Constitutions and Constitutionalism

Constitution. Widely explored by social scientists³⁶ and legal positivists,³⁷ the notion of a constitution lacks a clear and decisive list of inherent characteristics.³⁸ However, regardless of the differences in national traditions,³⁹ many constitutions share basic principles originally

34 Hillgruber, 1998, 501.

35 Caplan, 2005.

36 For example, sociologists and anthropologists have identified certain “starting mechanisms” that are necessary for creating norm-based social systems, one of which is the basic rule of reciprocity, which helps to sustain a community over time. See generally, Alec Stone Sweet, “Judicialization and the Construction of Governance,”

Contemporary Political Studies 32 (1999).

37 For example, legal positivists distinguish modern legal systems from other normative systems. H.L.A. Hart, for instance, claims that “pre-law” societies, or communities governed by “unofficial” norms and authority structures, were “inefficient” insofar as their regimes lacked “secondary rules,” which are the means of adapting norms to changing circumstances. Such “secondary rules are typically developed as constitutional law, enabling a community to overcome the common governance problems.” H.L.A. Hart, The Concept of Law, ed. Joseph Raz and Penelope Bullock, 2 ed., Clarendon Law Series (USA: Oxford University Press, 1994).

38 The debates regarding the concept of a constitution concern its emergence (political revolution versus continuous evolution); form (written versus unwritten constitutions); amendment process (flexible versus rigid constitutions);

division of powers; checks and balances; the rule of law; containment; the incorporated governmental structure; the hierarchy of law; and certain basic rights. Absent from the debate is a clear and comprehensive conceptualization of a constitution and its inherent elements. See generally, Arend Lijphart, Patterns of Democracy: Government Forms and Performance in Thirty-six Countries (New Haven: Yale University Press, 1999); Ruth Gavison, “What Belongs in a Constitution?,” Constitutional Political Economy 13 (2002).

39 Ulrich K. Preuss, “Constitutionalism,” in Routledge Encyclopedia of Philosophy, ed. Craig E. (1998); Gavison, 2002.

established by “Western templates” in that they organize and institutionalize a polity⁴⁰ and fulfill a set of functions that are conventionally divided into the internal and external.⁴¹

The internal functions of a constitution have been widely explored in the literature and are directly linked to the contemporary criteria for state recognition. These functions address a set of issues related to basic governmental structures and functions of government; fundamental values and commitments; and human rights.⁴² They seek to create or contribute to the stability and legitimacy of governance. A constitution represents:

a body of meta-norms, those higher-order legal rules and principles that specify how all other lower-order legal norms are to be produced, applied, enforced, and interpreted. […W]ritten constitutions are the ultimate, formal source of state authority. They establish governmental institutions, such as legislatures, executives, and courts, and grant them the power to make, apply, enforce, and interpret laws,[…]

and determine how legislative authority is constituted through … elections.⁴³

In this context, the concept of the rule of law also captures the relationship between a constitution and political institutions as it implies “that the state’s bodies act according to the prescriptions of law, and law is structured according to principles restricting arbitrariness.”⁴⁴ There is also a relationship between a constitution and democracy,⁴⁵ in that constitutions sustain,

40 Karolina Milewicz, “Emerging Patterns of Global Constitutionalization: Toward a Conceptual Framework,”

Indiana Journal of Global Legal Studies 16, no. 2 (2009), 417.

41 For example, in referring to internal functions of a constitution, Raz describes them as the mechanism that, inter alia, “defines the … powers of the main organs of the different branches of government.” Joseph Raz, “On the Authority and Interpretation of Constitutions: Some Preliminaries,” in Constitutionalism: Philosophical Foundations, ed. Larry Alexander (Cambridge, New York: Cambridge University Press, 1998), 152-153.

42 Gavison, 2002, 89.

43 Alec Stone Sweet, “Constitutionalism, Legal Pluralism, and International Regimes,” Indiana Journal of Global Legal Studies 16, no. 2 (2009), 626. affirmation of these rights requires effective mechanisms for their enforcement, which place some limits on democracy. See Gavison, 2002, 90.

promote⁴⁶ or limit democracy⁴⁷ through a number of mechanisms, for example, elections, a multi-party system, or human rights.⁴⁸

Overall, the internal functions of a constitution aim to establish rules that can influence human behavior and keep government in order and efficient through the separation of powers.⁴⁹ They also seeks to foster security and predictability in society;⁵⁰ establish politics “where the rules serve the common good;”⁵¹ create a system that enables people to be part of political life through their citizenship;⁵² and protect individual rights, placing limits on majority decision-making to avoid political changes that could weaken the minority.⁵³ As a result, the main purposes of a constitution in a liberal, rule-of-law state⁵⁴ within the liberal international order⁵⁵ are to protect the freedoms and basic rights of individuals against the power of the state and, additionally, to limit state power through the domestic separation of powers. It is a mechanism

46 Cass Sunstein, “Constitutions and Democracies: An Epilogue,” in Constitutionalism and Democracy, ed. Jon Elster and Rune Slagstad (Cambridge: Cambridge Universtiy Press, 1988).

47 Among the constitutional mechanisms that limit democracy, scholars discuss judicial supremacy, see Rogers Smith, “Judicial Power and Democracy: A Machiavellian View,” in The Supreme Court and the Idea of Constitutionalism, ed. Steven et al. Krautz (Philadelphia: University of Pennsylvania Press, 2009), 199-217; and rights, including their judicial interpretation, see Jeremy Waldron, “Precommitment and Disagreement,” in Constitutionalism: Philosophical Foundations, ed. Larry Alexander (Cambridge, New York: Cambridge University Press, 1998), 271-99, 290-92. Democracy can also limit or pose a threat to constitutionalism because the centrality of democracy to liberal constitutionalism is itself a contested question. See Steven Krautz, “On Liberal Constitutionalism,” in The Supreme Court and the Idea of Constitutionalism, ed. Steven et al. Krautz (Philadelphia:

University of Pennsylvania Press, 2009), 30-49; Larry Alexander, “Constitutionalism and Democracy:

Understanding the Relation,” Ibid., 161-169.

48 Gavison, 2002, 90.

49 Richard Kay, “American Constitutionalism,” in Constitutionalism: Philosophical Foundations, 1998; Stephen Holmes, “Precommitment and the Paradox of Democracy,” in Constitutionalism and Democracy, 1988.

50 Kay, 1998.

51 Krautz, 2009, 2.

52 Bruce A. Ackerman, “Neo-federalism?,” in Constitutionalism and Democracy, 1988, 187.

53 Minorities get veto power over political decision. See generally, John Ester and Rune Slagstad, eds., 1988;

Holmes, 1988; Jennifer Nedelsky, “American Constitutionalism and the Paradox of Private Property,” Ibid.; Rune Slagstad, “Liberal Constitutionalism and Its Critics: Carl Schmitt and Max Weber,” in Constitutionalism and Democracy, 1988; Waldron, 1998.

54 The dominant model of a state since the mid-twentieth century.

55 Liberal values constitute the basis of formal democratic institutions and are promoted in the international arena.

Anne-Marie Gardner, “Beyond Standards Before Status: Democratic Governance and Non-state Actors,” Review of International Studies 34, no. 03 (2008), 536.

for the citizens to organize governance and to check the power of the state.⁵⁶ In this context, the idea of internal constitutional functions refers to the realization of the fundamental tasks related to the internal political organization of a state.

Some of these functions are also characteristic of authoritarian constitutions. The rules established by the constitutions in authoritarian regimes restrain authoritarians’ actions, define the limits of acceptable and legitimate political discourse, and ensure intra-elite coordination.⁵⁷ This suggests that a constitution matters and can make a difference regardless of the political regime in a state-like entity.

Along with its internal functions, a constitution also has external functions. This feature has been largely overlooked by scholars of western constitutions, but has received some attention through the study of non-Western constitutional experiences. The practices of Arab and African constitutions suggest that, in addition to the establishment of the structure for the exercise of government power, constitutions also serve “constitutive” external functions.⁵⁸ The purpose of these external functions is to establish a convincing sovereign presence for other nations in the international arena. By having a constitution, a polity asserts its legitimate and sovereign

56 As some scholars put it, the aims of a constitution are “[1] to authorize, and to create limits on, the powers of political authorities, [2] to enhance the legitimacy and the stability of the political order, [and 3] to institutionalize a distinction between ‘regular politics’ and ‘the rules of the game’ and other constraints (such as human rights) within which ordinary politics must be played.” Gavison, 2002, 90. See also Sweet, 2009, 627; Michel Rosenfeld,

“Introduction: Modern Constitutionalism as Interplay Between Identity and Diversity,” in Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives, ed. Michel Rosenfeld (Durham: Duke University Press, 1994), 3. On the basis of constitutional authority, see Larry Alexander, ed. Constitutionalism: Philosophical Foundations, 1998); Frank Michelman, “Constitutional Authorship,” in Constitutionalism: Philosophical Foundations, 1998; Michael Perry, “What is ‘the Constitution’? (and Other Fundamental Questions),” Ibid.; Joseph Raz, “On the Authority and Interpretation of Constitutions: Some Preliminaries,” Ibid.; Jed Rubenfeld, “Legitimacy and Interpretation,” Ibid.

57 Tom Ginsburg and Alberto Simpser, “Introduction,” in Constitutions in Authoritarian Regimes, ed. Ginsburg Tom; Simpser Alberto (Cambridge University Press, 2013), 14.

58 Nathan Brown, Constitutions in a Nonconstitutional World. Arab Basic Laws and the Prospects for Accountable Government (Albany: State University of New York Press, 2001); H.W.O. Okoth-Ogendo, “Constitutions Without Constitutionalism: Reflections on an African Political Paradox,” in Constitutionalism and Democracy: Transitions in the Contemporary World, ed. Douglas Greenberg, et al. (New York: Oxford University Press, 1993).

existence, a condition that is reflected in the declaration of sovereignty in many constitutional provisions.⁵⁹

The division between internal and external functions seen in the constitutional practices of recognized states is arbitrary, since each category reinforces the other and becomes internal or external depending on the context. At the same time, this delimitation can be a useful analytical tool for examining the role of a constitution in the cases of state-like entities seeking recognition, a topic that is discussed further in Section Two.

Constitutionalism. Since the end of World War II, there has been a tendency to distinguish between constitutionalism and a constitution to emphasize the importance of values laid down in constitutions and not simply their formal character.⁶⁰ Constitutionalism is regarded as “a systematization of thinking about constitutions grounded in the development since the mid-twentieth century of supranational normative systems against which constitutions are legitimated.”⁶¹ As a result, communities of nations refer to that systematization to “legitimate […] their actions against non-legitimate governments under principles of international law, or against which the populace can legitimately rebel.”⁶² Thus, constitutionalism differs from a

59 In the Arab World, this function is secondary to domestic concerns of the organization or increase of a state’s authority and the embodiment of a certain ideological appeal. See Brown, 2001. For African states, the idea of the constitutive value of a constitution, which demonstrates a state’s sovereignty, remains preeminent. See Okoth-Ogendo, 1993.

60 See Larry Gata Backer, “God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century,” Mississippi College Law Review 27 (2008), 34-37.

61 Larry Gata Backer, “From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems,” Penn State Law Review 113, no. 3 (2009), 106.

62 Ibid., 106. Backer clarifies the idea of nations’ reliance on the systematization of thinking about constitutions in the following citation: “In the discourse on international relations, we routinely differentiate between various categories of states and label them according to certain criteria that we consider relevant for our understanding of the dynamics of international politics. Sometimes these criteria are purely factual, but mostly they have an evaluative, even moralizing, overtone.” See also Ulrich K. Preuss, “Equality of States - Its Meaning in a Globalized Legal Order,” Chicago Journal of International Law 9, no. 1 (2008-2009).

constitution in that the former serves “as a means of evaluating the form, substance and legitimacy of the [latter].”⁶³

Scholarly literature does not subscribe to a particular way of understanding the notion of constitutionalism. Rather, the meaning varies depending on the foundational notions of how, in a given political system, the citizens and their representatives organize the state, constitute the government, provide for representation and participation, protect minorities, promote equality, and so on.⁶⁴ Some scholars define constitutionalism as the commitment of a given political community to be governed by constitutional rules and principles in conformity with meta-norms.⁶⁵ In contrast, others use constitutionalism to refer either to those practices of government that derive from a particular constitutional order⁶⁶ or to “the basic ideas, principles, and values of a polity [that] aspire to give its members a share in the government.”⁶⁷ The extant literature also includes cultural views of constitutionalism, which conceptualize it as an overarching ideology of politics, community, and the state. To such scholars, constitutions express the collective identity of a specific people through their aspirations, values, and idealized essence. In this view, constitutionalism, then, is a legitimizing resource for the political body.⁶⁸

Overall, constitutionalism is a complex group of ideas about constituting and limiting the government’s authority that are derived from a body of foundational laws. A political organization is constitutional to the extent that it “contain[s] institutionalized mechanisms of

63 Backer, 2009, 106-107.

64 Raz, 1998, 154.

65 Sweet, 2009, 626, 628.

66 Neil Walker, “European Constitutionalism and European Integration,” Public Law 2 (1996), 266, 267, cited in Sweet, 2009, 627.

67 Ulrich K. Preuss, “The Political Meaning of Constitutionalism,” in Constitutionalism, Democracy and Sovereignty: American and European Perspectives, ed. Richard Bellamy (Aldershot: Avebury Publishing, 1996), 11, 12.

68 See, e.g., Jo Shaw, “Postnational Constitutionalism in the European Union,” Journal of European Public Policy 6 (1999); Robert Post, “Democratic Constitutionalism and Cultural Heterogeneity” (Berkeley: University of California, Institute of Governamental Studies, 2000).

power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority.”⁶⁹

The current dissertation employs the notions of both a constitution and constitutionalism.

It implies that a constitution is a mechanism used to assert the sovereign existence of an entity to other states in the international arena, and to establish fundamental norms for internal governance and external interactions. It refers to constitutionalism as a set of ideas on political organization with limited government authority and functions that helps to ensure the establishment and implementation of constitutional provisions, and provides for popular participation in governance, the separation of powers, and respect for human rights.