James T McHugh. Encyclopedia of Law and Society: American and Global Perspectives. Editor: David S Clark. Volumr 1. Sage Publications, 2007.
The Political Idea of a Constitution
Constitutions are inherently political, rather than parochially legal, institutions. They are not created by legal practitioners, but by politicians. Therefore, they generally exhibit qualities that are associated with politics at its most fundamental level. Those qualities include power, beliefs and values, identity, and institutional expression. Beyond such broad generalizations, constitutions, when compared among different political systems, cultures, and historical periods, lack consistent features.
Nonetheless, constitutions do share certain basic features. Furthermore, one can categorize them, especially during the modern period, according to characteristics that are shared among constitutional systems of various cultural, political, and philosophical backgrounds. At the universal level, constitutions can be distinguished by their reflection of sovereignty, political power, and fundamental social and political beliefs.
Sovereignty
The ultimate expression of political power exists in the concept of sovereignty. Its quality is demonstrated, however, not just in terms of exercising political authority but also in terms of being free from any higher authority. A sovereign is the foundation of a political system and its institutions. It provides a society with its seminal focus and the basis for all other expressions of legitimate authority. Generally, therefore, the sovereign claims a monopoly over legitimate violence (such as police powers) and other acts of political expression. Any other exercise of power occurs only with the consent of, or in violation of the will of, the sovereign.
Sovereignty can be administratively unified as a unitary system. However, the exercise of sovereign authority may also be divided among different political levels. A federal system (such as the United States, Canada, India, and many other countries) constitutionally distributes the administration of some aspects of sovereign authority to the level of separate substates and other powers to a central level of government. A confederal system (such as, arguably, the European Union) is similar to a federal system in this respect, except that the separate states that constitute the confederal union retain the option of ultimately withdrawing that delegated sovereignty from this union.
Only a sovereign can create and maintain a legitimate constitutional system. The emergence of the modern nation-state was distinguished by the parallel rise of modern constitutions. That sovereign identity became a necessary characteristic for international law to recognize a political community as a state. The presence of a constitution that clearly reflects this sovereign authority forms the basis for this international recognition of a legitimate state. It also provides the basis for recognizing the power that emanates from a constitutional system and its institutions.
Power
Political scientists often characterize constitutions in terms of the exercise and distribution of the political power that sovereignty establishes. One can define power as freedom from constraint, and the capacity to impose one’s will on other sources. It also includes the ability to avoid being directed while simultaneously possessing and exercising the ability to direct certain actions and conditions within a political context.
Many definitions of constitutional law have focused on the coercive quality of legal institutions and requirements. That perception reflects a common belief that the ultimate purpose of constitutional law is to provide stability and control. However, one may also base that perception on an observation of the practical effect of law, when it is applied, rather than on the underlying nature and purpose of law as a general idea.
Therefore, many general studies of constitutional law emphasize its function as a series of incentives and disincentives. Scholars based that approach to defining law as a universal concept solely on a particular notion of power, assuming that law is primarily an instrument of political authority. That interpretation is both negative and incomplete; one needs to consider the broader, idealistically expressive qualities of law, including constitutional law, as well.
Fundamental Beliefs
One can understand constitutional law, more positively and universally, as a declaration of fundamental beliefs and values that guide a people and their political community. In performing this foundational function, the constitution becomes the ultimate source for understanding and applying the essential moral ideals that define a community and its people. Even in cases in which a constitution serves as an imposed expression of a particular, and exclusive, section of a community (such as a monarch, an oligarchy, a dominant class, or even a democratic majority), it generally reflects an encompassing vision that distinguishes that community from other communities.
In the modern context, constitutional law and its evolution has become particularly associated with the development of liberal democratic ideology. This ideological tradition unites a belief in popular sovereignty with the core liberal principles (which arose with the emergence of the modern marketplace) of individualism, freedom, autonomy, equality, and an abstract understanding of “property,” especially in terms of identifying legal persons as property bearers in the broadest sense. It helped to produce the modern understanding of society, and it has proven to be the most dominant ideological tradition of the modern world. Other ideological traditions (such as Marxism) have also existed through constitutional development, but liberal democracy has become especially pervasive in shaping the contemporary perception of constitutional law.
Therefore, the pervasiveness of liberal democratic values can create an impression that its core values are, somehow, constitutionally and legally “objective.” Nevertheless, all law, especially at the constitutional level, is entirely subjective; it is a reflection of the community it serves and the culture of that community. It is, in fact, the primary way in which any political community manifests its existence. Therefore, to understand law, in theory or practice, one must place it within its relative, and overall, cultural context. The first context, in that respect, involves making a fundamental distinction between Eastern and Western civilizations.
Eastern Constitutional Traditions
Many scholars (especially in the fields of anthropology and comparative religion) have divided the world, from a cultural perspective, into “East” and “West.” That division has emphasized certain differences in fundamental perspective, especially at a foundational level. The overall distinction often presents the notion that the Western mind tends to understand both time and power in linear terms, while the Eastern mind tends to approach such abstract concepts in a cyclical way. Law, including constitutional law, is not exempt from such foundational differences.
Eastern legal traditions tend to treat law (including from a constitutional perspective) as a source of guidance, rather than an object of force, limitation, or coercion. This approach assumes that power is a shared quality, rather than hierarchically imposed from above. It emphasizes the holistic relationship of law to all other endeavors. It also stresses the reciprocity of legal relationships that exist among all members of a community and that are regarded as essential for that community to survive and thrive.
For example, Chinese culture has been dominated for millennia by the philosophical tradition of Confucianism. The most important legal principle to emerge from that tradition is the concept of gîri, which roughly translates as “mutual obligation” or “reciprocal duty.” Under this principle, law serves to inform all members of a community of the responsibilities they hold toward every other member of the community. The Constitution of the People’s Republic of China reflects that central principle in the way that it directs the interdependent relationships among the party, state, and people of the country. In that way, each part of the legal community, even the ruler, behaves according to expected and mutually supportive behavior, thus distinguishing between law as a guidance to correct behavior, known as li, and law as brute force, known as fa.
One can also observe this general approach to law and constitutionalism within other Eastern cultures and traditions. They embrace the Shinto tradition of Japan, including its concept of jori as a basis for establishing benefactor relationships. They also extend to the Hindu tradition of India, including its principle of dharma as a basis for establishing mutual caste obligations, and the Taoist tradition of yin and yang, which emphasizes a holistic understanding of law among various Asian cultures. These traditions advance a holistic concept of law as a source of constitutional guidance, integrating all elements of a political community into a mutual series of legal relationships and obligations to each other. They create a sense of constitutional order, rather than necessarily imposing it.
Western Constitutional Traditions
The Western concept of law is derived from a general emphasis on linear concepts of time and power, including hierarchical impositions and delegations of legal authority that are especially relevant to constitutional development. The Western concept also tends to compartmentalize various endeavors into specialties that generally do not interact with each other. One can separate Western law, historically, into two specific subsidiary traditions: natural law and positive law. The first of these traditions offers a comprehensive foundation for establishing a universal system of law. The second of these traditions has established an understanding of law that predominates throughout modern Western societies and has been the primary influence in their constitutional development.
Natural Law
Natural law has persisted in various guises throughout Western history; it was instrumental in the earliest evolution of constitutional law. However, one can define all versions of the natural law tradition, properly understood, by four basic characteristics: universal, transhistorical, ontological, and deontological. All expressions of natural law claim to be universal by being applicable to any place, any culture, and any circumstance. Natural law is transhistorical because one holds it valid in the present as it has been in the past and will be in the future. It is ontological because it is rooted in a fundamental study of “being”; an ontological focus is based on the definition of a central premise or ideal. Equally important, it is deontological because, as a legal system, it imposes moral duties that one must follow in their particulars, rather than mere prohibitions or limits that more often are associated with Western law.
The ancient Greek conception of natural law was ontologically modeled on a fundamental understanding of nature itself. If nature functioned based on a careful balance among all its elements, law and politics should follow a deontological imperative of a balanced and mandatory participation of all of the elements of the community, such as the ancient Athenians imposed on their particular concept of democracy. That definition could vary, though, depending on the way that a particular polity chose to interpret nature. Therefore, the Athenian constitutional system could differ markedly from the Spartan version (which emphasized the “natural” rule of the strong over the weak), even though natural law influenced both of them.
Medieval Europeans experienced an idea of natural law that scholars ontologically grounded on a fundamental concept of God and God’s hierarchically ordered universe, imposing a deontological requirement to obey and participate in a feudal system that was justified on a similar basis. Constitutions were not relevant to the complexities of European feudalism. A more modern conception of natural law, including as an inspiration for modern constitutional development, has found its grounding on an ontological understanding of the human condition that imposes a deontological requirement to respect and promote human autonomy. In all of these cases, these legal expressions were consistent with natural law because of their additional claims to be valid not only for the particular time and place in which they were articulated and applied but for all times and places.
Positive Law
Natural law receded as the dominant approach to legal systems in the West with the rise of the modern period and, especially, the modern nation-states and the constitutions that came to frame them. It became necessary to justify law in terms of the will of an increasingly centralized sovereign authority and the specific needs and motives of various, diverse societies. Rather than relying on a morally derived system of supposedly universal legal obligations, law in general and emerging constitutions in particular needed to provide a rational framework within which a subjective content could be imposed by any legitimate political system.
The result of these efforts to find a rational and consistent basis for law that can accede to the will of any particular sovereign authority also needed to be empirical and observable, rather than normative and theoretical. In that sense, it needed to be “positive.” The general principles political philosophers produced to satisfy that purpose came to be known, therefore, as legal positivism, and the legal systems they consequently produced were held to conform to the general framework of a positive law. The fact that those principles have been associated with a theoretical understanding of marketplace economics has reinforced the pervasiveness of the influence of liberal democratic ideology and its values within the development of many modern constitutional traditions. Nonetheless, legal positivism is strictly regarded as being value neutral, representing a legal system for creating constitutional institutions rather than a source of a particular content.
Positive law derives its legitimacy, therefore, from logic rather than any particular moral content. It merely establishes the rational basis for a mechanistic understanding of law. For example, a positive law cannot be secret, but must be knowable, since people cannot, logically, apply or obey a secret law. Furthermore, a law under a system of legal positivism cannot contradict another law; the two laws, logically, would nullify each other. One must be able to categorize a law according to shared characteristics, just like the biological method of taxonomy. Finally, one needs to be able to apply the law consistently and efficiently, regardless of its subjective content.
Most important, positive law (especially in its constitutional guise) derives its authority from the fact that it is an unambiguous command of the sovereign. Law achieves its force and legitimacy, not because its content conforms to a particular legal ideal (as required by natural law), but because it has been enacted in a manner that clearly identifies it as law. A consistent, observable, and recognizable process for promulgating a law becomes, therefore, necessary for achieving that purpose.
Positive law systems typically have a goal to be well organized and consistent in the law’s application. The scientific revolution of the eighteenth century (a particularly important century for the emergence of constitutions, especially the American example) had a profound influence on many fields of endeavor, including political ones. The idea that constitutional law, like other institutions, ought to correspond to a mechanistic efficiency prompted reform movements to make law more rational, predictable, and practically manageable. The utilitarian movement in eighteenth-and nineteenth-century philosophy was particularly influential in promoting this sort of reform. Law would become increasingly (though not necessarily) guided by rational principles such as proportionality. Jurists would divide law into categories based on shared characteristics of content and purpose, and it would be prized in terms of the way it could be enforced, applied, and clearly understood.
Public and Private
Because of the emergence of legal positivism, the characteristics of constitutional law, conventionally understood, especially within modern Western societies, became firmly established. One of its most important features derived from the modern Western distinction that law generally had come to make between the public and private spheres of activity. Law originally had been a concept and institution that imposed direction and order on all aspects of a community. That feature was especially evident within European feudalism, and one can still find it within Eastern legal traditions.
Modern constitutionalism, especially as influenced by liberal ideology, reinforced a growing understanding that law imposes limits and therefore defines the public sphere of activity that is legitimately regulated by the sovereign. Therefore, any area not addressed by law was left to the private sphere and the discretion of the separate members of society. Jurists would come to regard constitutions as shapers of this relationship, especially between political authority and the subjects of the law, as well as among the members of the society that was identified within this constitutional order.
Constitutions as Contracts
Another political impression that modern Western constitutions would promote is the idea of contracts as a central political metaphor. Whether formally expressed in that way or not, political philosophers have used the concept of a social contract as a way of expressing and defending ideological justifications of political authority. They have used the metaphor to defend or even inspire constitutional systems. For example, Thomas Hobbes (1588-1679) described sovereign authority that results from an agreement between vulnerable subjects and a ruler. John Locke (1632-1704) wrote about persons who leave a state of nature and agree to delegate their right of self-defense to a government. Jean-Jacques Rousseau (1712-1778) asserted that people achieve freedom by submitting to a consensual agreement of shared sovereignty. More recently, John Rawls (1921-2002) described people behind a “veil of ignorance,” who arrive at basic principles through which they agree to create a political society.
The legal concept of a contract precedes the concept of a constitution. It has evolved from general experiences into essential principles that guide all legal relationships. Its essential elements, as refined through modern legal practice (that is, agreement, cause or consideration, capacity, and legality), have influenced all legal practice. That influence has spread to the political realm and, consequently, to the political understanding of constitutional law.
People often regard modern constitutions, especially in the Western tradition, as contracts between sovereign and subject. They define an implied agreement that marks the extent of sovereign authority. They also represent an implied bargain between ruler and ruled, which defines the nature of the political “item” that is being exchanged, such as authority, benefits, protection, and rights. This last item has become (especially during the twentieth and twenty-first centuries) an increasingly standard component of constitutional development, even under circumstances that would not be philosophically conducive to it.
Constitutional Rights and Liberties
Scholars frequently use the two terms rights and liberties interchangeably; however, they refer to distinct, though related, concepts. A liberty is a restriction that is imposed on political authority or other people in relation to a person’s fundamental interests, while a right imposes a positive obligation (primarily on the part of government) to perform some function in support of a person’s interests. One can illustrate that distinction by the claim that a person has a right to something and a liberty from something else. Generally, they are regarded as the opposite of, and a response to, political duty, although rights also can be defined (especially within Eastern cultures) as a form of essential duty.
Rights and liberties both refer to individual claims that are fundamental in some identifiable way. The identity of those claims and the factors that make them fundamental are based on criteria that usually are bound with a constitution’s essential identity. One way to understand that quality is to consider the difference between civil rights and liberties and human rights and liberties.
Civil rights and liberties are most strongly associated with the rise of liberal democratic societies. As a result, scholars particularly link them to the abstract liberal value of property. The word civil refers to the more limited understanding of this category. The word, derived from the Latin word civitas, refers to a citizen. Civil rights and liberties are the rights and liberties of citizens, particularly in the sense of recognized members of society who function as property bearers and whose property (including abstract expressions of property, such as speech) and due process rights are essential components of the constitutional order.
Human rights and liberties constitute a broader category that is associated with the more basic attempt to define the essential features of the human condition. Jurists often define them as qualities that a human must have to function as a human, especially with dignity. More specifically, they are frequently associated with the quality of human autonomy (the capacity to make self-aware choices and control one’s own destiny), which distinguishes humans from nonhumans.
Even under nonliberal democratic constitutional systems, the inclusion of some sort of reference to rights and liberties has become an essential feature. They identify entitlements, overriding values, and the purpose of government within a particular political system. They have also provided a link between constitutional and international law, especially regarding international human rights regimes and the conventions and treaties that establish them.
The Political Future of Constitutional Law
Constitutions have become necessary sources of ultimate legal and political expression. Examples of constitutional systems have existed, throughout the world, since the ancient period of history. However, their relevance to the modern world has become increasingly indispensable, especially in terms of individual and collective political expression for the twenty-first century. Whether it is issues of sovereignty or rights, constitutions are the focal point of this ongoing development.
Constitutions are, fundamentally, political and philosophical institutions. Their role remains essential, especially for an increasingly global and interdependent world. In that respect, they will continue to evolve, just as the realms of law and politics, in general, continue to evolve. Constitutional law will continue, therefore, to be a pivotal consideration of politics and a highly valued analytical field of the scholarly discipline of political science.