Identifying Constitutions: the concept of a constitution and its relationship with written documents

A crucial, and not at all trivial, step is to identify a country ‘s “constitution” at any given time. The flood of institutional research over the last two decades has expanded and diluted the concept of a constitution. For many, constitutions have become shorthand for political institutions more generally (Persson and Tabellini 2003). Recent constitutions like that of Brazil’s 1988 document, which attempt to constitutionalize nearly every aspect of public life, have not helped to circumscribe their meaning. Other countries such as Britain and, until recently, Saudi Arabia, have unwritten constitutions. To add even more confusion, countries like New Zealand and Canada accumulate a set of important documents over a period of years until at some point, scholars determine that the collection is too important not to be a constitution. Of course, the vast majority of countries have discrete documents that are clearly recognized as constitutions.

Definition of “constitution”

Arguably, the most important (and defining) attribute of constitutions is that they limit the behavior of government. That is, they generate a set of inviolable principles to which future law and government activity more generally must conform. This function, often summarized as constitutionalism, is vital to the functioning of democracy. Without a commitment to higher law, the state operates for the short-term benefit of those in power or, at least, for that of the majority. Those who find themselves out of power may find themselves virtually unprotected, which in turn may make them more likely to resort to violence. By limiting the scope of government, constitutions make government possible (for a broader discussion of this rationale, see Przeworski 1991; Weingast 1997). A second function that constitutions serve is the symbolic one of defining the nation and its goals. Constitutions operate as a device that declares the legitimacy of the perhaps fledgling, or otherwise rudderless, state. This function is particularly important for young states whose citizens have strong ethnic or communal identities that may compete with an identity with the state. A third and very practical function of constitutions is that they define patterns of authority and set up government institutions. Even a dictatorship, for example, needs established institutions through which to govern.

It is this last function of defining authority that creates some confusion. In many countries, a parallel set of “organic laws” or “institutional acts” also define institutions. Are these documents constitutional? In some sense, yes, in that they do share with constitutions an important function. In a critical sense, however, they are not at all constitutional. For one thing, they are usually not adopted in the formal and often deliberate manner that typically (although certainly not always!) characterizes the process of constitution making. More importantly, even in those countries where organic lawmaking is entrenched, such laws can usually be abrogated more easily than can a constitution. This idea of entrenchment is an important contributor to its status as higher law. We see constitutions as not only being higher law (a characteristic that they may share with organic acts and other rules) but of being highest law.

Elkins, Ginsburg, and Melton identified constitutions by appealing to three conditions, any one of which is sufficient to qualify the document as a constitution. Constitutions are those documents that either:

(1) are identified explicitly as the “Constitution,” “Fundamental Law,” or “Basic Law” of a country

(2) contain explicit provisions that establish the contents as highest law, either because they are entrenched or limit future law

(3) change the basic pattern of authority by establishing or suspending an executive or legislative branch of government

See Also

Further Reading

  • Constitutions of the Countries of the World, 1971-date. 22 vols.English-language text for 192 countries.
  • Constitutions of the World, 3d ed. 2008. Covers 100 countries.
  • Encyclopedia of World Constitutions, 3 vols. 2007.



References and Further Reading

About the Author/s and Reviewer/s

Author: international

Mentioned in these Entries

Adoption and Amendment of Constitutions in the World: a Timeline, Basic concepts to studying law, Bouvier’s Law Dictionary and Institutes of American Law, Constitutional Text: Argentina 1994, Constitutional Text: Australia 1900, Amended 1927, Constitutional Text: Brazil Constitution of 1988, Constitutional Text: China 1982, Amended 2004, Constitutional Texts Sources, Constitutional Texts: Bavaria 1808 and 1818 Constitutions, Convention Concerning Freedom of Association, Convention Relating to the Status of Refugees 2, Convention on the Elimination of All Forms of Discrimination Against Women, Convention on the Prevention and Punishment of Genocide, Convention on the Rights of the Child Part 5, Development International Law – Part 24, Development International Law -5, Development International Law -7, Education, European Thesaurus on International Relations and Area Studies, European Union law Part 31 2, European Union law0, First Amendment: Finding Jefferson, Florida Agency Databases, Hein Online, Henri Fazy, History of Industrial Councils, History of the International Labour Organization, Human Rights resources, Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms 2, International Convention for the Conservation of Atlantic Tunas 3, International Convention on the Protection of the Rights of all Migrant 2, International Covenant on Civil and Political Rights 7, International Covenant on Economic, Social and Cultural Rights 3, International Law General resources, International Security9, International human rights law Part 30, International human rights law Part 32, International human rights law Part 38, International human rights law Part 4, International institutions2, International making law in descentralized systems, International trade law Part 22, International trade law6, KIA-KIK North America LC Classification, LC Classification on the Law of the Indigenous Peoples in the Americas, Law quotes 2, Law quotes 3, Law quotes 4, Legal Rights, Library of Congress Classification Class K, Linked Data Principles to Legal Information, List of African online resources, List of Legal Databases and Indexes, List of top 10 legal articles in Shapiro’s citation data, Low cost internet US legal research, Modern Legal Systems Cyclopedia, Outline of Sources of public international law, Ranking of the top 100 legal most-cited articles of all time, Ray A. August, Religious law, SEI FUJII v. THE STATE OF CALIFORNIA 2, SEI FUJII v. THE STATE OF CALIFORNIA, Sei Fujii v. the State of California, State Constitutions and the Protection of Individual Rights, Trade law Part 54, Trade law Part 64, Treaty of Westphalia 11, Treaty of Westphalia 13, Treaty of Westphalia 4, Treaty of Westphalia 5, Treaty of Westphalia 6, U.S. Constitution law resources, Unconstitutional Constitutional Courts, country.



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