LAW

Comparative Constitutional Law

Constitutions and Constitutionalism

 Q1: E-TEXT

Module ID 3: Constitutions and Constitutionalism

Module Overview:
This module introduces students to the idea of constitutionalism and what it entails. It
provides an overview of the controversies and debates around constitutionalism and places it
in the context of liberal constitutional democracies.

Subject Name: Law

Paper Name: Comparative Constitutional Law

Module ID: 3

Pre-requisites: Knowledge of constitutional law, comparative law.

Objectives:
The objective of this module is to introduce the idea of constitutionalism in light of the roles a
constitution is expected to play, and, to this end, the features it must include. Today,
constitutionalism has developed into a set of normative guidelines for the drafting and
implementation of constitutions. This module seeks to identify these guidelines as they
emerged in the liberal constitutional discourse, and highlights their interaction with other
constitutional values, such as democracy. Finally, this module presents more recent
challenges to the liberal constitution, introducing new trends in constitutionalism.

Keywords: comparative constitutional law, comparative law, rule of law, constitutionalism,

liberal democracy, separation of powers.

Learning outcomes:
Students learn the meaning of constitutionalism and the debates surrounding
constitutionalism. The relationship between rule of law, liberalism, democracy and
constitutions is explored.

CONSTITITUTIONS AND CONSTITUTIONALISM

Constitutions today serve a variety of purposes: they offer guidelines for governance, protect
fundamental rights, and encapsulate societies’ aspirational goals.1 Many contemporary
constitutional texts even reaffirm states’ international commitments. What makes a
constitution most useful, however, is its definitive role in identifying the scope of government
power, and in creating the institutional forms to be erected for its exercise. A common

1
W. F. Murphy, Constitutions, Constitutionalism, and Democracy (D. Greenberg, S. N. Katz, M. B.
Oliveiro and S. C. Wheatley eds.) CONSTITUTIONALISM AND DEMOCRACY: TRANSITIONS IN THE
CONTEMPORARY WORLD 3, 8-9 (1993).
assumption is that this conferment of power has been carried out by the consent of the people.
The Preamble to the Constitution of India, 1950, for example, declares that the people of
India have ‘given’ it to themselves.
The objective of this module is to introduce the idea of constitutionalism in light of the roles a
constitution is expected to play, and, to this end, the features it must include. Today,
constitutionalism has developed into a set of normative guidelines for the drafting and
implementation of constitutions. This module seeks to identify these guidelines as they
emerged in the liberal constitutional discourse, and highlights their interaction with other
constitutional values, such as democracy. Finally, this module presents more recent
challenges to the liberal constitution, introducing new trends in constitutionalism.

2. What is Constitutionalism?
‘Constitutionalism is one of those concepts, evocative and persuasive in its connotations yet
cloudy in its analytical and descriptive content, which at once enrich and confuse political
discourse’.2 As Thomas Grey has eloquently observed, constitutionalism is not an easy term
to define. Used in a variety of contexts, its meaning continues to be debated among scholars
of constitutional law and related disciplines. A simplistic yet useful explanation has been
offered by the Supreme Court of Canada in its opinion in Reference Re Secession of Quebec:
‘the constitutionalism principle requires that all government action comply with the
constitution’. Accordingly, government authorities’ ‘sole claim to exercise lawful authority
rests in the powers allocated to them under the Constitution, and can come from no other
source’.3
This seems like a straightforward explanation, yet, what makes defining constitutionalism
difficult is the degree of flexibility it is ascribed; scholars often differentiate between ‘thin’
and ‘thick’ forms of constitutionalism. Will Waluchow, for instance, says that
constitutionalism is, at the very minimum, ‘a set of rules or norms creating, structuring and
defining the limits of, government or authority’.4 Like the Supreme Court of Canada, his is a
thin form of constitutionalism. This simplistic approach to constitutionalism - as merely an
allocation of power - is ambiguous. Constitutionalism defined in this way seems to apply to
any and all constitutional arrangements, allowing even absolute monarchies and dictatorships
to claim legitimacy from constitutions.
This is not how constitutionalism is generally understood today. Thick forms of
constitutionalism offer greater clarity, demanding of a constitution more than simply an
allocation of power. Joseph Raz, for example, compiles a list of additional requirements: the
constitution must be intended to be enduring, constitute a superior law to be implemented by
a judiciary, more difficult to amend than ordinary law, and capture a common ideology
among people about principles of government.5 Raz offers helpful guidance, and this search

2
T. C. Grey, Constitutionalism: An Analytical Framework in J. W. Chapman and J. R. Pennock (eds.)
CONSTITUTIONALISM 189 (1979) Cf C. M. Zoethout and P. J. Boon, Defining Constitutionalism and
Democracy: An Introduction in CONSTITUTIONALISM IN AFRICA: A QUEST FOR AUTOCHTHONOUS
PRINCIPLES 1, 4 (1996).
3
Reference Re Secession of Quebec [1998] 2 S.C.R. 217 ¶ 72.
4
W.Waluchow, Constitutionalism, Stanford Encyclopaedia of Philosophy,available at
http://plato.stanford.edu/entries/constitutionalism/.
5
J. Raz, On the Authority and Interpretation of Constitutions: Some Preliminaries (L. Alexander
ed.)CONSTITUTIONALISM: PHILOSOPHICAL FOUNDATIONSCh. 4, 153-4 (1998).
for more concrete definition makes today’s constitutionalism a reflection of dominant
approaches to the design of the state, i.e. the values and principles of liberal constitutional
arrangements.6 The characteristics of liberal or modern constitutionalism are described in
greater detail in Section 4.

3. Constitutionalism as Rule of Law

Despite disagreements as to its definition, there is a broad consensus among scholars that a
commitment to constitutionalism is a commitment to the rule of law. The principle of the rule
of law, equally contested at the time, emerged out of an acknowledgement of the need to
control government by law, asserted very early by philosophers such as Plato and Aristotle.7
The desire to subject state authority to law gained momentum again in 17th Century England,
when British Parliament insisted that the exercise of the monarch’s royal prerogative be
subjected to statutory provisions. This development marked the beginning of modern
constitutionalism: the assertion that the state, the individual and their relationship must all be
regulated by law.8 Over time, not only executive authorities, but also legislatures,were
subjected to the rule of law.9
By requiring government authorities to conform to the terms of the constitution,
constitutionalism - even in its thinnest forms - is equated to an application of the rule of law.
Beginning with this premise, constitutionalism no longer involves merely a conferral of
authority upon government. Crucially, the constitutionis also tasked with imposing limits on
this authority, thus ensuring that political processes are in line with the constitution.10 This
notion of limited government marks the emergence of liberal or modern constitutionalism.

4. Modern/Liberal Constitutionalism
4.1. A Theory of Limited Government

The characteristics of constitutions that we have discussed so far provide a useful foundation
for understanding the development of liberal or modern constitutionalism. The need to subject
constitutionally-created authorities – legislative, executive and judicial – to the law, including
and especially the constitution, has led to the assumption that constitutionalism mandates a set
of limitations on the exercise of governmental power. Martin Loughlin traces the birth of this
idea of constitutionalism as ‘a theory of limited government’ to the 18 th Century.11 Many
others, like Jan-Erik Lane, share this perspective, describing constitutionalism as ‘the political
doctrine that claims that political authority should be bound by institutions that restrict the
exercise of power’.12

6
D. Feldman, ‘Which in Your Case You Have Not Got’: Constitutionalism at Home and Abroad 64
CURRENT LEGAL PROBLEMS 117, 117 (2011).
7
Cfibid. at 119.
8
Supra note 3, ¶ 71.
9
For a historical overview, seegenerally C. H. McIlwain, CONSTITUTIONALISM: ANCIENT AND
MODERN(2007).
10
H.W.O. Okoth-Ogendo, CONSTITUTIONS WITHOUT CONSTITUTIONALISM: REFLECTIONS ON AN
AFRICAN POLITICAL PARADOX 66 (1993).
11
M. Loughlin, What is Constitutionalisation?(P. Dobner and M. Loughlineds.)THE TWILIGHT OF
CONSTITUTIONALISM?Ch. 3,48 (2010).
12
J. Lane, CONSTITUTIONS AND POLITICAL THEORY19(1996).
It is now well established that a commitment to modern constitutionalism is a commitment ‘to
limit the scope of governmental powers and to prescribe the method for its exercise’, allowing
civil society to flourish outside the state.13 This view was quickly consolidated during the
decolonisation period in Africa and Asia, with many of the independence constitutions -
drafted with liberal aspirations - borrowing heavily from western constitutions. The births of
Kenya, Ghana and Nigeria, for example, all witnessed the emergence of common law and its
legal systems to an extent that had not existed during the periods of their colonisation.14 So
also with the collapse of communism, liberal constitutions were drafted dutifully in emerging
Eastern European states.15 As a result, many constitutions today reflect the principle of
limited government, portrayed as an essential aspect of constitutionalism, and justified by the
need to prevent the arbitrary exercise of political power.16
Other liberal principles have also influenced our understanding of constitutionalism. Rooted
in social contract theory, liberal constitutions create constitutional frameworks that identify
with the ideology of individualism, and tend to assert individual rights and liberties. The
importance attributed to the individual, coupled with the need to prevent the abuse of
authority, has manufactured considerable consensus thatmodern constitutions should
comprisesome combination of the following norms: the separation of powers among the
organs of the state, the protection of human rights, and judicial review of government action.
Increasingly, constitutionalism is also identified with restrictions on government emanating
from international obligations. The trend towards international or transnational
constitutionalism will be discussed in greater detail in Section 6.

4.2. The Separation of Powers Doctrine

The doctrine of separation of powers emerged as a distinct feature of American constitutional
law, arising out of the need to restrict the spheres of authority of the legislature, executive and
judiciary, respectively, in order to avoid conflicts among them. The gradual recognition of
this doctrine as a component of modern constitutionalism illustrates the clear shift away from
thin forms of constitutionalism, which define and confer authority without necessarily
restricting it. Today, some degree of separation of powers has been recognised in the
constitutions of most countries, including the Constitution of India. The most obvious
example of a state in which a strict separation of powers was nothistoricallyimplemented is
the United Kingdom, with its principle of parliamentary sovereignty and the close
relationship between its executive and legislature.17
The separation of powers doctrine is now an integral component of modern constitutionalism,
and its inclusion tells us something more fundamental about the role of constitutions. In the
introduction to this module, we discussed the primary role of constitutions as conferring
authority upon government. The text must also prepare for interaction among the institutions
it creates, and the likelihood that disputes over aims, values and competences will arise within
and among them. The separation of powers doctrine has proved to be a useful tool in this

13
Y. Ghai, A Journey Around Constitutions: Reflecting on Contemporary Constitutions 5, available at
http://www.idea.int/cbp/upload/journey.pdf.
14
S. F. Joireman, Inherited Legal Systems and Effective Rule of Law: Africa and the Colonial Legacy
39(4) J. OF MODERN AFRICAN STUDIES 571, 571-2, 577 (2001).
15
Supra note 13, at 5, 9.
16
B. O. Nwabueze, CONSTITUTIONALISM IN THE EMERGENT STATES 1,1 (1973).
17
See generally http://www.parliament.uk/about/how/sovereignty/.
regard; but even in those constitutions that do not incorporate it, it is essential that they
offersome mechanism for dialogue and dispute resolution among institutions.18

4.3. The Power of Judicial Review

This discussion of separation of powers leads us to an increasingly significant feature of
contemporary constitutionalism: judicial review. Scholars like Rainer Grote have described
independent judicial review of legislative and executive action as the hallmark of modern
constitutionalism.19There are innumerable instances in which powerful constitutional or apex
courts have played a pivotal role in the protection of integral constitutional values. The
Constitutional Court of South Africa and the Federal Constitutional Court of Germany are
popular examples of powerful institutions whose interpretations of the South African
Constitution and German Basic Law, respectively, are authoritative and final. The Supreme
Court of India has also played an immense role, developing the ‘basic structure’ doctrine to
protect fundamental constitutional values against legislative amendment.
Some constitutional law scholars, like Ran Hirschl, go further in highlighting the
‘unprecedented amount of power’ that has been transferred from representative institutions to
judiciaries, suggesting judicial control of constitutionalism in a liberal constitutional
framework.20As Sujit Choudhry and Robert Howsewarn, constitutional supremacy does not –
and should not - amount to judicial supremacy.21 There are long-standing criticisms that
judicial review is an anti-democraticcompetence conferred upon the courts, violating the
representative power of the legislature and executive in enacting and implementing laws,
respectively. Courts with strong powers of judicial review must preserve their legitimacy by
maintaining a continuous dialoguewith representative institutions on constitutional
matters.The relationship between constitutionalism and democracy is complex, and the
tensions that arise between them will be discussed in greater detail in Section 5.

4.4. Fundamental Rights and Freedoms

The need for review of legislative and executive action by an independent judiciary is
justified, to a large extent, by the need to ensure that fundamental rights and freedoms
enshrined in the constitution are protected againstthe state. In the revolutionary American
Constitution, for instance, rights were an important defensive check on the exercise of state
power, but also positive entitlements.22 Many of the world’s more recent constitutions include
wide-ranging commitments to human rights, encompassing civil, political, socio-economic
and cultural rights. The need for their inclusion, it is suggested, arises out of the respect for
individual human worth and dignity that is fundamental to liberalism.23

18
Supra note 6, at 123.
19
R. Grote,Models of Institutional Control: The Experience of Islamic Countries(R. Grote and T. J.
Roder eds.) CONSTITUTIONALISM IN ISLAMIC COUNTRIES: BETWEEN UPHEAVAL AND CONTINUITY 221,
221 (2012).
20
R.Hirschl, The Political Origins of the New Constitutionalism11 INTERNATIONAL JOURNAL OF
GLOBAL LEGAL STUDIES 71 (2004).
21
S. Choudhry and R. Howse, Constitutional Theory and The Quebec Secession Reference 13(2)
CANADIAN JOURNAL OF LAW AND JURISPRUDENCE 143, 147 (2000).
22
C. Thornhill, A SOCIOLOGY OF CONSTITUTIONS: CONSTITUTIONS AND STATE LEGITIMACY IN
HISTORICAL-SOCIOLOGICAL PERSPECTIVE 181 (2011).
23
Supra note 1.
Others would argue that the insistence upon the constitutional recognition of human rights in
contemporary constitutions is the result of international pressure or involvement in
constitution-making processes. The 2002 Constitution forindependent Timor-Leste, for
example, was drafted with considerable United Nations involvement, and confers great
significance upon human rights.24 Similarly, the Preamble to the 2004 Constitution of
Afghanistan, also drafted with external involvement, announces a commitment to the
Universal Declaration of Human Rights, 1948.25 The inclusion of human rights guarantees in
constitutions is not new, but continues to contribute to the trend of international
constitutionalism, which will be discussed in Section 6.
Many constitutions in pluralistic, multi-ethnic and multi-religious societies also explicitly
recognise and protect minority or group rights. Their recognition often brings them into
conflict with the democratic principle of majority rule, bringing us to the next Section of this
module.

5. Constitutionalism and Competing Values: Beyond Majority Rule

As is evident from the brief discussions of judicial review and minority rights in Section 4,
the components of modern constitutionalism may find themselves in conflict with other
constitutional values. In particular, an important issue is whether there is an inherent conflict
between the principles of constitutionalism and democracy, and, if so, whether these values
canbe reconciled.This tension is often referred to as the ‘counter-majoritarian dilemma’.26
What makes constitutionalism problematic is that its commitment to constitutional values
beyond the reach of majority decision-making undermines the liberal assumption that the
exercise of popular sovereignty in creating the constitution cannot thenbe limited by it.27
How do we resolve this tension? It is important first to recognise that democracy is only one
among a number of values that are woven together in a liberal constitutional framework.
Islamic constitutional law scholar Mohammad Hashim Kamali describes rule of law as an
inherent component of democracy, and rightly so.28 Without it, democracy can easily be
manipulated, using the legislative power of the majority to create less democratic power
structures, or to disregard other constitutional values. As a result, it is now well established
that democracy is much more than a principle of majority rule.29 Ronald Dworkin has
characterised the relationship between the two in a comprehensive way: ‘democracy must
protect itself against the tyranny of majority rule through constitutionalisation and judicial
review’.30

24
H. Charlesworth, The Constitution of East Timor, May 20, 2002 1 INT’L J. CONST. L. 325, 330 (2003).
25
Available at http://www.afghanembassy.com.pl/afg/images/pliki/TheConstitution.pdf.
26
C. M. Zoethout and P. J. Boon, Defining Constitutionalism and Democracy: An
IntroductionCONSTITUTIONALISM IN AFRICA: A QUEST FOR AUTOCHTHONOUS PRINCIPLES 1, 7 (1996).
27
H. Borgebund, Liberal Constitutionalism: Re-Thinking the Relationship between Justice and
Democracy 2, available at http://etheses.whiterose.ac.uk/851/1/Liberal_Constitutionalism_-_Re-
thinking_the_Relationship_between_Justice_and_Democracy_-_Hardbound.pdf.
28
M. H. Kamali, Constitutionalism in Islamic Countries: A Contemporary Perspective of Islamic Law
(R. Grote and T. J. Roder eds.) CONSTITUTIONALISM IN ISLAMIC COUNTRIES: BETWEEN UPHEAVAL
AND CONTINUITY 19, 28-9 (2012).
29
Supra note 20, at 72.
30
R. Dworkin, A BILL OF RIGHTS FOR BRITAIN 13-14 (1990).
The need to restrict the power of the majority arises thus out of a ‘constitutional
precommitment’31 that certain fundamental values need to be preserved. Entrenching these
values in the constitutional text, beyond the reach of a majority vote, is useful in several
ways. First, a majority may ignore fundamental rights in order to accomplish collective goals
more easily. Entrenching human rights in the constitutional text prevents the derogation of
these rights.32
Secondly, constitutions in pluralistic societies often recognise the rights of minorities as a
way to protect minority interests against majority decision-making. This is often a crucial
political compromise. A good example is the multi-ethnic state of Bosnia-Herzegovina, in
which three major ethnic communities are locked in complex power-sharing agreements that
protect their interests wherever each group finds itself to be a minority.By giving these
assurances to minority communities, constitutions play a vital role in maintaining stability,
both socially and politically.
Thirdly, by elaborating the power divisions among the various branches and levels of
government (including federal, state and local institutions), a constitution is able to prevent a
democratically elected legislature from reallocating power to its own benefit by the mere
enactment of a law. A representative legislature must not be able to misuse its power of
legislation in this way.33
These three concerns help us understand why it is important for a constitution to maintain its
supremacy over the decisions of a majority, justifying constitutional amendment by a
substantial – and not simple – majority. Though constitutional rules may require amendment
over time, the procedure for amendment must involve a process of negotiation in which ‘there
is an opportunity for all the constitutionally defined rights of all the parties to be respected
and reconciled’.34
It is therefore both possible and necessary for constitutionalism to qualify the exercise of the
democratic principle. The Supreme Court of Canada has arrived at this conclusion in a
comprehensive way in its opinion on the secession of Quebec: ‘Constitutionalism facilities –
indeed, makes possible – a democratic political system by creating an orderly framework
within which people may make political decisions’.35 Constitutionalism and the rule of law
are thus essential to, and not in conflict with, democracy.

6. Changing Ideas of Constitutionalism

6.1. Towards an International Constitutionalism

The idea of constitutional borrowing, coupled with the increase in foreign involvement in
constitution-making processes in many parts of the world, has resulted in the streamlining of
a trend towards an international or transnational brand of constitutionalism. This
constitutionalism acknowledges common legal traditions among states (such as liberal
constitutionalism) but also focuses on the relevance of more universally accepted norms. 36 As

31
Supra note 26, at 1.
32
Supra note 3.
33
For a more detailed discussion of these reasons, seesupra note 3, ¶ 72.
34
Supra note 3, ¶ 76, 77.
35
Supra note 3,¶ 78.
36
L. C. Backer, From Constitutions to Constitutionalism: A Global Framework for Legitimate Public
Power Systems 113:3 PENN STATE L. REV. 671, 672 (2009).
Sujit Choudhry notes, this globalisation of modern constitutionalism comes intoconflict with
the dominant understanding that ‘the constitution of a nation emerges from, embodies, and
aspires to sustain or respond to that nation’s particular history and political traditions’.37
Arguing that international law is the source of this convergence of values, Judge Rüdiger
Wolfrum draws a similar conclusion. He characterises human rights and institutional
principles (including separation of powers, rule of law and good governance) as
internationally recognised values incorporated into recently drafted constitutions.38 In this
view, the legitimacy of a constitution is no longer based on popular, domestic sovereignty.
Instead, it is determined by ‘conformity with a system of universal norms grounded in an
elaboration of the mores of the community of nations.’39 Identifying these commonalities
definitively, however, is often a daunting task. This trend also falls in line with ideas of
imposed constitutionalism, as in the cases of East Timor and Afghanistan.40

6.2. Challenging Liberal Constitutionalism

The conceptualisation of modern constitutionalism that we have discussed so far – usually

styled on the Constitution of the United States of America - has resulted in greater certainty
about what is expected of a constitution, but has unfortunately created a mould into which
many constitutions of the world do not fit. As David Feldman argues: ‘As a normative model,
liberal constitutionalism can be a useful aid when designing constitutions for societies in
which there is a consensus that liberal, broadly individualistic values should be the foundation
for the structure of the state.’41
This may not always be the case. For instance, Islamic constitutionalism has developed as a
tool for drafting constitutions in Islamic states in which liberal constitutionalism has proven
unable to address the coexistence of Islamic law with the constitutional values it endorses.42
Many African states also struggle to implement liberal democratic principles, including
limited government and separation of powers.43 In these contexts, political groups usurp
power with little regard for the principles and procedures by which power arrangements are to
be governed.44 These states are left out of the dominant constitutionalism discourse
altogether.
Liberal constitutionalism is becoming especially irrelevant to constitution-making in
pluralistic, divided societies. The rise of ethnicity as a decisive factor in constitution-making
isone that cannot be adequately addressed by liberalism’s individual-centred approach.45 The
liberal state tends to privilege the majority community, limiting its value to homogenous

37
S. Choudhry, Globalisation in Search of Justification: Towards a Theory of Comparative
Constitutional Interpretation 74(3)INDIANA L. J. 819, 819-20 (1999).
38
R. Wolfrum, Constitutionalism in Islamic Countries: A Survey from the Perspective of International
Law(R. Grote and T. J. Roder eds.) CONSTITUTIONALISM IN ISLAMIC COUNTRIES: BETWEEN UPHEAVAL
AND CONTINUITY 77 (2012).
39
Supra note 36.
40
N. Feldman, Imposed Constitutionalism 37 CONN. L. REV. 857, 858 (2005).
41
Supra note 6, at 146.
42
See generally notes 28, 38 and 40.
43
Supra note 10.
44
S. C. Nolutshungu, Constitutionalism in Africa: Some ConclusionsREFLECTIONS ON
CONSTITUTIONALISM 366-7 (1993).
45
See generally, H. Lerner, MAKING CONSTITUTIONS IN DEEPLY DIVIDED SOCIETIES (2013).
societies.46 Liberal constitutionalism is thus unable to create capable institutions to negotiate
claims among culturally heterogeneous communities.47 In order to make constitutionalism
more universally useful, it must not advocate substantive constitutional values and structures
of government. Instead, it must endeavour to manage the conflicts among institutions by
demanding that they justify their decisions and actions in accordance with the constitution.
This helps negotiate disagreements in an authoritative way.48
Thus, arguments that liberal constitutionalism is only relevant in societies that implement it
merit serious consideration. David Feldman captures the difficulty with modern
constitutionalism well: ‘the more one puts into constitutionalism, the more difficult it is to
maintain cross-cultural commitment to it.’49 The social, political and ideological narratives of
societies across the world are marked by enormous difference. As a consequence, the utility
of liberal constitutionalism ends at the limited normative argument that all states should
implement it.

46
Supra note 13, at 11-2.
47
Supra note 13, at 12.
48
Supra note 13, at 17, supra note 6, at 123-5.
49
Supra note 6, at 122.