Page 55 - DPOL202_COMPARATIVE_POLITICS_AND_GOVERNMENT_ENGLISH

Comparative Politics and Government

Notes 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...” According to Wheare:
“The word ‘constitution’ is commonly used in at least two senses in an ordinary discussion of
political affairs. First of all, it is used to describe the whole system of a 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, and partly non-
legal or extra-legal, taking the form of usages, understandings, customs, or conventions which
courts donot recognise as law but which are not 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.’
The constitution of a state may be a deliberate creation on paper effected by some assembly or
convention at a particular time; it may be found in the shape of a document that has altered in
response to the requirements of the time and age; it may also be a bundle of separate laws
assuming special sanctity of being the fundamental law of the land; or again, it may be that the
bases of a constitution are fixed in one or few fundamental laws of the land, while the rest of it
depends for its authority upon the force of the custom. A look at the constitutions of the countries
of the world shows that for most of them the constitution “is a selection of the legal rules which
govern the government of that country and which have been embodied in a document.” However,
Britain affords the peculiar case where the constitution is not in the form of a document; it is a
growth and not a make. Bolingbroke thus said about the English constitution: “By constitution, we
mean, whenever we speak with propriety and exactness, that assemblage of laws, institutions and
customs, derived from certain fixed principles of reason... that compose the general system,
according to which the community hath agreed to be governed.”
Whereas the constitution refers to a frame of political society organised through and by means of
law and in which law has established permanent institutions with recognised functions and definite
rights, a constitutional state “is one in which of the powers of the government, the rights of the
governed and the relations between the two are, adjusted.” According to Wheare, constitutional
government “means something more than a government according to the terms of a Constitution.
It means government according to rule as opposed to arbitrary government; it means government
limited by the terms of a Constitution, not government limited only by the desires and capacities
of those who exercise power.”
From the above, it may be inferred that a constitutional government is one that operates within a
universe of positive restraints. It is, however, a different matter that the degree of restraint may
vary from one political system to another. That is, while one state may be constitutional by virtue
of being set in a universe of more restraints, the other may be of the same category by virtue of
being set in a universe of few restraints. The charge of being ‘unconstitutional’ can be levelled
against a state only if it has ’no restraints’ as specified by Friedrich in his paradigm:
It is, therefore, clear that, like all true functional concepts, the notion of constitutional government
is essentially descriptive of two poles: very strong restraint and very weak restraint. Between
these two poles, all actual governments can be ranged. Carl Friedrich, however, makes it very
clear that the case of an unconstitutional state can be conceived in mere theoretical terms as every
state of the world has a constitution of its own that places restraints to some degree at least. As he
shows in his paradigm and says: “The unreal limits are ‘complete restraint’ and ‘no restraint’.”
“Moreover, constitutionalism” as Blondel says, “is clearly a dimension: it is an oversimplification
to classify regimes as ‘constitutional’ or ‘non-constitutional’, as it is an over-simplification to
classify them as ‘liberal’ or ‘authoritarian’. Dichotomies may be useful in practice, but a general
theory of constitutionalism must take into account the fact that the regimes stretch along a continuum
ranging from complete authoritarianism to full liberalism and that a replica of this continuum is
provided by an axis stretching from ‘full constitutional government’ to ‘pure non-constitutional
rule.’

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