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| Etymology | |
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The term constitution comes through French from the Latin word constitutio, used for regulations and orders, such as the imperial enactments (constitutiones principis: edicta, mandata, decreta, rescripta).[6] Later, the term was widely used in canon law for an important determination, especially a decree issued by the Pope, now referred to as an apostolic constitution.
[edit] Tags:French,Latin,Canon Law,Pope, | |
| General features | |
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Generally, every modern written constitution confers specific powers to an organization or institutional entity, established upon the primary condition that it abides by the said constitution's limitations. According to Scott Gordon, a political organization is constitutional to the extent that it "contain[s] institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority."[7]
The Latin term ultra vires describes activities of officials within an organization or polity that fall outside the constitutional or statutory authority of those officials. For example, a students' union may be prohibited as an organization from engaging in activities not concerning students; if the union becomes involved in non-student activities these activities are considered ultra vires of the union's charter, and nobody would be compelled by the charter to follow them. An example from the constitutional law of sovereign states would be a provincial government in a federal state trying to legislate in an area exclusively enumerated to the federal government in the constitution, such as ratifying a treaty. Ultra vires gives a legal justification for the forced cessation of such action, which might be enforced by the people with the support of a decision of the judiciary, in a case of judicial review. A violation of rights by an official would be ultra vires because a (constitutional) right is a restriction on the powers of government, and therefore that official would be exercising powers he doesn't have.
In most but not all modern states the constitution has supremacy over ordinary statute law (see Uncodified constitution below); in such states when an official act is unconstitutional, i.e. it is not a power granted to the government by the constitution, that act is null and void, and the nullification is ab initio, that is, from inception, not from the date of the finding. It was never "law", even though, if it had been a statute or statutory provision, it might have been adopted according to the procedures for adopting legislation. Sometimes the problem is not that a statute is unconstitutional, but the application of it is, on a particular occasion, and a court may decide that while there are ways it could be applied that are constitutional, that instance was not allowed or legitimate. In such a case, only the application may be ruled unconstitutional. Historically, the remedy for such violations have been petitions for common law writs, such as quo warranto.
[edit] Tags:State,Treaty,States,Sovereign,Institutionalized,Liberties,Citizenry,Minority,Sovereign States,Judiciary,Writs,Quo Warranto,Ur,Isin,Aus, | |
| Early constitutions | |
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Excavations in modern-day Iraq by Ernest de Sarzec in 1877 found evidence of the earliest known code of justice, issued by the Sumerian king Urukagina of Lagash ca 2300 BC. Perhaps the earliest prototype for a law of government, this document itself has not yet been discovered; however it is known that it allowed some rights to his citizens. For example, it is known that it relieved tax for widows and orphans, and protected the poor from the usury of the rich.
Detail from Hammurabi's stele shows him receiving the laws of Babylon from the seated sun deity.
After that, many governments ruled by special codes of written laws. The oldest such document still known to exist seems to be the Code of Ur-Nammu of Ur (ca 2050 BC). Some of the better-known ancient law codes include the code of Lipit-Ishtar of Isin, the code of Hammurabi of Babylonia, the Hittite code, the Assyrian code and Mosaic law.
[edit] Tags:Iraq,Ernest De Sarzec,Sumerian,Urukagina,Lagash,Usury,Hammurabi,Stele,Babylon,Sun Deity,Code Of Ur-nammu,Lipit-ishtar,Code Of Hammurabi,Babylonia,Hittite Code,Assyrian Code,Mosaic Law, | |
| Athens | |
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In 621 BC a scribe named Draco codified the cruel oral laws of the city-state of Athens; this code prescribed the death penalty for many offences (nowadays very severe rules are often called "Draconian"). In 594 BC Solon, the ruler of Athens, created the new Solonian Constitution. It eased the burden of the workers, and determined that membership of the ruling class was to be based on wealth (plutocracy), rather than by birth (aristocracy). Cleisthenes again reformed the Athenian constitution and set it on a democratic footing in 508 BC.
Aristotle (ca 350 BC) was one of the first in recorded history to make a formal distinction between ordinary law and constitutional law, establishing ideas of constitution and constitutionalism, and attempting to classify different forms of constitutional government. The most basic definition he used to describe a constitution in general terms was "the arrangement of the offices in a state". In his works Constitution of Athens, Politics, and Nicomachean Ethics he explores different constitutions of his day, including those of Athens, Sparta, and Carthage. He classified both what he regarded as good and what he regarded as bad constitutions, and came to the conclusion that the best constitution was a mixed system, including monarchic, aristocratic, and democratic elements. He also distinguished between citizens, who had the right to participate in the state, and non-citizens and slaves, who did not.
[edit] Tags:Aristotle,Draco,City-state,Athens,Death Penalty,Solon,Plutocracy,Aristocracy,Politics,Sparta, | |
| Rome | |
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The Romans first codified their constitution in 450 BC as the Twelve Tables. They operated under a series of laws that were added from time to time, but Roman law was never reorganised into a single code until the Codex Theodosianus (AD 438); later, in the Eastern Empire the Codex repetitæ prælectionis (534) was highly influential throughout Europe. This was followed in the east by the Ecloga of Leo III the Isaurian (740) and the Basilica of Basil I (878).
[edit] Tags:Twelve Tables,Roman Law,Codex Theodosianus,Leo Iii The Isaurian,Basil I,Roman, | |
| India | |
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The Edicts of Ashoka established constitutional principles for the 3rd century BC Maurya king's rule in Ancient India.
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| Germania | |
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Many of the Germanic peoples that filled the power vacuum left by the Western Roman Empire in the Early Middle Ages codified their laws. One of the first of these Germanic law codes to be written was the Visigothic Code of Euric (471). This was followed by the Lex Burgundionum, applying separate codes for Germans and for Romans; the Pactus Alamannorum; and the Salic Law of the Franks, all written soon after 500. In 506, the Breviarum or "Lex Romana" of Alaric II, king of the Visigoths, adopted and consolidated the Codex Theodosianus together with assorted earlier Roman laws. Systems that appeared somewhat later include the Edictum Rothari of the Lombards (643), the Lex Visigothorum (654), the Lex Alamannorum (730) and the Lex Frisionum (ca 785). These continental codes were all composed in Latin, whilst Anglo-Saxon was used for those of England, beginning with the Code of Ethelbert of Kent (602). In ca. 893, Alfred the Great combined this and two other earlier Saxon codes, with various Mosaic and Christian precepts, to produce the Doom Book code of laws for England.
[edit] Tags:Early Middle Ages,Germanic Law Codes,Euric,Lex Burgundionum,Pactus Alamannorum,Salic Law,Franks,Breviarum,Alaric Ii,Edictum Rothari,Lombards,Lex Visigothorum,Lex Frisionum,Anglo-saxon,Ethelbert Of Kent,Alfred The Great,England, | |
| Japan | |
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Japan's Seventeen-article constitution written in 604, reportedly by Prince Shōtoku, is an early example of a constitution in Asian political history. Influenced by Buddhist teachings, the document focuses more on social morality than institutions of government per se and remains a notable early attempt at a government constitution.
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| Medina | |
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The Constitution of Medina (Arabic: صحیفة المدینه, Ṣaḥīfat al-Madīna), also known as the Charter of Medina, was drafted by the Islamic prophet Muhammad. It constituted a formal agreement between Muhammad and all of the significant tribes and families of Yathrib (later known as Medina), including Muslims, Jews, and pagans.[8][9] The document was drawn up with the explicit concern of bringing to an end the bitter inter tribal fighting between the clans of the Aws (Aus) and Khazraj within Medina. To this effect it instituted a number of rights and responsibilities for the Muslim, Jewish, and pagan communities of Medina bringing them within the fold of one community—the Ummah.[10]
The precise dating of the Constitution of Medina remains debated but generally scholars agree it was written shortly after the Hijra (622).[11] It effectively established the first Islamic state. The Constitution established: the security of the community, religious freedoms, the role of Medina as a haram or sacred place (barring all violence and weapons), the security of women, stable tribal relations within Medina, a tax system for supporting the community in time of conflict, parameters for exogenous political alliances, a system for granting protection of individuals, a judicial system for resolving disputes, and also regulated the paying of Blood money (the payment between families or tribes for the slaying of an individual in lieu of lex talionis).
[edit] Tags:Arabic,Islamic Prophet,Muhammad,Medina,Muslims,Jews,Pagans,Khazraj,Ummah,Hijra,Haram,Blood Money,Lex Talionis, | |
| Rus | |
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The Pravda Yaroslava, originally combined by Yaroslav the Wise the Grand Prince of Kiev, was granted to Great Novgorod around 1017, and in 1054 was incorporated into the Russkaya Pravda, that became the law for all of Kievan Rus. It survived only in later editions of the 15th century.
[edit] Tags:Yaroslav The Wise,Grand Prince Of Kiev,Great Novgorod,Russkaya Pravda,Kievan Rus, | |
| Iroquois | |
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Main article: Great Law of Peace
The Gayanashagowa, the oral constitution of the Iroquois nation also known as the Great Law of Peace, established a system of governance in which sachems (tribal chiefs) of the members of the Iroquois League made decisions on the basis of universal consensus of all chiefs following discussions that were initiated by a single tribe. The position of sachem descended through families, and were allocated by senior female relatives.[12]
Historians including Donald Grindle,[13] Bruce Johansen[14] and others[15] believe that the Iroquois constitution provided inspiration for the United States Constitution and in 1988 was recognised by a resolution in Congress.[16] The thesis is not considered credible.[12][17] Stanford University historian Jack N. Rakove stated that "The voluminous records we have for the constitutional debates of the late 1780s contain no significant references to the Iroquois" and stated that there are ample European precedents to the democratic institutions of the United States.[18] Francis Jennings noted that the statement made by Benjamin Franklin frequently quoted by proponents of the thesis does not support for this idea as it is advocating for a union against these "ignorant savages" and called the idea "absurd".[19] Anthropologist Dean Snow stated that though Franklin's Albany Plan may have drawn some inspiration from the Iroquois League, there is little evidence that either the Plan or the Constitution drew substantially from this source and argues that "...such claims muddle and denigrate the subtle and remarkable features of Iroquois government. The two forms of government are distinctive and individually remarkable in conception."[20]
[edit] Tags:Iroquois,Sachems,Congress,Stanford University,Francis Jennings,Benjamin Franklin, | |
| England | |
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In England, Henry I's proclamation of the Charter of Liberties in 1100 bound the king for the first time in his treatment of the clergy and the nobility. This idea was extended and refined by the English barony when they forced King John to sign Magna Carta in 1215. The most important single article of the Magna Carta, related to "habeas corpus", provided that the king was not permitted to imprison, outlaw, exile or kill anyone at a whim—there must be due process of law first. This article, Article 39, of the Magna Carta read:
No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgement of his peers, or by the law of the land.
This provision became the cornerstone of English liberty after that point. The social contract in the original case was between the king and the nobility, but was gradually extended to all of the people. It led to the system of Constitutional Monarchy, with further reforms shifting the balance of power from the monarchy and nobility to the House of Commons.
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| Serbia | |
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The Nomocanon of Saint Sava (Serbian: Zakonopravilo)[21][22][23] was the first Serbian constitution from 1219. This legal act was well developed. St. Sava's Nomocanon was the compilation of Civil law, based on Roman Law and Canon law, based on Ecumenical Councils and its basic purpose was to organize functioning of the young Serbian kingdom and the Serbian church. Saint Sava began the work on the Serbian Nomocanon in 1208 while being at Mount Athos, using The Nomocanon in Fourteen Titles, Synopsis of Stefan the Efesian, Nomocanon of John Scholasticus, Ecumenical Councils' documents, which he modified with the canonical commentaries of Aristinos and John Zonaras, local church meetings, rules of the Holy Fathers, the law of Moses, translation of Prohiron and the Byzantine emperors' Novellae (most were taken from Justinian's Novellae). The Nomocanon was completely new compilation of civil and canonical regulations, taken from the Byzantine sources, but completed and reformed by St. Sava to function properly in Serbia. Beside decrees that organized the life of church, there are various norms regarding civil life, most of them were taken from Prohiron. Legal transplants of Roman-Byzantine law became the basis of the Serbian medieval law. The essence of Zakonopravilo was based on Corpus Iuris Civilis.
Stefan Dušan, Emperor of Serbs and Greeks, enacted Dušan's Code (Serbian: Dušanov Zakonik)[24] in Serbia, in two state congresses: in 1349 in Skopje and in 1354 in Serres. It regulated all social spheres, so it was the second Serbian constitution, after St. Sava's Nomocanon (Zakonopravilo). The Code was based on Roman-Byzantine law. The legal transplanting is notable with the articles 171 and 172 of Dušan's Code, which regulated the juridical independence. They were taken from the Byzantine code Basilika (book VII, 1, 16-17).
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| Saxony | |
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Between 1220 and 1230, a Saxon administrator, Eike von Repgow, composed the Sachsenspiegel, which became the supreme law used in parts of Germany as late as 1900.
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| Mali Empire | |
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In 1236, Sundiata Keita presented an oral constitution federating the Mali Empire, called the Kouroukan Fouga.
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| Ethiopia | |
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Meanwhile, around 1240, the Coptic Egyptian Christian writer, 'Abul Fada'il Ibn al-'Assal, wrote the Fetha Negest in Arabic. 'Ibn al-Assal took his laws partly from apostolic writings and Mosaic law, and partly from the former Byzantine codes. There are a few historical records claiming that this law code was translated into Ge'ez and entered Ethiopia around 1450 in the reign of Zara Yaqob. Even so, its first recorded use in the function of a constitution (supreme law of the land) is with Sarsa Dengel beginning in 1563. The Fetha Negest remained the supreme law in Ethiopia until 1931, when a modern-style Constitution was first granted by Emperor Haile Selassie I.
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| China | |
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In China, the Hongwu Emperor created and refined a document he called Ancestral Injunctions (first published in 1375, revised twice more before his death in 1398). These rules served in a very real sense as a constitution for the Ming Dynasty for the next 250 years.
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| Sardinia | |
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In 1392 the Carta de Logu was legal code of the Giudicato of Arborea promulgated by the giudicessa Eleanor. It was in force in Sardinia until it was superseded by the code of Charles Felix in April 1827. The Carta was a work of great importance in Sardinian history. It was an organic, coherent, and systematic work of legislation encompassing the civil and penal law.
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| Modern constitutions | |
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The Bendery Constitution by Hetman Pylyp Orlyk.
The earliest written constitution still governing a sovereign nation today may be that of San Marino. The Leges Statutae Republicae Sancti Marini was written in Latin and consists of six books. The first book, with 62 articles, establishes councils, courts, various executive officers and the powers assigned to them. The remaining books cover criminal and civil law, judicial procedures and remedies. Written in 1600, the document was based upon the Statuti Comunali (Town Statute) of 1300, itself influenced by the Codex Justinianus, and it remains in force today.
In 1639, the Colony of Connecticut adopted the Fundamental Orders, which is considered the first North American constitution, and is the basis for every new Connecticut constitution since, and is also the reason for Connecticut's nickname, "the Constitution State". England had two short-lived written Constitutions during Cromwellian rule, known as the Instrument of Government (1653), and Humble Petition and Advice (1657).
Agreements and Constitutions of Laws and Freedoms of the Zaporizian Host can be acknowledged as the first European constitution in a modern sense.[25] It was written in 1710 by Pylyp Orlyk, hetman of the Zaporozhian Host. This "Constitution of Pylyp Orlyk" (as it is widely known) was written to establish a free Zaporozhian-Ukrainian Republic, with the support of Charles XII of Sweden. It is notable in that it established a democratic standard for the separation of powers in government between the legislative, executive, and judiciary branches, well before the publication of Montesquieu's Spirit of the Laws. This Constitution also limited the executive authority of the hetman, and established a democratically elected Cossack parliament called the General Council. However, Orlyk's project for an independent Ukrainian State never materialized, and his constitution, written in exile, never went into effect.
Other examples of early European constitutions were the Corsican Constitution of 1755 and the Swedish Constitution of 1772.
All of the British colonies in North America that were to become the 13 original United States, adopted their own constitutions in 1776 and 1777, during the American Revolution (and before the later Articles of Confederation and United States Constitution), with the exceptions of Massachusetts, Connecticut and Rhode Island. The Commonwealth of Massachusetts adopted its Constitution in 1780, the oldest still-functioning constitution of any U.S. state; while Connecticut and Rhode Island officially continued to operate under their old colonial charters, until they adopted their first state constitutions in 1818 and 1843, respectively.
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| Enlightenment constitutions | |
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What is sometimes called the "enlightened constitution" model was developed by philosophers of the Age of Enlightenment such as Thomas Hobbes, Jean-Jacques Rousseau, and John Locke. The model proposed that constitutional governments should be stable, adaptable, accountable, open and should represent the people (i.e. support democracy).[26]
The United States Constitution, ratified June 21, 1788, was influenced by the British constitutional system and the political system of the United Provinces, plus the writings of Polybius, Locke, Montesquieu, and others. The document became a benchmark for republicanism and codified constitutions written thereafter.
May 3rd Constitution (painting by Jan Matejko, 1891). Polish King Stanisław August (left, in regal ermine-trimmed cloak), enters St. John's Cathedral, where Sejm deputies will swear to uphold the new Constitution; in background, Warsaw's Royal Castle, where the Constitution has just been adopted.
Next were the Polish-Lithuanian Commonwealth Constitution of May 3, 1791,[27][28][29] and the French Constitution of September 3, 1791.
The Spanish Constitution of 1812 served as a model for other liberal constitutions of several South-European and Latin American nations like Portuguese Constitution of 1822, constitutions of various Italian states during Carbonari revolts (i.e. in the Kingdom of the Two Sicilies), or Mexican Constitution of 1824.[30] As a result of the Napoleonic Wars, the absolute monarchy of Denmark lost its personal possession of Norway to another absolute monarchy, Sweden. However the Norwegians managed to infuse a radically democratic and liberal constitution in 1814, adopting many facets from the American constitution and the revolutionary French ones; but maintaining a hereditary monarch limited by the constitution, like the Spanish one. The Serbian revolution initially led to a proclamation of a proto-constitution in 1811; the full-fledged Constitution of Serbia followed few decades later, in 1835.
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| Principles of constitutional design | |
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After tribal people first began to live in cities and establish nations, many of these functioned according to unwritten customs, while some developed autocratic, even tyrannical monarchs, who ruled by decree, or mere personal whim. Such rule led some thinkers to take the position that what mattered was not the design of governmental institutions and operations, as much as the character of the rulers. This view can be seen in Plato, who called for rule by "philosopher-kings."[31] Later writers, such as Aristotle, Tags: | |
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