Page 48 - DPOL202_COMPARATIVE_POLITICS_AND_GOVERNMENT_ENGLISH

Unit 3: Constitutions and Constitutionalism

3.1 Meaning and Process of Growth of Constitution Notes

Meaning: In simple terms, the constitution of a state may be defined as a body of rules and
regulations, written as well as unwritten, whereby the government is organised and it functions.
It is another matter that in order to meet the requirements of a democratic order, a constitution
embodies some more principles specifying relationship between the individuals and their state in
the form of a specific charter of their fundamental rights and obligations. Thus, 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 the two are adjusted.” In other words, it may be
described as a frame of political society organised through and by law, in which law has established
permanent institutions with recognised functions and definite rights.. .” By all means, it is a legal
document known by different names like ‘rules of the state,’ ‘instrument of government’,
‘fundamental law of the land’, ‘basic statute of the polity’, ‘cornerstone of the nation-state’ and the
like.
The rules of a constitution may be in a written form, whether in detail or in brief, or most of them
may be in the form of maxims, usages, precedents and customs, it is essential that these rules as a
whole determine the organisation and working of the government of a state. It may be a deliberate
creation on paper in the form of a single document prepared by some assembly or convention, or
it may be in the form of a bundle of documents having authority of the law of the state the best
example of which may be seen in the case of the English constitution. According to K.C. Wheare,
“The word ‘constitution’ is commonly used in at least two senses in an ordinary discussion of
political affairs. First of all, and partly non-legal or extra-legal, taking the form of usages,
understandings, customs, or conventions which courts do not recognise as law but which are no
less effective in regulating the government than the rules of law strictly called. In most countries
of the world the system of government is composed of this mixture of legal and non-legal rules
and it is possible to speak of this collection of rules as the ‘constitution.”

It is used to describe the whole system of the government of a country, the collection of
rules which establish and regulate or govern the government. These rules are partly legal,
in the sense, that the courts of law will recognise and apply them.

Process of Growth: Every constitution grows with the passage of time. It means that the rules of
a constitution have a Darwinian character. James McIntosh and Sir Henry Maine recognise this
fact when they hold that a constitution is not made, it grows. It well applied to the case of England
where the constitution is an evolved instrument; it is a growth and not a make. But its first part
does not apply to a country having an enacted constitution like the United States where the
constitution is regarded both as a make and a growth. However, the fact stands out that a
constitution develops in course of time in response to the urges and aspirations of the people and
the nature of political development. Though a typical justification of the excellence of the English
constitution, Lord Brougham holds that constitutions “must grow, if they are of any value; they
have roots, they ripen, they endure. Those that are fashioned, resemble painted sticks, planted in
the ground; they strike no root, bear no fruit, swiftly decay, and ere long perish.”
We may, therefore, look into the sources that bring about changes in the constitution of a state
over a period of time. These are:
1. Formal Amendments: Every constitution has a procedure by which it can be amended in
response to the needs of the time. The process may be very simple making the constitution an
example of a flexible instrument (as in England), or it may be very difficult (as in USA and
Switzerland), or a mixture of the two (as in India), it is certain that a constitution is changed
from time to time by following the procedure laid down for that purpose. Thus, some hew
rules are added to it, some are omitted, or some rules are revised to the necessary extent. For

LOVELY PROFESSIONAL UNIVERSITY 43