality of a good constitution. The judiciary should function
freely and act as the guardian of the fundamental rights of the people without favor or fear.
 7- Directive principles of state policy:

In a good constitution mention must be made of the directive principles of the state policy
because, it helps the establishment of a welfare state.

These principles also serve as a boon for the government.

 Classifications of Constitutions

 Modern constitutions are classified in the following manner:

- Written and unwritten constitutions.

- Rigid and flexible constitutions.

 Written constitution

 A written constitution is normally supposed to mean a document or a collection of documents in

which the basic rules regarding the main organs and institutions of government are clearly laid
down.

 A written constitution is a deliberate creation. It is a consciously planned system. It may be

created by a constituent assembly or a convention.
 The constitution of USA was drafted by a special convention of delegates, presides over by
George Washington. This constitution emerged out of the Philadelphia convention in 1787 and
was referred to the states for their ratification.

 The Emirati constitution as well is considered a written constitution, as the preamble mentioned
that “ ……. We proclaim before the supreme and omnipotent creator, and before all people our
agreement to this provisional constitution, to which our signatures were appended….”
 A written constitution may be single document having one date, such as the case of India,
USA, and Emirati constitutions.

 It may be in a series of documents bearing different dates, this in the case of France and
Australia.

 The French constitution under the third republic was fragmentary and didn’t consist of one
single document. It was composed of three constitutional laws passed on February 24, Feb. 26
,and July 26, 1874.
 Whenever there is a written constitution in a country, a distinction is made
between constitutional law and ordinary laws. The constitutional law is supposed
to be the will of the sovereign and it should not be altered by the ordinary
legislative process. “Supremacy of constitution”

 The statutory law has to limit itself within the framework of constitutional law. If
they conflict with the constitutional law , they are termed as unconstitutional laws.
 Merits of a Written Constitutions

1. It is very definite; this means that there is no uncertainty that the constitution provides all the
fundamental principles in written and people can refer to it as and when they want and need.
As the powers and organization of the various organs are well defined there is very little
probability for confusion and disputes. If a dispute arises, it can be referred to the judiciary.
2. As written constitution is drawn with great care and after long deliberation, it
means that it is a result of experience and knowledge, and there is no place for the
temporary emotions and hasty decision.

3. A written constitution protects the rights of the individuals. Rights are incorporated
in, making them superior to the ordinary law and saving them from being change by
different government from, as they wished.
4. It checks the constitution from being twisted and turned according to popular
whims and emotions, this gives a guarantee of stability.

5. A written constitution is stable and guides through difficult situations, it is more

suitable for emergency period.

6. For a federal government, written constitution is more suitable because there are
provisions regarding the central and state power separately.
 Demerits of a written Constitution

1. Generally, written constitutions are difficult to amend, thus introducing rigidity and
conservatism.

2. In written constitutions, the judiciary is quite conservative, and interpretations are

merely to see whether a law conforms to the constitutions or not.

3. It tries to encompass all rules and deals of a nation, which may not be suitable for all the
ages. Thus, the future growth may be neglected.

4. Sometimes, it becomes too exhaustive leading to legal jugglery.

 Unwritten Constitution
 An unwritten constitution reflects the evolutionary nature of free documentation of the rules and
regulations. First, they are practiced and by a continuous practice, they become part of the
construction.

 The British constitution is the best example of the unwritten constitution.

 Unwritten constitution is the result of long process and natural growth of political constitutions of
the country.

 There is no single document or varies documents.

 Although, there may be some written documents, “Magna Carta”, but their proportion is less
than the other unwritten elements.
 Merits of Unwritten Constitution

1. They are quite easily adaptable to changing circumstances. Law can be added as and
when required. There is no limitation of any pre-documented constitutional law. Thus
they are progressive.

2. They are flexible and people can bring about changes without undertaking revolutions.
3. Unwritten constitution can undergo changes, without basic framework being sidelined. This is
useful especially in case of unforeseen situation.

4. Historically, they seem to stand the test of times and keep up the traditions of a nation, as it is
said about the British constitution that it has unbroken history. It’s a continuous process of
development.
 Demerits of unwritten constitution

1. The serious defect that it is vague and indefinite. Common man may not
understand the constitutional system of the country. He cannot refer to any document
to understand the structure of his government. It requires a very high degree of
political consciousness among the people to understand it’s spirit, and ordinarily that
is not easy to find.
2. Sometimes unwritten constitutions are quite unstable.

3. The judiciary may play more role than is warranted. It becomes the playthings of
judicial tribunals. The judiciary can interpret the unwritten laws as it suited to its
desire and will.

4. It is not suited democracies, because the massed need a well-defined document

under which they have to live. They may be suited for aristocratic societies but not
for democracies.
Flexible and Rigid
Constitution
 Flexible Constitution

 In a flexible constitution there is no distinction between ordinary and

constitutional law. Both they are enacted in the same way and their source is also
same.

 They are amended in the same way. No special procedure is required for
amending the ordinary or constitutional law.
 Merits of a flexible constitution

1. A flexible constitution can be amended with the same ease and facility with which ordinary
laws are altered.

2. A flexible constitution can easily adopt the needs of people with the change of time because
of its elasticity.

3. A flexible constitution is molded by the conventions of national life. It represents the

historical continuity of the nation’s life and incorporates the changes as and when the need
arises.
4. A flexible constitution is very useful for a developing country, because it is a great
expression of its development. It doesn’t hinder progress due to its adaptability. At
the same time, it protects the basic principles of the constitution.
 Demerits of a flexible constitution

1. Due to its flexible nature, the constitution may keep to the majority of people,
when realized to make amendments, just to satisfy their temporary needs, and this
may affect the rights of the minorities. It fails to provide a stable system in
administration, which results in the poor performance of the government.
2. When the procedure of amendment is simple and easy, it is liable to be seriously
affected by ever changing popular passion. And popular passions are guided by
emotions not by reasons, this may disturb the harmony and balance of a nation. It
may divide the society and there may be a possible threat to the integration itself.
3. Flexible constitution isn’t suitable for a federal system, because the rights of
constituent units are not guaranteed due to flexible nature of the constitution. There
are two possibilities if a federation is having flexible constitution:
1- The units may lose their independence and freedom and the central unit may
become more powerful, which is against the spirit of federal system.

2- The units may act very independently without respecting the constitution, as it is
not stable.
4. As the constitution can be changed by following a simple procedure, there is no
guarantee that the fundamental rights will not be disturbed. Any government can very
easily change the provision of fundamental rights or even delete it from the
constitution.
 Example for a flexible constitution

 The constitution of England is a typical example of a flexible constitution. The

British Parliament is competent to pass, amend or repeal any constitutional law in
an ordinary legislative process as both constitutional laws and ordinary laws are
treated alike.
 Rigid constitution

 Rigid constitutions are those, which require a special procedure for the
amendment.

 The rigid constitution is above the ordinary law and can be changed by a
procedure, which is different from the procedure of ordinary law, thus making it
difficult to change.

 The objective is to emphasize that the constitutional law embodies the will of the
sovereign, and it should be treated as sacred document.
 Examples of Rigid Constitutions

 The American constitution is a classical example of rigid constitu­tion. It cannot be amended

in the manner in which ordinary laws are passed, amended or repealed. A distinction is
maintained between a constitutional and an ordinary law. Both are not placed on an equal
footing.

 There is a special procedure for constitutional amendment. Ordinary law in U.S.A. can be
passed by a simple majority of the Congress, whereas the constitutional laws can be
amended only by the agreement of two thirds majority of the Congress and three fourths
of the states.
 The Swiss constitution is still more rigid. An amendment whether proposed by the
Federal Assembly or through initiative needs to be approved by the Cantons and
the electorate through referendum. It must be, thus approved by majority of all the
voters casting their vote and by majority of such votes in majority of Cantons.
 Merits of a rigid Constitutions

1. A rigid constitution possesses the qualities of stability and performance. It is

essentially a written constitution, which is the creation of experienced and learned
people. Thus it is the symbol of national efficiency. People regard it as a sacred
document, and they are ready to work according to its provisions.
2. A rigid constitution safeguards legislative encroachment; constitution should not be
a plaything in the hands of legislatures.

3. A rigid constitution safeguards the fundamental rights effectively. It is part of

constitution. No legislature can tamper them, because they are superior to ordinary
law.
4. A rigid constitution protects the rights of minority. Minorities cannot be expected
to agree to their rights being imperiled by a majority action.

5. A rigid constitution is free from dangers of temporary popular passion. Because of

complex amendment procedure the constitution may not be swept away by the
emotions, which in most cases are not based on wisdom and reasoning.
6. A federal set up of government essentially needs a rigid constitution for the safety
of the rights of the units as well as for the strength and integration of the federation.
Under rigid constitution, units of a federation feel secure, and at the same time, there
is a check on their activities also in order to stop them from violating each other’s
jurisdictions.
 Demerits of a Rigid Constitution

1. Sometimes changes in the constitution become inevitable but a rigid constitution

cannot be amended easily.

2. The framers of constitution is not hardly foreseeing the future. A rigid

constitution is not suitable for a progressive nation where changes take place
frequently.

3. Under the rigid constitution, the main concern of the judiciary is to see whether
the law conforms to the provisions of the constitution or not.
 Modern constitutions

 Wherever merits and demerits a rigid constitution has the fact is that modern
tendency is to have a written and a rigid constitution.

 The future seems to be rigid constitution having some of flexibility, this may
provide an ideal path for the coming generations.
 Difference between
Legality and Legitimacy
 Legality" is a question of action – whether or not something that you're doing is a violation of
either statutory or common law.

"Legitimacy" is a question of origin or support for an action - whether or not an authority figure
has "legitimately" taken their role, for example.

An illegitimate role has been (generally) obtained illegally, but not all illegal actions result in
illegitimate conditions.