Concepts of constitution, constitutional law, and constitutionalism

By | November 9, 2019
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The term “Constitutional law” is much extensive in nature with its concept than the term “Constitution”. The Constitutional law includes the Constitution, judicial precedents, relevant statutory laws, and conventions.

Introduction

A state cannot govern itself on an ad hoc basis without there being some norms to regulate its basic institution. There must be a predictable body of norms and rules from which the governmental organs must draw their power and functions. The purpose of having a Constitution is to have a framework of government which is likely to endure through vicissitudes of a nation.

The Constitution of a country is a document that has its own legal sanctity; it could be any-written or unwritten. Constitution seeks to establish its fundamental or basic or apex organs of government and administration, describe their structure, composition, powers and principle functions, define the inter-relationship of these organs with one another, and regulate their relationship with the people, more particularly, the political relationship.[1]

Constitutional law and Constitution 

Note that the term “Constitutional law” is much extensive in nature with its concept than the term “Constitution”. The Constitutional law includes the Constitution, judicial precedents, relevant statutory laws, and conventions. The constitutional law of a country comprises of different ‘legal’ and ‘non-legal’ norms. ‘Legal’ norms are those which can be enforced by the courts if there is any violation whereas ‘non-legal’ norms arise in course of time as a result of practices which are followed over and over again for years.

Besides the concept of the Constitution, there is an important idea of Constitutionalism. A country may have a Constitution, but not necessarily ‘Constitutionalism’ for example, a country where the dictator’s word is law can be said to have Constitution, but not Constitutionalism.[2]

The concept of Constitutionalism is not new, it is somewhere deeply embedded in human thoughts. The Magna Carta (1215) has always strengthened and promoted the traditional view that “law is supreme”. It has endorsed having certain limits on the powers of the king. Some natural law philosophers like Hobbes, Locke, Aquinas, Grotius, and Rousseau have promoted this idea in their theories for example, ‘Social Contract’.

Constitution ought to be saturated with Constitutionalism and have certain restrictions on the powers of different organs of government in order to safeguard some basic rights of an individual like freedom, and maintain the personal liberty and dignity of an individual.

Constitution and Constitutionalism

There is an underlying difference in both the concepts that a constitution should not merely grant powers to different organs of government, but additionally seek to limit those powers. Constitutionalism perceives the requirement for the government with powers to have social control but demands limitations being set upon governmental powers with checks and balances. It visualizes balanced governance where the powers of executive and legislature are under some limitations; else, it would jeopardize the freedom and opportunity of individuals and lead to a tyrant, oppressive and authoritative government.

Constitutionalism is the antithesis to arbitrary powers.[3] ‘Constitutions spring from belief in limited government’.[4] According to Schwartz, the word Constitution means “a written organic instrument, under which governmental powers are both conferred and circumscribed”.[5]

Remark from Professor Vile:[6]

“Western institutional theorists have concerned themselves with the problems of ensuring that the exercise of governmental power, which is essential to the realisation of the values of their societies, should be controlled in order that it should not itself be destructive of the values it was intended to promote”.

Elements of Constitutionalism

  • Written Constitution
  • Independent Judiciary
  • Judicial Review
  • Rule of Law
  • Separation of Powers
  • Free and Fair Elections
  • Responsible Government
  • Fundamental Rights
  • Federalism
  • Decentralisation of Powers

Therefore, all the three: Constitution, Constitutional Law and Constitutionalism are interrelated with the linked idea of democracy and limited powers. These concepts refer to the legal system of the country which grants collective rights and allows people to enjoy their freedom and promote the principle of “Rule of Law”.


[1] K.C. Wheare, Modern Constitutions, 1 (1971).

[2] Jain MP, Indian Constitutional Law, (7th ed, 2016), page 6.

[3] Charles H. Mcilwain, Constitutionalism: Ancient and Modern, 21.

[4] Jain MP, Indian Constitutional Law, (7th ed, 2016), page 6.

[5] Schwartz, Constitutional Law: A Text Book, 1 (1972).

[6] M.J.C. Vile, Constitutionalism and Separation of Powers, 1.


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  2. Historical background and evolution of the Indian Constitution

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