Constitutional Structure
When countries are setting out to change their constitutions, many stars have to align. After all the constitutional draft or amendment needs to reflect the will of the people and ought not be rejected as in Chile in the 2022 referendum.
Constitution Makers are therefore facing a humungous task. The ICD Institute for Constitutional Developments and its publications want to provide a contribution to make these tasks a bit easier.
At the outset stands the analysis for Constitution Makers of whether existing or missing constitutional provisions are appropriate, and then the crafting of new wording. This task is enormous because many aspects have to be considered, including: (1) the remaining unaltered parts of the constitution, (2) the history of the constitution, (3) the previous rulings of the constitutional or supreme courts, (4) the sub-constitutional law already in place, (5) the unwritten law and practice already in existence, (6) the experience of neighbouring countries (7) different mechanisms around the world and (8) the world’s best practice.[1A]
ICD would like to contribute to the comparability of items (7) and (8) above, outlining the different mechanisms around the world and thereby allowing to draw conclusions with respect to the world’s best practice.
To better capture constitutional structures worldwide, the book series Writing Constitutions is presented in three volumes. Volume I is called Institutions, Volume II Fundamental Rights and Volume III covers Constitutional Principles.
In recent times, the end of the democratic era[1] and a “cultural backlash”[2] has been predicted. However, we now increasingly observe a different phenomenon: decade-old and often century-old constitutions prove to be a fierce stronghold against autocratic rulers. Contraventions of constitutional provisions are tested in courts and the executive is often called to order. More so, many attempts likely do not see the light of day because constitutions have successfully enshrined checks and balances. The value of constitutions cannot, therefore, be underestimated: constitutions are the unsung heroes of the early 21st century. Whilst constitutions are always subject to change, fundamental and radical changes will not be unquestioned. International acceptance becomes more and more important in a globalised community and rulers are on the watch.
Against this backdrop, Writing Constitutions intends to serve as a manual for those writing constitutions or interested in their design. It is the first coherent, systematic and universal approach to capture concept and content of a modern constitution. Volume I breaks each constitutional mechanism down into components and offers various designs for the drafting of its clauses. This provides lawmakers with the necessary toolkit for writing constitutions and empowers them to strengthen democracies.
Comparability of constitutions
While some scholars observe a recent revival of comparative constitutionalism, the question is of course whether constitutions are comparable at all.
The search for the best constitution is as old as political theory. In Plato’s dialogue, “Protagoras” the ‘art of politics’ (politikê technê) is proposed by Protagoras as a precondition for living together harmoniously[3]. In “Nomoi”, Plato links the quest for a desirable constitution with a fair and fixed distribution of lands and possessions[4]. In Aristotle’s “Politics” the different forms of state “constitutions” (politeiai) are examined by referring to a collection of 158 examples of Greek “city-states” (poleis), an impressive early example of empirical constitutional comparison. Aristotle evaluates the advantages and disadvantages of the different forms of governance and their modifications and compares democracy, oligarchy, aristocracy and monarchy. For his time and the needs of political reform, even then a preference to the “polity” (politeia) as a moderate form of democracy (including a stable middle class) becomes apparent.[5]
By now, every country in this world has a unique constitution influenced by its history and culture and often its neighbours, conquerors and liberators. No country has simply adopted another country’s constitution.[6] Why then, would we dare to compare constitutions if they are so idiosyncratic? The authors of Writing Constitutions are in the tradition of many comparative constitutionalists when they conclude that constitutions are comparable to a significant degree as they contain many joint features. Almost all constitutions contain a similar structure and common core legal instruments even though the details of those differ from each other. Almost all constitutions contain a catalogue of human rights (to be covered in volume II) and mechanisms such as elections, dismissals, impeachments, referendums, states of emergencies or constitutional amendment clauses. While it is a challenge to capture those mechanisms in their context, the authors believe it is important to systematically take account of and compare those solutions to create a repertoire for those who aim to change their constitution. Writing Constitutions is therefore firstly an empirical study of the essential elements that modern constitutions contain, before drawing any conclusions.
Volume I is based on a modular concept which dissects constitutional clauses in components. Many of these components have been presented as tables that outline the design options constitutional drafters have at hand. The tables form a card index cabinet and each tray in the cabinet contains an important component enabling lawmakers to assemble and compose the constitutional clause as shown in the image below.
[1A] Cf. for transition countries, Gaul (2002), Sinn und Unsinn internationaler Rechtsberatung, in C. Boulanger (Ed.), Recht in der Transformation. Rechts- und Verfassungswandel in Mittel- und Osteuropa (pp. 102-124), Berlin: Wissenschaftsverlag, at 109.
[1] E.g. Levitsky, S. & Ziblatt, D. 2018. How democracies die: What history reveals about our future. London: Viking or Buffin de Chosal, Chr. 2014. La fin de la démocratie, Paris: Groupe Saint-Rémi.
[2] See Czada’s critical comment under Czada, R. From distributive to cultural struggle and back. Views on Norris’ and Inglehart’s theory of cultural modernization. Z Vgl Polit Wiss (2020) with respect to Inglehart, R. 2018. Cultural evolution. People’s motivations are changing, and reshaping the world. Cambridge: CUP and Inglehart, N. & P. & R. 2019. Cultural backlash. Trump, Brexit, and authoritarian populism. Cambridge, New York: CUP.
[3] Plato, Protagoras, pp. 318ss, 323.
[4] The constitution of the Nomoi establishes unchangeable 5040 proprietary units; Book V 737e-738a, 740b-741c, 745c-e; Book VI 771b.
[5] Book IV, chapters 8-12; Book V, chapters 1, 4ss. We are grateful to Prof. Knoll (Istanbul/Munich) for these quotations.
[6] Unless it merged into another country, like the former German Democratic Republic in 1990.