NATURE AND EVOLUTION OF MODERN CONSTITUTIONALISM

According to Ackerman (1997), until the late 1930s, constitutionalism did not necessarily seem empowering or attractive to many nations. While the British example provided some hope, the notion of constitutionalism it represented was ambiguous, for example, with its lack of a formal constitution.

Such a relatively positive view of British constitutionalism at that time would have to overlook, of course, the fact that the hope it offered did not include the “native subjects” of the Empire in Africa and Asia. Still, I agree with Ackerman that what seemed to characterize the success of the British political example, for its own citizens, was “their culture of self-government, their common sense and decency, that distinguished their evolving commitment to democratic principles—not paper constitutions and institutional gimmicks like judicial review” (771–72). In his view, many Americans believed this British cultural heritage, as opposed to their own constitution, to be primarily responsible for American democracy. By the 1990s, Ackerman suggests that it has become possible to speak of “world constitutionalism” (772).

Constitutions and constitutionalism can be viewed descriptively, as “the laws, customs and conventions which define the composition and powers of organs of the state and regulate the relations of various state organs to one another and to the private citizen” (Bromhead 1974: 13). A constitution can also be seen as “the framework of norms and practices which define and regularise the management of political relationships.... The absence of a [written] “constitution” need not be very significant; in any case the whole body of norms and practices is only one aspect of the political system, which is a much wider concept” (7).

The core idea of modern constitutionalism is commonly taken to be a framework for the limitation of political power by law.

As Mcllwan states, “in all its successive phases, constitutionalism has one essential quality: it is a legal limitation on government; it is the antithesis of arbitrary rule; its opposite is despotic government, the government of will instead of law” (Mcllwan 1940: 24). It is also said that “The dominant theme of Western constitutional thought has traditionally been the design of political institutions to limit the exercise of power” (Elkin and Soltan 1993: 21). But the notion of limiting political power by law is not necessarily a modern invention. For example, Islamic political philosophy evolved around the idea of subordinating the political authority of the Caliph (Khalipha) to Shariʿa as the ultimate normative system of Islam. As noted in chapter 1, however, the Islamic principle of the supremacy of Shariʿa was negated in practice by the failure to develop institutional arrangements for its effective implementation and enforcement when necessary (An-Naʿim 1990: 91–94).

The more significant feature of modern constitutionalism, in my view, is the combination of a new definition of political power with clearer and more effective normative and institutional limitations of power. Both elements are intended to effectuate the revolutionary notion articulated in Western Enlightenment thought, and historically associated with the American and French Revolutions of the late eighteenth century, namely, that sovereignty ultimately derives its authority from the people. Indeed, constitutionalism can be conceptualized as the legal recognition and enforcement of the idea of vesting sovereignty in the people. The core idea from this perspective becomes one of determining and regulating the relationship between the limitation of political power and the location of sovereignty in the people.

It is also important, however, to perceive the concept more widely than as the strictly legal limitation of government. Doing so does not necessarily contradict or rule out the limitation doctrine, but anchors this central proposition in broader political processes.

From this perspective, constitutionalism can be defined as “a method of organizing government that depends on and adheres to a set of fundamental guiding principles and laws” (Holmes 1995: 299). Moreover, the definition can also be further expanded beyond the legal and non-legal operations of government to relate it to the substratum of values on which the concept is founded. “The ultimate role a constitution plays depends upon the sovereign source of the fundamental values upon which it is based and, indeed, the very identity (more importantly, the self- identity) of each source of sovereign authority” (McHugh 2002: 1; emphasis in original). The issue can be seen in this light as a matter of the adequacy or legitimacy of constitutional values, whereby the effectiveness of the concept depends on the extent to which the constitution is recognized and endorsed by the people as a genuine expression of the values, norms, and customs of their society.

To follow such basic ideas into related concepts, if sovereignty is ultimately located in the people, then the political framework based on such authority must effectively enable the people to develop and express their will. In other words, the principle of democracy is the necessary implication of the notion of popular sovereignty, as the latter finds its practical expression in the former. Similarly, if government power is to be limited, that should happen in terms of some fundamental quality that people rightfully possess, which we can understand as rights, liberties, or freedoms. If the purpose of constitutionalism is the protection of rights and application of the principle of popular sovereignty, then it must enjoy a foundational status in the legal and political structure of any society. But its precise relationship with democracy, sovereignty, and rights can take a wide variety of forms among different models, and even within the same national experience over time.

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Source: An-Na'im Abdullahi Ahmed. African Constitutionalism and the Role of Islam. University of Pennsylvania Press,2006. — 216 p.. 2006

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