Constitutions

Constitutions differ widely, and for good reason. Some have to provide for a federal structure, some, although unitary, include quite different legal systems within the one state (e.g. Britain, Canada). Some have to handle serious internal ethnic, linguistic, and religious differences, while others are written for a homogeneous population. Some are largely restricted to a set of justifiable rules of law, while others contain manifesto-like proclamations and show a tendency to the picturesque by, for instance, the adoption of a national animal (always attractive, but rarely edible). Some are never meant to be taken seriously. A few are contained in no given text or texts, notably in Andorra, Israel, New Zealand and the United Kingdom. Of these four, only the last will be discussed in any detail.

The differences in constitutional features have two different motivations. The first is practical: obviously a federal document will contain material absent from a unitary one. The second feature is the existence of value preferences prompted by national history. The constitution-makers in different countries, or at different moments in the history of any one country, have quite different preoccupations. The reason they are drafting a new constitution is a change in circumstances. Thus all constitutions contain elements that are autobiographical and so idiosyncratic. Different historical contexts have generated different preoccupations and priorities, and these in turn have led to quite different constitutional structures. Even among those drafters who admired the oldest enduring text which lies to hand - that of the USA - it is striking that, while its first three words ('We, the people') and its Bill of Rights may be often imitated, no one ever copies the structure of the Constitution itself.

For these reasons the only generalizations that can be reasonably made are the following. First, constitutions aspire to regulate the allocation of powers, functions, and duties among the various agencies and officers of government and to define the relationship between these and the public. Second, no constitution, however well designed, can protect a political system against effective usurpation. Third, in many countries the holders of power ignore the constitution more or less entirely. Fourth, even where constitutions work, none is complete: each operates within a matrix of compromise, custom or case-law. Fifth, most begin by identifying (at least on paper) the constituent authority (such as 'the people') and often invoke the deity (e.g. Canada, Germany, Greece, Ireland, Pakistan, Switzerland). Sixth, they usually separate the legislative, executive and judicial organs of state. Seventh, they usually contain, or incorporate, a Bill of Rights. Eighth, they often provide some method for annulling laws and other instruments which conflict with the constitution, including the Bill of Rights. Ninth, they address the international scene only in generalities and, in practice, confer wide powers on the (federal) executive. Finally, they deal with the status of international law by either according or denying it direct internal effect.

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