Nominal Constitutions and Constitutional Reality
Constitutions must always be read in context. A single provision, for example, providing extraordinary powers to the President may appear suspicious when considered in isolation.
Yet when the provision is read in its context with other limiting provisions, the initial presidential provision may not look as negative as originally thought. However, many countries in this world often contain old provisions in their constitutions or are not democracies at all. Some have deliberately included provisions that have no place in the constitution of a liberal, rule of law-based democracy. The term “nominal constitution” is occasionally used when normativity and constitutional reality diverge greatly due to political and socio-economic circumstances. The editors are aware of the danger of applying the western constitutional model as a benchmark for constitutional design, even if political-economic circumstances may not yet buttress this sufficiently. However, this does not exclude the normative comparability of similar institutions, rights and competences, especially since constitutions have an educational-evolutionary character in addition to their symbolic content. This partly overlaps with the question of the effectiveness and enforceability of a constitution (“law in action”) which often remains largely ignored in a normative legal comparison, even though the authors attempt to cover practical examples of constitutional reality in every chapter. The application and enforcement of constitutional norms—in addition to their normative consistency— depends on many extra-constitutional factors that primarily concern the historical- political, legal-cultural and socio-economic context.A comparison of institutions and principles of constitutions is problematic if constitutions are not based on the liberal-democratic constitutional model and are instead “descriptive” or “semantic” in nature.[15] Constitutional systems that understand governments as the mouthpiece of a socialist one-party government or a theocratic rule do not correspond with the liberal-democratic rule of law-oriented type[16] as discussed in Writing Constitutions. While we regularly identify this in our remarks, we occasionally quote constitutional examples of this type as a valuable contrast to the overwhelming majority of constitutional designs to elucidate that those examples do not correspond with the basic assumptions of our work. These are the odd-ones-out that should not be copied or imitated.
More on the topic Nominal Constitutions and Constitutional Reality:
- Nominal Constitutions and Constitutional Reality
- Rethinking Founding Moments: What Pakistan’s Experience Demonstrates
- THE STATUS AND NATURE OF PROVINCIAL CONSTITUTIONS
- Pakistan’s ‘Permanent Constitution’: Historical Antecedents and Original Framework