CONSTITUTIONAL THEORIES

CONSTITUTIONAL LAWFHUI INTERNATIONAL CLASS 2014

Constitution Contitutio = Jus OR Ius which means Law or Principles• Constitution (English)• Constitutie and Grondwet (Dutch)• Verfassung and gerundgesetz (Jerman)• Droit Constitutionnel and Loi Constitutionnel (Perancis)• Staatsregeling = Grondwet (Belanda)• Konstitusi = Undang Undang Dasar (UUD)

CONSTITUTION

Definition

Samuel Edward Finer* "codes of norms which aspire to regulate the allocation of power,

functions, and duties among the various agencies and officers of government, and to define the relationships between them and the public.“

Stanley de Smith and Rodney Brazier** "constitution is regarded as the primary source of legal

authority within a state."

*Professor Samuel Edward Finer (22 September 1915 – 9 June 1993) was a political scientist and historian who was instrumental in advancing political studies as an academic subject in the United Kingdom, pioneering the study of UK political institutions

Ikurom Margaret Oruan* Lecturer,Faculty of Law,Niger Delta

University, Yenegoa campus, Bayelsa State, Nigeria. MLD(Nigerian Institute of Advanced Legal Studies, Lagos),

Basic content of constitutions

Stanley Alexander de Smith dan Rodney Brazier

"Primarily about political authority and power (the allocation, conferment, distribution, exercise, and limitation of authority and power among the organs of a state)

…concerned with matters of procedures as well as substance

….they also include explicit guarantees of the rights and freedom of individuals.

And sometimes they incorporate ideological pronouncements-principles by which the state ought to be guided or to which it ought to aspire, and statements of the citizen's duties“

What the constitution should contain..

Henc van Maarseveen & Ger van der Tang, “Written Constitution” as a national document. “Having constitution to show the outside world to

emphasis the state’s own identity”. As a political legal document. “A means of forming the state’s own

political and legal system.” As a birth certificate. “A sign of adulthood and independence.”

What a constitution should contains..

K.C. Wheare, Modern Constitution:

“A constitution is used to describe the whole system of government of a country, the collection of rules which establish and regulate (govern) the government.”

“To the question: ‘What should a Constitution contain?’ The short answer, then, is: ‘The very minimum and that minimum to be rules of law.’ One essential characteristic of the ideally best form of Constitution is that it should be as short as possible.”

What a constitution should contains..

Mr. J.G. Steenbeek describes what should be written in the constitution are: Protection of human rights Description of the form of state and governmental system. Distribution of Power and limitation of the fundamental role

among state institutions.

What a constitution should contains..

• The subtance of a constitution should mentions fundamental human rights, the structure of state institutions in each branch of government power including their role, authority and checks and balances among them as stipulated in the nation’s fundamental norm. As Logeman notion: een staat is enn machtsorganitatie, the state is an organization of power. Which means, the power of a state should be organized in central and local government.

• As the notion of Lord Acton, Power tends to corrupt, absolute power corrupt absolutely. Therefore, every country needs a constitution to frame the govenment authority as well as to define the state responsibility upon the citizen related to the constitutional rights.

A Constitution

regulates the relationship between states and individuals

determines the structure of the state (federel / unitary /regional)

sets up a framework of government (Parliamentary/Presidential system, constitutional monarchy/republic)

What a constitution means

1. Carl J. Friedrich in his book: “Constitutional Government and Democracy Theory and Practice in Europe and America” defines 5 concepts of constitution:1. Philosophical2. Structural3. Legal4. Documentarian5. Procedural

2. Prof. Dr. G.J. Wolhoff defines a constitution as the highest law of the land which contains basic norms to frame and inspire the legal system of a country.

What a constitution means

3. H. Rahman in his book “Political Science and Government” describes a constitution as“ a body of Fundamental rules, written or unwritten, which determines the organization or structure of the government, distributes powers and determines the relations among the organs of the government”

4. Hans Kelsen in his book “General Theory of Law and State” mentions: “a constitution is a fundamental law of national legal system”

What a constitution means

5. Herman Heller in his book “Staatsrecht” mentions 3 definitions of constitution:• Constitution in terms of social political fundamental norms as a

reflection of socio-polical life in the society • Constitution in terms of juridical fundamental norms as a legal

ground of all national legal policy.• Constitution a codifying document as the highest law of the

land.

K.C.Wheare mentions 2 classifications of constitution:a) Written Constitutionb) Unwritten Constitution

Classification of Constitution

A Written Constitution Is one of which most of the fundamental organization are written

down in a document or a series of documents. For example, the constitution of the USA, France and India: in each

of these constitutions, the fundamental principles concerning the legislature, the executive and the Judiciary and their powers, the fundamental rights of their citizen and lastly provisions regarding the amendment of the constitution itself are clearly written down in a document.

An Unwritten Constitution Is one of which most of the fundamental principles are not written

down or codified in a document or documents. These are mainly found usages, customs, traditions and conventions of the country. The constitution of Britain is a striking example of this type of constitution.

Objective of the Constitution

To frame the power of government institutions, protect the rights of the people and define the implementation of sovereign power of the land.

- C.F. Strong -

Constitution is recognized as the highest law of the land. Therefore the highest objective of the state should be mentioned are: Justice Order Declaration of state idealism such as independence, sovereignty,

and prosperity of the people - Jimly Asshiddiqie -

Constitutional Change/Amendment

In “Modern Constitution”, K.C. Wheare describes that a constitution can be changed or amended by:• Some Primary forces;• Formal Amendment;• Constitutional Convention;• Judicial Interpretation.

CHARACTERISTIC OF CONSTITUTION in terms of amendment

• Rigid • Flexible

There are at least 2 major indicator of how to classify a rigid and flexible constitution:• Wether the mechanism to amend the constitution need a difficult or simple

procedure. The more the complex more rigid. eq. Referendum• Wether the constitution can be interpreted to adjust economic, political and social

development. The more adjustable themore flexible.

The Value of Constitution

Karl Lowenstein in his book “Reflection of the Value of Constitutions” describes 3 types of constitutional values in assessing the implementation of constitutional norms in practice.

The Value of Constitution

1. Normative value: all norms written in the constitution applies and implements by element of government and society in a country.

2. Nominal value: a constitution applies in a country, however some of the provisions are not yet implements or difficult to be executed.

3. Semantical value: a constitution applies in a country, however all the norms written are just a ‘lip-service’, or political jargon to show the world for acknowledgment from international community.

CHARACTERISTICS OF A GOOD CONSTITUTION

1. Provision of the constitution should be definite and clear in meaning, so that there hardly arises any occasion for dispute or a doubt to their meaning

2. A good constitution should be comprehensive, it should at the same time be brief. It should cover the whole field of government, but the treatment should be on principles and outlines only

3. A constitution should be legal amendable without too much difficulty. A constitution should be stable and at the same time flexible. Stability and flexibility are the two prime requisities of a good constitution

4. A good constitution should correspond to the actual conditions of the state. It should satisfy the ideal, hopes and aspirations of the people

THE END