Principles of Constitutional Law - Modulo I

Principles of constitutional law – Module I

The contents of the concept of constitution

A constitution can be defined as the legal document in which the fundamental principles and rules of the social and political interactions within a community are laid down. On this basis, constitutionalism is the theoretical approach and political praxis that maintains that every human community, to be well-ordered and to avoid tyranny, has to be grounded on a foundational legal document. Only this kind of document, in fact, guarantees that the rule of the powerful can be substituted by the rule of law.

Therefore, the constitution is the foundational document of a political community which is assumed to contain:

• A definition of public power and of the institutions rightfully entrusted with its exercise;
• A list of fundamental rights which are proclaimed to belong to every member of the community;
• The criteria for the public power and its exercise to be regarded as legitimate;
• A proclamation of the specific identity of the community;
• The specification of the procedures for issuing statutory laws and administrative acts;
• The self-definition of the constitution as the highest law within the hierarchy of norms that govern the community.

The Western constitutional tradition

Let us start with a question: why should public power be limited? The reason is that public power is always to some extent threatening because of a specific aspect that characterizes it, namely its competence and effective capacity to impose on individuals certain actions and to forbid others. Therefore it always represents a danger to the freedom and autonomy of individuals. As a result, public power should be "tamed".

The Western constitutional tradition has developed a specific way to prevent public power from becoming a threat to individual liberty, which is the “bottom-up” understanding of public power.

To understand what the “bottom-up” understanding of public power is, we need to take a step backwards and shortly analyze how the different forms of state have been interpreted in the history of ideas.

In classical political thought, the theory of the different forms of state was based on the number of rulers. Since Aristotle, we had three patterns of public power: the monarchy, or the government of one person; the aristocracy, or the government of the few; and the democracy, or the rule of the many. It was Hans Kelsen who introduced, almost a century ago, a fundamental turning point: from a quantitative distinction – with a potentially unlimited number of typologies – he switched to a qualitative difference, based on a dichotomy and, thus, on only two ideal types of state. The discriminating element is identified in the method adopted for the creation and justification of the legal order. In the first case, the process is “descending”, in the sense that power falls down from above to those who are vested with it, while the subjects are largely excluded from the decisions. Kelsen calls this form of state "autocratic”. In the second case, the power “ascends” from the governed; in other words, it is originally vested in the individuals and comes up from them to those who are chosen to govern the political community. This is the fundamental feature of what we call “democracy”. Kelsen’s novelty brought a significant simplification; furthermore, it introduced also an explicit normative dimension. According to Kelsen, indeed, in a society which is no longer characterized by a predetermined and passively shared idea of the good life, the legitimation of power can only proceed from those who are obliged to abide by its rules.

According to the Western constitutional tradition, only a political community in which public power is justified in an “ascending” way, or “bottom-up”, therefore only a democracy in which the instruments of power are at the service of the individuals, and not the other way around, can be regarded as a constitutional state in the proper and full sense of the word. Indeed, the “bottom-up” understanding of power is reflected in all contents of the Western concept of constitution.

Definition and limitation (or control) of public power as the first content of the concept of constitution in the Western constitutional tradition

As mentioned above, the first content of the concept of constitution consists in the definition and limitation of public power.

In the Western tradition, public power is considered sufficiently defined if its rules are transparent to those who have to abide by them. Indeed, the rules of public power should be known by the governed, and one of the most important functions of the constitution consists precisely in being that document in which those rules are laid down in a form that is accessible to everyone. Furthermore, the limitation of public power is realized through two different institutional solutions: the division of powers and federalism. While the division of powers is present in all Western constitutions and is thus one of the inescapable elements of Western constitutionalism, federalism has been implemented only in some constitutional traditions.

The idea that public power has to be clearly defined in order to be transparent and, thus, implicitly controlled by those who are subject to it has a long history. Indeed, among the elements that define a constitution, the specification of competences and organisation of public power is by far the oldest since it goes back as far as to ancient Greece and Rome. Keeping in mind that ancient and modern terminologies overlap only partially, the semantic aspect of the “constitution” as the basic law that defines public power is traceable back to Plato’s and Aristotle’s politeia, as well as to the status reipublicae to which Cicero referred. It is not surprising that the idea of the “constitution” as the founding document of a public power that, by defining itself, also restrains its spheres and forms of intervention, emerged in the ancient Greek poleis and in the Roman republic, to disappear later during the imperial era and the Middle Ages. In fact, in the Greek poleis and in the Roman Republic, the public order was based on the principle of isonomy (ἰσονομία) as the “equality within the range of the law”, guaranteed by a fundamental normative order shared by rulers and ruled. This conception vanished as a consequence of the reform imposed by Augustus, according to which the emperor had to be considered as the only sovereign – an understanding that, passing through the Middle Ages, characterised the European absolute monarchies up to the nineteenth century and, to some extent, also comparable regimes up to the present.

Not only the idea of isonomy reappeared with the transition to the Modern Ages, but also the conception of constitution as the document laying down the characteristics, the structure, and the limits of public power.

The division of powers as the first fundamental instrument for the limitation of public power and the different forms of government

In 1653 the then Commonwealth of England, Scotland and Ireland – which is the denomination, under the Protectorate of Oliver Cromwell, of what, roughly fifty years later, would become the United Kingdom – issued a constitutional document in which public power is not only clearly defined again, but also limited through its division into separate powers. The idea that power has to be divided in order not to become tyrannical is a novelty of Modern Ages, which cannot be found in older traditions and documents.

This constitutional document is the Instrument of Government.

In Art. I, it unequivocally stated what has to be understood as the “public power“ and which institution is endowed with it. It maintains, namely, “that the supreme legislative authority of the Commonwealth of England, Scotland, and Ireland, and the dominions thereunto belonging, shall be and reside in one person, and the people assembled in Parliament: the style of which person shall be the Lord Protector of the Commonwealth of England, Scotland, and Ireland.” Thus, the Lord Protector and the Parliament are jointly endowed with public power. But they have different competences, so that public power is internally divided, as it is specified in the following articles.

More specifically, Art. II provides a clarification about the competences of the Lord Protector: “the exercise of the chief magistracy and the administration of the government over the said countries and dominions, and the people thereof, shall be in the Lord Protector, assisted with a council, the number whereof shall not exceed twenty-one, nor be less than thirteen.” Thus, the executive power is separated as a specific component of public power as a whole and is assigned to the chief of the executive, namely the Lord Protector. Furthermore, Art. V specifies that the competence to conduct negotiations with foreign states and to sign treaties is also vested in the executive, as well as the command of the army – as provided for in Art. IV – although this latter competence has to be exercised under the control of the Parliament.

On the other hand, Parliament is granted legislative power, as we can read in Art. VI: “the laws shall not be altered, suspended, abrogated, or repealed, nor any new law made, nor any tax, charge, or imposition laid upon the people, but by common consent in Parliament, save only as is expressed in the thirtieth article.” Therefore, we have here a first constitutional testimony of a clear division of powers, namely between legislature and executive, whereas the judiciary is still among the competences assigned to the executive. Consequently, we have a different division of powers than that expressed in many present Western constitutions – which is between legislature, executive and judiciary. Nonetheless, the Instrument of Government already qualified the principle of the division of powers as an inescapable condition for the legitimacy of public power.

This principle was then taken up with unsurpassed clarity in the Déclaration des droits de l'homme et du Citoyen (Declaration of the Rights of Man and of the Citizen) of the 26th of August 1789. In Art. XVI the founding document of the French Revolution asserted that: “Toute société, dans laquelle la garantie des droits n'est pas assurée, ni la séparation des pouvoirs déterminée, n'a point de constitution” (Any society in which the guarantee of rights is not assured, nor the separation of powers determined, has no Constitution).

As mentioned above, statist organization can take two different shapes – or, put differently, we have two different forms of state – depending on whether the justification of public power is descending (“top-down”) or ascending (“bottom-up”). All states characterized by the “bottom-up” justification of public power – i.e., all democracies – also present a clearly structured division of powers; in other words, legislature, executive and judiciary have different competences and separate organizations. Nonetheless, the way in which they interact, or in which they are balanced against one another, may be very different. As a result of this difference we can also identify distinct forms of government. Thus, the forms of government express the different ways in which the distinct powers are organized in their mutual relationship within the general context of the democratic form of state.

More concretely, we have three forms of government:

• The parliamentary system;
• The presidential system;
• The semi-presidential system.

The parliamentary system

The essential feature of the parliamentary system, namely that the executive power, or the government, has no direct legitimation through the citizenship, but is legitimated through parliamentary procedures, emerged for the first time in the United Kingdom in 1782, when the head of the cabinet Lord North resigned after a motion of no confidence in the House of Commons, though being still supported by the king.

Currently, the parliamentary system is the most widespread (democratic) form of government, including most countries in Western and Eastern Europe, as well as the countries of the Commonwealth (formerly belonging to the British Empire) and some East Asian countries.

In the following are the most relevant features of the parliamentary system. In general, it is evident that the parliamentary system is characterized – more than the other forms of government – by high flexibility, so that different solutions as regards the single aspects can still be consistent with the overall principle.

• The characteristic that distinguishes the parliamentary system from any other form of government is the fact that the executive power is indirectly legitimated by the citizenship, namely through the legislative power (the parliament). In other words, the government is not elected by the citizens, but is vested with its competences by the parliament, which is the only directly elected constitutional organ.
• Since the government can exercise its competences only on the basis of a decision of the parliament, there must be a specific procedure that links the government to the parliament. This procedure is called “confidence”. In other words, the parliament has to express its “confidence” to the government so that this can legitimately become operational. The procedure through which the parliament expresses its “confidence” to the government can be quite different depending on the constitutional provisions of each country. In particular, the “confidence” can be expressed to the proposed head of government (like in Germany or Spain) or to the government as a whole (like in Italy). It can be explicit (i.e., based on a parliamentary vote, like in almost any country with a parliamentary system) or implicit (like in the United Kingdom, where the prime minister is asked to form a government by the monarch, whereas it is expected – but without a formal vote – that her/his government has a majority in the Lower House, or House of Commons). In the countries in which a parliamentary vote is required, the head of government or the government as a whole are considered having the “confidence” of the parliament if the “motion of confidence” is approved by absolute majority (with more than 50% of the total votes – or seats – that can be obtained in the whole parliamentary assembly, so that if the seats of the assembly are 100, the absolute majority is 51; this is the case in Germany), by simple majority (with more than 50 % of votes cast, so that if the seats of the assembly are 100, but the votes cast are only 90, the simple majority will be 46; this is the case in Italy and Spain), or in the absence of an absolute majority for those who oppose the “motion of confidence” (if the seats of the assembly are 100, but the votes cast against the “motion of confidence” are less than 51; this is the case in Sweden). Finally, when the parliament is composed of two chambers, the “confidence” is generally voted by the Lower House, with the exception of Italy where both Houses of the Parliament have to grant “confidence” to the new government.
• Given that the government has to be appointed by a vote of “confidence” by the parliament, it can also be dismissed by the same parliament through the approval of a “motion of no confidence”. This can happen through a simple majority vote (like in Italy, Japan, Australia and many other countries), absolute majority (like in India), or through a “constructive vote of no confidence” (the “motion of no confidence” against the government in charge is also, at the same time, a “motion of confidence” in favour of a new head of government, so that there must always be a government in charge with full powers; this is the case in Germany and Spain).
• In some countries – for instance, in Italy – the head of government is rather to be described as a primus inter pares, in the sense that she/he has not specific authority over her/his ministers, who are responsible in their field of competence. Nor can she/he dismiss or substitute them. In other countries, on the contrary, the head of government is the only person who is accountable before the parliament, so that she/he can freely choose the members of her/his cabinet. Furthermore, she/he is granted with the “last word” on every decision of the cabinet. This is the case, in particular, of the United Kingdom, Germany, Spain, and many other countries.
• The duration of the parliamentary term (i.e., of the time between two elections of the parliament) is fixed. Nonetheless, the parliament can be prematurely dissolved, in particular when the government has been dismissed by the approval of a “motion of no confidence” and no other majority is in sight. The power to prematurely dissolve the parliament generally rests with the head of state, although her/his arbitrariness in taking this decision is strongly limited. For example, in the United Kingdom the decision to dissolve the House of Commons is formally taken by the assembly itself through a vote of “no confidence” or through a specific two-thirds decision. The King of Spain has a limited time to propose a new head of government, after which he must dissolve the Lower House. In Germany, the Basic Law does not set any time limit with reference to the decision to dissolve the Bundestag by the Federal President, but the general interpretation, supported by the Federal Constitutional Court (Bundesverfassungsgericht), is that, if the head of government (Bundeskanzler) did not obtain the confidence of the Bundestag, or lost it, the head of state has to dissolve the Lower House. A partial exception can be found in Italy, where, although no constitutional provision is given on this point, the President of the Republic is