Constitution

Etymology

Name formed starting from two Latin elements:

“cum” prefix which means “together”;
“statuo” the fact “of establishing”.

Literally the fact of fixing or of establishing together.

Definition

Formal definition

the Constitution is a legal document, generally concretized by one or more new written documents. This act is located at the top of its legal order: any other legal document must be in conformity with its regulations. Thus, according to the theory of the Hierarchy of the standards, developed in particular by Hans Kelsen, each legal provision is legitimated by a higher legal provision and with which it must be in conformity (the payment is lower than the Loi, it even lower than the treated , lower than the constitution - except perhaps for the Community treaties in France, to see will infra: Nature of the Treaty establishing a Constitution for Europe). The Constitution is thus to be the fundamental law which legitimates all the lower standards.

This theory is supplemented by the Principe of constitutionality, which indicates that the Constitution is the supreme principle of the right of a State and that its respect, obligatory and necessary, is ensured by a constitutional court, that it is a Constitutional council (as in France) or a Supreme court (as in the United States).

This place at the top of the hierarchy of the standards results owing to the fact that the constitution is created by the originating capacity constituting, and is revised by the constituting capacity derived or instituted. It is thus a legal document imposed by the constituent capacity on all the bodies of the State and the company. It thus concerns a logic " verticale" capacity, like the laws or the payments. This logic is opposed to that, horizontal, of the contracts and the treaties (name given to particular contracts between moral persons of international law), where the contracting ones are, at least juridically, equal, and must grant the rights and obligations resulting from the acts that they sign.

Confusions could appear between these two logics, because of doctrines of the " contract social". This theory consists in saying that the constitution of the State results from a contract signed between all the citizens, equal in right. However, these doctrines do not have legal reality.

Material definition

One takes here into account his contents. Any constitution must contain two essential things:

on the one hand, the whole of the rules which organize the public authorities and their relationship between them (Government, Parlement, President of the Republic, King…),
in addition, public freedoms (or fundamental freedoms) which are granted to any person residing on the territory or amenable to the State concerned. One generally finds in this last category of the rights or freedoms such as freedom of going and coming, freedom of expression…

It is the direction of article 16 of the Declaration of the human rights and the citizen of 1789: " Any company in which the guarantee of the rights is not assured nor the determined separation of the capacities, does not have Constitution."

Practical applications of the distinction

These two definitions are recut most of the time (a new constitutional text will have all the characteristics of a new Constitution to the material direction of the term); however, they can diverge.

Thus, if a radical political change makes that the Constitution is applied in a completely different way, and this without there being for all that change of the constitutional text, then there is not new Constitution with the formal direction of the term, whereas from a material point of view, if. On the contrary, a Constitution which will be adopted formally will not be a new Constitution with the material direction of the term if it is not applied.

Characters of a constitution

Usual or written

A written constitution is formalized in a single text or a whole of constitutional laws. They represent the large majority of the modern constitutions.

The usual Constitution is the whole of the rules relating to the organization of the capacity which are not in written form. These rules are called: Conventions of constitution. That does not prevent that one or more written documents are used as a basis for this Constitution.

Until the end of the 18th century, the political organization of the States was governed almost entirely by the habit, in particular in the monarchical States with rules of devolution of the monarch. The usual form gradually disappeared at the same time as the absolute monarchy. Indeed, correspond them to times of political and, consequently, constitutional restoration.

Moreover, it presents three major disadvantages compared to a written constitution:

it is not considered (it does not proceed of a choice nor of a rational construction);
it is vague and not very detailed (it cannot envisage any case which did not already arrive) and poses problems of clearness and Legal security;
it is not democratic in its development (the people are not associated there).

On another side, contrary to a written constitution,

an oral constitution is often less prone to the risks of the policy.

Currently, only the United Kingdom remained faithful to a usual constitution among the Western States, even if this position must be moderate (see will infra Constitution of the United Kingdom). Other countries in the world, in particular certain countries Moslem like Saudi Arabia, or Israel, the Zealand News or Quebec, are also equipped with it.

Rigid or flexible

A constitution is rigid when the procedure planned for the revision of the constitution is not very easy to implement. A contrario , a constitution is flexible when the revision of the constitution proves technically simpler.

However, a revision can be rigid with the technical, but flexible direction with the practical direction. The French constitution envisages a procedure of revision difficult to implement, it is technically " rigide" : it was however revised many times since the advent of Ve republic, it thus has, in fact and from the constitutional practice, a character " souple".

A constitution can also be flexible with the technical, but rigid direction with the practical direction. The English usual constitution is not, with the direction technical, difficult to revise, it has a character " souple". The social context and policy of the country and its attachment with the tradition constitute an obstacle with the revision however: it thus has, in fact, a character " rigide".

Examples of constitutions

For the Europe: by Chronological order .

Constitution of the United Kingdom

Its constitution is very old, the first rules dating from the Middle Ages; it is the only country with being remained faithful to a usual Constitution among the Western States.

There exist however four fundamental texts:

Magna Carta or Large Charter in 1215 (where the king gives up some being able with the profit of the barons and of the communes and declares itself dependant by the law, in particular certain legal procedures, like the prohibition of the arbitrary imprisonment, also called Habeas Corpus)
Bill off Rights into 1689 which founds the English constitutional monarchy by granting basic rights with the citizens and residents (not to be confused with its more known American version).
Act off Settlement or Act of establishment in 1701 (the succession with the throne organizes)
Parliament Act or Act of the Parliament in 1911, modified in 1949 (relating to the respective capacity of the 2 rooms, which limits the capacities of the House of Lords to the profit of the House of Commons).

Among the usual rules of the United Kingdom, one can quote the right of Dissolution of the House of Commons by the Prime Minister or the resignation of the whole of the Cabinet when its policy is called into question by the Rooms, which do not appear in any text.

Constitutions of France

Constitution of the Belgium

Constitution projects for the European Union

See also: European Constitution, Referendum on the European constitution in France

Several constitution projects for the European Union were written, of which the Projet Spinelli adopted in 1984 by the the European Parliament.

A new constitution project European was worked out by a convention bringing together 105 representatives of the 25 countries of the European Union, with a majority of elected officials of the various Convention countries. This convention met between on February 28th 2002 and on July 18th 2003. The draft convention was used as a basis for the charged intergovernmental conference, between October 2003 and spring 2004, to ratify the new reform of the European Union.

October 29th 2004, the leaders of the European Union signed with Rome the constitutional treaty entitled: “Treated establishing a Constitution for Europe”. So that it comes into effect, it must be ratified by each State S by the end 2006.

Nature of the Treaty establishing a Constitution for Europe

Confusion comes owing to the fact that the terms “treated” and “constitution” answer two different logics in right (see supra, definition of the constitution).

To be able to answer this question, it is thus necessary to take again the definitions of “constitution” and “treaty”.

From a formal point of view , the TCE is a legal document which is taken voluntarily between the 25 Member States of the Union. It is thus well about a treaty. However, of the elements let think that it would be possible to put this treaty at the top of the hierarchy of the standards of the Member States.

According to CJCE, the European standards are higher than the national rules, including constitutional.

In France, if one follows the Jurisprudence of the Council of State French, however, the provisions of the International treaties have a infra-constitutional value but supra Législative (article 55 of the Constitution of October 4th, 1958). As for the jurisprudence of the Constitutional council, the doctrines remain very divided. When they are the treaties founders of the European Union, the Constitutional council makes the point that their provisions cannot be incompatible with the Constitution (the treaty must thus be in conformity, which would suppose that he is quite lower to him in the hierarchy of the standards). However, following the observation of this possible incompatibility between treaty and Constitution, it is the Constitution which is revised, and not the treaty (what would be impossible to make in France, since the political decision was made in Brussels with 25), which would let suppose that, in the case of the standards of the Union, they would be higher than the Constitution.

The question of the constitutional nature of the project, from a formal point of view, thus remains open.

From a material point of view, this treaty joins together the whole of the existing texts (agreements, conventions, treaties) by modifying them. It aims, on the one hand, at increasing the effectiveness of the institutions (election by the European Council of its president for two years and half, creation of a post of Foreign Minister, reduction of the size of the Commission and election of its president by the Parliament, redefinition and extension of the vote in the majority qualified, extension of the fields of the reinforced co-operation…) ; in the same order of spirit, it clarifies also the distribution of competences between the European Union and the State S members. In addition, it incorporates the Charte of the basic rights proclaimed at the time of the European Council of Nice (December 2000).

From a material point of view, the TCE can thus completely be regarded as a constitution. Nevertheless, that does not want to say that it cannot be regarded either as a treaty, since the material contents of this one are free.

To consider that the project would be a constitution would make European Union a Federal state. However it is difficult to still today know true nature of the Union: one generally regards it as an entity sui generis, halfway between the confederation and the federation. The confederation is a simple regrouping of States, while the federation is a grouping of States which create above them another State (the Federal state). However, in the European Union, the States which gathered created an entity, but this one is not a State, even if it comprises certain characteristics of them. It has some of the attributes of the kingly State (to be able to beat currency, existence of a Court of justice) while others escape to him (politics foreign and of common safety and the co-operation police and legal out of penal matter are both of the pillars which still answer an intergovernmental logic). The project of TCE wishes to reinforce the official character of the Union, which will have the legal entity. The third pillar (police and legal penal matter co-operation) will be amalgamated with the first pillar, said integration. The PESC will be always put aside, but the co-operation will be reinforced, the objective being to have a common true policy (creation of a European Minister for the foreign affairs).

Constitution of the the United States

The Constitution of the the United States was accepted the September 17th 1787 by a joined together convention with Philadelphia, and after ratification, applies since 1789. It was modified by the addition of twenty-seven amendments, it is the oldest written constitution still applied in the world.

Constitution of the Democratic republic of Congo

Constitution of the Democratic republic of Congo, summary and history
Constitution project of the Democratic republic of Congo (full text) (with being been approved by referendum)
Constitution of the Democratic republic of Congo (2003) into force (full text)

Constitutions of the Ivory Coast

See too

Internal bonds

neighbouring Concepts: State | Public law and constitutional Law | Legal security

Authors (by chronological order): Jean Bodin | John Locke | Montesquieu | Sieyès | Maurice Hauriou | Roederer

Others: international Academy of constitutional law

External bonds

Bonds on the constitutions of 79 countries

; German constitution

Fundamental law of the Federal Republic of Germany, French translation on the site of the Federal government

; Belgian constitution

Full text of the Belgian Constitution and its modifications on the site of the Belgian Senate
the Constitution in Belgium on Wikinations.be

; Cameronian constitution

Cameronian Constitution

; Canadian constitution

Full text of the Canadian Constitution and its modifications on the site of the ministry for the Justice of Canada.

; Constitution of the United States of America

Constitution of the United States of America (French translation); original version: Constitution off the United States off America

; French constitution

French Constitutions, all, and in full text on wikisource. Constitution of 1958
constitutional revisions in France since 1958
Full text of the revisions on a nonofficial site
constitutional texts of 1788 with today

; Iranian constitution

constitutional history of Iran
Full text of Contitution Iranian woman in force (1979, modif. 1989) on the jurispolis.com site;

; Swiss constitution

Full text of the federal constitutions (1999, 1874) and cantonal Swiss in French language in particular on a university site of Perpignan, many historical references and useful bonds;
Full text of the Swiss Constitution on the site of the Swiss Confederation

; Togolese constitution

Presentation of the Constitution of the Fourth Togolese Republic
Full text of the Togolese Constitution on the official site of the Togolese Republic

Be-X-old: Канстытуцыя Simple: Constitution Zh-min-nan: Hiàn-hoat

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