Book contents
- Frontmatter
- Contents
- Acknowledgments
- Introduction
- PART I Constitutions, democracy, identity
- 1 Three paradigms of democratic constitutions
- 2 The incrementalist approach to constitution-making
- PART II Varieties of constitutional incrementalism
- PART III Arguments for and against constitutional incrementalism
- Conclusion
- Bibliography
- Index
1 - Three paradigms of democratic constitutions
Published online by Cambridge University Press: 25 October 2011
- Frontmatter
- Contents
- Acknowledgments
- Introduction
- PART I Constitutions, democracy, identity
- 1 Three paradigms of democratic constitutions
- 2 The incrementalist approach to constitution-making
- PART II Varieties of constitutional incrementalism
- PART III Arguments for and against constitutional incrementalism
- Conclusion
- Bibliography
- Index
Summary
What is a constitution and what are its roles?
What a “constitution” exactly means is subject to a variety of occasionally conflicting interpretations. Constitutions are generally written, but as the British example famously demonstrates, they can be unwritten. Hans Kelsen theorized this dualism in the meaning of constitutions by distinguishing between constitutions in the formal sense, i.e. written documents created by a legislative act, and constitutions in the material sense, i.e. the system of formal and informal rules that regulate the political order, and which are based on, among others, conventions, customs and judicial interpretation.
Historically, constitutions in the material sense preceded constitutions in the formal sense, which are a modern concept. Aristotle, for example, defines constitution (politeia) as “a way of organizing the inhabitants of a city.” Material constitutions have sometimes been written. Indeed, as early as the sixteenth century some political leaders preferred to codify their governments' fundamental principles in a written document. Such an example is the 1579 Act of Union of the United Provinces of the Netherlands. Nevertheless, such written documents are different from modern formal constitutions that contain the principles of governmental organization in a single text.
The enactment of the constitutions of US states such as Virginia in 1776 and Massachusetts in 1780, as well as the drafting of the US constitution in 1787, was the turning point to modern written constitutions.
- Type
- Chapter
- Information
- Making Constitutions in Deeply Divided Societies , pp. 15 - 29Publisher: Cambridge University PressPrint publication year: 2011