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A Critical-Legal Overview of the Concept of Constitution... 2441
A CRITICAL-LEGAL OVERVIEW OF THE CONCEPT OF
CONSTITUTION AS THE HIGHEST LEGAL-POLITICAL ACT
OF THE STATE IN THE LIGHT OF
CONSTITUTIONAL-JURIDICAL DOCTRINE
Anayasa Doktrini Işığında Devletin En Üst Hukuki-Politik İşlemi Olarak Anayasa Kavramı Üzerine Hukuki Değerlendirme
PhD Candidate, Blerton SINANI *
Abstract: Constitution is a set of rules which governs a nation state. It is considered a government’s antecedent because it gives legitimacy to the government and defines the powers under which a government may act. As such, the constitution sets constraints both to the powers which can be exercise and to manner in which they may be exercise. Hence, the constitution defines the legality of power and that is the reason why it can be defined as a legal and political act. Two fundamental concepts (meanings) of the constitution represented in the constitutional legal theory are formal and material notion of the constitution. Author have focused on elaborating and explaining the constitution as a fundamental and a supreme legal-political act in general and on the comparison of the formal and material concept of the constitution in particular. The extent of the correspondence between this two concepts and their relation with the notions of written/unwritten and rigid/flexible constitution is also analyzed.
Key words: constitution, formal concept of the constitution, material concept of the constitution, written and unwritten constitution, rigid and
- (^) Assistant-Professor at the Department of the Public Law; Faculty of Law of the South East European University; Ilindenska n.335, Tetovo, Republic of Macedonia. Phone: 00389 44 356 142; Fax: 00389 44 356 000; Corresponding author: blerton.sinani@seeu.edu.mk
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flexible constitution, contents relation between constitution in formal and material sense.
1. GENERAL CONSIDERATIONS There are certain topics and issues that for a long time concern a human intellect and arouse its scientific curiosity and attention. Facing this challenge, in a front of every new scientific researcher stands the “Hamlet’s dilemma”, to write or not about the treatment of a particular theme, no matter how much it is already theoretically treated. Even if the topic is theoretically treated, it is never finished nor perfected. This kind of dilemma faced author of this article: accept or not the challenge of the theoretical-legal treatment of the constitution as a substantial juridical doctrinal concept, that in contemporary conditions and circumstances is not of any less interest and importance than earlier conceptions and issues in the constitutional legal theory. Although scholars have already analyzed and explored this issue, it will always be interesting because of the specific value and crucial social relevance of the constitution as a main fundamental legal and political act of the state.
The study treatment of the theme presents a special interest, in the first place, for a development of both the constitutional theory and constitutional practice because the constitution is a “fundamental” and not an “ordinary” law. As a fundamental law, the constitution is a legal act with a stronger legal force than other legal acts. In fact, the constitution represents the basic political - legal act that plays an important role in building of a state. On the other hand, it represents a supreme normative act within the legal order of a certain state. Behind this, the constitution is the main legal regulator of the most important fundamental social and political relations within the state.
The adoption of the constitution as the main and “primary” legal act has, realistically and practically, a number of consequences: firstly , political and legal subjectivity of an independent and sovereign state are expressed in a certain territory; secondly , it sets the cornerstone of national legal order; thirdly , it inaugurates and reflects
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states: “The Constitution shall be the supreme law, and no other law shall contravene it” (article 5, paragraph 1);^4 the Colombian Constitution of 1991, states: “The Constitution is the supreme law” (article 4, paragraph 1).^5 Such concise definitions on the notion of the constitution, as it is expressed within its normative textual content by creators of the constitution, are qualified as “juridical authentic positive definitions of constitution”.^6 Otherwise, such constitutional norms that make an explanation or give a definition of a certain constitutional notion are qualified as interpretative constitutional norms.^7
In the most general sense, within the constitutional legal theory, the constitution represents “a fundamental and a supreme normative legal-political act of a certain state that regulates and determines the organization and functioning of the state power, as well as fundamental freedoms and rights of man and citizen”. In fact, the constitution is a legal form (act) with an important content, because it “dresses the main legal norms”, norms that “regulates the most important social relations in a certain state”.^8 Expressed in the simplest possible way, the constitution represents a supreme and “leading” law over state power and determines and guarantees a wide spectrum of fundamental freedoms and rights of man and citizen. This might be one of the simplest, but also the most general definition of the constitution.
The constitution, in the encyclopaedic sense, represents a legal act that has a specific juridical attributes, namely an act with a supreme legal force, approved and amended according to the special
(^4) The Constitution of the Republic of Bulgaria of 1991, http://www.parliament.bg/
en/const. (^5) The Colombian Constitution of 1991 , http://confinder.richmond.edu/admin/docs/
colombia_const2.pdf. (^6) Vračar, S., Osnovni problemi konstruisanja naučne i pozitivno-pravne definicije
ustava , Arhiv za društvene i pravne nauke, 3-4/1962, Beograd, p. 228. (^7) Visković, N., Teorija drzhave i prava , Zagreb, 2001, p. 174. (^8) Dhima, D., E drejta kushtetuese e Republikës Popullore të Shqipërisë , Tiranë,
1963, p. 28.
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procedure, containing norms that regulate fundamental social and political relations in general and determining the organization of state power and a legal status of citizen in relation to the state throughout fundamental freedoms, rights and duties of citizens in particular.^9
In the classic constitutional doctrine is affirmed that there are two fundamental concepts (meanings) of the constitution as a legal act: formal and material notion.^10 These two concepts, emphasizing the norms of the constitution as a legal act form the so-called normative notion of the constitution.^11 Even though the “common denominator” of the material and formal sense of the constitution is that the constitution is exclusively observed as a specific legal normative phenomenon.
2. FORMAL CONCEPT OF THE CONSTITUTION In a formal sense, the constitution represents “a unique legal act, written and codified, with the highest legal force, approved by the highest organ or special state body, according to the special procedure that differs from the procedure of enacting laws and other legal acts”.^12 From this definition we can separate the elements (attributes) that define the constitution in its formal meaning. In general, there are three elements, which put together, according to the constitutional legal theory, summarize the constitution’s formal notion: the constitution’s written form, codified form and the highest legal force.
The specificity of the constitution in a formal meaning is a form as the main instrument in the creation of the legal-normative act by which the law is expressed. In fact, the form of the legal-normative act a priori defines the very essence of it. This is best proven with the
(^9) Fira, A., Ustavnost i politika , Novi Sad, 1984, p. 13-14. (^10) Observation and treatment of constitution in the formal and material sense stems
from a traditional defining of any juridical act by formal and material sense. (^11) Vračar, op. cit., p. 223. (^12) Vidaković Mukić, M., Opći pravni rječnik , Zagreb, 2006, p. 1251.
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The written constitution is a unique and a singular (only) legal act (codified or homogeneous constitution) where a normative matter with a fundamental constitutional value and relevance is compiled and systemized, i.e. in a framework of one legal act are concentrated the most important constitutional norms.^18 Codified constitution is more consistent by its legal nature and more coherent by its content what makes its implementation easier and more efficient. As an exception, the constitution may consist of a number of various legal acts, as was the case with the French Constitution of 1875, which consisted of three constitutional laws: the Law on the organization of the Senate, the Law on the organization of public powers and the Law on the relationship between public powers.^19 This is the case of the so–called non-codified or heterogeneous constitution. The codification is not a monopolistic element that belongs to the constitution only, but may also be a feature of laws, especially laws with special value and importance (criminal code, civil code, the electoral code, etc.). Therefore, codification is not identifying but still a very important element of the constitution in a formal sense.^20 It should be warned that the written and codified forms are the constitutive elements of the constitution in a formal meaning according to the assumption of the highest degree of generality and the supra legal force of constitutional norms. Seen from a strictly formal perspective, United Kingdom has no constitution in a formal sense. In other words, the United Kingdom does not really have a constitution; there is no text or document which can clearly be identified as having that status. Although there are many laws which in terms of their content have a constitutional character, they have never been incorporated or codified in a single authoritative text. Moreover, it is probable that the United Kingdom Parliament is always free to amend laws which in other countries would be found in the constitutional text and which, therefore, could not be changed
(^18) Hejvud, E., Politika , Beograd, 2004, p. 546. (^19) Stojanović, D., Ustavno pravo , Niš, 2004, p. 39. (^20) Đurđev, A., Pajvančić, M., Ustavno pravo , Novi Sad, 1991, p. 33.
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by ordinary legislation. This is one aspect of the principle of parliamentary supremacy or sovereignty, that Parliament is always free to make any law it likes. Besides this, parliamentary legislative supremacy as the most fundamental constitutional principle in the United Kingdom means in practice that the constitutional checks on government are feeble. The United Kingdom constitution fails to provide that balance of power between different institutions which, albeit in different forms, is to be found in the constitutions of France, Germany, and the United States of America.^21 Instead of a written constitution, a sovereign legislative body represents the ultimate law making power in the state. The written form dominates in the world, while codified form emerges as a result of the need for the existence of a unique and singular constitutional document that should be formulated in a good technical and legal point of view, in a clear and accurate way, in order to be useful for a longer time.^22
The supreme legal force of the constitution is the third element determining the constitution in its formal meaning. In fact, the highest legal force is an immanent attribute and a prerogative that belongs only to the constitution. That gives the constitution a special, supreme status in the hierarchy of legal acts, but also, differentiates it from laws and other legal acts. Where does the higher legal force of constitutional norms (comparing to other acts) derive from? There are at least two reasons highlighted: first , it derives from the position and quality of the state body that posses the power to enact or amend the constitution, and second , it derives from special and more complex procedure by which the constitution is adopted or amended
(^21) Barendt, E., An introduction to constitutional law , New York, 1998, p. 1. A draft
constitution for the United Kingdom prepared by the Institute of Public Research in 1991 has 136 pages. These differences are explicable in terms of both the range of topics covered and the degree of detail of their regulation. Some set out only the most important principles, leaving the legislature to implement the,. While others attempt comprehensive regulation of a range of diverse matters such as the conduct of elections, parliamentary procedures, public finance, and the court structure. On the whole, short constitutions are preferable. They are easier to understand, and they are more likely on that account to enjoy widespread acceptance. (^22) Shkariq, S., Ustavno pravo , Skopje, 2007, p. 158.
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countries.^25 This means that, all of the laws and other legal acts should be consistent (not contradictory) with the constitution. Accordingly, written constitutions worldwide contain the provision on the invalidity of unconstitutional legal acts. For example, the Constitution of the Republic of Croatia in 2001, expressed: “ In the Republic of Croatia laws shall conform with the Constitution, and other rules and regulations shall conform with the Constitution and law ” (article 5).^26 Alexander Hamilton, one of the “founding - fathers” of the U.S. Constitution, in 1788 declared: “ No legislative act contrary to the Constitution can be valid. To deny this would mean to affirm that the dependence is greater than the superior, that the servant is above his master ... The interpretation of the laws is the proper and special function of courts. A Constitution is viewed in fact, and must be viewed by judges as fundamental law. So far they should be the one specifying its meaning, and the meaning of every particular act, enacted by the state organs. When the will of the legislature, expressed in its laws, is contrary to the will of the people, expressed in the Constitution, judges should be guided by the latter and not the laws. They must give their decisions on the basis of the Basic Law, before they give them according to laws that are not essential.^27 This is expressed by two principles: one , the principle of hierarchy, it means that the legal norm with lower legal force is subordinate and should be in an accordance to the norm with a higher legal force, and two , the principle of validity, it means that the validity of the legal norm with a highest legal force serves as a legal basis to transmit (give) validity to legal norms with a lower legal force.^28 The fundamental criteria for evaluating democratic processes and a qualification of a country as a state of law are compliance of laws and regulations to the constitution and existence of the institutionalized control of a constitutionality realized by a special court. In other words, an important instrument of ensuring the supremacy (primacy) of the
(^25) Vračar, S., op. cit., p. 225. (^26) The Constitution of the Republic of Croatia , Official Gazette No. 85/
(consolidated version). (^27) Sadushi, S., Kontrolli kushtetues , Tiranë, 2004, p. 6. (^28) Omari, L., Anastasi, A., op. cit., p. 43.
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constitution is the existence of a constitutional justice.^29 Constitutional justice is the institution and techniques that guarantee and supervise respecting the hierarchy of sources of law and the supremacy of constitutional norms as superior legal norms within a legal order.^30
There is a variety of viewpoints regarding a formal meaning of the constitution. According to Burdeau, the constitution in its formal meaning constitutes rules that the state body sets within a specific procedure established for enacting and amending of the constitution. The constitutional character of norms derives exclusively from the position of its creator, which is a supreme power within the state. Therefore, constitutional norms are set on the top of the hierarchical pyramid.^31 Kelsen considers that the constitution in a formal sense is a set of legal norms that can be changed only if proceeding (acting) by accordance to “special” norms. The purpose of these “special” norms is to make more difficult the procedure of amending constitutional norms. This procedure differs from the “ordinary” legislative process.^32 Đorđević claims that the constitution in a formal sense is a public act or a document that presents fundamental and the highest law of the state. 33 Another well-known author that deals with the theory of state and law, Radomir Lukić, considers the constitution as the highest legal act, i.e., an act which has the highest legal force and, therefore, can not be amended with any other legal act. It should be adopted by a special state body and a special procedure. Again, the constitution in a formal meaning is determined with two elements: first , the jurisdiction of the entity authorized to enact it, and second , the special procedure for its adopting and amending.^34
(^29) Omari, L., Shteti i së drejtës , Tiranë, 2004, p. 24. (^30) Traja, K., Drejtësia kushtetuese , Tiranë, 2000, p. 13. (^31) loc. cit. (^32) Kelsen, H., op. cit., p. 129. (^33) Đorđević, J., Ustavno pravo , Beograd, 1975, p. 18. (^34) Lukić, R., Ustavnost i zakonitost , Beograd, 1966, p. 19.
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constitutional norms, such as, first , competences of the authorized subjects – state organs that approved constitutional norms; second , extraction procedure of the constitutional norms; and third , their supreme legal force.
3. MATERIAL CONCEPT OF THE CONSTITUTION The constitution in a material sense can be defined as a set of rules or norms that regulate basis of legal and public order of a certain state.^38 Of course, this definition is too general, so a further elaboration is required. For the treatment of the constitution in a material sense it is not important whether the constitution has a written form or not and whether it is codified or not. This view is based on the premise that each country has a constitution, because there is no state without a constitution, irrespective of its form. Setting up a legal order implies the existence of some obligatory rules that constitute the foundation for its creating, developing and implementing. With the development of a state, basic rules are transformed into a complex system of rules. These rules represent an expression of the “will of the state” and, as such, are proclaimed as constitutional rules.^39 The constitution is an integral part of the national legal system and a reflection of the unity between the state and its law.^40 It turns out that a material meaning of the constitution is based on substantial aspects. The content of these rules and norms are issues of a particular importance for the state and society. In fact, the material meaning of constitution focuses on the content of the relationships that are object regulation by the constitutional norms, i.e. constitutional matter content sanctioned by constitutional norms.
Smerdel emphasizes that constitution in a material sense includes all sources of constitutional law (both material and formal) as a branch of the law, regardless of the fact if it comes to the constitution as a general normative act, an organic law, an ordinary
(^38) Mratović, V., Filipović, N., Sokol, S., Ustavno pravo , Zagreb, 1986, p. 72. (^39) Lukić, R., op. cit., p. 22. (^40) Vračar, op. cit., p. 232.
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law, a by laws or a constitutional custom.^41 This allows the understanding that the constitution in a material sense is defined as a unique whole of unwritten rules and written legal norms that regulates constitutional matters within the legal system of a certain state.
It follows that all modern states have constitution in the material sense. One conclusion that can be drawn in this regard, fair, logical and consistent, is that the constitution, in the material sense, has a inclusive nature, because at the same time includes as unwritten non-legal/meta-rules, as well as written legal norms that regulate constitutional matter regardless of the form they have (written norms or unwritten rules) and their legal power. In fact, the constitution in a material sense consist of a set of rules that determine and regulate basis of a state order, form of state rule/governance, manner of creating and organizing the highest organs of state power, correlation between them and their scope, form and substantive framework of general normative acts, particularly laws, limitations of a state power by fundamental freedoms and rights and by the rights of local government units, and other issues important to the state. This extensive definition contains different views affirmed by various authors (Georg Jellinek, Maurice Duverger, Joseph Barthelemy, Jacques Cadart, Hans Kelsen) in order to create a unique understanding of the constitution in a material sense.
4. CONTENT CORRELATION BETWEEN FORMAL AND MATERIAL SENSE OF THE CONSTITUTION It is possible that the constitution in a formal and material meaning correspond. Theoretically seen, constitution in a formal sense may contain basic legal norms that regulate all the relevant bases complex of the state and social order, or it may include all those relationships and issues that are inherent and fundamental for the constitutional matter in the legal system of the given state. The congruence between formal and material meaning of the constitution
(^41) Smerdel, B., Sokol, S., op. cit., p. 21.
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better solution would be if they are regulated by legal acts, not by constitutional acts.
The above demonstrate, that the constitution in formal sense can regulate a mosaic of issues, and also shows how omnipotent is, constitutional maker. In other words, having available and using constitutional form as a powerful instrument in accordance with his view, will and freedom conceives normative content of the constitution, perchance under the “constitutional umbrella” may establish whatever provision from the substantive point of view.
Seen from a formal aspect, the above mentioned provisions are constitutional norms because they are formulated within the framework of the constitutional normative text and therefore, positioned at the top of the hierarchic pyramid within the legal order of those countries. But, seen from a material aspect, namely the object of a constitutional law, such provisions are not constitutional norms, because they do not regulate a constitutional matter.
On the other hand, the French Constitution of 1875 represents an example of a constitution that misses to regulate a constitutional matter, which has not dedicated any constitutional norms to the judicial system leaving it to be regulated by norms of the legal act. It is about the de iure and de facto deconstitutionalisation of the judiciary as a standard constitutional-juridical field, although traditionally, even in comparative constitutional law prevails the attitude that both organizational and functional dimension of the judiciary is regulated within the normative composition of the constitution as a fundamental act with a supra legal force and not by legal act.^45
Moreover, the constitution-maker everywhere during the constitution-making process can and should extend the scope of their normative regulation to core legal principles of the organization and functioning of the judiciary as a “constituent segment and a very important component” of every state. Meanwhile, the law as a general normative act regulates more closely and more detailed
(^45) Stefanovic, J., Ustavno pravo, 1965, Zagreb, p. 60-63.
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issues relating to the scope of the judiciary in a certain state. Furthermore, it is an undisputable fact that the judiciary has a constitutional character, because it is guaranteed by the constitution, and, consequently it is category of constitutional law.
The leading example of the lack of constitutional matters is the Constitution of France of 1875, which the issues concerning the judicial system does regulate with statutory norms rather than constitutional norms.^46 According to this Constitution, the number and mandate of members/representatives of the French parliament, as well as the conditions for their election, are determined by the electoral law and not by the constitution, as it is common for other states. Regulation of these issues in France is regulated by law, as a general normative legal act with lower legal force than the constitution.^47
Seen from a material perspective, the electoral law is constitutional norm, because elections are constitutional matter. However, from the formal perspective, the electoral law is not constitutional norm, because the law has lower legal force than the constitution, and from the formal point of view as well as from the material point of view it is subordinate to the constitution.
5. CLOSING REVIEWS From the theoretical and legal review of the formal and material concept of the constitution and their interrelationship several conclusions can be made:
First , constitutionalism is more concerned with the organization of political structures to prevent the exercise of authoritarian power by any individual, group, or political party. Most of the time, the constitution is considered an “agreement/contract” which is concluded between citizens and the bearer of the state power.
(^46) Compare: Constitution of the Republic of Macedonia (1991) articles 62, 63, 64, 65,
66; Constitution of the Republic of Croatia (2001) articles 71, 72, 73, 74, 75, 76; Constitution of the Republic of Montenegro (2007) articles 83, 84, 85, 86, 87. (^47) Duhamel, O., Ustavno pravo , Skopje, 2004, p. 21.
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of the state body empowered to adopt and revise the constitution. The second is a specific and complex procedure for adopting and amending of the constitution (qualified majority vote or the popular sanction, if the constitution is adopted by a constitutional referendum). Moreover, the greater legal force of the constitution derives from another factor with considerable relevance: the regulation of constitutional issues, i.e., the most important political- social relations within the legal system of a certain state, more exactly, it regulates the organization of a state power and determines and guarantees the protection of fundamental freedoms and rights of man and citizen. Moreover, norms on fundamental freedoms and rights of man and citizens and norms that regulate the organization, structure and powers of the central state bodies have a decisive importance and value in giving “the physiognomy of constitution” as a legal act and justification of its superior legal force in legal-logical aspect;
Seventh , the constitution as the main formal and the most important source of constitutional law, but also of every branch of law in general and of the legal system in particular, regulates the most relevant issues related to constitutional law in an original and authentic manner (well correlated with the influence of the international law). Therefore, within the framework of the substance of the constitution only crucial legal norms and legal principles of the constitutional matter are systematized and incorporated, because otherwise it would be too extensive and voluminous from normative quantity and as a consequence too inadequate and impractical. The key mission or the leitmotif of the constitution is not to regulate directly and tightly all groups of social relations, but to determine only “basis and framework of legal regulation of all social relations”. So, the constitution “forms the skeleton of the legal order”, but this skeleton should get life, first of all, by normative legal acts;
Eighth , seen from the perspective of comparative constitutional law, all states have a constitution in formal sense. Only 4 (four) states have constitution in a material sense: England, Israel, Singapore, and New Zealand;
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Ninth , as more extensive notion, the constitution in a material sense “includes” the constitution in a formal sense. It is illusory and objectively impossible for a written legal act to include all constitutional norms. Besides the written constitution, constitutional matters are regulated by legal acts, by laws and many customary rules that enable the adaptation of the constitution to the dynamic social variable conditions and circumstances. Legal acts and customary rules change easier than formal constitutions. Indeed, with their change the need for formal constitutional change is reduced, perhaps even political tensions that follows the change of constitution in the formal sense;
Tenth , constitutionalism is more concerned with the organization of political structures to prevent the exercise of authoritarian power by any individual, group, or political party. The essence of the constitution consists of mutual limitation between state power and freedom of the individual: state power is limited by the freedom of the individual and vice versa, the freedom of the individual is limited by the state power. It is about establishing the balance between state power and individual freedom within the framework of state organization. In this regard, the balance between individual freedom and state power is very delicate issue. This is because individual freedom without state power becomes chaos, anarchy, and state power without the freedom of the individual becomes oppressive or totalitarian power. From this it can be concluded that deep substantial and social understanding of constitution and its inherent democratic importance is that within the state, is to organize the peaceful and harmonious coexistence between state power and freedom of the individual;
Eleventh , in comparative constitutional law prevails the idea that every constitution must necessarily regulate two principal issues: first , fundamental freedoms and human rights and, second , the organization and functioning of the state power. This is because the fundamental human rights and freedoms of citizens as well as the organization and functioning of state power traditionally are constitutional standard matter, and, as such, constitute its backbone.
