Introduction
“Constitutionalism is probably the greatest achievement of modern civilization, without which little or none of the rest is conceivable; under it, for the first time in the history of man, has a measure of freedom and well-being been achieved for the common man-Carl Friedrich.”
“Constitutionalism is only the name of the trust which man reposes in the power of a document as a means of controlling a government.”[1] This document prevents the rulers the use of excessive power and mainly put focus on rights of the human.
This also gives an opportunity to limit the excessive powers of the government and its officials. Constitutionalism as a concept does not emerge overnight it has been from the eras that excessive powers have been used by the rulers to rule the life of its people and a heroic struggle has been experienced by the people which cost their life and property.
It gives a privilege to the people the right to govern them. It means to have the power to draft its own constitution, to establish the kind of government they wanted to rule them, and to organize its powers in such form as “shall seem the most likely to affect his safety and happiness. It was what James Madison had in mind when he said that In framing a government which is to be administered by men over men, it is necessary to oblige it to control itself.”[2]
Later in the times when the government didn’t recognize the rights of its people that is the fundamental rights of its people were said to be legitimately said by the specialist of constitutionalism Locke. In old times the powers to rule its people were with kings and lords. Locke described the power such as federative and executive, by the legislative one.
The most important thing was to have separation of power to have the balance in between the organs, The rise of constitutional government, it is important for us to understand the evolution and development of constitutionalism. The most significant role has been played by the American constitution for the development of this concept and determined the structure model for the rest of the world.
Constitutionalism is based on the relationship between its people and its government. The constitutionalism concepts are based on state power settings.[3] In the view of many experts, it has been stated that the doctrine of constitutionalism can provide more transparency in the organs of the governance.
The world has been in so much conflict within itself and with other countries due to the failure of proper governance, even till today. A structured and progressive constitution where the framers must have thought for the future and well-being of the country is an important tool for good governance and democracy.
In the working paper of “Development of Constitutionalism in English period” the author here is talking firstly about the meaning of constitutionalism and secondly evolution of constitutionalism, what are the contributions of Greece and Rome, what are the contribution of Europe during the middle ages, what are the contribution of the English where the concept of Higher law and limited government came from America though England which has been extended by the political theorists and jurists[4] such as John of Salisbury (c. 1120-80), Si John Fortescue c. 1349-1476, Sir Edward Coke (1552-1634), Richard Hooker (1554-1600). The author is inspired by the work of some political jurists who have given their immense contribution in ancient and modern thought to practice constitutionalism.
Lastly, the American Contribution to constitutionalism has a significant role to play. The fundamental principle of American constitutionalism is limited government which was given by James Madison. Therefore it draws the conclusion of how the concept has been emerged over time and given a new hope has been given to the people and its government.
Meaning of Constitutionalism
Constitutionalism is a developing concept which emerged from the constitution that wants a political setup governed by laws and regulations. It is not talking about the individuals, constitutionalism stands for supremacy of law; it inculcates the feelings of democracy, nationalism, and limited government. It can also be defined as a system of ‘divided power’[5]
As Friedrich says: “Constitutionalism by dividing power provides a system of effective restraints upon government action. In understanding it one has to adapt to all the methods and techniques by which all these restraints are established and maintained.[6]
It is a body of rules ensuring Fairplay, thus rendering the government ‘responsible’.[7] Constitutionalism thus stands for the existence of a constitution in a state, since it is the instrument of government or the fundamental law of the land, whose objects “are to limit the arbitrary action of the government, to guarantee the rights of the governed, and to define the operation of sovereign power.”[8]
In order to have a better understanding of‘ constitutionalism’, it is important to understand the concept of ‘constitution’ and ‘constitutional government’. A constitution “may be said to be a collection of principles according to which the powers of the government, the rights of the governed, and the relations between two are adjusted.”[9]
Whereas the constitution refers to a frame of a political society organized through and by means of law and in which law has established permanent institutions which recognized functions and definite rights, a constitutional state “is one in which law has established permanent institutions with recognized functions and definite rights, a constitutional state “is one in which the powers of the government, the rights of the governed and the relations between the two are adjusted.”[10]
From the above definition, it can be said that constitutional government is one that operates within a universe of positive restraints. However, it’s a different matter that how much restraint has been put by one political party to another. That is, while one state may be constitutional by the virtue of being set in the universe of more restraints, the other may be of the same category by the virtue of being set in a universe of few restraints. The charge is being ‘unconstitutional’ can be leveled against a state only if it has ‘no restraints’ as specified by Friedrich in his paradigm. [11]
“Keeping such facts in mind, one may say that there exists no government in the world that may not be called constitutional, though he may also say that such a government hardly exists in a country binder a totalitarian rule where the constitution is seen with contempt. For this reason, it is only in a democratic country that constitutional government can be said to exist.”[12]
Development of Constitutionalism: Historical Rise
The rise of the constitutional state which exists today went through a historical revolution. The proof of this is its ideologies that were contained in the history of politics coupled with how customs and ethics have played the most important part in developing the political ideas from ancient to modern times. When we read about the history of constitutionalism it shows the progress and the growth that has been made before ages and the essence of which has been there in today’s constitutionalism as well.
Greek and Rome are said to be the beginners from where the actual term of constitutionalism has been taken later on followed in the middle and modern era. In this paper, we will be seeing the ideas of famous developers who thought of having a particular polity at the time in need according to obtainable situations. Still, the search for the right constitutional order is on but before that, we have to understand the pretext of the rise of constitutionalism in the English period.
Greek Constitutionalism
This Greek system introduced ‘political separatism’ as one of the key characteristics of their system. They provided their citizen the status of freemen only and that is called the city-state system. Mostly the city follows a democratic system. The role of the city of people and its state have intertwined relations that were the rule followed by the Greek people. As Strong says “A Greek citizen was actually and in person a soldier, a judge and a member of governing assembly. The state to the Greek was his whole scheme of association, a city wherein all his needs material and spiritual, we’re satisfied.”[13]
Prominent thinkers like Aristotle and Plato tried to study Greek constitutionalism from an ethical point of view but later on, it became impractical for them to make a difference between moral and ethical constitutionalism and corruptible kings. They were unable to find that striking balance in between both the situations. The entire Greek constitutionalism got failed because of the fact that Greek constitutionalism did not go beyond the limits of city-state relations which became one of the major reasons why Greek constitutionalism failed to move ahead with the changing conditions that had happened in history.
Roman Constitutionalism
After the Greek period, major changes have occurred in the Roman period. The prominent establishment under this period is the city-state system and the great empire under Romans. People here started giving less importance to intellectual life and also started exploring different fields. In the Roman period, ethics are separate from politics; men, state, and society. C.H. McIlwain, thus, observes that there “was gradually emerging an individual who was something more than a citizen, a society that was wider than any possible political unit and a humanity more extended than any single race; individualism and cosmopolitanism are the most marked of the newer aspects of political philosophy.”[14]
In this era, progress has been seen in terms of constitutionalism, as the laws were codified and they were written for the purpose of justice and in today’s era also these representative principles are the most reliable principle. In this era, the term ‘mixed constitution’ has been introduced where the counsels (it was depicting the monarchical element), Senate (it was the representation of the autocratic element), and the democratic elements were also seen when there were divisions made according to the people and the land (tribes, etc.).
Within the time in Rome, the rule of autocratic prevails over any other element. The concepts like the legal sovereignty of the Emperor and the people who in the end derive powers and pleasure from the government. These two concepts have still been the backbone of the constitution and make us understand how the theory of rulers and ruled have been evolved over the years.
Medieval Constitutionalism
In this era, the disintegration of the Rome Empire could be witnessed and all the states were divided into small feudal states. The new ideas as to how the feudal state will be governed by the King brought such ideas like customs and ethics could bind the authority of the King. Later the intrusion of foreign people had created a haphazard political and economic setup and because of that the governance didn’t happen on a national and state basis but it happened according to the local levels.
This phrase brought the concepts like decentralization and disintegration. The policy of ‘statelessness’ was introduced and every territory has its own rules, regulation, warfare, currency, and judicial responsibilities. The concept of ‘universalism’ was the most important development of this era and through it the concept of ‘Christianity’ was also introduced. There were many people who were converting themselves in Christianity; therefore the Bible law overtook the Roman law.
In Roman law people were the power of the authority and the king was always the follower of the law, he was never above law. The ceremony held in front of chiefs was a clear indication of the monarch was the rule that was followed. This also leads to the growth of democratic constitutionalism.
However, there were many religion conversion that was happening into Christianity and the trend has been already set by St. Augustine and St. Thomas in making the Christianity the secular power in that era. Rule of bishop took over the rule of monarch and Pope became the head of the religious Christian world. This trend also got spread in other countries as well like France, England, and Spain that witnessed ‘” outside the legal theories and ghost of the [15]holy Roman Empire was irrevocably laid.”
Constitutionalism in Renaissance Period
In this period the medieval period was over and people had started looking for different approaches like humanistic and scientific approaches. In this era, people were conscious of the kind of life they wanted to live and they believed in exploring the new trends as well. Fields like culture, art, and science were left behind in the medieval era but in this period all of it found new values. The inspirational models were looked at from and around the world. But the reason why the medieval period came to an end was the concept of universalism and sovereign national states.
However, one thing which remains intact was monarchy rule. The position of the Pope was taken by many rulers that imposed their power on people to live according to how the rulers want and that was the only final settlement between the ruler and its people. in this period two people became very famous their names were ‘Machiavelli’s Prince and Bodin’s Republic were prominent sources and after that only monarchical rule existed in places like England Prussia, Rome, Italy, and France. Therefore “it was truly a constitutional, much less democratic state.”[16]
Constitutionalism in England
The real development of constitutionalism actually happened in Britain. The dictatorship of Queen Elizabeth was ended and the totalitarian had to face the opposition of the people. the popular war was conducted naming civil war where the major issue of the war was who was supreme to the law, was it kind of law itself? In this war, the people won and the king defeated, and therefore the supremacy transferred into the hands of the people.
This war bought the revolutionary change that the people who were followers of the kings now became the power themselves and this revolutionary change can also be seen today worldwide where the constitution is for the people and of the people. A lot of bills have been passed in 1832, 1867, and 1884 that include more and more people. The Parliament Act of 1911damaged the House of Lords and the amendment in 1949 brought down the authority of the House to pass non-money bills. The functioning of parliamentary government became possible because of the rise of two political parties.
As the changes which have occurred in the English period the ministers who have chosen by the people become accountable in Parliament for the needs of it people and outside the parliament to tell people what all can be done to improve their situations, what is called ‘rule of law’ by Dicey. It can be said that English constitutionalism “supplied a continuity of life to liberal institutions through many centuries when elsewhere they were dead or had never lived, permitted the growth of its own constitutions among those communities in all parts of the world of which England herself was the mother and supplied the pattern of a constitution when the moment came for ant newly liberated community to found one.”[17]
Constitutionalism in America
In Declaration of Independence of 1776 stated that “all men are created equal, they are endowed by their creators with certain unalienable rights. that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed, that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute a new government, laying its foundations on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.” These ideals became the foundation stone to introduce the federal system which was established on the principles of separation of powers where executive, legislature, and the judiciary are three separate and independent pillars from each other and who keeps check and balance on each one of them. The power of the executive is with the President, the legislature is with Congress, and judiciary powers are with the Supreme Court.
All the member’s appointments are made by the President and President can be removed through the process of impeachment and the court could stop any order that goes above and beyond the powers that might harm public interest at large and destroys the spirit of the constitution. Any bill that is passed by Congress needs the approval of the President and courts could intervene if they find that the bill passed can disturb the peace and harmony of the people and is against the public will.
While courts are the keep checker that no one is above law, the law is supreme. All the appointments of the judges and chief justices were happened in the keep check of the President, in this manner it can be said that the American constitution has proven this maxim “power cuts power” or that “power checks power”. The result of all these constitutional arrangements has come to be that democracy in America “rests upon the expectation that lawful conduct is the standard to which both governments men will conform.”[18]
Constitutionaism after the first world war
This era was more surprising in terms where democracy was becoming prevalent and people could make their own decisions, a period came which was completely authoritarian against the progress of constitutionalism. Communism in Russia, Nazism in Germany, and Fascism in Italy can be examples where there was only one-party rule and exclude the possibilities of all the other parties.
The political dictatorship was there and all the activity of economic, political, and social activities were under control and being monitored, however, one remarkable development that had happened after the first world war the establishment of the League of Nations which was made to resolve the issues of countries and settling all their issues in peace. This was a new development in a constitutionalism which was once also named internationalism.
Constitutionalism after the second world war
While the dictatorship of Italy, Germany, and France were ended in Second World War but the emergence of the new Soviet Union begun which was seen an increase in other parts of the world as well. As a result of which a new method of constitutionalism was adopted worldwide. Now all the countries got the right as to which model they want to adopt the American or English or a combination of two. For example, India adopted the Westminster model in 1950.
After the establishment of the League of Nations, it can be said that constitutionalism is not just about nationalism and its democracy, it also covers the international aspect. In India Article 51 that is in Part IV of the Indian Constitution states that “State shall strive for a peaceful and secure international order, promote international law and justice and seek pacific settlement of international disputes.”
Constitutionalism in Today’s Era
In today’s era constitutionalism globally has different strands which seek to further develop constitutionalism in a particular direction. The concepts which got evolved during all this while like separation of powers with the principle of check and balances, rule of law, free and fair elections, decentralization of power, federalism and fundamental rights of people etc. have been implemented to protect or safeguard the basic rights of the people.
But still, it is no tough to say that there are no precise features of constitutionalism, the world is still struggling hard to achieve the ideal social welfare state. As it can be seen that most of the principles of constitutionalism have been adopted by the European countries and most of the developing countries still find it difficult to manage in between the liberal democratic ideas and expectations of the local people of their country.
The example of which can be seen in countries like Bangladesh and Pakistan where they kept on changing the rule from parliamentary to presidential system and vice versa. However, it has been also seen that the changing rule has given the power to the military rules which have completely damaged constitutionalism and it has affected third world countries like Syria, Iran, and Afghanistan, etc.
Constitutionalism in developing countries has some different broad feature: Firstly countries like India have adopted the values of western constitutionalism, they have incorporated the concepts like justice, liberty, republic, democratic and equality for the welfare of its people and safeguards their interest. Secondly, many countries like Afghanistan, Iran, etc. have not been able to choose the accurate kind of political structure that they need to follow to bring peace and harmony within the country and they feel the western concept might not be suitable for them according to their countries requirements.
Thirdly there are many countries that have shifted themselves from being a social welfare state to a military rule state and these are the countries that kill the liberties of the people. This is one of the major challenges, said by President Lincoln “Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence.”[19]
Conclusion
The study that we have done above leaves us with lots of important points. Firstly constitutionalism signifies “addiction to constitutions or the fundamental law”, which means that every state must be governed by the law not by any men where he shouldn’t become the prime important person in any political order. In developing constitutionalism, the three most important concepts are nationalism, democracy, and self-government. Every state has the right to govern in a democratic form. Thus it says that the power should say with its people not with its rulers and every change that has to be brought should change in a peaceful manner. Though constitutionalism has also given us internationalism that every state must sign to the principle of world federation and where each and every country has to maintain its keep faith in principles of an international organization.
This can still be said that constitutionalism is still experimenting every now and then and it comes under pressure challenging itself from the communist model. It can be seen that today’s era is a socio-economic time where the needs of people have to be kept in mind and the economic welfare of the people becomes the prime concern along with the stable political order. The ideal of national democratic constitutionalism, ancient through or origins maybe, “is still in an experimental stage and that if it is to survive in competition with more revolutionary types of governments, we must be prepared constantly to adapt it to the ever-changing conditions of modern society. The basic purpose of the political constitution is, after all, the same wherever it appears, to secure social peace and progress, safeguard rights and promote national being.”[20]
[1] C.Perry Patterson, The Evolution of Constitutionalism, Minnesota Law Review (1948).
[2] The Federalist, (Bourne ed.), No. LI, 354.
[3] Dr. Jimmy Chulu, Constitutionalism: Doctrines and Practices, 2016.
[4] F.W. Maitland, Political Theories of the Middle Ages, p. 75, 1900. Retrieved on 6 October 2020.
[5] Carl J. Friedrich, Constitutional Government and Democracy, Oxford and IBH, 1964 , Volume 9, pp. 25, retrieved on October 18, 2020.
[6] Ibid, p. 26.
[7]Ibid, p.12.
[8] Ibid, p. 11.
[9] Ibid.,p.11.
[10] Fransic W. Coker, Readings in Political Philosophy,p. 249, 1914.
[11]Ibid, p.125.
[12] C.H. McIlwain, Constitutionalism: Ancient and Modern, Ithaca, New York: Cornell, 1947.
[13] Prohibitions del Roy, That the King ought not to be made under man, but under God and the Law, 7 co., pg No. 63-65, 1609.
[14] McIlwain: The Growth of Political Thought in the West, Cooper Square Publishers, p. 98, 1968.
[15] R.H. Murray : The history of Political science from Plato to present , p.104, 1927.
[16] Ibid.
[17] Ibid
[18] J.H. Ferguson and D.E. Mchenry: The American Federal Government ,Mc Graw Hill, p. 31, 1969.
[19] Edward Corwin, “The Higher Law” Background of American Constitutional Law, Harv. Law Rev., p. 378-379, 1967.
[20] Charles Grove Haines, The Revival of Natural Law Concepts, p. 33, 1930.
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