Eleanor Finch
A constitution is a set of fundamental rules that determine how a country or state is governed. Constitutions are usually codified, meaning they are written down in a specific document called the constitution. However, some countries, such as the United Kingdom, have uncodified constitutions that are not contained in a single document but consist of various sources, both written and unwritten. The United States Constitution, on the other hand, is an example of a codified constitution, beginning with the words We the People and consisting of a preamble, seven articles, and 27 amendments. The first 10 amendments are known as the Bill of Rights. The concept of a constitution has a long history, with early examples such as the Seventeen-Article Constitution of Japan in 604 and the Solonian Constitution of Athens in 594 BC.
Characteristics of Constitutions
| Characteristics | Values |
|---|---|
| Codification or lack of codification | A codified constitution is contained in a single document that serves as the single source of constitutional law in a state. An uncodified constitution is not contained in a single document and may consist of several different sources, which may be written or unwritten. |
| Relationship between individuals and the state | Constitutions define the relationship between individuals and the state and establish the broad rights of individual citizens. |
| Basic law of a territory | Constitutions are the most basic law of a territory from which all other laws and rules are hierarchically derived. |
| Distribution of power | Constitutions describe how power is distributed between the three branches of government (legislature, executive, and judiciary) and between national and state levels of government. |
| Basic rights | Constitutions guarantee certain basic rights enjoyed by individual citizens of the country. |
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What You'll Learn
Codified vs uncodified constitutions
A constitution is a set of fundamental rules that determine how a country or state is run. Constitutions are typically classified as either codified or uncodified.
A codified constitution is a system of government that has a single written document outlining the fundamental principles and laws of the land. It establishes the structure and powers of the government, as well as the rights and freedoms of citizens. All constitutional information can be found in one place, making it easier to refer to when considering the constitutional legality of an action. This provides clarity, certainty, and a clear framework for the exercise of power. It also offers greater protection of citizens' rights and freedoms. However, a codified constitution can be difficult to amend, making it inflexible and unable to adapt to changing circumstances.
On the other hand, an uncodified constitution is a system of government where the fundamental principles and rules are not set out in a single written document. Instead, it is based on a combination of statutes, court decisions, customs, usage, precedent, and legal instruments. While the elements of an uncodified constitution are typically written down in various official documents, they are not codified in a single document. This type of constitution offers flexibility, allowing for easier adaptation to changing circumstances and societal values. It can also be interpreted more broadly, permitting greater government action. However, the lack of a single source can lead to ambiguity and potential conflicts between different sources of constitutional information.
Examples of countries with codified constitutions include the United States, with its well-known "The Constitution" document, and Sweden, which has the Instrument of Government as part of its constitution. On the other hand, countries with uncodified constitutions include the United Kingdom, Israel, New Zealand, and Canada. The UK's uncodified constitution vests ultimate authority in parliament to "make or unmake any law", under the principle of parliamentary sovereignty.
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Ancient vs modern constitutions
The concept of a constitution has evolved over the centuries, with ancient constitutions differing significantly from their modern counterparts in terms of their historical context, characteristics, and influence.
Ancient constitutions, such as those of Athens, Sparta, and Carthage, were often rooted in oral traditions and customary laws. For example, the code of Lipit-Ishtar of Isin, the code of Hammurabi of Babylonia, and the Hittite code are well-known ancient law codes. Aristotle, around 350 BC, made a formal distinction between ordinary law and constitutional law, establishing ideas of constitution and constitutionalism. The ancient constitutionalist style of argument was prevalent in western Europe during the early modern period, with a focus on opposing royal absolutism and preserving traditional laws and privileges.
In contrast, modern constitutions are typically written documents that serve as the supreme law of the land. They define the relationship between individuals and the state, establish the fundamental rights of citizens, and outline the organization of government powers. The United States Constitution, written in 1787 and effective in 1789, is a prominent example of a modern constitution, influencing the constitutions of many other nations.
The process of creating a constitution has also transformed. In ancient times, constitutions were often shaped by rulers or philosophers, such as Solon, the ruler of Athens, who established a plutocracy, or John Adams, who drafted the Massachusetts Constitution, which served as a model for the United States Constitution. Modern constitutions, on the other hand, tend to emerge from democratic processes, with the involvement of representatives or conventions of the people, reflecting the values and aspirations of a broader segment of society.
While ancient constitutions were influenced by the specific historical and cultural contexts of their time, modern constitutions are more universal in their approach, aiming to establish broad principles of governance, individual rights, and democratic representation. The modern concept of constitutionalism, as explored by scholars like Charles Howard McIlwain, builds on ancient and medieval origins to develop the ideas of liberty and constitutional forms that we recognize today.
In summary, ancient constitutions were rooted in oral traditions and customary laws, often shaped by rulers or philosophers, and focused on opposing absolutism and preserving traditional privileges. Modern constitutions, on the other hand, are written documents that establish fundamental rights, define the relationship between individuals and the state, and are created through democratic processes, reflecting universal principles of governance and democracy.
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Non-state constitutions
A constitution is a set of fundamental rules that determine how a country or state is run. Most constitutions are "codified", meaning they are written down in a specific document called "the constitution". However, some countries, such as Israel, New Zealand, and the United Kingdom, have "uncodified" constitutions that are not contained in a single document. Instead, they consist of various sources, including customs, usage, precedent, statutes, and legal instruments. While all the elements of an uncodified constitution are typically written down in official documents, they are not compiled into one text.
One example of a non-state constitution is the Constitution of Medina, also known as the Charter of Medina. It was drafted by the Islamic prophet Muhammad after his flight to Yathrib, where he became the political leader. This constitution was a formal agreement between Muhammad and the significant tribes and families of Yathrib (later known as Medina), including Muslims, Jews, and pagans. The document aimed to end the bitter intertribal fighting between the clans within Medina.
Another example of a non-state constitution is Finland's constitution during its time as a constitutional state in a real union with Russia. In the late 19th century, Finnish intellectuals, liberals, nationalists, and later socialists, viewed Finland as a constitutional state with extensive autonomy from Russia. However, as Russian nationalism emerged and clashed with Finnish separatism, Finland's autonomy was restricted through "russification policies". Despite this, the Russian Provisional Government of 1917 recognized the Finnish constitution, and Finland's declaration of independence was recognized by the Bolshevik government on New Year's Eve 1917.
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Basic elements of a constitution
A constitution is a set of fundamental rules that determine how a country or state is run. Constitutions usually include the following basic elements:
Preamble
A preamble is a passionate introductory statement that sets out the purpose of the constitution. For example, the US Constitution begins with the words "We the People".
Distribution of Power
A constitution should describe how power is distributed between the three branches of government: the legislature, the executive, and the judiciary. It should also outline the relationship between national and state levels of government. For instance, the first three articles of the US Constitution establish the three branches of government and their powers.
Rights of Citizens
A constitution should guarantee certain basic rights enjoyed by individual citizens of the country, such as the right to vote, to assemble, to free speech, and to property.
Amendment Process
A constitution should include provisions for how it can be amended or changed. For example, Article V of the US Constitution outlines the process for proposing and ratifying amendments.
Federalism
In countries with a federal system of government, the constitution should define the relationship between the federal government and the states or regions. It should establish the supremacy of federal law over state or local laws.
These are some of the basic elements that are commonly found in constitutions around the world. Each constitution is unique and may include additional provisions depending on the specific needs and aspirations of the society it governs.
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Examples of early constitutions
Early constitutions can be traced back to ancient law codes such as the code of Lipit-Ishtar of Isin, the code of Hammurabi of Babylonia, the Hittite code, the Assyrian code, and Mosaic law. In 621 BC, Draco, a scribe from Athens, codified the oral laws of the city-state of Athens, prescribing the death penalty for many offences. This led to the modern term "draconian" for very strict rules.
The Constitution of Medina, also known as the Charter of Medina, is another example of an early constitution. It was drafted by the Islamic prophet Muhammad after his flight to Yathrib, where he became the political leader. This constitution was an agreement between Muhammad and the significant tribes and families of Yathrib (later known as Medina), including Muslims, Jews, and pagans. The document aimed to end the bitter intertribal fighting between the clans within Medina.
Japan's Seventeen-Article Constitution, written in 604 by Prince Shōtoku, is another early example of a constitution, this time in Asian political history. Influenced by Buddhist teachings, this constitution focused more on social morality than on institutions of government.
The first detailed written constitution adopted by a modern state was the English Protectorate's Instrument of Government, established after the English Civil War. It formed the basis of government for a short-lived republic from 1653 to 1657, justifying Oliver Cromwell's increasing power as Parliament failed to govern effectively.
Other early examples of codified laws include the Code of Æthelberht of Kent (602), the Doom book code of laws for England by Alfred the Great (893), the Fetha Negest by 'Abul Fada'il Ibn al-'Assal (1240), Dušan's Code in Serbia (1349 and 1354), the Golden Bull of 1222 by Hungarian King Andrew II, and the Sachsenspiegel by Eike von Repgow (early 13th century).
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Frequently asked questions
A constitution is a set of fundamental rules that determine how a country or state is run.
A codified constitution is one that is contained in a single document, which is the single source of constitutional law in a state. An uncodified constitution is one that is not contained in a single document, consisting of several different sources, which may be written or unwritten. Examples of countries with uncodified constitutions include Israel, New Zealand, and the United Kingdom.
Constitutions usually include the following basic elements: a preamble, a detailed description of how power is to be distributed among the branches of government, and a guarantee of certain basic rights enjoyed by individual citizens of the country.
