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Aug 3, 2021 · The concepts of the rule of law and constitutionalism are clearly interrelated, even though they do not mean the same thing or refer to the same phenomena. Although the two ideas are often equated, according to Ten “constitutionalism usually refers to specific constitutional devices and procedures, such as the separation of powers between the ...
The rule of law captures those features of a legal order that are needed for that order to function well. As John Finnis puts it, it exists where the legal system ‘is in legally good shape’. 1 The rule of law requires that law make the differences it purports to make; the principle focuses on the interplay between the formal demands of law—the rules found in statutes and other official ...
Sep 1, 2017 · But constitutionalism, generally understood, usually refers to various constitutional devices and procedures, such as the separation of powers between the legislature, the executive and the judiciary, the independence of the judiciary, due process or fair hearings for those charged with criminal offences, and respect for individual rights ...
- C. l. Ten
- 2017
- Overview
- Political constitutionalism: from mixed government to representative democracy
constitutionalism, doctrine that a government’s authority is determined by a body of laws or constitution. Although constitutionalism is sometimes regarded as a synonym for limited government, that is only one interpretation and by no means the most prominent one historically. More generally constitutionalism refers to efforts to prevent arbitrary government.
At its most generic level, arbitrariness consists in the capacity of rulers to govern willfully—that is, with complete discretion—and to serve their own interests rather than those of the ruled. Constitutionalism attempts to avoid these dangers by designing mechanisms that determine who can rule, how, and for what purposes. However, constitutional traditions differ as to what precisely counts as an arbitrary act and which mechanisms offer the best defense against arbitrary acts occurring. The classical republican tradition, as related by its neorepublican interpreters to political constitutionalism, identifies arbitrariness with domination of the ruled by their rulers and seeks to avoid it by establishing a condition of political equality characterized by a balance of power between all the relevant groups and parties within a polity, so that no one can rule without consulting the interests of the ruled. The more modern, liberal tradition identifies arbitrariness with interference with individual rights and seeks to establish protections for them via the separation of powers and a judicially protected constitution.
The theory of mixed government originated with ancient thought and the classification of political systems on the basis of whether one, a few, or many ruled. According to this theory, the three basic types of polity—monarchy, aristocracy, and democracy—were liable to degenerate into tyranny, oligarchy, and anarchy, respectively. This corruption stemmed from the concentration of power in the hands of a single person or group, which created a temptation to its abuse through allowing arbitrary rule. The solution was to ensure moderation and proportion by combining or mixing various types. As a result, the virtues of each form of government, namely, a strong executive, the involvement of the “better” elements of society, and popular legitimacy, theoretically could be obtained without the corresponding vices.
Three elements underlie this classic theory of mixed government. First, arbitrary power was defined as the capacity of one individual or group to dominate another—that is, to possess the ability to rule them without consulting their interests. To be dominated in such an arbitrary way was to be reduced to the condition of a slave who must act as his or her master wills. Overcoming arbitrariness so conceived requires that a condition of political equality exist among all free citizens. Only then will no one person or group be able to think or act as the master of others. Second, the means to minimize such domination was to ensure that no one could rule without the support of at least one other individual or body. The aim was to so mix social classes and factions in decision making to ensure that their interests were given equal consideration, with each being forced to “hear the other side.” To quote another republican motto, “The price of liberty is eternal vigilance,” with each group watching over the others to ensure that none of them dominated the other by ignoring their concerns. Third, the balance to be achieved was one that aspired to harmonize different social interests and maintain the stability of the polity, preventing so far as was possible the inevitable degeneration into one of the corrupt forms of government.
Thus, mixed government provides a model of constitutionalism according to the institutions that structure the way decisions are taken. Although elements of the theory can be found in Aristotle’s Politics, the locus classicus is Book VI of Polybius’s Histories. He underlined its prime purpose as providing mechanisms whereby no individual, body, or group could rule alone, thereby curbing the descent into tyranny, oligarchy, or anarchy. Polybius regarded the republican constitution of ancient Rome as exemplifying this theory. Thus, the consuls (highest of the ordinary magistracies in the ancient Roman Republic) provided the monarchical element, the Senate provided the aristocratic, while the popular element was represented by the Tribunes of the People, the Plebeian Council, and the electoral, judicial, and legislative powers the people could exercise directly. As he noted, the key feature of Roman republican government was that each of these three groups exercised slightly different powers but required the cooperation of the others to do so. So consuls might exercise war powers, yet they needed the Senate to approve generals, reward them, and provide the necessary funds, whereas the people approved treaties and could try high officials and generals for misconduct. Meanwhile, the more-executive roles possessing the most discretion were further weakened by their power being shared among multiple officeholders and its being dependent on elections and of short duration. Thus, there were two consuls, each able to veto the other’s decisions; 10 tribunes with similar countervailing powers; and so on, with none able to hold office for more than a year.
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The resulting need for different groups to work together was summarized in the slogan Senatus Populusque Romanus (“The Senate and the Roman People,” frequently abbreviated to SPQR). In reality, though, their relationship was far from harmonious, with the patrician element largely predominating, except when factional disputes led a given group among them to seek the support of the plebeians (the general citizenry). The conflict between social classes was given greater emphasis by Niccolò Machiavelli, who offered a radical version of the Polybian argument in his Discorsi. He observed how all polities contain two classes, the nobles (grandi) and the people (popolo), whose desires conflict. However, he claimed that their discord, far from being destructive, actively promoted “all the laws made in favour of liberty”—each was led to promote freedom by virtue of seeking ways of checking the arbitrary power of the other. However, like Polybius, Machiavelli believed that all systems ultimately become corrupt and degenerate into either tyranny or anarchy—the balance of power merely serving to stave off this inevitable cycle.
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Abstract. This article examines the relation between the rule of law and constitutionalism. It attempts to provide a better understanding of the ambiguous construct of the rule of law which still remains in the public imagination as a formative part of political discourse. It analyses the role of the rule of law within the constitutional ...
Descriptive. Constitutionalism of the United States has been defined as a complex of ideas, attitudes and patterns elaborating the principle that the authority of government derives from the people, and is limited by a body of fundamental law. These ideas, attitudes and patterns, according to one analyst, derive from "a dynamic political and ...
Rule of law and constitutionalist ideals are understood by many, if not most, as necessary to create a just political order. Defying the traditional division between normative and positive theoretical approaches, this book explores how political reality on the one hand, and constitutional ideals on the other, mutually inform and influence each other.
