Constitutional Principles of Political Power - Coursework Example

Constitutional principles of political power. The paper concentrates on the thesis, which says that the just exercise of political power is conceivedof as resting upon constitutional principles. Constitutionalism is descriptive of a complicated concept, according to which in political society government officials are not free to do anything they please in any manner they choose; they are bound to observe both the limitations on power and the procedures which are set out in the supreme, constitutional law of the community. It may therefore be said that the touchstone of constitutionalism is the concept of limited government under a higher law (Andrews 1968). This should not be taken to mean that if a state has a constitution, it is necessarily committed to the idea of constitutionalism. In a very real sense, every state has a constitution, if by a constitution is meant, in the words of Lord Bryce, “the aggregate of the laws and customs through and under which the public life of a State goes on...” (Studies… I 1901). In this sense, every state may be said to have a constitution. There is, however, a tradition in the history of political thought which describes a constitution in terms of a higher law which is an expression of the will of the people. In this view, the state is created by and is organized by the people in the writing and adoption of a constitution, and government derives its authority, institutions, and procedures from this constitution. That is why, Thomas Paine maintained that any government which violates the constitution exercises “power without right.” If the distinction between constitution and government is ignored, then, Paine argued, there being no check upon the will of the government, it follows that the state is a despotism. A true, written constitution, he held, was always antecedent to the actual government, for, in his words, “The constitution is not the act of its government, but of the people constituting a government” (Elster & Slagstad 1988). To understand the nature of constitutional principles better, one should pay attention to its origin: theoretical doctrines and its manifestations (Greek Democracy, Roman Republicanism and English Constitutionalism). 1. Greek Democracy, Aristotles political theory. Some conception of a higher law will be found throughout the history of Western political thought. Early examples of written constitutions include Solons constitution of Athens (594 BC) and Cleisthenes constitution, which reformed the constitution of ancient Athens and set it on a democratic footing in 508 BC. Aristotle (c. 350 BC) was also one of the first in recorded history to formally make the distinction between law and constitutional law. He was the first to establish the ideas of constitution, the idea of constitutionalism and attempt to classify different forms of constitution/government. The most basic definition he used to describe a constitution in general terms was "the arrangement of the offices in a state". Aristotles classification of the "forms of government" was intended as a classification of constitutions, both good and bad. Under good constitutions — monarchy, aristocracy, and the mixed kind to which Aristotle applied the same term politeia — one person, a few individuals, or the many rule in the interest of the whole polis. Under the bad constitutions — tyranny, oligarchy, and democracy — the tyrant, the rich oligarchs, or the poor demos, or people, rule in their own interest alone. Aristotle regarded the mixed constitution as the best arrangement of offices in the polis. Such a politeia would contain monarchic, aristocratic, and democratic elements. Its citizens, after learning to obey, were to be given opportunities to participate in ruling. This was a privilege only of citizens, however, since neither noncitizens nor slaves would have been admitted by Aristotle or his contemporaries in the Greek city-states. Aristotle drew a distinction between the constitution (politeia), the laws (nomoi), and something more ephemeral that corresponds to what could be described as day-to-day policies (psephismata). The latter might be based upon the votes cast by the citizens in their assembly and might be subject to frequent changes, but nomoi, or laws, were meant to last longer (The Cambridge companion… 1995). The Athenian democracy was the democratic system developed in the Greek city-state of Athens. Athens was the very first democracy, and the most important in ancient times. Other Greek cities set up democracies, most but not all following an Athenian model, but none were as powerful or as stable (or, relatively speaking, as well documented) as the Athenian version. It remains a unique and intriguing experiment in direct democracy where the people do not elect representatives to vote on their behalf but vote on legislation and executive bills in their own right. Participation was by no means open to all inhabitants of Attica, but the in-group of participants was constituted with no reference to economic class and they participated on a scale that was truly phenomenal. Never before had so many people spent so much of their time in governing themselves (Andrews 1968). 2. Roman Republicanism. Later in the ancient world, the Roman republic elected its leaders and passed its laws by popular assemblies. However, since the system had been effectively gerrymandered in the interest of the rich and well-born, the Roman republic is usually not considered a democracy. Cicero, the main theoretic of what we call now constitutional principles, lived in a time of political confusion during which the old institutions of the republic were breaking down before military dictators. His “De republica” and “Laws” are both dialogues and reflect the classical sense of purpose: "to make human life better by our thought and effort". It is important to remember the fact, that Aristotle regarded some humans as natural slaves, a point on which later Roman philosophers, especially the Stoics and jurists, disagreed with him. Although slavery was at least as widespread in Rome as in Greece, Roman law generally recognized a basic equality among all humans. This was because, the Stoics argued, all humans are endowed by nature with a spark of reason by means of which they can perceive a universal natural law that governs the entire world and can bring their behaviour into harmony with it. Roman law thus added to Aristotelian notions of constitutionalism the concepts of a generalized equality, a universal regularity, and a hierarchy of types of laws. The Romans conceived of the all-encompassing rational law of nature as the eternal framework to which constitutions, laws, and policies should conform — the constitution of the universe (Andrews 1968). Natural law theory, which has been an essential element of concepts of constitutionalism, received its earliest significant development in the thinking of the Stoics of Greece and Rome after about 300 B.C. Thus Cicero made a characteristic statement of the nature of natural law in the following words: “There is in fact a true law—namely, right reason—which is in accordance with nature, applies to all men, and is unchangeable and eternal. By its commands this law summons men to the performance of their duties; by its prohibitions it restrains them from doing wrong.... To invalidate this law by human legislation is never morally right, nor is it permissible ever to restrict its operation, and to annul it wholly is impossible” (McIlwain 1939). In accordance with this point of view, the Roman jurists established a basic distinction between public law (jus publicum) and private law (jus privatum). Furthermore, it was a basic principle of Roman jurisprudence that the ultimate source of all legitimate political authority in a state is the people, not the ruler (Studies… II 1901). Later, during the Renaissance government systems and writings of classical antiquity became the base for the ideology of republicanism. 3. English Constitutionalism. It is well-known that government in Great Britain is called “constitutional monarchy”. At the same time, Great Britain to this day has no single document labeled “Constitution,” it consists of many parts, some of which are written, such as Magna Carta (1215), the Habeas Corpus Act (1641), the Bill of Rights (1689), the Act of Settlement (1701), the Act of Union (1707), the Parliament Act (1911), and the successive Representation of the People, Judicature, and Local Government Acts. It has the rules of the common law, and well-established customs and conventions which deal with very basic matters, such as the principle of ministerial responsibility to the House of Commons, and which are observed as faithfully as the formal law itself. For medieval England, Magna Carta (1215) strengthened the traditional view that the law is supreme. This supremacy was best stated in Chapter 39, which declared: “No freeman shall be taken or imprisoned or disseised or outlawed or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.” Writing in the thirteenth century, Bracton, a justice of Kings Bench in the reign of Henry III declared that the law “is not anything rashly presumed by will of the king, but what has been rightly defined with the kings authorization on the advice of his magnates after deliberation and conference concerning it.” In this philosophic treatise on the laws and customs of England, Bracton distinguished between “government”, which was within the kings control, and “right”, which was based on ancient custom, the elements of which, “since they have been approved by the consent of those using them and confirmed by the oath of kings, can neither be changed nor destroyed without the common consent of all those with whose counsel and consent they have been promulgated” (McIlwain 1947). The supremacy of the law over government was greatly strengthened in England by the stirring events of the seventeenth century, culminating in the Revolution of 1689, which made the royal title dependent upon an act of Parliament, the Act of Settlement of 1701, which gave the judges a tenure independent of the will of the king, and which established parliamentary control over the government. The great natural law philosophers of the sixteenth and seventeenth centuries—such as Hugo Grotius, Samuel Pufendorf, Algernon Sydney, and John Locke— took God out of the law of nature and made it the basis for the modern secular constitutional state. For John Locke (Second Treatise on Civil Government, 1690), government was based on a social contract entered into in a preexisting state of nature operating under natural law, and for him natural law became the natural rights of the individual. Since the purpose of the social contract was to create government in order more effectively to protect mans natural rights, Locke, as the justifier of the Revolution of 1689, concluded that when government fails of its central purpose the people regain the right to create a new social contract. The state, therefore, is committed to constitutionalism, the terms of which are spelled out in a social contract which controls the acts of government (Elster & Slagstad 1988). Summing up, one could say, that a constitution is more than a mere document, and even in judicial review countries, more than a mere law. It imposes restraints upon government, but at the same time it also legitimizes its power. It is a record of national experience and a symbol of the nations aspirations. It serves the important function of articulating the ideals of the community, of stating its social and economic aims. It exerts a tremendous educational influence as a convenient, easily-read compendium of the nations basic purposes and principles. Generally speaking, this conception of the nature of a constitution prevails in countries committed to democracy and freedom. Where such a concept exists, it follows that constitutionalism is also concerned with freedom and the ultimate responsibility of government to the people. Bibliography. 1. Andrews, William G., Constitutions and Constitutionalism, 3rd ed. Princeton, 1968). 2. Bryce, James, Studies in History and Jurisprudence, Vol. I, Ch. III, pp. 145-254, “Flexible and Written Constitutions”. Oxford, 1901. 3. Bryce, James, Studies in History and Jurisprudence, Vol. II, Ch. XI, pp. 112-71, “The Law of Nature”. Oxford, 1901. 4. Elster, John & Slagstad, Rune, eds., Constitutionalism and Democracy. Cambridge, 1988. 5. McIlwain, Charles H., Constitutionalism and the Changing World. New York, 1939. 6. McIlwain, Charles H., Constitutionalism: Ancient and Modern. Ithaca, 1947. 7. The Cambridge Companion to Aristotle, ed. by Jonathan Barnes. Cambridge, 1995. Read More