what is constitution? why do we need constitution?


Today you are going to learn what is constitution according to various legal schoolers

Further, with the vivid examples, you will see why do we need a constitution in our countries.

The word constitution is not a strange one in the world today.

In the vast majority of the modern states or political societies there exists an identifiable document, or a group of documents, called a constitution, embodying a selection of the most important rules about the government of the country.

There has also been awareness among people on the need and importance of having a constitution or amendments of the existing constitutions in different countries.

A constitution provides a framework of rules that creates the structure and functions of a human organization.

Any organization might have a constitution, although an organization that depends on close personal bonds such as a family is unlikely to do so.

We are concerned with the organization of a country comprising millions of people with few common purposes capable of giving shape to a constitution1 Alder, J. constitutional and Administrative Law, 5th Edition, Palgrave Macmillan Publishers, New York, 2005. .

Let’s get started

What is a Constitution?

Wade and Phillips2Wade, ECS & Phillips, H. Constitutional Law, London, 1965. define a constitution to be “a document, having special legal sanctity, which sets out the framework and the principle functions of organs of government of a state and declares the principles governing the operations of those organs”

The above definition suggests that a constitution needs to:

  1. Be a legal document
  2. Set or establish the Pillars of the government
  3. Set the functions of those organs
  4. Set the powers and limits of those organs

However, this definition has received a lot of challenges from scholars who argue that it is not necessary for a constitution to be found in a document, it is possible for a country to have its constitution in various documents.

The United Kingdom is mostly cited as an example whereby her constitution is made by the Magna Carta 1215, the petition of right 1628, The Bill of Rights 1688, The Act of Settlement 1701, and the Acts of Union.

Wheare3Wheare K. C. Modern Constitutions, Oxford University Press, London, 1964 defines the constitution into two.

He firstly defines constitution mean “the whole system of 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 courts of law will recognize and apply them and partly non-legal or extra-legal taking the form of usages, understandings, customs, or conventions that courts do not recognize as law but which are not less effective in regulating the government than the rules of law strictly called”

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In the above definition, Wheare talks much about what it means by the word constitution by basing on the essence other than the form (document or documents) of the constitution. That is the wider and broader meaning of the term.

In the narrow sense of the constitution, Wheare says in almost every country in the world except for Britain, constitution means “the whole collections of rules, legal and non-legal but rather a selection of them, which have
usually been embodied in one document or in a few closely related documents”.

Prof. Issa Shivji4 Vol. 11-14 EALR (1978-1981)- Publication of the Faculty of Law defines constitution to be a piece of basic or fundamental law, which tells how the state and its various apparatus are organized, the interrelationships between them, and the division of power inter-se between and among these apparatuses.

Perhaps, one would agree with Prof. Shivji by saying that Constitution is a law found in one or more documents that constitute State Power and define the relationship between major organs of the State and between the State and the Citizen.

Prof. A. V. Dicey5Dicey, 1915, p. 22 defines constitution to mean all rules directly or indirectly affect the distribution and exercise of the sovereign power in the state.

Therefore, Dicey focuses on the constitution being a composition of rules that bring about how state power is distributed and exercised.

By this notion, Dicey speaks on a constitution that puts in place state organs, whether all rules are to be found in a single document or in various documents that are not, a matter of concern and discussion to Dicey.

Anthony King6King, A. Does the United Kingdom Still Have a Constitution? 2001, London: Sweet & Maxwell, 2001. defines a constitution as the set of the most important rules that regulate the relations among the different parts of the government of a given country and also the relations between the different parts of the government and the people of the country.

With definition, Anthony seems to deal much with idea that the constitution is made up by rules that set organs of government and how they relate between themselves and their relationships with individuals.

Anthony joins Dicey on the constitutional form, that the constitution might be a document or documents.

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Freidrich7Freidrich, Limited Government: A Comparison, 1974, p. 21. defines a constitution as the ordering and dividing of the exercise of political power by that group in an existent community who are able to secure the consent of the community and who thereby makes manifest the power of the community itself.

Freidrich’s definition suggests that a constitution is to establish state power that is a result of peoples’ consent.
He stresses the consent of the community. (This seems to be a political approach).

Tully84 Tully, J. (2002) ‘The Unfreedom of the Moderns’, Modern Law Review, 65: 204 suggests that a constitution has a special status, he defines it as the cluster of ‘supreme’ or ‘essential ‘ principles, rules, and procedures to which other laws, institutions, and governing authorities within the association are subject.

Therefore, according to Tully, once a constitution exists all other laws, organs of the government, and institutions must derive their legality from the constitution. In this perspective constitution is supreme.

NB: It is also the time to discourage the argument by some people who define the constitution to be a contract or agreement between the State and citizens or between the ruling class and the ruled one.

Prof. Shivji says this is not correct either historically or legally.

For, there is no evidence that rulers and the ruled sit together and negotiate a contract called the constitution.

If it is to be understood that a constitution is an agreement or contract it is to be shown as to when and where these two parties to a constitutional contract met and set terms of their contract, the thing that in normal circumstances cannot be obtained.

Again, for those constitutions that are not Democratic how can citizens agree to a contract that violates or does not recognize their rights for example?

The modern philosophy of the constitution sees the constitution as a product of consensus among people themselves

In historical reality, various constitutions come about through different historical circumstances and reflect the results of social and political struggles in those societies.

Therefore, the argument that a constitution is a contract is wrong both, legally and historically.

why do we need a constitution?

It is obvious that one will ask himself, after going through various definitions, why constitution?

There are a number of reasons why there is a need to have a constitution in countries around the world:

A constitution acts as a political manifesto of any government in power.

By being the political manifesto the constitution states the kind of government that is in power and its political ideology.

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For example, the constitution of the United Republic of Tanzania states in the preamble that

WHEREAS WE, the people of the United Republic of Tanzania, have firmly and solemnly resolved to build in our country a society founded on the principles of freedom, justice, fraternity and concord:

AND WHEREAS those principles can only be realised in a democratic society in which the Executive is accountable to a Legislature composed of elected members and representative of the people, and also a Judiciary which is independent and dispenses justice without fear or favour, thereby ensuring that all human rights are preserved and protected and that the duties of every person are faithfully discharged:

NOW, THEREFORE, THIS CONSTITUTION IS ENACTED BY THE CONSTITUENT ASSEMBLY OF THE UNITED REPUBLIC OF TANZANIA, on behalf of the People, for the purpose of building such a society and ensuring that Tanzania is governed by a Government that adheres to the principles of democracy and socialism and shall be a secular state.

A constitution is also used to put in place the guiding principles for the ruling class and the ruled one. It puts the guiding principles in definitive words so that the rulers and the ruled may know those guidelines.

A constitution establishes the organs of the government and gives powers and limits to these organs.

In this, the constitution has the last say and acts as a supreme organ.

The above explanation as to why the constitution is summed up by Prof. Shivji who says, depending on how it was made that is whether it was imposed or arrived at by a consensus a constitution serves an important function of giving political power legitimacy, that is, acceptability and respectability.

Another important function of the constitution is to structure state power by establishing and defining the powers and functions of different organs and institutions of the state.

The third function of the constitution is to limit the exercise of power by stipulating certain basic rights of citizens.

Reference

  • 1
    Alder, J. constitutional and Administrative Law, 5th Edition, Palgrave Macmillan Publishers, New York, 2005.
  • 2
    Wade, ECS & Phillips, H. Constitutional Law, London, 1965.
  • 3
    Wheare K. C. Modern Constitutions, Oxford University Press, London, 1964
  • 4
    Vol. 11-14 EALR (1978-1981)- Publication of the Faculty of Law
  • 5
    Dicey, 1915, p. 22
  • 6
    King, A. Does the United Kingdom Still Have a Constitution? 2001, London: Sweet & Maxwell, 2001.
  • 7
    Freidrich, Limited Government: A Comparison, 1974, p. 21.
  • 8
    4 Tully, J. (2002) ‘The Unfreedom of the Moderns’, Modern Law Review, 65: 204

Isack Kimaro

Editor-in-chief and founder of sherianajamii.com. Holder of Bachelor of Laws (LL.B) from Mzumbe University and Post Graduate Diploma in Legal Practice from the Law school of Tanzania. Lawyer by profession and blogger by passion.

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