Constitution and Constitutional Development: Suplementary Material For Grade 9-12

BY DIRIBA
REGASA TUFA
(MA)
CONSTITUTION AND CONSTITUTIONAL

DEVELOPMENT
SUPLEMENTARY MATERIAL FOR GRADE 9-
12
1
CIVIC AND ETHICAL EDUCATION
JANUARY, 2012/2020
Contents
INTRODUCTION.....................................................................................................................................3
Constitution..........................................................................................................................................5
Process of growth (Constitutional Growth)...........................................................................................9
Necessity of a good constitution...........................................................................................................9
1.2. Constitutionalism.....................................................................................................................10
Limited Government...........................................................................................................................13
Problems and prospects......................................................................................................................18
Unit Two..............................................................................................................................................20
Political and philosophical foundations of constitutions.....................................................................20
Historical precedents of Constitutional development in the ancient period......................................22
2.1 The English Revolution and Thomas Hobbes.............................................................................27
2.2 The American war of independence and J. Locke.....................................................................28
2.3. French Revolution and Rousseau.............................................................................................31
The principle of separation of power and Montesquieu.....................................................................34
A. Historical over view........................................................................................................................34
FIGURATIVE ILLUSTRATION OF SEPARATION OF POWER....................................................................37
The concept of Checks and Balances..................................................................................................39
UNIT THREE.........................................................................................................................................45
Principles of constitutions...................................................................................................................45
Introduction........................................................................................................................................45
3.1 The Rule of Law.........................................................................................................................45
Limited Government and Rights of Citizens........................................................................................48
The American model: Listing citizens rights........................................................................................49
3.2. Popular Sovereignty.................................................................................................................54
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Ways of ensuring popular Sovereignty...............................................................................................57

3.3 Constitutionality (Constitutional Order.....................................................................................59
Majority Rule and minority rights.......................................................................................................61
Secularism of strict separation............................................................................................................64
Accommodation..................................................................................................................................65
Constitutional Interpretation:.............................................................................................................70
Depolarized public bureaucracy..........................................................................................................75
3.5. Democracy, Freedom and Equality...........................................................................................76
Transparency and Accountability........................................................................................................77
Citizens Participation: Equality of opportunities.................................................................................78
Separation of powers and checks and balances..................................................................................79
Checks and Balances...........................................................................................................................81
3.6. Justice.......................................................................................................................................83
Due process of law..............................................................................................................................84
Debates on interpretation of constitution..........................................................................................85
Interpretive methods..........................................................................................................................88
Debate over Interpretive.....................................................................................................................89
Unit Four.............................................................................................................................................91
Salient features of working constitution.............................................................................................91
Basic features of UK constitution........................................................................................................98
Unit Five............................................................................................................................................101
Typology, functions and orientation of constitution.........................................................................101
5.1. Typology.....................................................................................................................................101
5.1.1. Forms of constitution documents: Classification of constitutions based on the nature of
constitutional documents.................................................................................................................102
Nominal VS practical Constitutions...................................................................................................106
Indigenous and Imitated (Adventurous) constitutions......................................................................107
5.1.2 Classification of constitution based on the amendment procedures...............................108
Amendment of a constitution...........................................................................................................110
5.1.3 Classification of constitution based on the nature of the state........................................112
Monarchial vs. Republican constituents...........................................................................................118
Unicameral bicameral, trilateral and tetra cameral constitutions.....................................................121
Classification of Constitutions based on the nature of the Judiciary.................................................123
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Functions of constitution..................................................................................................................124
Contents and validity of constitution................................................................................................128
Contents
INTRODUCTION.....................................................................................................................................5
Constitution..........................................................................................................................................7
Process of growth (Constitutional Growth).........................................................................................10
Necessity of a good constitution.........................................................................................................11
1.2. Constitutionalism.....................................................................................................................12
Limited Government...........................................................................................................................15
Problems and prospects......................................................................................................................20
Unit Two..............................................................................................................................................22
Political and philosophical foundations of constitutions.....................................................................22
Historical precedents of Constitutional development in the ancient period......................................24
2.1 The English Revolution and Thomas Hobbes.............................................................................28
2.2 The American war of independence and J. Locke.....................................................................30
2.3. French Revolution and Rousseau.............................................................................................33
The principle of separation of power and Montesquieu.....................................................................35
A. Historical over view........................................................................................................................35
FIGURATIVE ILLUSTRATION OF SEPARATION OF POWER....................................................................39
The concept of Checks and Balances..................................................................................................40
UNIT THREE.........................................................................................................................................46
Principles of constitutions...................................................................................................................46
Introduction........................................................................................................................................46
3.1 The Rule of Law.........................................................................................................................47
Limited Government and Rights of Citizens........................................................................................49
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The American model: Listing citizens rights........................................................................................49

3.2. Popular Sovereignty.................................................................................................................54
Ways of ensuring popular Sovereignty...............................................................................................57
3.3 Constitutionality (Constitutional Order.....................................................................................59
Majority Rule and minority rights.......................................................................................................61
Secularism of strict separation............................................................................................................64
Accommodation..................................................................................................................................65
Constitutional Interpretation:.............................................................................................................70
Depolarized public bureaucracy..........................................................................................................75
3.5. Democracy, Freedom and Equality...........................................................................................76
Transparency and Accountability........................................................................................................77
Citizens Participation: Equality of opportunities.................................................................................78
Separation of powers and checks and balances..................................................................................79
Checks and Balances...........................................................................................................................81
3.6. Justice.......................................................................................................................................83
Due process of law..............................................................................................................................84
Debates on interpretation of constitution..........................................................................................85
Interpretive methods..........................................................................................................................88
Debate over Interpretive.....................................................................................................................89
Unit Four.............................................................................................................................................91
Salient features of working constitution.............................................................................................91
Basic features of UK constitution........................................................................................................98
Unit Five............................................................................................................................................101
Typology, functions and orientation of constitution.........................................................................101
5.1. Typology.....................................................................................................................................101
5.1.1. Forms of constitution documents: Classification of constitutions based on the nature of
constitutional documents.................................................................................................................102
Nominal VS practical Constitutions...................................................................................................106
Indigenous and Imitated (Adventurous) constitutions......................................................................107
5.1.2 Classification of constitution based on the amendment procedures...............................108
Amendment of a constitution...........................................................................................................110
5.1.3 Classification of constitution based on the nature of the state........................................112
Monarchial vs. Republican constituents...........................................................................................118
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Unicameral bicameral, trilateral and tetra cameral constitutions.....................................................121

Classification of Constitutions based on the nature of the Judiciary.................................................123
Functions of constitution..................................................................................................................124
Contents and validity of constitution................................................................................................128
INTRODUCTION
It is obvious that states govern their citizens or society with sets of laws and rules. The laws
of the states, whether they are democratic or undemocratic, bind up all members of the
society. The laws of the states, which bind the societies together, are composed of different
varieties. It may include among others statuary laws, constitutional law, international law,
family law, criminal law, civil law and administrative laws.
Among such laws of a state, the constitution is the most fundamental one. It is one of the
celebrated maxims of political science that there can be no well-ordered society without a
state; another ancillary axiom is that there can be no state without a constitution of its own.
Though the word ‘constitution’ is used in many senses (as constitution of a body
constitution of trade union, constitution of political party etc), we are concerned with its use
in a political sense alone that signifies the constitution of the state. If so, every state has a
constitution of its own and by virtue of that, in a literal sense, it is a ‘constitutional state.
However, as we shall see, the term ‘constitutional state’ has assumed a normative
connotation; now it has become another term for a ‘democratic political order.
The very idea that every state must have a constitution of its own and that its government
must organize rules of constitution so that the people have a ‘rule of law’ and not a ‘rule of
man; it constitutes the case of ‘constitutionalism;
A constitution is described as the most laws of the land. It prevails over all other laws and
rules in a country, sometimes it is known as the mother laws in the country. Hence,
constitution is the source of all other laws, as well as the supreme law of the land. Whenever
other laws contravene with the constitution, it will be invalid and will remain without legal
effect.
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The main purpose and function of constitution is to limit power of the government .To show
the frame work of government, to define the power and functions of the organs of
government and to guide the day-to-day activities of the state. Hence, the constitution helps
us to have a predicable future. Because the government can perform its activities only
according to the established laws in advance. However, it should be understood that, having
constitution by itself is not sufficient condition to have a limited government. In other
words, having constitution is quite different from having constitutionalism-limited
government in which the government officials perform their activities only with accordance
to the prescribed law constitution. Therefore, constitutionalism is a situation in which the
elements of the constitutional principles are practically implemented, and the government is
committed enough to do according to the established laws only. When certain country
would have its own constitution, and its provision are enforced accordingly; the country in
question will have a constitutional order. Dear student, in this Unit; you will have a brief
look regarding about the constitutional law, and it’s definition, constitutionalism and
constitutional order in a more detail to have important knowledge regarding these issues.
Objectives
After completing the study of this section, you will be able to;
 Define the constitution and constitutionalism;
 Distinguish the difference between having a constitution and existence of
constitutionalism
 Discuss the meaning of constitution
 Analyses the relevance of constitutionalism and limited government as far as the right
of citizens are concerned;
 Describe the concepts of intra-virus and ultra virus ;
 Explain the importance of limited government for the respect and protection of
individual rights ;
 Give various definitions for the word ‘constitution’;
 Indicate elements in each definition that apply to the current constitutions;
 Compare and contrasts between different definitions of constitution and sort out the
most acceptable one;
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 Analyses the definition forwarded by different personalities
Constitution
 What is constitution?
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Different constitutional lawyers, philosophers, a political scientist perceive constitution
differently and consequently, ends up providing diverse definition. The difference in the
definitions of constitution arises from the difference in its perception, the disparities that exist
between the constitutions of different countries of the world. This means that, different
countries of the world have a constitution of different nature, scope, purpose, form to
mention few. In addition to these, the differing definition of constitution arises from the
individual difference and the score, dimension, direction and depth of their vision; as well as
their academic field of study.
O.H Philip, look at constitution from two levels i.e. from its concrete level and obstruct
level. In its concrete level, O.H Philip define constitution as an assemblages of the most
significant and fundamental laws of society enacted in one single document or series of
documents.
At this level, it is very important to understand that O.H Philip clearly out lines that a
constitution being the assemblages of the significant as well as fundamental laws which may
appear both in a single documents (complied) and in a series of document (un complied)
forms.
In its abstract level; constitution for Philip is a system of law which determines as well as
defines the structures, and powers of governmental organs (Legislative, executive and
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Judiciary) as well as the legal relations between the state and its subjects) citizens. K.C
Wheare, like Philip, gives two levels of definition of the constitution.
1. In its broader sense, where provides that:
Constitution is a collection of rules which are partly legal and partly not. i.e. some rules of
the constitution are legal, because the court of law recognize, accept and apply them in their
ruling .The rest are extra legal base; i.e. they are found in the form of usages, customs and
conventions without courts recognitions of them as laws ;although they have a role in the
peoples life of governing themselves.
It is easily understandable from the K.C wheare as definition that; constitution may appear in
various forms and some constitutions are found in a single document. I.e. their provisions are
lower down in to a written form (codified). As a result, the courts of law and other legal
persons use it as a reference in their activities. On the other hand, the wheares definition
constitutes that some constitution are found in unwritten (un codified) form. Such
constitution usually found as a usage and traditions or societal values, norms and customs
that enables the lawyers to enforce it.
1. The Narrower sense of his definition is that; Constitution is a collection of rules that
regulates the structures and of a government and its relations with the citizens that are
embodied in a document.
James Bryce, define constitution as;
An instrument that establishes permanent institutions of a government with recognized
functions, definite rights and responsibilities and regulates their relations to one another
to citizens.
C.F strong, states that, true constitution, in whatever form it may appear, should
manifest how the various agencies are organized what power is to entrusted to these
agencies and in what manner such power is to be exercised
He places a high emphasizes on the function of constitution as an instrument to limit the
arbitrariness of a government and as a guarantee to the right of individuals.
 Encyclopedia Britannica defines constitution as body of doctrines and practices that

form the fundamental organizing principles of a political state. It is also defined as a
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document that contains the laws and beliefs of a nation; including the powers and
responsibilities the government and the rights of citizens.
 Etymologically defines the term constitution is derived from the word ‘constitute’
which is ‘to mean to make up’, to order of to form”. This indicates that, constitution
is a body general law, which contains (constitutes) the general laws, which lead and
gives direction according to which the government will perform its activities.
Despite the diverse definition forwarded by different individuals, the following points
could be conceived as the common features, definition, and elements of every
constitution:
 Constitution is a document that contains the laws of a country’s basic
performance, organizational general rules and regulations.
 It is the fundamental laws of a country
 It is a collection of principles according to which the powers of the government,
the rights of the governed (citizens), and the relations between the two are
adjusted.
 Constitution is a collection of rules that establish and regulate between the
government
 Constitution is the whole system of a government and also a collection of rules
that establish and regulate the behavior of the government
 Constitution is the fundamental principles according to which state is established
and governed whether embodied in law, wisdom or conventions; and it is
concerned with :
- How decisions are reached
- How powers are distributed (governmental power)
- Limits governmental authority,
- Limits methods of election and the appointment of those who govern
- The rule of law implies judiciary independency from the other branches of
government.
o A constitution is a framework (blueprint) for government.
o A constitution is a main law that gives direction to the country’s foreign policy;
economic, political, and social policies of a given country.
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o It is a form of law that determines the form of state to be unitary or federal. To sum
up, the above elements can provide indispensable input for the defining elements of
the term constitution.
Activities
Answer the following questions in the space provided
1. What is constitution? , define it by your own words
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2. What do mean by constitutional government?
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3. Do constitutionalism and democracy have relations?
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4. How can a government be judged whether it is constitutional or not?
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5. Most of the definitions you read above consider that it is a constitution that
establishes the various government organs and defines the power and functions of
these government organs .What are the various government organs and what
powers and functions are given to them by the constitution? (Recall your study).
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Process of growth (Constitutional Growth)

Every constitution grows with the passage of time. It means that, the rules of constitution
have a Darwinian character. James MCI In tosh and Sir Henery Majne recognize this fact
when they hold a constitution is not made, it grows.
It well applied to the case of England where the constitution is an evolved instrument; it is a
growth and not make. However, its first part does not apply to a country having an enacted
constitution like the United States where the constitution is regarded as both a make and a
growth.
However, the fact stands out that a constitution develops in course of time in response to the
urges and aspirations of the people and the nature of political development. Though a typical
justification of the excellence of the English constitution, Lord Brougham holds that
constitutions “must grow, if they are of any value; they have roots, they ripen, they endure.
Those that are fashioned resemble painted sticks, planted in the ground; they strike no roots,
beer no fruit swiftly decency, and are long person’’.
Necessity of a good constitution

What we have seen so far about the meaning and development of constitutions convinces us
with this important axiom of political theory that every state must have a constitution of its
own. It is indispensable even for the states in which a regime of the most primitive type or
despotism of the worst sort prevails. In all times, whether ancient, medieval, or modern,
constitutions acted in the most autocratic. Evidence shows that, in the days of ancient Greece
Aristotle could have a study of about 158 constitutions. Even during the Middle Ages
constitution existed, though in a very crude form, if we compare them with present standards.
A remarkable changed has taken place in modern times when the constitution of state is
given utmost sanctity. It is landed as the ‘corner stone’ of a democratic nation- state; even the
non-democratic states have their own set of rules that they call ‘a charter ‘or a manifesto’ of
the ideology of their state apparatus. It is also essential that, the constitution of a state, should
neither be a strong defense of the status permitting hardly any change in response to the
changing conditions of the people, nor should it be so flexible or dynamic that it may be a
plaything in the hands of the legislators, or administrators, or adjudicators of the country. It
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must have an element of permanence permitting room for necessary changes without inviting
the conditions of a violent upheaval. It should be well in consonance with the political
culture; education and training of the people.
Merriam’s, observation is worth quoting. “The letter of the constitution must neither idolized
as a sacred instrument with that mistaken conservatism which clings to its own worn – out
garment until the body is ready to perish from cold, nor it ought to be made a playing of
politicians, to tampered with and degraded to the level of an ordinary statute “
1.2. Constitutionalism
Overview
As you have understood from the meaning of constitution, any modern government has a
constitution. However, drafting constitution or writing and approving of constitution alone
are not sufficient condition to realize or make the constitution constitutional.
Constitutional or constitutionalism refers to the fundamental principles of democratic
governance, in which the government of a country acts, decides, directs at in accordance to
the constitution.
Several scholars argue that, most countries of the world have constitutions with very
attractive rights and freedoms written in them. However, the most important thing is no to
have constitutional provision, that are written by golden words, rather, what matter is putting
the words of the constitution in to practice. This means, the government must submit and
commit itself to the rules of the constitution by making the utmost effort to realize them.
When such situation is satisfied (fulfilled), it is said that there is constitutionalism in that
country.
It is the principle that a government is organized and limited in ways that adhere to the
constitutional laws, that is considered to be above government. In other words,
constitutionalism is political governance based on a given constitution where state power is
exercised according established rules obtained in that constitution. Constitutionalism is also
related with the prevalence of the rule of law where the government and public officials shall
be held accountable to the people and are responsible for their actions.
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Constitutionalism is a political culture; where by the constitution is observed by both the

rulers and the ruled and must be enforced. In this case, it should be known that having
constitution alone could not be the guarantee for constitutionalism. Historically,
constitutionalism gained more and more importance with the side spread demand for a
government that is formed by the consent of the people and with a constitution, which
protects the interests of its people.
The modern political thought draws a distinction between constitution and constitutionalism.
A country may have a constitution but may necessarily constitutionalism. For example, a
country with a dictatorship, where dictator’s word is law can be said to have a constitution
but not constitutionalism.
Constitutionalism recognizes the need for government but insists up on limitations being
placed up on governmental powers. Constitutionalism envisages check, balance, putting the
powers of the legislature and the executive under some restraints, and not making them
uncontrolled and arbitrary. Unlimited powers jeopardized freedom of the people. If a
constitution confers unrestrained power on either the legislature or the executive, it might
lead to an authoritarian and oppressive government. Therefore, to present the basin freedom
of the individuals, and to maintain his/her dignity and personality, a constitution should be
permeated with constitutionalism ; it should have some in –built restrictions on the powers
conferred by it on governmental organs.
Constitutionalism connotes in essence limited government or a limitation on government.

Constitutionalism is the antithesis of arbitrary powers. The antithesis of constitutionalism is
despotism. In some minimal sense of the term, a “constitution” consists of a set of rules or
norms creating, structuring and the limits of government power or authority. As such, it
could be said that all states have constitutions and all states are not constitutional states.
Anything recognizable as a state must have acknowledged means of constituting and
sanctifying the limits placed up on the three basic forms of government power. Often, these
limitations are in the form of individual or group rights against government, rights to things
like free expression, association, equality and due process of law.
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Constitutionalism means limited government. Most of the countries, even those having
totalitarian and despotic governments, have constitutions. In a totalitarian and despotic
system, constitution confers side powers and discretion on the government to suppress and
oppress their people. They cannot be accepted as a constitutional government. There is a
fundamental decrease between constitutions that exist at the pleasure of those in power, and
constitution which limit power (absolute power) of an individual or a group.
In an effective constitutional system, constitution is supreme. It regulates the exercise of

power by different organs of the government; all acts of ministers and public servants are
carried out in accordance with law and authorized by the law. In which the content of law
must be just and the laws do not confer side and unfettered discretionary powers, on the
government to oppress their subjects.
Besides, there are elements of an effective constitutionalism that include a system of

elections, held frequently based on universal adult franchise. Guarantee of citizen’s
fundamental rights including freedoms of expression and personal liberty; independent
judiciary having power to control unlawful acts of the legislative and the executive, which
really exercises this power; a system of controls on the use of discretionary powers and
sovereignty vested in the people.
The concept of constitutionalism suggests, at least the following core ideas:

a. That the exercise of power be within the legal limits- the concept of intravires- and
that who exercise power are accountable to law; (When the government acts within
the limits of the powers given to it by the constitution, it is said that it is acting
intravires.
b. The exercise of power irrespective of legal authority must conform to the notion of
respect for the individual citizens rights;
c. That power conferred on institutions with in a state whether legislative, executive or
judiciary is sufficiently dispersed between the various institutions to avoid the abuse
of power.
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d. That the government in formulating policy, and the legislative in legitimating that
policy, is accountable to the electorate on those trust power is held.
Can you think of a country with a constitution, but without a constitutionalism?
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Today almost all countries have very nice constitution with attractive rights and
constitutional principle. However, many governments do not submit themselves to the
constitution that has been created by them. If the government does not obey the constitution,
it abuses, its powers, its acts became ultravirs. In such circumstances, the rights of
individuals will be seriously aggrieved, hence no constitutionalism, although, there is a good
constitution.
Limited Government
The concept of limited government is inseparable from constitutionalism. As explained
above, the whole purpose of constitutionalism is to have a limited government, the
government that respects the constitution and acts according to the rules of the constitution.
Democratic governments are said to be limited governments. Therefore, having constitution
and constitutionalism is a means for having limited government, which is an end for having a
constitutionalism.
Like that of democratic theory (which hold that peoples are capable of ruling themselves by
delegation their powers through their elected representatives, and which trusts the majority
rule and minority right); constitutionalism too enshrines respect for human worth and dignity
as its central principle to protect that value, citizens must have a right of political
participation, and their government must be even perfectly mirroring the popular will.
 What constitutionalism insists on is having limited government
 Predictability of governmental action is also a characteristic feature of
constitutionalism; i.e. eliminating capriciousness (unpredictability) which is
considered as one of the very important hall make of tyranny.
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The big argument behind constitutionalism is simply putting-up restraint on governmental

action and to refrain it from tyranny (dictatorship) of the majority. In other words, though it
is the majority (the party that have more popular vote) which should rule the country, the
minority right also needs to be recognized as well. This implies, while the majority governs;
constitutionalism seeks the protection of the rights of the minority, individuals or group
rights, freedom against governmental interferences, and making formal restriction on the
power of government.
 Constitutionalism basically pertains two kinds of relations hips;
1. The relationship between government and citizens = substantive
2. Appraisal of one branch of government visa-a-visa the other and their
relationships= formal.
Development
The rise of constitutional state is essentially an historical process whose chose chief material
is contained in the history of western political ideas right from ancient to modern times. This
history of the development of constitutionalism is thus a history of the growth of political
institutions that had their first important manifestation in the soils of ancient Greece and
Rome and there after they witnessed their raise and growth in the middle and modern ages.
Side by side, references should be made to the ideas of great political thinker either who
drew stimulus from the development of political institutions, or who thought in terms of
having a particular form of polity under the ideal or obtainable conditions. The movement is
still going on in view to seek the improvement of political institutions in the direction of
having a legitimate constitutional order.
The history of constitutionalism begins with the Greeks .Aristotle picked up the thread from
the second best state of Plato, as contained in the laws, and justified the excellence of a
middle- class rule based on the system of law. Remarkable development took place under the
Roman emperors who evolved their constitution as a determinate instrument of government
of government. They codified their law and laid down the principle of representative
government. Their two-pronged conception of the legal sovereignty of the emperor that his
pleasure had the force of law, and that his powers were ultimately derived from the people –
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persisted for many centuries. During middle ages, the Teutons stressed the importance of
customary law or folk.
In the age of feudalism, the Roman conception that the people were the ultimate source of
royal authority and the practice of the barbarian tribes that the king was under the law of the
folk happily coincided. Nevertheless, the growing hold of Christianity introduced the element
of theology with the result that the laws of the state were made subservient to the law of the
religion as interpreted by the authorities of the church. In this way, the observance of
religious injunctions became an essential part of the idea of a constitutional state. A new
consciousness developed after the termination of the papacy and the emergence of the
sovereign and secular nation-state.
The idea of constitutionalism witnessed rejection of theological (propositions and

justification of the absolute authority of the state. Machiavelli in his prince and boding in his
six Books on the Republic presented a secular version of politics and there by strengthened
the case of the modern state. In the early phase of modern period, the concept of
constitutionalism appreciated absolute authority of the king over and above the authority of
the regions and feudal chiefs, but after a couple of centuries the people fought and could in
pass restraints on the power of the sovereign.
As we will see in the next Unit, the glorious revolution of England (1608), the declaration of
American independence (1776) and the great revolution of France (1789) are the leading
instances in this regard. In this way by the end of the 18th century, the concept of
constitutionalism had a different character.
A constitutional government now identified with a democratic government. In other words,

movement of the people for a democratic system in England, America, and France, caused a
simultaneous change in the concept of constitutionalism.
The founding fathers of the United States made a constitution for their country in 1787. It set
the precedent of a written constitution of the state. Thus, a new feature of constitutionalism
developed that had its universal appreciation from time to time. These will have their written
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constitution in 1848, the Canadians in 1867, and the Germans in 1871. Though the English
people did not make endeavor for writing their constitution, they continued their movement
for the democratization of the system that is evident from their Reform Acts of 1832, 1867
and 1884 and the parliament Act of 1911.
The victory of the Bolsheviks in Russia under the leader ship of Lenin manifested the victory
of a new ideal – socialism. The making of the Lenin constitution (1924) thus added the
feature of socialism to the concept of constitutionalism that was later to be appreciated by
other socialist states of the world.
The disastrous effects of the two world wars contributed to the addition of one more feature
to the concept of constitutionalism – internationalism. The fundamental law of the land
should specify commitment of the state to the principles of internationalism like faith in the
pacific means for settlement of disputes, and observance of the norms of international law
and obligations.
However, it is certain that the idea of constitutionalism is still in an experimental stage owing
to the emergence of new conditions that a state has to face, particularly those coming from
the side of revolutionary regimes. In order to keep the concept of constitutionalism a live, we
must be prepared constantly to adopt it to the ever – changing conditions of modern society.
The basic purpose of political constitution is after all the same whenever it appears to secure
social peace and progress, safeguard individual rights and promote national well – being .
Notions of constitutionalism; Liberal Vs Marxist Notions

From what we have said above, it infers that the concept of constitutionalism has its own
varieties that may be put under two broad categories, liberal and Marxist. Most of the third
world may be seen hovering between the two poles. These may be brightly discussed as
under. The liberal view of constitutionalism is that a state should have its own rules and
regulations to enshrine the ideals of law, rights, justice, liberty equality and fraternity in the
fundamental law of the land.
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These rules may be written or unwritten. France at a particular time developed over very long
period of historical development, easily amendable with great difficulty. Western writers like
James Madison, Thomas Jefferson’s , Alexis De.Tocqueuville, James Brice, C.F strong<
Herman, Finar , Harold J,Laski, C.H Mcllwatn , C.J Fredriek and a boost of others have
taken the view that constitutionalism is both an end and a means, It is both value laden ; it
has both normative and empirical dimensions . The constitution is not only an end that ought
to be respected by all; it is also a means to an end, the end being the achievements of security
and the protections of liberty of the people.
It desires a constitutional state having a well – acknowledged body of laws and conventions
for the operation of a ‘limited government ‘. If there is a change, it should be peaceful and
orderly so that the political system is not subjected to violent stresses and strains. There is the
rule of law ensuring liberty and equality to all; there is the freedom of the press to act as the
fourth state; there is a plural society having freedom for all interests to seek the ‘coordinator,
of puller; there is a system that strive to promote international peace, security and justice.
Different form this is the Marxist view of constitutionalism. In a socialist country,

constitution in is not an end in itself, it is just a means to implement the ideology of
‘scientific socialism. It is a tool in the hands of the dictatorship of the proletariat that seeks to
establish a classless society that would eventually turn in to a stateless condition of life. The
purpose of having a constitution is not to limit the power of the government, but to make so
vast and comprehensive that the ideal of workers’ state is realized ‘a new kind of state’
comes in to being. The real aim of the constitution in such a country is not to ensure liberty
and equality, rights and justice for all but to see that the the enemies of socialism are
destroyed and the new system is firmly consolidated. In this way the real aim of the
constitution “is to firm another new socialist discipline among the working people”. All
power is concentrated in the hands of the communist party whose leaders laid down their
programs and implements them according to their best judgment without carrying for the
niceties of a limited government. The communist party becomes the state and its leaders
become the custodian of the new socialist order.
NSS 20
A possible mixture of the liberal and Marxist notations’ with heavier parts of the former may
be said to constitute the all mark of the concepts of constitutionalism in the third world
countries. The reason is that, these countries have a liking for the western constitutional
system on the accounts of their being subject to colonial rule and their experiments with the
political systems of the masters- countries. At the same time, their attraction to the goal of
socialism makes them an admiralty of some of the important principles of socialist system so
to achieve the ideal of social and economic justice in their countries. The result is that, the
countries of the third world look like hovering between the two poles and there by happily
involving themselves in a paradoxical situations.
Problems and prospects:

Now the concept of constitutionalism faced with three problems: rise of Totalitarianisms,
emergence of war conditions and socio – economic distress of the people. The problem
before us is how to deal with and solve the problems through the actions of constitutional
state. The rise of fascism, in Italy and Nazism in Germany; coupled with the advent of
communism in Russia. Then, emergence of totalitarian system in other countries of the world
like Spain and Japan in the period after the First World War and then emergency of such
system in every large number of Afro- Asian and Latin- American countries after the Second
World War are instances of a grin challenge to the celebrated concepts of Constitutionalism.
Then, there is a problem of war condition that compels the rulers of a state to resort to
emergency measures.
The political system of a country may survive in the midst of war conditions as happened in
the cases of Britain and France, or it may collapse yielding place to an authoritarians system
for any sort as happened in many countries of the third world now growing under military
dictator ship.
Lastly, there is the problem of securing the goal of social and economic justice in the
country. Sometimes, the administrators of a democratic country increase their power for the
sake of affecting some radial schemes of social and economic justices but they are opposed
by the legislators and the judges of the country. As happened in the states, when the New
NSS 21
Deal policy of President Roosevelt had its set back after invalidations of the National
Recovery Act by the Supreme Court.
In addition, three more features may be enumerated which have come in to lime light
recently. These are related to the protection of human rights, prevention of environmental
pollution, and observance of the principles of international law in the countries like china, the
Russian federation and South Africa have some provisions in this regard. Though a
communist country, the Chinese constitution of 1982 has general principles one of which
says that the state shall give permission to foreign enterprises, whether individual or
collective to invest their money in China and to enter in to economic cooperation with
Chinese entrepreneurs.
The constitution of the Russian federation of 1993 has provisions for the protection of a
healthy environment. It recognizes the norms of sustainable development. The constitution of
South Africa of 1996 honors the principle of international law. The state is required to honor
its international treaties and commitments. Nevertheless, we should not take a discouraging
view of things. Let us hope that the people of democratic countries would understand the
nature of the problems standing before them and try to solve them within the framework of
their liberal constitutions. For this, it is required that the convictions of the people in the
system of democracy should be strengthened so that they are not attracted by the forces of
totalitarianism.
Self-government is no substitute of a good government how so ever good it may be.

Similarly, conditions should be generated in which the models of a social and economic
democracy are strengthened. The constitutionalism must know that such a model of
democracy” is not a miracle that comes to life at a particular moment and then continuous to
function automatically, but it is rather a political task upon which it is necessary to work
continually”.
In the end, it may also be said that the concept of constitutionalism should change in
response to the changes in urges and aspirations and social and economic conditions of the
NSS 22
people. More adherences to the views of great constitutionalists would not do. It calls for the
revision of old values and systems in the light of new hopes and requirements of the people.
The concept of constitutionalism took a change from a theological to a secular side in the
early phase of the modern age; it took another change from an aristocratic side in the later
part of the modern age, and from an individualistic to a socialistic side in the last century.
In other words, it signifies that the meaning of constitutionalism should not be given a rigid
or a fixed form; it should be treated as a dynamic affair that changes with the emergence of
new conditions, new challenges, new problems, and new issues. And change” is not
something to be feared and avoided, as Aristotle thought, but it is the very work and weft of
modern constitutionalism.
Unit Two
Political and philosophical foundations of
constitutions
Introduction
The origin of constitutional ideas in human society could be link with the need to limit the
political authority and the power of the governments. To this end, there were various
attempts to check the powers of the rulers at different times. Thus, the historical emergence
and evaluation of constitution can be traced back to earlier stages of civilization. In the
history of human societies in the powers of the rulers over those who are ruled. In its modern
sense, constitution emerged during the 17th C in England.
However, the concepts and practices of constitution as political phenomena extend further in
to previous historical periods. Different political ideas and experiences of governance
political rights, roles and relations of state and society developed through time. In this regard,
many cultures and civilizations influenced and shapes of societies since ancient time have
contributed for the emergence of Ancient Babylon, Hebrews, Greeks, Romans and the like.
They were contributing the very remarkable ones.
NSS 23
The concept of democracy and self-rule through constitutional provision that was
originated/emerged/ in these societies in general and in Greek and Rome in particular during
5th and 6th c gradually diminished and lay almost dormant in the world for nearly 1000 years,
until it was revived by the acts of Renaissance and Reformation. During 17 th century, the
socio- economic and intellectual as well as religious activities, (protestant which introduces
separation of state affairs and church, secularism) of Renaissance and Reformation periods
enables democracy to revive.
In medieval Europe, Monarchy was considered as divinely ordained institution, i.e. as it is

created by the order of God himself. However, from the 16 th century onwards, men became
more daring in religion, philosophy and politics. Many people recognized that, there is no
divine authority unless it could prove its claim and validity in the court of human reason that
humanities believe in and highly too committed with.
The recent historical development that was made in Europe and American land: such as the
English Revolution, the French Revolution and the America and war of independence (and
declaration of independence), was another remarkable input for development of
constitutional ideas in modern period. The revolution made in Europe and America were
involved the philosophical, religions as well as political activities of Thomas Hobbes,
Rousseau, J. Locke, Montesquieu. Martin Luther king and the preaching of Renaissance and
Reformation periods catalyze and resulted in revolutions in England /1688/, French (1789)
and America (1776) which in turn was resulted in the emergence of their modern democratic
and constitutional political system.
Therefore, the revolution of the 17th and the leading philosophers of the time were able to
produce for ward a fruitful contribution to the modern ideas of constitution. In addition, the
period of 17th and 18th century was considered as a turning point in the development of the
ideas of constitutional state
Dear learner, in the following few pages we are going to provide you some notes that enables
you to grasp some knowledge of the history of constitutional foundation in its pin political
and philosophical origin, by focusing on English and French Revolution as well as the
American war and declaration of independence.
NSS 24
Objectives
At the end of this section, you will be able to-
- Show the contribution of the international situations that has contributed to the
development of constitutions
- Analyze the contribution of revolution that was took place in England.
- Outline the contribution of philosophers like, Rousseau ,Montesquieu, Locke, Hobbes
etc
- Analyze the theories and concept of check and balances
- Discuss the major importance of separating governmental power among the
legislative executive and judiciary
- Compare the meaning of separation of power in USA and other countries
- Outline the means through which the branches of government control (check) one
another with special Reference to American case
- Describe the historical precedents of the constitution in the ancient times that
contributed much for the development of constitution in the 16th and 17 centuries
Historical precedents of Constitutional development in the

ancient period
1. The law of Hammurabi in ancient Babylon
Hammurabi was a king of Ancient Babylon. During this time, legal traditions were not
concerned with the issue of freedoms and rights of the people governed. Instead, attention
was given to maintain forceful orders. Those legal traditions were aimed at strengthen the
power and authorities of rulers. Therefore, different justifications were used to legitimate
political authority. The ruler claimed that their authorities originated from super natural
forces or gods.
The law of Hammurabi was a typical example of a legal tradition. In this manner,
Hammurabi institutionalized a powerful legal order to govern his subjects. He claimed that
he received his law from a supreme and divine being thus he ordered his subjects to strictly
punished. Any criticism or challenge against the law was unacceptable. In the present
context, the law of Hammurabi founded a highly authoritarian rule. The legal system he
introduced did not give room for the exercise of constitutionalism.
NSS 25
In other words, in Hammurabi’s legal tradition, the relationship between the government and
the people was not based on equality. The authority of the government was not limited
therefore; the ideas and practices of freedom and rights of people did not exist. Thus, the
historical distance of the law of Hammurabi is that, it introduced a legal system of
governance, but not the idea of constitution and democratic practices.
II. The Hebrews and theoretic constitutionalism
The Hebrew was the first to practice constitutionalism. However, religious thinking and the
idea of divine power influenced the Hebrews constitutional tradition. This is called
theocracy. Accordingly, in the Hebrews political system the subjects claimed that they live
under the rule and guidance of divine authority. Thus the rulers on earth was Considered as
the agents and representatives of a divine authority. The constitutional tradition of the
Hebrews made one of the decisive authorities. The constitutional tradition of the Hebrews
made one of the decisive contributions to political history. That is, their constitutionalism
emphasized on limiting the absolute power of the ruler by the law divine power. Thus, rulers
were expected to exercise justice and rulers become unjust and unwise, prophets claiming
spiritual authority arise to resist them. This is considered as the first legitimate opposition
against established authority. The political authority under such conditions is not similar to
that of authoritarianism. However, the understanding of justice and political freedom of the
Hebrews were based on moral and religious sources. Hence, we cannot find modern ideas of
political rights and freedom in the experiences of the Hebrews. Even then, Hebrews
contributed for the idea of limiting the absolute power of rulers as opposed to the case of the
law of Hammurabi
Activity 2.1
 What kind of political and social life do you imagine is such societies as in the rule of
Hammurabi?
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 Hebrew’s constitutional tradition used to limit the absolute power of ruler. Does we
considered as a positive progress in history why? Explain.
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NSS 26
 What is the major deference between the legal system introduced by Hammurabi and
the constitutional traditions of the Hebrews?
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iii, The Greeks and Romans and their constitutional (experience) of democracy
Compare and contrast Greek and Roman constitutionalism
I. Greek constitutionalism
The political experiences of ancient Greece during the 4th and 5th century B.C were
remarkable in the progress constitutionalism. The Greeks were the first to exercise
democracy as a form and method of governance. In this process, the Greeks developed a
constitutional political civilization. That marked the emergence of constitutional democracy.
The constitutional idea of the Greeks included participation of citizens through direct
democracy. It also involved sharing of power and state functions.
Moreover, that system also included mechanism of limiting the powers of office holders. The
political system provided the opportunity of participation for all citizens in decision-making.
This is referred to as direct democracy. Thus, there was no possibility for political power to
be concentrated in the hands of the few. The lot usually selected the office holders. In some
offices that required qualification and knowledge, the office holders, were designed by
election. All active citizens had access to the public offices. When the public officials tend to
abuse power, condemnation and exclusion from social acceptance were exercised.
The office terms were also short. Therefore, political power was rationally shared. Officials
and citizens also made observance to the rules of law. Nevertheless, the constitutional
democracy of the Greeks was not absolutory reflect. The assembly of citizens was without
any constitutional limitations. That is, the kind of democracy exercised was excessive.
Because of this, the Greek political system was unstable and full of internal disharmony. Do
you see the need for constitutional limit on the power of officials even in a system of
democracy?
In general, a Greek citizen was considered as judge, soldier a member of the governing
assembly etc. Good citizenship was judged by how each citizen observed the law, i.e. the
NSS 27
constitution. Both Plato and Aristotle emphasized the importance of political education in
clarifying ideal constitution, for only through an informed citizenship could the state be
preserved from anarchy. However, Greek constitutionalism lack elements, which are vital to
the continued existence, form of government Such as
- To meet new needs as they emerged
- Unable to move with the dynamic changes of the time
Although the political constitutionalism of the Greeks, passed away, their political
experiences help us to see our present constitutional arrangements and to consider today’s
practices.
Activity 2.2
 What are the features of the constitutional ideals of the Greeks?
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 Is it possible to exercised direct democracy in our today’s world? If possible how or
in what condition?
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II. The Roman and Republican constitutionalism

- From 600 B.C the Romans introduced a republican system of governance. The
republican constitutionalism was not completely left at the mercy of all citizens as in
the case of the Greek. Neither was it completely controlled by an absolute monarch
until the later part of the Roman Empire. During this period, the Romans founded a
system of civil and criminal law, which is the source for the legal codes and practices
of many modern nations. The Romans exercised separation and distribution of
powers among different assemblies and offices. These various assemblies and offices
were meant to be check on each other officials were elected by assemblies of
citizens, and for a year at a time.
The republican constitutionalism emphasized the operation of an elaborate legal system and
institutional means of limiting power. The Roman republic was a political system with
complex devices of check and balances of power. It was a form of constitutional supremacy
of legitimate officials and bodies for limited purposes and periods.
NSS 28
Do you think this form of constitutional supremacy can enhance popular power and rights?
In a way, republican constitutionalism is a classical model of constitutional government that
is non-democratic. This was because in the Roman republicanism, the influence and
participation of citizens in governance process was limited, although it was conducted on
legally acceptable ways. Eventually, the Roman republic disintegrated and resulted in
absolutist rule.
The Roman constitution was decisive or determinate instrument of government. It was made
up of customs, precedents (previous acts), usages understanding and beliefs that are bearing
upon- the methods of government. There were many changes during the Roman period, in
the constitution. Their constitution started to mix different forms, such as aristocracy (rule of
princes), monarchies (rule of kings) and democratic elements, and the Roman constitution
ended with an irresponsible autocracy (dictatorship rule).
Iv. MagnaCarta
Historically, the origin of constitution is also related to a document known as Magna Carta.
There was a kind of England called King John he used his government power unfairly for
selfish purposes. The forms of the abuses of his power were asking unusual tax rates and
depriving of the established rights and Privileges. As a result, those who suffered revolted
and declared for an armed confrontation with King John. However, king John did not fight
instead, he agreed to sign a charter called Magnacarta in 1215 A.D.
Magnacarta is also referred to as the charter of Liberties since it provided rights and
privileges to those who were ruled and restriction up on the king’s power since that time.
Magnacarta has been referred when liberties were threatened by unlimited power. Since then,
the contents provided by Magnacarta have influenced constitutional developments, including
that of the American Bill of rights that we are going to see it later.
Activity 2.3
 What caused the signing of Magnacarta?
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 What do you think were the results of the signing of Magnacarta?
NSS 29
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 What is the basic significance of MagnaCarta on the Development of
constitution?
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2.1 The English Revolution and Thomas Hobbes

Following the collapse of Roman Empire in the 5 th and 6th century. England was governed by
succession of monarchies until the middle of the 17th. While most of them ruled with military
force and other forms of coercive power, there was a growing tendency to justify the crowns
legitimacy according to the divine power or right) of Kings – the doctrine asserting that, the
monarch derived his/her power from God not from the people. The concept of divine right
provided the legal basis for sovereign monarchy, or absolutism, which meant that the
monarch was the supreme political authority in the land and enjoyed the right of absolute
power. This belief was successfully challenged in the second half of the late 17 th century,
when the civil war led to the defeat of royal army, the decapitation of the king Charles I in
1640. This paves the way for the claimants that kings and their rulers/government can
represent the people only when people themselves agree, and consequently, England was
declared republic for the first time in its history 1649.
Oliver Cromwell, a commander rather than a noblemen, ascended to power and ruled as”
Lord protector” under the country’s first written constitution. Shortly after Cromwell died,
monarchy was restored in 1660 by the consent of parliament. Parliament was exercising in
England starting from 13th (1215) from the time of Magnacarta; the Great charter, which
specifies rights and duties of subjects.
Despite its importance, parliament was remained constantly subordinate to the monarch until
the late 17th century. By the end of 17th century, the authority of English parliament had
become binding up on the monarchy in a number of fields; while the real power of the
monarch starts to diminish. However, the parliament was elected by only a small fraction of
the population. Nevertheless, from the late 17th century onwards, ideas of equality and
accountability cropped up from time to time in the writing of political thinkers. For instance,
NSS 30
levelers; believed that, privilege was the root of all evil, and that all citizens should have
political equality based on universal suffrage and a written constitution. They rejected
political privilege. They believed that as citizens, all men had the right to be treated as
equals. The levelers are a group of people/persons/ that make everybody equal. They
advocated individual’s rights, which fitted to the political philosophy of Thomas Hobbes,
who stated that individual had an equal right to choose their rulers.
The political nation of Hobbes about constitution was based on the Philosophical dictum of
‘law and order. In Hobbes view, the basic function of the state is to “defend the people from
invasions of foreigners and the injuries of one another “The price paid for this protection is
obedience to the government and the government for its part must have all the powers to
conduct its duties. The nature, extend and distribution of these powers form much of the
subject matter of political though and constitutional law. These powers are distributed
through and constitutions of the state parliaments, courts, ministers, special agencies… etc.
Besides, the laws have procedures and regulations, which impose constitutional limits up on
the actions of government Hobbes emphasizes that without super imposed controls through
strong government, there, will be perpetual civil war. Hobbes philosophical pronouncement
of law and order can be considered as philosophical foundations of constitutional
development.
Finally, it was in 1688 that Revolution, known as Glorious Revolution took place in England.
That Revolution overthrew king Charles of England. The Revolution ended the divine right
of the king in England; thus, power was transferred from the man (king) to assembly of men
(the parliament) .The Revolution, asserted equality of human beings .As a result, England
become constitutional monarch.
2.2 The American war of independence and J. Locke

It is common memory of every one that America, following its discovery in 14 th and 15th
century, it become the colony of Great powers of the period, mainly British and Spain.
Specially, Britain was the main colonizer that was perpetuating their domination over the
American land and people until the late 18th Century. In other words, Britain, even after the
NSS 31
withdrawal of Spain left alone and continued exploiting and ruling over the American
resources and people for a long period of time.
Throughout the era of their colonization, they were generating a huge income and profit from
the plantation agriculture that was practiced in American land by slave labor while
Indigenous Americans were starved in their own land. In the late 18 th century (1776),
American people started to struggle against the Europe (British) domination and oppression
and fighting for independence.
Like the glorious Revolution. of England, the American war of independence was initiated
and activated by the teachings of political thinkers of the period and the acts of renaissance
and reformation in general and John Locke in particular.
At the time of American Revolution, Locke’s political though was well known to the
American political leaders and had become considerably incorporated in American popular
political thought as well. It marked impact on the contents and wording of the declaration of
independence, the constitution and Bill of rights and has had a continued substantial impact
on Americans are directly or indirectly influenced by J. Locke. The political idea of John
Locke, which serves for constitution making, is based on the philosophical dictum of natural
right life liberty and property. The political theory of Locke has two complimentary
principles consent and natural right.
All men are born with certain rights like the right to life, liberty and property these rights
cannot be taken from them; they are ‘inalienable. The government does not have the power to
complete the people against their consent because the government and the laws through
which its acts are based on the agreement of the people. The consent of the people and their
rights are constantly maintained as a basis of government.
Locke’s theory depends on many practical things; the ability of citizens to make the theory
work through state institutions, rational debate, free and fair election, efficient parliaments,
tolerance, and so forth. The theory of Locke is reflected in the constitution of many countries.
The political philosophy of Locke was having profound influence on the authors of American
declaration of independence (1776) and adoption of constitution (178)
NSS 32
John Locke believed that, it is instinct and impulse of the ordinary men, even without
government to live together in a fairly peaceful way, generally and beyond in the law of
Nature, that no one ought to harm another in his life, health liberty or
possession .Furthermore, Locke believed in the existence of natural moral law, that is more
than set of practical principle for survival.
According to Locke, we are all made by God and are his property. We are obliged to
preserve ourselves and as far as possible, the rest of human kind. Except for the sake of just
punishment, no person may take away or impair another’s “life, Liberty, health, limbs or
goods” or anything on which various items may depend. As to Locke, no person may destroy
impair another’s life liberty or property requires, that each person has inalienable natural
rights and duties in that their existence entitled by the fact that, we are God’s creation.
As Locke’s second assumption and principle, which is “consent” the government acts based
on the people. In other words, the government to certain conditions is created and acquires its
legitimacy to certain conditions .State is created and acquires its legitimacy by agreement or
“Social contract” to ensure the “public good” and to protect the “natural (rights”, obtaining
peace and security. The subjects entrusts his rights to the state for safeguarding and if state is
failed to conducts it, made with the people have to rebel (revolt) against the state, and then
revise their agreement with another ruler.
Thus, by proclaiming the existence of Natural (divine law) and of natural and God – given
rights, the Declaration of Independence incorporated what had became widespread political
theories in the colonies by the time of American Revolution (1775 -1776), a theory that was
prevalent among those who opposed the British king and parliament. As a result of all these
political process, as well as philosophical teachings of the then political thinkers, America
declared freedom in 1776 from the British and Spanish colonizers ; and drafted its first
constitution.
The original constitution itself before adoption of the Bill of the rights constituted by the first
ten amendments to the constitution makes scant, allusion to natural law or divine rights. It
does so implicitly only in its preamble in stating its purpose to “establish justice” ensure
domestic tranquility secure the blessing of liberty”.
NSS 33
The Ratification of the original constitution was attained only by assurance that a Bill of
rights would immediately be adopted by amendments were ratified on 15 Dec 1791.
This bill of rights arguably limits the federal government in ways dictated by natural law and
arguably guarantees rights in ways dictated by the existence of natural rights; and un doubly
the rights explicit land implicit) in the Bill of rights were regarded by the framers as the
inalienable rights to which the Declaration of independence alluded.
2.3. French Revolution and Rousseau

The French Revolution was such as shattering series of events that it redefined the
significance of almost everything that had come before it in the country’s political history.
Centuries of royal absolutism, the absence of parliamentary representation, dissatisfied
nobility with little influence over the monarch and his ministers, financial mismanagement,
unfair tax system, festering urban and rural poverty of 1789 summer and other problems of
all aspects prevailed in France. This and the multicity of other additional factors can all be
viewed as antecedent causes of the revolution.
Like the English Revolution of 1688-89, and American war of Independence 91775 -1776),
French Revolution was also greatly affected by the political thinkers of the 17 th and 18th
century among which j. Locke, Thomas Hobbes, j j Rousseau to list some of them.
According to Rousseau, human being before the emergence of state was living in a “state of
nature /primitive pre-political condition). He said people enjoyed perfect freedom, were
happy, healthy, good, but with the advent of private property (mine and thine, the haves and
the have not) this all changed. He also the consent of people /General will), when people
surrender their individual liberty for a different and more important collective liberty. In
other words, men surrender their ‘Natural right; that is, rights created and protected by the
state.
Through a social compact, the people united in to a collective whole, called, “the state’’ and
the general will reflects through (by) this politically organized people. The people
commission/elected and represent) some persons to administer or enforce law (general will).
NSS 34
Rousseau further believe that, sovereignty lies (resides) with the people; hence citizens have
the right at any time to terminate the social contract.
He also held, the implication of the right of citizenry to terminate the social contract at any
time and of the right to remove state official at any time is that, the citizenry have the right to
Revolution and a right to resume anarchy at any time. He provided a philosophical
justification for anarchy and revolution. Therefore, it was this justification, which provided
by Rousseau and his proponents that initiated and developed the awareness of the French
people in one hand and the socio-economic and political conditions that prevail in the
country on the other hand that led to the outbreak of the revolution in 1789.
The sorry plight of the government’s financial problem (crisis) completed the crown in 1789
to convene the first meeting of the Estates General 175 years later. At this period, the French
monarch called the Estate General in to session with diminishing frequency. After 1439, it
did not meet again until 1614. However, from its outset the newly assembled parliament was
led by the clergy middle-class deputes elected to represent the third states. Shortly after
convening, most of thirds estates 600 members’ delegation demanded a constitutional
monarch. The idea of the Enlightenment thinker, j. j Rousseau, inspired the revolution. He
duels more importance on individual freedom from that state institutions.
General will : the term popularized by the 18 th French philosopher j. j Rousseau. In his book
social contract (1762), Rousseau defined the general will (volante, generale), as the civic
impulses of citizens seeking to pursue the common good within the particular will of
individual seeking only their personal good. Rousseau argued that, the general will of the
people, not the individual will of the king or a particular will of a nobility or clergy should
produce the laws that govern the community. The concept of the general will exert enormous
influence during the French Revolution (1789 – 1799), which led to the over threw of the
French monarch and aristocracy
The general will and French Revolution

In the early stages of the French revolution, French status men Emmanuel Joseph siexes
declared that all the people of France were sovereign not just particular groups. Robespierre
also required, as had Rousseau, that the freedom of citizens required obedience to the general
NSS 35
will. Rousseau himself had never specified how one would know exactly what general will
dictated. He wrote while France was still governed by monarchy.
His argument comprised a democratic plea that, the general will of the citizens should
triumph over the particular interests (monarchy, aristocracy and clergy). In the time of
revolution, the king resented and, estates general quickly reconstructed it as a unicameral.
National Assembly, immediately set about the task of drafting Frances first written
constitution. Its preamble was “Declaration of the rights man “which enshrined private
property along with “resistance to oppression” and citizens participation in the law making
process as fundamental civil rights.
- It formally granted citizenship to all French males over age of 25 and extended
voting rights to those citizens who would meet various property qualifications.
- Now, in the summer of 1789, France appeared to be moving steadily toward a
moderate constitutional monarchy roughly similar to Britain.
2.4 The American Declaration of independence and Montesquieu
In 1776, the declaration of Independence proclaimed the doctrine of natural rights or divine
law and of other natural or God – given rights stated by Locke. The declaration of
independence asserted that, there are “laws of Nature and God’’. The framers appealed “to
the supreme judge of the world for the rectitude of our intension”. The declaration also
asserted that, it is self evident that all men are created equal ,and that they are endowed by
their creator with certain un inalienable rights, that amongst these are life, liberty and the
pursuit of happiness”. The framers of the declaration also stated, “It is the right of the people
to alter or abolish any form of government when that form of government becomes rights
with which men are endowed by their creator. The bill of right, which arguably limit the
federal government, in way dictated by the existence of natural rights.
Regarding the form and structure of governmental administration, Baron De Montesquieu

contributed a list especially on the principle of separation of power (between the branches of
government; namely legislative, executive and judiciary) and the idea of check and balance
between these organs of government to control each other function. In other words, one
branch of government exercise control over each other through the system of check and
balance.
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The principle of separation of power and

Montesquieu
A. Historical over view

Definition: separation of powers is balancing of powers between different bodies so that no
power center can act without the cooperation of the others and each check the others.
A theory of separation of powers has been recognized since the time Aristotle. Indeed, since
Aristotle held that one man pre-eminent in virtue, should wield all power. He never
considered the concept of separated powers. In the 17 th century, the English political
philosopher, John Locke also distinguishes the legislative from the executive function.
However, like Aristotle, he failed to assign these bodies to separate organizations or
institutions.
The best – known proponent of the doctrine of the separation of power was the French
philosopher, B. De Montesquieu- 1689 -1755. He arranged by keeping the three institutions
separate and balanced the possibility of one of them and, particularly the executive the loss of
the citizenry right would be avoided. His view was having impact and was taken by other
personalities. One of them was James Madison (framer of US constitution 1751-1836) said
“the accommodation of power legislative executive and judiciary in the same hands may
justify pronounce the very definition of tyranny.
In addition, after Montesquieu the concept of Separation of powers becomes one of the
principal doctrines of modern constitutionalism. Nearly all modern constitutions, from the
document written at Philadelphia in 1787, through the French declaration of the rights of man
and citizen in August 1787 up to the constitution of the new states of Africa and Asia provide
for separate establishment of legislative, executive and such.
The main organs of government (Legislative, Executive and Judiciary).
Are these organs kept separate or fused?
How does the state establish a government that is strong enough to maintain
law and order but sufficiently restrained to keep from becoming tyrannical?
The answer is to rest each of the governments three basis powers in an separate and
independent branch of government when all the branches is tyrannical no matter whether
that agency is an elected and responsible representative assembly or an irresponsible
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hereditary monarch. Only true separation of powers protects the liberties of the people
against the aggressions of government.
Most present day political scientists believe that, the traditional that way classification of
government is misleading. No branch exclusively sticks to the jobs formally assigned to it. A
few political scientists have attempted to preserve the traditional conception by calling
activities and powers of executive agencies as quasi –judicial. Most however have concluded
that the objectives of legislative, executive and judiciary should be used as convenient taps
(marks) to identifying particular government agencies and do not constitute complete and
accurate descriptions of what the agencies actually do.
Nevertheless, what is meant by separation (Montesqieu’s dictum)? In the US, the branches
of government exercise control over each other through the system of cheek and balances.
For example, the president has power prerogative (license) to veto Acts of congress may over
ride the veto. Thus, the president can often effectively check the will of a majority opposing
the president in congress, but congress can likewise check” the president. In extreme
cases ,the refuse to confirm his appointments, the lower house of congress can “impeach”
(accuse) the president of minor offences, and the senate can try him by two –third of the
senate can remove him.
The president appoints judges, who enjoy life tenure – but the senate (the upper house of the
congress) must “confirm” his appointment before the judge enjoys life tenure (subject to the
removal process noted above. The laws of the congress and the acts of the executive are
subject to “Judicial review” by the courts to determine their constitionality and the courts
may declare laws enacted by the legislative or acts of the executive officials which are
deemed inconsistent with the constitution to be unconstitutional and in enforceable. These
are only examples to show an effort no simply to separate power but deliberately to create a
system where by each ‘branch” exercises some control over the other.
Separation of power had had a different interpretation in France. Separation has meant a
more literal sense an effort to keep the organs of government more insulated from each other.
Until the creation of the fifth republic by the constitution of 1858, legislative power was in
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theory exclusively vested in the parliament which controlled the selection of the cabinet. An
executive civil service, divorced from parliament and politics executed the laws.
The courts were forbidden to exercise any power/i e jurisdiction) to review the legality or
unconstitutionality not only of legislative enactments, but of executive acts as well. They
asserted that judicial interferences could frustrate both progressive government and the will
of the people just as the courts were insulated from the branches of government, so the
executive establishment beneath ministerial level was divorced from the parliament. Thus, no
branch had much direct control or influence over the other. The divergence between French
and American interpretations of Montesquieu shows us that “separation of power” is an
ambiguous concept. Moreover, separation is not a value (necessity) in itself simply is a
means of securing desired ends.
 Why should we separate powers?
 What goals are we seeking?
- Montesquieu argued that separation would promote such goals as “individual
security” and protection against” tyrannical government distributing power in various
ways or conversely, concentration them in various was can also secure other
objectives.
For example, if we believe that all basic laws and politics of government should be
developed through a representative and democratic organ of government, then to that extent
we may argue not only that law making and fiscal powers must be exercised by an elected
parliament, but also that parliament should enjoy other direct controls over the executive.
Such as control over the selection of ministers and other policy making officials.
To the extent that we favor a constitutional system, which quarantines basic rights for the
people rights relations to “free expression” “due process of law.” Property” and soon, then
we may argue not only for “enactment” (firm establishment) of these rights in the
constitution, but for independent judiciary requested with the power to enforce the
constitution as law through the exercise of the power to judicial review. To the extent that we
believe in classic ideas about a civil service selected, promoted and transferred only on the
basis of merit judged independently of ideology. “Political affiliation, personal status or
influence, we may try to establish the civil service as an independent constitutional organ of
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government (executive organ). Conversely, the extent that we believe that the demand of
“development (and the danger of trying to establish a government without a clear cut
Hobbessian sovereign require centralized responsibility for everything which government
may do then the will argue for expansion of executive powers.
The power to promulgate decrees having the force of law, independently of parliament,
“emergency”, power of various acts, the power to influence or control parliament through
appoint some or many of its members, the power to remove or discipline judges as well as
appoint them. To the extent we believe as some political leaders in France used to assert that
a single official, political “party” must be developed as a vehicle to develop a new national
ideology, unity and communication between government and people, and to mobilize popular
support and develop a sort of “general will
FIGURATIVE ILLUSTRATION OF SEPARATION OF POWER

LEGISLATIVE Executive Judiciary courts
CONGRESS president
Law Maker Law enforcer Law interpreters
Montesquieu formulated the separation principle based on his perception of the 18 th century
British constitution. It was an odd interpretation the UK constitutional arrangements did not
then, and certainly do not now, observe the separation of powers as Montesquieu and view
under stood it in this country, as in most parliamentary executive systems, there is no
separation of persons between the legislative and the government cabinet and other Ministers
sit in the House of commons. Even, it may be said that the judiciary is not entirely
independent, since its head the Lord Chancellor, is both a member of the cabinet and sits in
the House of Lords. Further, English writers on constitutional Law tend to be dismissive of
the Separation of powers. They point out that in this country ministers and Administrative
bodies are frequently given authority by Act of parliament to issue general rules, known as
delegated legislation, in other worlds, the executive legislatives. Moreover, statutes give local
authorities and other bodies’ power, for instance, to decide applications for planning
permission and to grant various types of license; these decisions may be regarded as ‘judicial
and so more appropriate for the courts. Similar Developments have also taken place in the
united state elsewhere.
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Commentators, therefore, often conclude that the principle is of little value. Certainly, these
arguments reveal difficulties in what is often termed the pure separation of powers principle
that is the theory that there are three clearly distinct functions of government legislative,
executive and judiciary and that they should be allocated to different persons or bodies.
It may be claimed for example, that it makes no sense simply to characterize some type of
decision as ‘judicial’ rather than ‘executive and then to allocate it automatically to judge
rather than administrators. It may be better to allow on administrative authority or benefits
provided perhaps that there is some judicial control to see that procedural fairness is
observed. Further, there may be good practical arguments for instance, within the framework
of powers conferred on them by the legislative. However, these points miss the significance
of the separation of powers principle.
The principle is concerned with the avoidance of concentration power. What it requires
above all is that, each branch of government is liable to check the exercise of power by the
others, either by participating in the functions conferred on them, or by subsequently
reviewing the exercise of that power. As its framers intended, the principle is reflected in the
scheme of the US constitution. The legislative power for instance, is allocated to congress,
but the president may veto a bill if he does not approve it-through the veto may then be
overridden by 2/3 majority in both houses of congress. The constitution also implicitly entails
the Supreme Court to invalidate legislation, or acts of the executive, which exceeds the
powers conferred by it on congress or the president. This version of the separation of
principle is often known as the partial separation theory because unlike the pure version, it
does not require that only one institution exercise a particular function of government. More
helpfully perhaps, it is also known as the system of check and balance since it sets up
constitutional procedures under which institutions check or balance the exercise of power by
other authorities.
The US constitution, therefore, adopts this second version of the separation theory, as does to
some extent any constitution under which the courts can review the constitutionality of acts
of the legislature and government. The major contribution of Baron De Montesquieu that
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influenced and shaped the constitution of United States is there his principle of checks and
balances.
Dear student, you will see the concept of checks and balances visa – visa separation of power
among the governmental organs as a separate issue in the next section.
The concept of Checks and Balances

I. Introduction
Check and Balances, the doctrine and practice of dispersing political power is creating
mutual accountability among political entities; such as the courts, the president or prime
Minister, the legislature and the citizens. The diffusion of power and the mutual
accountability are designed to prevent any single group or individual from dominating the
political system. Political systems with checks and balances sometimes have a separation of
powers- that is, an allocation of different political and legal functions to separate and
independent branches of the government.
II Origins of the concept
The concept of check and balances can be traced to ancient political philosophers, such as
Aristotle and Plato. In their view, the best form of government included mix of different
types of power. An ideal government would include elements of monarchy (rule by
hereditary right), Aristocracy (rule by a few for the good of all) and Democracy (rule by the
people). In its earliest formulations, the concept of checks and balances thus emphasized
dividing power according to the segments of society.
Such a mixed system, they thought, would be more likely to achieve the best balance
between the pit falls and strength of each form of government. Many centuries later, some
countries in Western Europe began to institute elements of checks and balances.
Parliamentary challenges to English royal authority in the 1640s, for example, led King
Charles I to accept a system that combined monarchial power with Aristocracy and limited
democracy.
This power struggle between the long parliament and Charles I led to temporary expansion of
parliamentary authority in the late 17th century which become permanent in the 18th century.
It was in this period that the English legal scholar William Black stone describe the /English
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system as achieving an ideal balance among Democracy, Aristocracy and monarchy. The 18 th
century, French political theorist Baron Montesquieu also observed the functioning of checks
and balances in English politics. Montesquieu theorized a scheme of Checks and balance that
advocated the assignment of separate powers to monarchy Aristocratic and Democratic
political institution.
In additions, Montesquieu argued in his study the ‘Spirit of the law( 1748) that the best way
to provide a check against the abuse of power by monarchies was through intermediary
bodies that the monarchy could not abolish, such as the church guilds, and professional
associations. The dispersion of power to these institutions outside of government would
make it difficult for the government to abuse its authority.
Montesquieu, along with many theorists before him, assumed that, balance could succeed
only in a society with a relative small and homogeneous population. American states man,
James Madison reformulated the theory of checks and balances in the 18 th century, decisively
challenging the earlier views. Madison argued that the larger the society, and the more
diverse the interests of its in habitants, the more likely each fraction was to block and to
thwart the interest of other faction seeking control. This would prevent formation of a
permanent majority that could oppress the minority groups or interests.
Madison understanding was central to the writings of the constitution of USA, which
incorporated separation of powers and many checks and balances. The concepts of checks
and balances and separation of powers have similar intellectual origins. Some scholars regard
the ideas as identical, but others emphasized the ways in which the concepts differ. In
determining whether the concept differs, it is important to note that there are political
systems that have checks and balances but very little separation of powers.
This suggested that the two concepts should be regarded as different. Theory of separation of
powers, moreover, calls for a division of government authority. However, says not thing
about power elsewhere. In contrast, theory of checks and balances regards power outside the
government as an important limit on government abuses so, although the concepts are
similar, the notions of separation of powers and checks and balances can be regarded as
distinct.
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III .checks and balances in USA government

A system of checks and balances is a basic feature of united state government. The
mechanisms of checks can be seen through five basic institutional features of the system.
The first check comes from the fact that different branches of government have overlapping
authority, so each branch can act as a limit on the other. For example, the president can veto
an act of congress.
A two – third majority in the congress can then over ride the president’s veto. The president
appoints major federal officials, but only if the senate by majority vote agrees. The president
administers the affairs of the federal government, but congress control the federal budget.
Congress makes laws, but the court interpreted the meaning and the end may even trick down
a particular law if it violate the constitution. However, congress may propose amendments to
the constitution to overrun a court’s rulings; this amendment must then be ratified by the
states.
In addition, court decision can be overruled by higher courts and later, by judges who might
choose to consider the issues. Furthermore, the president appoints the judges subject to the
states approval. However, the federal judges have the lifetime appointments, so the next
president and congress cannot simply remove them from offices. Nevertheless, if the judges
or other certain officials including the President commit crimes congress may impeach them
and they remove from offices.
A second checks come from the division of powers within the legislative branch. Each house
of congress provides checks against the other, because both must agree on the exact wording
in a bill in order to pass it into law. This check forces legislature to consider issues and
constituencies that do not affect them directly. Third, congress can regulate many local and
state activities, especially when there are conflicts between one state and another. But
congress has limited powers and is made up of representatives elected from the state in turn
have a check on national affairs.
Fourth, check is on the power of lawmakers themselves. They are accountable to the people
through election their power is not based on a birthright or social status as it is in monarchial
or Aristocratic political systems. In the United States system if the lawmakers take actions
that are unpopular, they can be removed from offices in the next election. Moreover,
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lawmakers are elected in different ways. A member of house representative elected from
single district within a state, while a member of a senate elected by all the voters in the states.
All the nations’ voters elect the president, and this national election requires a winning
candidate to address diverse constituencies. The varied methods of electing political leaders
bring assorted political perspectives and interest into the governments and these can be a
check on each other.
The fifth check on the government emerges from the civil liberties protected by the
constitution, including freedom of speech, freedom of the press, and freedoms of association
and assembly. These rights ensure that if the government takes improper or unpopular actions
newspapers and other media can bring the actions to public attention citizens can speak out
against the government and try to effect change. This check on government power is
informal but spread throughout the population.
Not all parts of the suited state government have checks and balances. The Federal Reserve
System, for example, has few institutional limits on its authority to set monetary policy.
Where checks and balances are in place, they are not always efficient. The power of different
elements of the political system to block each other can lead to gridlock if no political
interest has enough power to prevail over the others. In 1997 and early 1998, for example,
the senate refused to take action on many of President Bill Clinton’s appointments of new
federal court judges. Although the senate’s power to approve or reject federal court nominees
is one of the key checks on presidential authority, the dispute between Clinton and the senate
meant that there were not enough federal judges to handle the court’s workload. However,
the system of checks and balances was not designed for efficiency or speed, but rather to
prevention misrule and tyranny.
Iv. Checks Balances in other countries

In the 18th and 19th centuries, many European countries replaced monarchial rule with
democracy. This meant that the authority of the king’s and Queen’s was replaced by the
authority of an elected executive, usually a prime minister. Legislators and courts have
become central features of these democracies and most created basic civil liberties. As a
result, in many countries the systems of checks and Balances that was initially created to
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balance monarchy. Aristocracy and democracy was gradually transformed in to a system to

balance executive, legislative, judicial and popular power.
By the late 20th century, nearly all economically developed countries had incorporated
elements of checks and balances into their political systems. Even in countries such as
Britain where there is relatively little separation of government’s powers, government
institutions still have checks on each other. The British parliament, for example, selects the
countries prime Minister, but the prime Minister, can be removed through a majority vote by
parliament of no confidence. This means that even though the chief executive is a member of
a legislature he/she does not have unlimited power one’s in office.
Many countries impose limits on one of the strongest checks on Government authority.
Freedom of speech even some otherwise democratic countries have legislatures that can
effectively impose bans and books, Films, or other materials that they deem obscene or
treasonous. In addition to act as a court of appeals for important cases diving the lawmakers
the power to both write and interpret the laws.
However, many countries have strong systems of checks and balances. South Africa for
example, has a special constitutional court to act as a check on the judiciary, executive and
legislature. Countries sometimes create independence agencies to handle politically sensitive
free from outside interferences. The South African government for example, created the
Truth and Reconciliation commission in 1995 to investigate crimes committed during the
apartheid era.
In any political system, a system of checks and balances functions effectively only if the
public and political leaders agree on the basic elements. Then formal checks and balances
written in to the laws may not have any effect at all. The constitution union of socialist
Republic, for example, created an independent judiciary and guaranteed civil liberator for
individuals. However, these were undermined by the system’s lack of legitimacy.
The communist party dominated the political system and manipulated the courts. The lack of
an independent judiciary meant that soviet citizens could not press for change without fear of
NSS 46
arrest or other retribution. As a result, scarcely any limit was imposed on government
authority by the courts or from public protests.
Activity 2.4
Answer the following question on the space provided
1. What are the major roles of Thomas Hobbes in the English revolution?
___________________________________________________________________________
___________________________________________________________________________
_________________________________________________________________________
2. What is the philosophical ground of Locke’s conception? How does it influence the
constitution of US?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
______________________________________________________________
3. What do you think is the common ideas shared by both lock and Rousseau?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
______________________________________________________________
4. Mention the cultures and traditions that influenced the emergence of constitutional
ideas in ancient times.
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
______________________________________________________________
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UNIT THREE
Principles of constitutions
Introduction
Dear, student these unit deals with the principles of constitution, function and purpose of
these principles. It also deals with how these principles of constitutions ensure popular
sovereignty and mechanism of exercising popular sovereignty. The unit began with defining
the principles of constitution by dividing the unit into different topics and sub-topics.
Objective
At the end of this unit, the students will be able to
 Describe the principles of constitutions.
 Enumerate the functions and purpose of constitution
 Discuss about peaceful transition of political power
 Explain the concepts of separation of power and cheek and balance
 Understand about the concept of secularism.
 Understand the techniques of constitutional interpretation
 Elaborate the historical evolution of popular sovereignty.
 List the mechanism of ensuring popular sovereignty
 Explain the importance of due process of law
 Differentiate limited /constitutional government from unlimited etc
3.1 The Rule of Law

What do you understand by the rule of law?
The rule of law means that no one is above the law.
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It means that the law should be implemented fairly and consistently. The rule of law means
that a police officer of any government officials has no power to perform whatever he/she
likes against citizens. When everything is done according to law, there is a rule of law.
The rule of law represents one of the most challenging concepts of constitution.
The rule of law is a concept that is capable of different interpretations by different writers;
and it is these features that provide an understanding of the doctrine elusive of all
constitutional concepts. The rule of law is the most subjective and value Laden.
The rule of law is measured by the conformity of the legal system of standards such as
independency and impartial laws, public law and the likes.
A society in which government officials have little (no discretion) has high level of rule of
law. Rule of law state that, power should be assumed in accordance with constitutional
provisions, and forbid government officials at all levels from taking actions in violation of
the law of the land and against basic right of citizens.
Activity 3.1
Dear students, what will occur if there is no rule of law in a given state?
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When there is no rule of law in state, there would be unlimited use of power. Unlimited
government power jeopardizes freedom of citizens. The absence of rule as means
arbitrariness, lawlessness, disorder and destruction. Absence of rule of law leads to conflict
and instability since one cannot forecast what will occur next
 What does arbitrary power mean?
 Arbitrary power is a power that is not ordered by anyhow/
reason, which is simply based on personal whim of impulse.
- If no rule of law, there would be disregard to the legally established and fair
procedures necessary to take action or resolve social problems. Absence of rule
law may influence (destroyed mutual respect and tolerance of social groups) and
hence resulting in the absence of equal protection of citizens right by law.
- In a condition where there is no equality before the law, there would not be
independent and impartial judiciary. Hence, lack of the rule of law has a number
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of consequences. Conversely, the existence of the rule of law has many

advantages.
Activity 3.2 would you mention the advantages of the prevalence of rule of
law?
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The principle of rule of law plays a pivotal role in bringing peaceful life to society, since it
promote the human relationship in the society. The relation between individuals, state and
peoples; between governments organs will be properly regulated by law if there is rule of
law. In a system where there is rule of law, government officials and ordinary citizens act
only in accordance with constitutional provisions. Hence, the rule of law is an important
instrument for peace and stable life of society.
The rule of law is important for developing popular confidence in public affairs. The
existence of rule of law creates predictable environment. It also creates clear boundaries and
definable standards that can be measured by individuals, business and society.
The rule of law invites everyone with equal opportunity to choose right from wrong. It is
strongly believed that the well functions of legal institutions and government body by the
rule of law can creates fertile ground to economic growth, political modernization, the
protection of human rights and the like.
- The modern understanding of the concept rule of law reveals four meanings.
- The legislature must not pass discriminatory law with respect to individuals
classes of person, minority groups, not interfere with religious beliefs; place no
restrictions on freedom of speech, assembly that is, the legislature expect not to
enact discriminatory laws and laws that limit the human rights of individual.
- The prevalence of law made by legislature don not guarantees the rule of law. The
law made by legislature must be enforced and executed.
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- The executive organs of government must be effective in maintaining law and

order and in ensuring the socio – economic and political conditions of life of the
society.
- The administrations of justice must accommodate the due process law. The law
must ensure, restrictions on powers of arbitrator arrest and detention; provision
not legal advice, the right to fair hearing, including the call of witness; the
rejection of evidence collected by discreditable means; the requirement of public
trail, the provision of right of appeal, etc.
- The prevalence of an independent Judiciary with security of tenure. That means
court should not be influenced by the pressure from another organs of government
which passing decisions.
Moreover, the judges should not be removed from their duties before they reach
the retirement age, unless they are removing for reasons of disciplinary matters or
in capacity of judges.
Limited Government and Rights of Citizens

Government varies according to the criteria for classifications. For instance, on the basis of
economy or economic system you can classify as slave owing, feudal, capitalist, and socialist
government. Similarly, based on sovereignty, government can be grouped in to unitary,
federal and nonfederal; you can also group government in to monarch, oligarchy and limited
(democratic). Let us present about limited government.
Limited governments are government that rule according to constitution as opposed to

arbitrary government. They are also called constitutional government. That means the rule
dominate the government is the constitution that guarantees the power government. The
existence and the functioning of the people have a constructional guarantee in limiting of
constitutional government. Hence, the concept of limited government is inseparable from
constitutionalism, since the whole purpose of constitutionalism is to have limited government
the government that respect and recognize the constitution and act according to the rules of
the constitution.
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One of the most basic features of limited constitutional government is the exercise of both
human and democratic rights. Citizen can exercise their rights and duties through active
participation. The participation citizen may take many forms including standing for election,
voting in election, debating issue, attending community or civic meetings being members of
voluntary organization, etc are example of participation that people can have in constitutional
limited government.
The American model: Listing citizens rights

The contrasts between statist and federalist approaches to political life reflect the differences
between systematic and prismatic approaches to understanding civil society.
The systematic approaches seek to define everything comprehensively, to set boundaries.

The prismatic approach, recognize how all the universe is interconnected, seeks rather than to
establish separate cores and to understand how each core has to be received and responded
differently from different perspective. Boundaries need not to be clear.
Interaction is more important than definition; hence, emphasis on multiple politics related
one another, united yet separate a logical contradiction from the perspective of systematic
philosophy, but clear reality from perspective prismatic thought.
Applied to political believe or to some extent all political believer can be seen from both
perspectives, but it is possible to see politics and their politics as founded more one and some
on the other.
Take the case of United State and Canada. Efforts to compare and contrast those two
countries are endemic and properly because the two countries are neighbors so alike in so
many ways relative to another countries and yet so different in so many critical ones. Hence,
the application of systematic and prismatic model is helpful in explaining their differences.
Among the modern politics, the united state notion of federalism mostly rooted in systematic
understanding. The very form of its founding is almost the epitome of philosophically
systematic founding dominated by the act of the will as laid out presented through
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foundational documents and executed territories that were either formally bounded or
intended to be formally bounded from the first. All of this culminated from the America
revolutionary and constitutional period when new policy with fixed boundaries, and divided
in to two states and localities with fixed boundaries developed as a set of foundational
documents by force will that, while wisely taking in to consideration the political realities
confronted by new nation, those political realities in to a Comprehensive system of
government . . . as the federalists put it, through reflection and choice rather that force or
accident; that is to say in most systematic fashion.
Behind those acts is life with systematic view of what a new country and its policy should
like. True, there were debates over the precise character of the systematic view but all except
the most extreme deviants who placed themselves out of political games as a result their
deviance, shared the same basic systematic understanding differed on what outside would
have to consider matter of nuance and emphasis rather that fundamental principles.
Thus, Thomas Jefferson and his committee could write the Declaration of Independence,
which gained immediate assent on the part of the new American public (those who did not
assent to it either withdrew from public life or left the country by the thousands to settle in
what became Canada’s Martine provinces and Ontario.
Article of the constitution and confederation of 1787 continued that pattern. The ease with
which the latter came be not only accepted but hallowed even on the part of those who
opposed its adoption reflect the way in which common pattern of systematic thought was in
operation for all parties to the same. The other founding of documents of the period reflected
the same-shared systematic view.
Not only that, but also this shared systematic perspective and understanding continued
through the civil war. What is striking about the debate over union (secession was that both
shared very similar premises. Both began by arguing that their view should prevail over the
whole union. Yet aside from the issue of slavery, the differences between Northern and
Southern positions never become as great intellectually as they became in the reality of civil
conflict, since both side shared the same fundamentals of systematic understanding.
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Hence, after the civil war reconciliation could be relative easy weghsut irredentism of
continued sectional strife outside of the normal party political realm. Both north and south
argued that the state had to be restored as state and the people of both regions recognized
their fundamental loyalty to the united state as a whole. This consensus has continued to the
present time, even though the shape of the understanding has been altered from time to time.
Even the possibility of seeing the United States in prismatic way is quite new, although it
was tentatively suggested in the cultural pluralism is melting pot debate of the early 20 th
century. Only since the 1960s and the new discussion of multiculturalism has a serious
prismatic model of or understanding the United States been advanced and issue with regard
to it is still very much in doubt.
 The Canadian Model; reverse federalism
Reverse federalism contrasts is the American systematic model with Canadian self-
understanding of Canadian polity. Canada was founded by different peoples, at first
principally the French, then the peoples of British Isles, particularly English, Scots and
welsh. The country was only unified because of a series of wars and conquest where by the
British Empire conquered French, Canada and imposed its rule on the habitants.
Thus, Canada was born out of at least three different perspectives of what it was; one, the
English Canadian perspective that saw Canada as loyal Anglican outpost of the British
Empire faced with rebels and secessionist to the south and a conquered alien population
in Quebec.
The second, the French Canadian understanding of themselves as conquered Catholic people
who had to find ways to survive by entering in to a limited compact with their English over
lords to maintain as much free space for themselves as possible. Third, there was the
perspective of the Scottish farmers and English fisherman of the Maritimes, who were simply
looking for a better livelihood in the new world.
The result was that, Canada has no common systematic construct as its foundations; rather
three different understanding of what it was and is to by each view of the whole through a
different prism. The English Canadian see Canada as an extension of the British empire with
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some new opportunities, the French Canadian see at best compact between two equal and
very different people that would enable them to preserve their lives, religion, culture,
heritages as each saw fit. The other British people who saw Canada as a protection that
enabled them to be left alone. The history of Canadian nation building and constitutionalism
is the history of bringing these three perspectives together in to a workable whole.
NB. It is not the history of the development of common vision to be pursued by all. Not only
that, but it never gave birth to such common vision at least not one that could weaken
(replace the basic difference of culture, Language and heritage that lay at root of the prism of
this polity. In 20th century as people from other courtiers, first European and then the African
and Caribbean as well began to settle in Canada in numbers, Canada responded
pragmatically, making the idea of multiculturalism, i.e. the endorsement of multiplicity as a
key Stone of its policy of nation building Whether or not Canadian multiculturalism has
worked as it was originally expected to its matter that is open to debate , but what it certainly
has done is reinforced the idea of Canada as prismatic society rather than one seeking a
single systematic structure for itself.
What makes all of this prismatic is that; it is not only that different ethno-cultural groups or
ethno-religious groups look through prismatic but some look through territorial and some
through non territorial ones, a matter flat has been exuberated by the adoption of the
Canadian character of rights which makes it possible for groups with neither territorial nor
ethno religious foundation on find their own prisms and to make the rest of the country take
them in to consideration.
The contemporary Canadian polity began as what might be referred to as “the Ironic
confederation” Sir John A. Macdonald, its leading founder, who probably would have
preferred a Unitary state had once been possible, did not like the term” federation “ because
the United State was a federation and in the 1860 s was engaged in great civil war.
Sir John feared that if Canada were identified as federation, it would feed similar fissiparous
tendencies, so he chose to all Canada a “confederation”
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In doing so, he applied the term in exact reverse of what convectional usage had come to be.
Federation were more tightly linked entities where a common national government
shared power with sub national constituent (federated units), while the essentially
independent constituent polities surrendered some limited share of their powers go to general
government that only could exercise that power through the constituent units. Sir John
sought to turn that pattern around. Hence, the British North American acts has no reserved
power for the provinces but rather reserves not all power granted to them to the federal
government. The providences are not directly represented in the senate, which reflects the
country’s regional grouping but whose members do the federal parliament rather than being
represented alive of any providence appoint.
Thus, while the U.S. constitutional history can be portrayed, albeit portrayed over
simplistically as a series of swing between greater nationalization and greater location, in
Canada political while those swing may have occurred on the ground, Canadian political
and constitutional doctrine did not so much swing between those poles but rather re defined
its prismatic perspective from time. Canada to day really is a confederation in the classic
definition of term, giving Sir John a linguistic victory but displacing his hopes almost
totally.
Examine the perspective of the two founding nation of Canada. In general, one might say
that the British perspective was imperial, Tory, Ashcan, aristocratic and organic, that it to
say that British the empire commanded the royalty of the British in Canada. They were over
whelming high church and Tory in their political orientations. They believed in an arise to
critic system with leading families at the top hierarchy and clear class line, this society
which they viewed as organic; that is to say, where even one was to know his/her/place.
Central to the French perspective was that they were a conquered people controlled by an
alien even an enemy, conqueror of different and heretical religion. Their major goal was
survival. Because the French who settled Canada were mostly from the peripheral areas of
France . . . Brittany and Normandy in particular. . . and is usual in such cases not from the
highest classes, they had come to Canada with the sense of being peripheral and thus, as
they came to dominate their own colony, the conquest even more problematic for them. As
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Canadians, they saw themselves as the part bilateral compact with the Anglophone not as
the citizen of one province among money others
Generally, a better understanding of Canada and Canadian can be derived by gaining a
better understanding of what constitutes that prismatic unity and how it is forged and
maintained.
3.2. Popular Sovereignty

Sovereignty is the supreme political power vested in him a those act are not subject to any
other and who will cannot over ridden. (Grotius).
Sovereignty is the commanding power of a state, it is the will of nation organized in a
state; it is the right to give unconditional order to all individuals in the territory of the state.
(Dupuit).
The sovereignty of the state issue orders to all men and associations with in its areas; it
receives orders from none of them. It will be not subject to legal limitation of any kind.
What it proper is rightly by mere announcement of intention. (Laski)
Sovereignty is the strongest power and supreme authority within state, which is unlimited by
law or anything else, since otherwise it would neither be strongest, nor supreme. (Donald
F ).
Popular sovereignty implied highest power of the people. It constitutes the foundation of
democratic order.
Popular sovereignty is usually a very serious matter bothering all states due to especial
legal, political, and diplomatic consequence which sovereignty brings to the state. Once
community attains sovereignty, its rights and obligation in international relation
dramatically changes. It brings such rights as to make decisions as a matter of ultimate
authority not to be subject to any outside supervision. It also empowers the state to make
international relation as an independent pattern with all rights to undertake all types of
contracts and treaties.
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It equally brings such duties to the state to be subjected to the established norms and laws
that governed interstater relation.
In ancient times, the Romans held the view that the authority of the common weight was
derived from the corporate power of the people. During later medieval, period it was
reiterated by the precursors of the councilor movement like William of Ockam and
Marsiplio of Padua. However, its best exponent is Rousseau of France who idealized the
theory of social contract by holding the view that the authority of the state was based on
“The general will of the people. Among the nation builders of the United States, Thomas
Jefferson harped on theme of the highest authority the people. Since then this idea has
become an integral of democratic theory, thought in actual practice it assumes the shape of
political sovereignty. So says Garner; “ un organized public opinion, however powerful, is
not sovereignty unless it is clothed in legal form, no more than the informal or unofficial
resolution of the members of legislative body in law. The sovereignty of people, therefore,
can mean nothing more than the power of majority of electorate, in a country where a
system of approximate universal suffrage prevails acting through legally established
channels, to express their will and to make it prevail.
From monarch to state of the people
3 .1. What do you think about monarchy?
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Monarchy comes from Greek words; mono and archien, which means rule of one. There
are two types of monarchies. These are absolute monarchy and constitutional or limited
monarchy. Absolute monarchy is a form of government in which one person is sovereign.
. Whatever the form is considered as right. The king is considered as the breathing
images God on earth. Thus, no citizens are permitted to opposed kings but obey them.
Hence, monarch is considered as a divine institution that is, institution granted by
command of God.
Absolute monarchism was common in ancient and medieval age of Europe. The Greeks,
Romans and Jews opposed absolute monarchism in ancient times. By opposing absolute
monarchism, the Greek and Romans established state of the people in ancient times.
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Similarly, the Jews opposed absolute monarchism and established theocratic form of
government. Theocracy means rule by priest. Thus, priests governed the Jews until they
established modern parliamentary form of government. By the end, 17-century absolute
monarch began to decline due to the growing influence of rationalism, capitalism,
individualism. These three concepts began to shake the foundation of absolution
monarchism.
Because of these three concepts, monarchism began to decline at the end of the 17
century. For example, England became the first country to eliminate the concept of
absolute monarchical government. In 1688, immediately after glorious revolution,
parliament took political position from the king. Since then England was transformed
from monarchism to constitutional monarchism.
A century later in 1789 France followed the footstep of England and established a
republic based on the principle of liberty, equality fraternity. Since 1870, absolutism
never came to Frances again. In Austria, Hungary, Russia and Germany monarchism was
continued until the end of world war the first. In Russia, monarchy was out casted in
1917 because of the great October socialist revolution. In Austria-Hungry, monarchy
ended in 1918 when the empire of Austria was abolished. Similarly, Germany became a
republic in 1918.
Activity 3.2
Do you know about republic?
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Is a system ruled by elected officials rather than hereditary?
In Ethiopia, monarchism lasted up to 1974 when the last emperor, Haile sellasie I was out
casted by a military Junta, named the Dergue.
Generally, this different social revolution took place at different place and time that
created the fertile ground for the abolishment absolute monarchy and the establishment of
state of the people. Hence, the above-mentioned revolution marked the begging of
modern democracy that the people today enjoy exercising the state of the people.
- People as a source of political power.
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- Means that, it is the people that have the ultimate authority in any decision
making; it is the people that makes or amend the constitution; that elect its
representatives and leaders to their political positions. Hence, the people must be
vested with sovereignty.
Activity 3.3 Who is Sovereign in Ethiopia?
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According to Article 8 of the FDRE constitution, all sovereign power resides in the
people of Ethiopia (Nation, nationalities and peoples). The Ethiopian have adopted the
FDRE constitution by their wish and the constitution is considered a political contract
entered in to the people among themselves. It is by a way of this constitution that they let
the establishments of various state organs by defining their powers and functions. The
ultimate decision-making, the people are expressed through the constitution they adopted
and the representatives they elected and through their direct participation. Hence, the
sovereignty power of the people is expressed through three ways.
 Thought the constitution
 Through their representatives by the producers of election
presented by the constitution and other
 Election laws
 Through their direct democratic participation
Ways of ensuring popular Sovereignty

Activity 3.4
Dear students, what are the instruments for ensuring popular sovereignty in democratic
government?
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In a country that follows democracy as a system of government the sovereignty of the
people is expressed through their constitution election and through their representatives.
Since constitution is the supreme law of the land, all citizens, organs of state, political
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organizations, other associations as well as the government officials have the duty to ensure
observance of the constitution and to obey it as the constitution is the fundamental law of
the land and act and behave according to the constitution. Hence, constitution is one means
of ensuring popular sovereignty.
It is a fact that in democracy the source and owner of government power is the people (the
sovereign). According to the principle of popular sovereignty, the coming and establishment
of government should be based on the will of people and the will of the people is formally
and profoundly expressed through political election.
Dear students what comes to your mind when you heard the word election?
Election means the actor process of choosing a person for office, position, or member ship by
voting. It is a means of making political choice by voting and is used in the selection of
leaders and the determination of issue. It is a system in which citizen elect those who can
pursue their current desires and need to form government and implement them. It can be seen
as a means of telling to elected officials whether he/she has still received a mandate from the
people.
Hence, they are instruments in which citizens evaluate the realization of the promise they
made when elected. If they like what has happened they can vote for continuation, if not,
they can vote for change. Thus, election can be defined as an instrument of exercising basic
democratic principle of popular sovereignty.
Representation is another ways of ensuring popular sovereignty. Representatives of the

people are expected to reflect the wills of those who elected them. The focus of
representation varies between constituency, partly, interest and policy. For instance,
constituency based representation is aimed to secure /provide service of the area that elected
them, while the interest focused representation consider the assembly members as spokes
person for particular interest groups in the society.
This means that when assembly members represent particular interest groups they thinker at
their first duty is to support the interest of that group.
Policy focused representation is aimed to achieve the policy goals. This means that members
of the representation struggle for the improvement of national policy. Many assembly’s
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members are not very active in that way policy oriented members may be pushed by
ideological commitments to improve public policy. The American congress, with its strong
commitment and weak party cohesion, favor policy focused representation. Hence, from the
above discussion we can generalize representation as-
 The process through which the attitude, preference, view points and desire of the entire
citizen /part of them are expressed, approved, shaped in to governmental action, on their
behalf by a smaller number among them, with binding effect up on those represented them.
While agreement with such definition German social theorist Robert von Mohl offers his
unpretentious interpretation. According to him, representation is the process through which
the influence which the entire citizens or part of them have up on government action, is with
their expressed approval, exercised on their behalf by small number among them, with
binding effects up on those represented.
3.3 Constitutionality (Constitutional Order)

 Legitimacy, Authority Sovereignty
Legitimacy is a condition for govern next to be legal acceptable in the eyes of the people and
externally. Many states have tried to achieve legitimacy through democratic election while
others through socio- economic transformation. Now a day, there are only a few governments
without any of legitimacy ruling the people by force of arms /it indication and other means.
The stability of popular or democratic political system depends not only up on economic
development, but also up on its legitimacy and effectiveness. Effectiveness of political
legitimacy is judged accordingly, how well a political system performs its function.
The reaction of most of the people and their powerful groups, legitimacy includes the
capacity to produce and maintain a belief that the existing political institutions or forms are
the most appropriate for the society.
Legitimacy is the foundation of political power as much in it is exercised both within
conscious on government’s part that it has right to govern and with some recognition by the
governed of that right.
The idea of political legitimacy should be studied is the context of ‘usurpation’ and
revolution ‘. While usurpation of power is always a legitimate act, revolution may, and may
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not, belong to such category thought one may find fault with the personal subjective attitude
of the observer. Simply stated, the idea of political legitimacy is integrally associated with
forceful revolution that exhibits its appreciation by the masses. If a revolution succeeds, it
introduces a new principal of legitimacy that suppresses leads to the rightness of the former
system. Under such circumstances, recognition by the people will often be acquired only as
the new regime begins governing and the process of becoming legitimacy may include
violence and terror foreign diplomatic recognition, which not essential may help internal
consolidation and therefore expend it accept once of the new pattern of legitimacy.
Authority sovereignty: - is the real capacity of government to exercise its legitimate
/illegitimate political power to rule the people effectively.
Authority supplies strength to give decisions and implement them accordingly .Some state
have such required authority while others like it due to illegitimacy or political inefficiency.
Allegiance and Disobedience are the two known factors that affect authority.
Allegiance: - refers to the capacity of the government to produce many followers among
the people who support it from their heart and in principle. Such government has a better
chance to fully implement its plan and policies.
Disobedience: - the failurity / in ability of the government to cultivate / produces a good
number of followers who support it. Such government applies either force or illegal act as a
means to get the alliance of the people
Peaceful transition of political power
The transfer or succession of government’s power peaceful or without blood shade /violence
are possible only through periodic elections by citizen. Both the legislative and executive
organs of government come to office when citizens elect their representatives directly
/indirectly. Therefore, democracy enables the transfer /succession of political power without
blood shade and violence. In fact, it is not only election that can bring the transfer or changes
of government , but what is essentially unique to democratic system of election is that the
change of government can be effected peacefully and without violence.
The stability and peaceful transfer government power are maintained only through
democratic election. This is because that the election establish government on the wide
consent of the people, provide popular interest in government, respect for law and
cooperative feelings which are essential for ensuring stability of government. Moreover, in
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democratic country since election are period, the people can wait the coming elections for
removal and out cost un popular government from power than looking for immediate
government withdrawals , as they are based on the principle of political equality among
citizens government established through democratic election are immune from revolutionary
disturbances.
Majority Rule and minority rights

Democracy requires government decisions to be based up on majority rule. In democracy,
people usually accept decisions made by majority of the votes in free election.
Rule of majority also implies that the laws enacted in the legislature represent the will of
majority of law makes by them. Since people elect law makers and thus accept law made by
them. However, democracy requires attention and concern for holding the possible tyranny of
majorities. A decision made by majority may not win the support of all. Our world is full of
people with divergent interests and view. In a democracy decision are made based on
interests and the will of majority, and the decisions made by majorities prevail over that of
minorities. That is the idea received large number of votes, in election, in parliament, or local
community meetings prevails over those few who disagree.
Nevertheless, democracy is not a system in which the views and rights of minorities is
suppressed/violated. It is important to note that an idea that has minority support today could
if properly addressed, be transformed in to an idea of the majority in the future. For instance,
to punish the minority for its dissect by threats of bodily harm, exile, or expropriation is not
acceptable in democracy.
Minority should be given with the right to freely express their views, peaceably assemble and
to bring petition to government for the redress of grievances.
Secularism
Activity 3.4 what do we mean by Separation of state and religion?
Why and how do we separate state and Church?
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________________________________________________________________
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What are the consequences for religious liberty?
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The religious war of the 16th and 17th centuries convinced the state of Europe that they led
no choice but to put themselves above the factions. Only by loosing their favored religion
and guaranteeing a free space for every religion where they able to channel religious
competition away from violence.
As religious become a dangerous and dividing power, it became clear that the state had
to separate itself and from the church, not only to keep the peace, but also to maintain
itself.
The US constitution inspired by the characteristics religious diversity. Of course, the US

itself is the result of imperfect religious liberty in Europe. In the US the separation of
state and church was instituted in the first Amendment , more specifically the part of the
amendment called the “establishment Clause””C” congress shall make no law respecting
an establishment of religion.” Religion liberty and equal respect for all religion was also
instituted in the first amendment more specifically in the part called the “free exercise
Clause”. Congress can make no law . . . prohibiting the free exercise of religions.
The effort of western democratic state to separate them from religion is not based on
negative value judgment about religion as such, but simply on the need for peaceful
coexistence, tolerance, and mutual respect between religious and these tolerance and
respect should promote the rights to equal liberty of all religion. Separation of state and
religions therefore is a means to protect religious liberty. By removing it and to favor
religion, a state is no longer tempted impose that religion and persecute other religion. IT
will stop favoring the official religion and imposing competitive disadvantage on non-
official religion.
And this need for peaceful co existence, tolerance and respect will only become more
important in an organization in which global mostly and globalization encourage co
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existence of and hence completion between different religions. If a multicultural state to

day aligns itself with no particular religion, even is very loose way it authority as arbiter
between religions and as a peacemaker, and it will undo equal religious liberty because
its association with the religion will necessarily favor this religion and give it more
power and hence more freedom.
The question whether there should be separation is settled in all modern democracies,
precisely because the salience of these reasons. Sure, other reasons for and satisfaction of
separation are citizens as well and can be just as convincing to some. Law based religion
should be rejected because they show disrespect to people adhering to other religions or
these peoples fairs to see the legitimacy of these laws; in the worlds of rules to common
human reasons” i.e. Secular reason; religious inspired laws often imply violation of
fundamental rights etc. Whatever the reason given, most democratic citizen accept that
there has to be some kind of separation. The only disagreement remains is the
degree/type of separation.
Should religion be completely banned from political and public discussion?
On the other hand, can they accommodate when other, secular reasons are available
i.e. the lemon texts and when the law in question does not harm fundamental rights? Those
others questions remains essentially controversial. We will see the crude typological forms
of separation that democracies can do and apply in the following section
.
Both religion and politics are about the realization of morality. Both encourage people to
engage in some forms of action and to disengage from another form of action, and the
distinction between forms of actions is a moral one in both law and religion. Both the law
and religion differentiate between right and wrong action even if, they may not always use
the same adjective (the law does not talk about sinful behavior for example)
Both use ritual and judgment .Of course, some religions- notably the Abrahamic religions-
tend more to wars the legal made of thought than others, Confucianism by contrast, sees the
laws negatively, as impediment to the international norms of conduct, and therefore an
obstruction to virtue. Let us now discuss the mode of separation. In an effort that is clearly
bordering on the simplistic way six types of relationship exist between politics/law and
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religion, in descending order of separateness, from complete separation to complete lack of

separation.
Secularism of strict separation

According this view, there should be an impregnable wall between church and state
(Jefferson’s “Wall of separation”), and the government should essentially secular. The
archetype is of course French laite (often translated as “secularism”, the product of countries
nefarious involvement by Catholics in French public life. It entails the rejection of
involvement in religious affairs as well as religions absence in government affairs, by the
ways. That includes rejection of religion in public education.
Secularism implies a restrictive understanding of “private life” where religion is supposed to

belongs. “In public” (which includes public schools) religions peoples act as citizens
(“citoyens”) and appears such (hence the controversially over Muslim dress in France).
Secularism produces a reasonable level or religious freedom in society and private life but
often relatively harsh restriction on religious activity in government, law, politics and public
life.
Another problem is that it seems impossible to avoid those religious values and religious
moral sensibilities influence the law. Moreover, even if it were possible, it would be
undesirable view. Religion can be a valuable source in public course.
1. Neutrality
Neutrality compared to secularism, also separated church and state but it imposes less severe
form of exclusion of religion from government, legislation and policy. It forbids government
from favoring or advancing a particular religion over other religions, but it also forbids
favoring secularism over religion. Notwithstanding the worlds of Jefferson quoted above,
neutrality rather than secularism is a typical of current interpretation of the U.S. constitution.
Religion is allowed a far greater role in U.S. public life than France. Elected politician in the
U.S. regularly invoke religion and religious reasons are often used for justification.
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Yet, the US government cannot provide tax money in support of religion , for example, or
impose school prayer in public schools, not even if students can excuse themselves (of
course, prayer at school is not forbidden as such;
Accommodation
Accommodation compared to neutrality, is still a system in which church and state are
separated, but not in an even degree. Accommodation permits a government to acknowledge
that religion is an import act force in society, and only prohibits laws that either coerces
religious activity fair to trait different religion equally. A state can favor a religion without
coercing it. Examples of government interference is with religious that accommodation
would allow are: the use of public (i.e. government) school faultiest by religious groups,
government aids ( financial) to religious or school prayer if students are not forced to
attend or if different religion get equal prayer time.
2. Establishment
An even lesser form of separation occurs when one church is established. Church (e.g.
church in England) but other religion are still tolerated and have measure of freedom.
Establishment can mean either “a state church “or a state religion”
A state church is created by the state as in the cases of the Anglican Church or the church of
Sweden. An example of “state religion” is Catholicism in Argentina. In the case of the
former, the state has absolute control over the state church, but in the case of the latter, in this
example the Vatican has control over the church.
The problem here, is that non established churches, although they may be tolerated and even
enjoy a large measure of freedom, are not treated equally, perhaps not by the law but simply
because of their lack of equal recruitment power, so they are disadvantaged and hence
there’s no equal religious freedom.
Even if absence (non) official religion are not actively persecuted of discriminated against,
they are worse off when one religion is established because they have less means to influence
the public as the official state religion. They are not as free as the official religion.
3. Entanglement
This take establishment a step further, the state’s favorite religion is longer a “primus
interpares”. Other, non-official non-established, or favorite religion suffer not just
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competitive disadvantage because their non-official character, but also relatively sever
restriction of their non-official recruitment efforts, their freedom of worship etc.
4. Fusion /theocracy
Law and religion are the same, and separation is effectively and completely undone. The law
is an instrument in the realization of religious law and morality. Rather than merely
competitive disadvantage /restriction on worship and recruiting, religion suffers out right
prohibition and discrimination. Of course, the same can occur when a state has adopted
atheism as its official ideology and actively persecute religion as such, rather than some
religions in particular. However, this has become the exception since the demise of
communism occurs in court rise such as Cuba, China and North Korea.
Some claims that certain modern Islamic countries that have implemented sharia law are
example of theocracy. However, is a pure theocracy is possible?
Not even the totalitarian interpretation of religion will unearth rules for everything.
Hence, some laws are bound to be rooted in something else than religion. We see that
theocracy, like the other extreme (secularism); find it difficult to remain pure.
Separation and Liberty
Now, if you see that the separation between state and church is necessary for the protection
of religion liberty, then it may be useful to compare, these six different types of separation /
going to from complete separation to complete absence of separation with regard to
respective consequence of religious liberty of each
More secular
Less religious liberty
Establishmen
Accommodat
Less separation
Secularism
entanglement
of state and
Theocracy
Neutrality
church
ion
t
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Fig1. Religious liberty and degree of separation of church and state

You see from the figure that secularism performs slightly less well with regard to religious
liberty than neutrality or accommodation, but better than establishment and obviously better
than entailment and theocracy (the later receiving zero score) . Difficult to say whether
neutrality offers more religious liberty than accommodation vice versa
Two-in three people in the world today leave countries with high level of restriction on
religion. The reports gauge the level of restriction due to both government actions and acts
violence and intermediation by private individuals, Organization and social groups. From 64
nations, about one- third of the countries in the world have high level of restrictions on
religion. Religious minorities often feel the brunts of these restrictions more directly.
Among all world geographic religions, the Middle East and North Africa have the highest
government and social restriction on religion, while the Americans have the least restrictive
region on both measures. In 175 countries, or foul in the countries in the world, National or
local government’s limits efforts by religious groups or individuals to persuade others to join
their faith. In 178 countries (90%), religious groups must register with the government for
various purpose, and in 117 (59%) countries the registration requirements resulted in major
problems for or outright discrimination against certain facts (source more liberty).
Secularism and religion in multicultural age
3 .5 Activity
What would be the relation between religion and the state in liberal democracy today?
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The original liberal settlements of this question forged against the background of protracted
sectarian conflict in early modern Europe, devised pragmatic solution of separation between
the two domains. This move generally subsumed under the rubric of secularism and secular
State arguably has been a stunning achievement for the past few countries. However, liberal
societies today are under serious strain and facing nations. Suddenly, questions are now
being posed that previous were considered settled.
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Until recently, the prevailing view was that the religiosity in western democracy would
attenuate with each generation, reflecting the march of secularization and the forces of
modern consumer societies. This attention, it was believed, would parallel the expected
eclipse of identities more generally. For example, by the 1980s evangelical groups and the
moral majority had become significant players in American politics. Even as traditional,
institutions forms of religiosity, such as church attendance, were dissipating across
continental Europe, Britain and its off shoots such as Canada and Australia, new forms
religious expression and the intensification of religious sentiment were being observed
.
Western democracies today being challenged by religion along three intersecting fault-lines.
The first is the background context of all discussion of religion in the modern west, i.e. the
aforementioned traditional liberal quest to separate religion and politics for the sake of peace
and mutual protection of both. While there is, of course, wide variation among liberal
democracies in the way that it is institutionalized and practiced, church-state separation
remains a defining feature of all liberal societies, part of the sorting out the appropriate
demarcation of the private and public domains as new cases present themselves.
The second fault-line is much more recent. It emerges with the rise of identity politics in the
United States and beyond in the 1960s, and the advent of multiculturalism as state policy in
places such as Canada and Australia in the 1970s. On this newer, multicultural model, the
emphasis has been on publicity supporting accommodating and even celebrating ethnic
diversity.
Again, there is wide variation among liberal democracies in this respect. Nevertheless, it is
fair to say that all liberal democracies have felt three tensions between the religion and the
increasing demands for cultural recognition and accommodation in the name of
Multiculturalism.
A central question, here, has been when the multiculturalism violates or better realize
fundamental liberal democratic values like equality, autonomy and toleration.The third fault
line has opened up more recently again, it is a product of significant Muslim immigration to
the west, especially to Europe.
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Canada and the antipodes, the view increasingly put that the Muslim presence challenges the
liberal secular state and the Muslim on “Core” liberal values and politics, while Multi-
settlements governing religion and politics; while multiculturalism is blamed for encouraging
cultural relativism and social segregation, and sowing confusion about the appropriate
boundaries of the tolerable. However, secularism denotes the idea that the state or political
authority should not be in the business of imposing or advancing or privileging any particular
religion or religious belief or religion in general. The initial point to create a space in which
different faith communities might coexist amicably. This elementary idea of state neutrality
has been variously practiced on the advanced basis of prudence, toleration, indifference and
respect for persons.
Whatever the underlying principle, there are at least two senses in which religious identity
must be credited as being different or special in the context of any liberal society, one is that
religion is integral to the history of liberalism. It was out of the bloody religious wars and
persecutions of the sixteenth and early seventeenth centuries that liberal ideas and institutions
evolved.
While some have traced the idea of religious toleration back to medieval political thinkers
(e.g. Nederman and Laursen 1996: Laursen and Nederman 1998), the prevailing view
continues to link it to the changing attitudes to heresy and heretic-chiefs, the acceptance of
religious coexistence over persecution, that look hold in the wake of the religious conflicts
and protestant reformation in the sixteenth century. Here, the attempt to avoid religious
conflict was one of the main motivations behind the idea of separating a public sphere of
activity appropriately where the state ought not to concern itself.
Moreover, as Jonathan Israel (2006:65) notes, early Enlightenment thinkers (1650 – 1740s)
drew on and reinterpreted scripture to fashion their arguments for toleration, since religion
was then all-dominant and its vocabulary was the only language everyone understood. This
formative relationship has bestowed on religion a special significance and sensitivity in
liberal thought and in the affairs of liberal societies and likely always will.
It is, however, a later historical development that has increasingly distinguished religion from
other forms of cultural identity in liberal society.
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The rise of nation –state from the early 18th century witnessed the conjecture of political
authority and the consolidation of particular language and cultural identities (Taylor -1997).
The religion model and nation-state model thus have different logical and press in opposite
directions; whereas secularism aims to preclude government from discriminating on the basis
of particular religions the nation-state aims to produce and reproduce a particular language
and culture.
To be sure, both models witness many variations. Some liberal democracies continue to have
state or established churches through protecting the religious freedom of other faith
communities (e.g. England, Greece, and Denmark); some have official ties to a particular
faith, such as the catholic honor religious neutrality by supporting or accommodating many
privatizing all religion (France, the United states). At the same time, liberal nation-states are
limited in how far they can impose a particular national identity courtesy of the commitment
of individual and democratic rights, although here again, there is considerable variation
among actual cases, the point nevertheless remains vague; the nation-state model aligns the
state with particular cultural identity whereas religion model generally seeks to preclude
regarding religious identity. So, religion is uniquely situated in relation to the liberal state. At
the same time, religious identity is also a kin to other cultural identities in many respects.
What is puzzling about this account of the distinctiveness of the religion model is that the
origins of so-called church-state separation were themselves largely rooted in a neutral or a
pragmatic response to the thorny problem of endemic religious conflict.
Activity 3.6
Why would a model that is itself the product of pragmatic thinking rule out pragmatic
reasons as legitimate bases of political intervention?
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One might say the model inscribes a prediction, in this case, about the perils of political and
religious entanglement based on post experience, which no one wishes to repeat.
But, meaningful predictions are open to empirical falsification. It is hard to see how various
kinds of state recognition commonly extended to religious minorities from conscientious
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objection to tax subsidies, compromise religious freedom or fan the flames of religious
conflict.
Constitutional Interpretation:-
The interpretation of the constitution can be conducted by the judiciary or other organs
empowered to interpret the constitution (in Ethiopia, it is House of Federation that
empowered to interpret the FDRE constitution. However, the Ethiopian courts have also
powers to interpretation.
Constitutional interpretation envisages a situation where somebody tries to reveal the intent
of those who drafted the constitution and the electorate who ratified it. Constitutional and the
interpretation usually required conforming the constitutional provision to the prevailing
circumstances.
It may slightly modify the values of the constitution so that the changing circumstances are
imbalanced by the constitution. Hence, interpretation does not necessarily change the basic
concepts of the constitution. However, the changes introduced to the constitution should not
be considered as trivial. In many nations, the constitution is mainly changing through
interpretation than other processes. The top of the factors for interpretation of statutes’
constitutional interpretation has its own peculiar character; such peculiarity has to do with the
very nature of constitution and the purpose for which the constitution is enacted. The judge is
required to interpret the constitution by putting into consideration of its special nature. This
makes constitutional interpretation different from other forms of interpretation. This fact is
clearly demonstrated by Brandies stone (in Mohammed; 1999: 6-7) in such manner:
Constitution is primarily a character of government .Hence, its provisions were to be read not
with the narrow literalism of municipal codes or a penal statute, but so its high purpose
should illuminate every sentence and phrase of the document and be given effect as part of
harmonious frame work of government. Most of constitutional provisions are coined with the
words that have broad meaning. This tendency creates a situation of more room for
interpretation. The latter in turn leads to two circumstances; firstly, it makes earlier to
accommodate new circumstances that have not been contemplated by the legislature.
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Secondly, it widely opens the gates for the individual sense of justice to prevail. In such
connection, Marshall has this to say in Mcculloch V Marlylan case:
“We must never forget that it is a constitution we are expounding . . . intended to endure for ages to
come and consequently to be adapted to the various crises of human affairs.”
To have prescribed the means by which government should in all future time execute its
powers.
The body that entrusted with the power to interpret the constitution preserves the supremacy
of the constitution by nullifying laws that contravene it. The separation of powers under the
constitution serves the end of democracy in society by limiting the role of several branches of
government and protecting the citizen and various part of the state itself against
encroachment from any source.
In order to preserve the constitution’s tenet of limitation of power of the government, the
existence of the authority to sanction unauthorized action of each branch of government is
important. Such ends can be reached only through constitutional interpretation and
constitution decides on the constitutionality of acts of various branches of government. If the
said act is in consistent with the constitution then it is considered to be null or void.
Therefore, constitutional interpretation can serve as a means for conserving the doctrine of
separation of powers and limitation of powers of government.
One of the primary functions of constitution is to lay the structure of central and local
government. Towards that end, constitution contains detailed provisions of allocation of
power between the various levels of government. Both level of government (central and local
government), are required to act within the sphere of their power, otherwise, that act is
considered to be invalid. Hence, in order to ascertain whether any level of government acts
interpretation is an indispensable instrument. By so doing, it serves as a means for effective
and smooth functioning of federal structure of government as example. Scholars explain that
the legal interpretation is also the basis of the principles on constitutional interpretation; In
reality, we can support the idea that legal interpretation and constitution interpretation are
based on the same principles.
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In Ethiopian context, it was argued by Assefa that in contrary to USA and Germany
constitutional interpretation is a political one, because it is given exclusively to the house of
federation, which is a political body. In the notes, it was not argued that legal and
constitutional interpretative processes are identical but they are based on the same principles.
This is also true for the operations of the house of Federation with regard to constitutional
interpretation. The process of constitutional interpretation is given to the two bodies: ICT and
House of Federation, but the nature of the process is not changed by kinds of procedures. If
the constitutional interpretation by house of Federation would be a political one, it would be
an act of law giving and therefore, conflicting with the competences of the House of People’s
Representatives.
With regard to the USA’s constitution, H. Jefferson powers, concludes:

“It is commonly assumed that the “interpretative intention” of the constitution would be
constructed in accordance with what future interpreters could gather of the framers’ own
purpose, expectations, and intentions (wellington 2005:50).”
Power is criticized for seriously diminishing originality that would be other than we interpret
the constitution because he intends the interpretation to be used for the future. So how we
interpret constitution?
We have to start with the authoritative sources of law and should do so (wellington;
2005:48). The text of constitution is authoritative. It is as vague, sometimes ambiguous,
which needs elaboration. The search for authoritative source of law is therefore the search for
interpretative tools (wellington 2005:48).
3.7 Activity
What is authoritative source of the constitution?
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There is profound disagreement over what authoritative one of the points of disagreement in
USA relates to the constitution that interprets the constitution. The question is ‘who interpret
the constitution?’; Some authorities believe that when the text of constitution is not clear, the
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question of authority and the question of control are both answered by reading the text in the
light of original intent.
These assert that interpreters should find original intent. By original intent, they mean the
intent of the framer, or force as well as the intent of those who have amended the
constitution. Some also emphasize the intent of the delegated to the state ratifying
conventions (wellington 2005:49).
Americans take in to account the nature of the constitution while interpreting it. It is a
constitution; “not a tax code” because it is open texture and vague. Its nature is political and
its structure brings the court into the interpretative process only where there is a case or
controversy.
The congress has made its policies choices, and given the constitutions’ political nature, the
court must be extremely differential to the congressional decision. This is the limit of its
authority (wellington, 2005:77-8) In general, some jurisdictions give the power to interpret
the constitution to the court or other political bodies. The political, historical and
philosophical factors peculiar to a given nature influenced the constitutional tribunal’s
jurisdiction, composition and procedure to be followed. The cultural-led system, on the other
hand, empowers one single special constitutional court to interpret it. For example, the
government’s constitutional court is conferred the power to interpret the constitution. The
court does not settle ordinary disputes unless the case involves a constitutional interpretation.
 The Federal democratic Republic of Ethiopian constitution {(Art.62 (1) and 83(1)}.
1. The Canon or principles of legal and constitutional interpretation in

constitutional law
There are basically four main groups of theories of methods of interpretation; the literal,
intentional, systematical and teleological.
When it is desired to establish how the constitution controls the state activity in particular
field, it is necessary first to ascertain the meaning of the relevant constitutional norms.
To do this, the following criteria of interpretation, the so-called canons of interpretation, are
traditionally applied: verbal meaning grammatical construction, statutory context,
interpretation of the original legislator and teleological aspects. The application context of a
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particular set of fact implies that the legally relevant facts can both be extracted and
constructed from many circumstances. Interpretation and establishing the factors of the case
are interwoven together. Norms are formulated and passed with reference to reality.
Depolarized public bureaucracy

Activity 3.8
Dear students what comes to your mind when you hear the word bureaucracy?
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Bureaucracy is one way to organize the public administration. The word bureaucracy is often
used in common language to mean public administration, with the connotation of state.
However, social scientists have precise meaning for it: a particular made of administrative
organization that was developed as a reform in the nineteenth century and spread widely to
the most generally used mode today. Although known by many good and bad nomenclatures
like political executive, permanent, executive, officialdom, official despotism and the like.
Bureaucracy means a group of persons (not some mysterious super entity such as suggested
by the term “state”) who perform definite functions, which the community at large considers
worthwhile they are supposed to be neutral in the politics of the country and experts in the
field of administration. However, when such experts control their political chiefs who
constitute the lay element of government, it becomes Bureaucracy.
Thus, a government is said to be bureaucratic when largely ministerial bureaus carry it on
and in which important policies are determined and decision are rendered by administrative
chiefs of small bureaus. In a wider sense it means any government the administrative
functionaries which are professionally trained for public service and who enjoy permanency
of tenure promotion with in service being partly by seniority and partly by merit. Hence,
depilate citizen public bureaucracy gives us the concepts of neutrality of public services
with the idea that each public /civil servant must be free from politics. It implies anything
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like strict impartiality, anonymity, obscurity and political aloofness of public /civil servants.
So, the requirement of administratively competent, politically neutral and imbued with the
spirit of service to the community. Here the work of civil servant is implementing the
politics, which is designed by the government. Hence, it stressed that civil servants should be
committed to the idea of the constitution as well as to the cause of service to the community.
As the administration must be in tune with the public opinion and changing needs of the
society, the public servant has all along of be a student of public opinion , but no party
politician .
 The German sociologist, Max Weber state, “Bureaucracy in the form of his theory of
bureaucracy rationality”. He termed authority of the bureaucracy as rational-legal
and suggested certain features of this system having universal relevance that are
termed as ideal types.
3.5. Democracy, Freedom and Equality

One of the most difficult questions to answer satisfactorily is the definition of democracy;
there is no agreed upon definition. At the same time, some definitions are so vague while
others are specific but, the term democracy seems that as everybody understands what all is
about strictly speaking; there are a conceptual and methodological difficulties in
understanding and defining democracy. In this case one difficulty of defining democracy
arises from the fact that the dynamics of political system in continual state of evolution.
Things that are inconceivable in the political climate of one period of history become not
nearly possible in another. These evidences give a wide range of varying definition to
democracy. In another words to incorporate a wide range of political systems, democracy has
developed many workable definitions.
 Is a form of administration, which is conducted, with the freely given consent of the
people? This means that a form of government whose activities are based on
agreement of the people.
 Is a system of government in which supreme authority rests in the hands of the
people? I.e. ultimate power comes /emanate from the people. This means that it is the
people that delegates power to government.
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 Is a majority rule in which minority rights are protected within the rule of majority,
minority groups regardless of race, color, language etc… have the right of full and
free existence. It is evident the rule of majority can be effective only with the
protection of minority rights.
 Is a system of decision making in which leaders are more responsible to the interest
of the people.
Equality
Democratic society emphasizes on the principle that all people are equal. Equality means that
all individual are valued equally; Meanings the condition of enjoying similarities, privileges
and protection and being subjected to similar duties. It refers to identical treatment of person
regardless of sex, religion, ethnicity, color, social status etc...
However, the principle of equality does not indicate the physical, mental or economic
equality of individuals.
In other words, equality does not deny physical, mental and economic equality in the
peoples; rather it implies, as all people are equal before the law, have equal opportunity and
equal treatment.
Activity 3.9
How people are discriminated on the basis of sex, language and religion?
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In many cases, women and men are not considered as equals in many states of the world.
women have been one of the severely discriminated groups. They have been considered as
inferior to men. This is what we call gender inequality.
Transparency and Accountability

3.10 Activity
Dear student; how you understand accountability?
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Accountability means that the representatives of the people must make decision that reflect
the thirst of the people, they must be responsible to the people and to their actions either
individually or collectively.
Why it is necessary for government official to be accountable to the people?
The rationale behind this is that official powers are just emanating from the people. It is the
people who delegated their power to government officials. Since they are the proper and the
original owners of power, they are superior to government officials. I.e. logically, the former
is accountable to the superior as trust here, which symbolized government system,”in trust
system which is composed of the truster (people and the trustee (government officials). The
truster (the people ) have greater power that the trustee (government officials is logically
accountable to the truster .
Transparency
Activity 3.11
What does transparency mean?
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Transparency refers to the ideas, procedures, actions and decisions that the government and
its officials should be clearly known to the people. For the government to be accountable to
the people. there must be transparency in government. This means the people should know
why and how important government policy decision is being made. Transparency simply
means openness.
To promote transparency, media should be independent and government should provide the
media with sufficient information concerning activities; thus, free media with better access to
government information is likely to promote openness in government.
Since the media can offer, bilateral communication by bringing information from the
government to the people and vice versa .
Citizens Participation: Equality of opportunities

Equality of opportunities means the provision of adequate opportunities for all. However, this
does not mean simply identical treatment for all. Since men differ in their needs, capacities
and efforts, they require different opportunities for their self-development. The native
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endowments are by no means equal. The goal of equality of opportunities is achieved only
when there is an appropriate opportunity for each. What is to be equalized is not opportunity
to enter profession or to be successful in business but opportunity to lead life, or to fulfill
ones personality. The liberal doctrine of equality strictly speaking, stands on the private of
the equality of adequate opportunities available to every member of society. That is all
people have liberty to compete in the midst of equal opportunities with the result that those
who can make best use of their chance may go ahead of others. Inequality in the midst of
equal opportunities is thus valid affair. The doctrine of equality of opportunity is the product
of a competitive and fragmented society, a society in which individualism in Tocqueville’s
sense of word is the reigning is ethical principle.
Separation of powers and checks and balances

The theory of separation of powers, coupled with the theory of checks and balances, belongs
to the functional concepts of political organization. The idea of the separation of powers
implies that the government should have three organs (Legislative, executive and judiciary
and that the powers rather than functions, of all should be separated from one another. This
theory rejects the theory of duality.
Duality theory of separation of powers state that government has only two organs,
Legislature and executive and take judiciary as the sub –organs of the executive.
Instead, it sticks to the trinity theory according to which government has three independent
organs of function of each should be separated from the function of another’s. The liberty of
individuals should be saved from the crushing authority of state. Allied with it is the doctrine
of checks and balances, according to which the three organs of government should be
interlinked with each other in a way that one acts as a check on the other- with the result, that
condition of balance is created. Both thus ideas were emerged towards the end of the 18 th
century where the people were struggling for safeguarding their liberty against the
encouragement of the state and at the same time when the government was referred to as
being irresponsible and despotic, it believed that by these devices any single organs of
government would be prevented from becoming too strong that their liberty would be
safeguarded .
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Separation of powers; as pointed earlier the doctrine of separation of powers implies that
there should be three separate organs of government with their separate state functions and
powers. In another words, it implies that the three organs of government should be kept apart
from each other in interest of individual liberty. The function of government should be
differentiated and performed by different organs consisting of different bodies of persons so
that each department be limited to it is respective sphere of activity and not be able to
encourage upon autonomy and jurisdiction of another. The whole ideas based on the maxim
that ‘power should be a check to power’.
Thus, the constitution should be designed in a way that no organ of government be

made to do things to which it is not obliged ( empowered ); legislative body are consumed
within the making of law , the executive officials engage in the enforcement of the law that
the legislative already made, the judicial official interprets the meaning of the law and
application of the laws to the individual cases of dispute . Hence, according the theory of
separation of power, these functions should performed by different bodies, persons that each
department should be confined to its own sphere of action without encouragement up on the
others and that it should be independent with that sphere is called the theory of separation of
power.
The idea of separation of power is very old. In ancient times, Aristotle classified the section
of government as legislative, executive and Judiciary, writing the Roman republics, Polybius
and attributed its excellence to time systems of checks and balances and separation of power
in it is organization. Towards the end of the middle ages, Marsiglio of Padua, who drew a
clear demarcation line between the legislative and executive functions of government,
stressed it. In 16th century Bodin picked out the danger of allowing the monarch to administer
justice and on that ground argued that judicial function should be interest to independent
magistrate .
James Harrington argued a clear separation between legislative and executive departments
and also believed in the value of elaborate devices to secure the system of checks and
balances.
A better exposition come from John Locke who said that “it may be too great a temptation to
human frailty , apt to grasp power for the same person who have the power of making laws
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to have also in their hands the power to execute them, whereby they may exempt themselves
from obedience to the laws they make”.
However, the best exposition of this doctrine is contained in the work of Montesquieu who
should be described as the worth discipline of Locke’s as well as the father of this doctrine .
He said “When the legislative and executive power are united in the same person, or in the
same body of magistrate there can be no liberate because apprehension marquise lest the
same monarchy or senate should enact the tyrannical law and execute them in the tyrannical
manner.” Again, there is no liberty of the judiciary power not be separated from legislative
and executive. Where it is joined with the legislative the life and liberty of the subjects would
be exposed to arbitrary control .
Where it is joined to the executive power the judge might be with violence and oppression.
Checks and Balances:-

The theory of checks and balances states that, each department should share powers of the
other and exercise certain control over their action. This is known as the theory of check and
balances.
The systems of checks and balances supplements the system of separation of powers; the
purpose of both is the same – to safeguard liberty of the individual for instance, while
referring to constitutional system of the United States, we may say that executive authority is
the president, but it is checked by the congress and the supreme court. The senate must ratify
his appointments and treaties and his decrees can be declared null and void by judiciary on
the ground of being unconstitutional. The legislative authority is with the congress. However,
the bill passed by the congress must receive the assets of the president. Finally, the judicial
powers are given to the judges of the Supreme Court and all Federal Court.
However, the theory of separation of power is not free from critics. They are subjected these
lines of limitation:
 It wrongly focused on complete separation of functions since government as organic whole
and it imposes to make a clear cut functional demarcation line supplementation with the
system of checks and balances removes some defeats, but still some remains .
 It stands on the assumption that the government comprises three organs and all organs are
equally important. As such all, the three organs should be given equally independent position
in the political organization of the country.
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 The interpretation of Montesquieu cannot apply to country having parliamentary system of

government where the legislature and the executive branches are combined. The ministers
are members of the legislature and they are accountable to the people through their elected
representatives for the act of commission and omission
 While the theory of individual liberty should be appreciated, its implication should be
thoroughly examined but the critics may say that, this theory does not ensure a condition of
complete safeguard of liberty. These may be better and effective in this regard.
 Stephen Leack makes a point that when he says:-“ the law enforced by the executive
and adjudicated on by the courts would still be the law made the legislature” .It is to be
noted that such law might conceivable be extremely tyrannical and unjust. The executive and
the judges would still have to apply it and thus, the separation of powers and itself would
offer no guarantee of individual liberty.
 Separation of powers starts from separation of persons.
What does separation of person mean?
 Separation of persons means that one person should not be a member in the
legislative, executive and Judiciary at the same time; one man can be only a member in one
organization of state. In another words, members of the legislative cannot be members of the
executive and the judiciary and vice versa. One man cannot at the same time be, lawmaker,
executer, and judge.
Activity 3.12
Do you think that separation of power brings that separation of person?
You can use the space left below to give your response
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Without separation of persons it cannot be a meaningful separation of powers. A scholar
named, Montesquieu stated that separation of powers is necessary for political liberty. By
political liberty, Montesquieu meant a stability of mind arising from the opinion each person
has of his safety. According to Montesquieu mind cannot be at rest if two or the same
persons) hold three kinds of governmental powers in the same hands.
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Advantages of separation of powers.

 Prevent the majority from ruling with Iron fist
 Avoid arbitrary power and tyrannical rule.
 Protects the liberties and interest of citizen
 Guard against passionate partiality, absurd judgment, ambitious self serving behavior
by governor and the in efficient performance of function.
 Promote Independence and proper functioning of the organs.
 Avoid power monopoly by one man /organ one institution.
 Enhance responsibility and Accountability
 Provide the system of shared power known as cheek and balance
Activity 3.13
How can separation of powers be possible either horizontally or vertically?
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Separation of power can be done vertically /horizontally. When the separation of powers
takes place between two distant levels of government (as the federal government and state
government), it is called vertical division of powers. This kind of power division is found in
federal state in nature. When separation of powers take place among three organs found
within each level of government we call it horizontal division of powers. In the case of
unitary state structure, power division, if it exists is only horizontal. In the cases of federal
state structure, both vertical and horizontal division of powers may exist. The acceptance of
both horizontal and vertical division of powers signifies double security against usurpation of
oppressive rules. Whatever the form may be, democratic system, there should be separation
of powers.
3.6. Justice
Retributive justice: - The idea of retributive justice though it has late been widely attacked
and has been declined greatly in popularity, retains a strong hold on men’s minds. There can
be doubt that the settlement affairs of nation at the close of present conflict, the conception of
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justice as retributive will, as it exercises a powerful influences on the passion and

deliberations of many participants.
Nor does the doctrine lack of contemporary theoretical support systematic arguments in its
behalf still appearing in philosophical and theological literature, though by far preponderance
of present day critical opinion ranges from itself against the doctrine.
Due process of law

The main objective of incorporating the concept of due process of law in constitution is to
protect the right of person from arbitrary actions of governments. Due process of law is the
bar and limitation on the powers of the government. Different definitions are given to due
process of law. The following definition is the most accepted definition. Due process of law
is a law that hears before it which proceeds up on inquiry, and renders judgment after trial.
Many constitutions of the world have a phrase; “No person shall be deprived of life, liberty
and property without the due process of law”. As many experts of constitutional law believe,
and according to the interpretation of UN commission, life, liberty and property mean
everything. There is nothing outside life, liberty and property. For instance, the right to life
may mean everything that enables an individual to enjoy life. This is to mean that anything
that affects the enjoyment in the life of individuals may be taken as the violation of this right.
Acts such as causing bodily injury, creating health problems etc… are infringements upon
the right to life of an individual. Intervening in one’s home and locomotion, or interfering in
one’s ability to use his facilities forcibly etc… may be infringements upon one’s right to
liberty. The same thing is applicable with the right of property. Due process of law may be
divided as substantive and procedural. Substantive due process requires the lawmaker to
make fair and reasonable laws. It is expected that the law maker to make laws, that is not to
interfere with the right to liberty , life and property of individual. Capricious and arbitrary
laws are against the principles of substantive due process of law.
Procedural due process expects the government to act and behave in accordance with the law.
If anything goes against this then the procedural due process is violated.
Due process of law comprises at least the following:
 Notice: - before the course or government department makes decision, notice must
be given to the one who is affected by the decision. One must be know what is going
on. For instance, assume that the government with its respect is a regulatory organ of
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the with respect to public health. Before removing the license of certain hotel, it is
expected to give it a notice. The same is true with litigating parties.
 Impartial tribunal: - an impartial tribunal should always give Decision. Usually it is
believed that ordinary courts are impartial and they do not favor even the government
when one of the parties is the government.
However, this does not mean that the tribunal must be always an ordinary court.
 Counsel: - Not everyone is expected to be an expert in law. Hence, he/she needs the
assistance of lawyer to defend his/ her case well. If he/she has no sufficient means to
have counsel, the government must provide a counsel. For instance, in Ethiopia, the
government supplies defense counsel to an individual if his/her case is serious .
 Cross-examination: - one must get opportunity to cross-examine the witness who
stand against him
 Evidence: - one has to know what evidence is presented against him, moreover, he
must be given opportunity to present any relevant evidence that he thinks would him
in the litigation
Decision must always be based on the evidence presented and they need to be reduced in to
written form.
Debates on interpretation of constitution

Who interprets constitution?
In some jurisdictions, the law making organ has the power of interpreting the constitution
(e.g. Ethiopia), but in others this power is given to either regular courts (e.g. USA) or
especial courts (e.g. France, South Africa)
Activity 3.13
Which system is better? The one, which gives the power of interpreting the constitution to
the courts or to the law-making organ.
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
Giving the power of interpreting the constitution to courts, some people argue, against the
ways democracy works. Interpreting constitution involves looking into whether or not certain
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legislation is in harmony with the constitution. It means an organ endowed with the power of
interpreting a constitution has a power to see whether certain legislation is in line with a
constitution and declare the legislation void if it finds the legislation inconsistent with the
constitution. If courts can overturn legislation stating that the legislation is against the
constitution, then the fate of public will end up to be determined by judges, not by
representatives.
Law-making organs are composed of publicly elected officials and these officials, as the
representative of the public, tend to reflect the will of the public and are very responsive to
the public, but judges are not directly elected by the public and because of the secured tenure
they have, they may not be responsive to the call of the public. Thus, it is inconsistent will
the principles of democracy to allow judges laws enacted by the law-making organ in the
name of interpreting power of interpreting the constitution to the lawmaking organ.
However, others argue that it is not right to give the power of interpreting the constitution to
the law-making organ. If the law-making organ given this power, it means it made judges on
its own case. It is very hard for the law-making organ to see its law as against the constitution
and hold it as void. Even it is argued that if the law making is given the power of interpreting
the constitution, it is highly possible that constitutionally guaranteed rights can easily be
eroded by the political power, which manages to secure a majority seat in the law-making
organ.
Activity
Can you explain how constitutionally guaranteed rights can easily be eroded if the power of
interpreting the constitution lies with the law-making organ?
___________________________________________________________________________
___________________________________________________________________________
_________________________________________________________.
Proponent of giving of power of interpreting to courts further argues that judges are more
trained and experts of the interpretation of the laws and as constitution is law, it is feasible to
leave the power within the courts rather that with law-making organs. However, the
opponents argue that constitution is not simply a legal document, is also a political document
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and questions arising from the constitutions are not legal questions but also political and
political questions must be entertained by political organ and thus the interpretation of the
constitution must be left to the political organ. i.e. the law-making organ.
There is also argument that giving the power of interpreting the constitution to the courts
cements the implementations of the principle of “check and balance”. What do you make of
this argument?
___________________________________________________________________________
__________________________________________________.
In Ethiopia legal system the power of interpreting the FDRE constitution is given to the
House of Federation (see, Art-of the FDRE constitutions, House of Federation is the low-
making organ, but it is possible to argue that downsizes of giving the power interpreting the
constitution to a low-making organ as identified in above discussion and addressed.
Can you explain how those problems associated with giving the power of interpreting the
constitution to the law-making organ are addressed in the case of interpreting the FDRE
constitution?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
In answering the above question place, take note of that fact that the house of Federation is
involved in the law-making process in very rare circumstances; that the house of people’s
representative is the one passing the laws. The other fact you must take note of is also that
the body called the “council of constitutional inquiry” assists the house of Federation and this
body includes judges and lawyers as its members.
Principles of interpretation
In this sub-section, we will discuss the various modes of interpretation, the two methods in
the interpretation of a constitution and the debate over those methods.
A. Modes of Interpretation
Constitutional interpretation may take various forms such as textual, functional and
structural. Textual interpretation refers to the kind of approach courts take when interpreting
other legislation. Thus, if the organ with a power to interpret the constitution prefers to use
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this approach, it must stick to the text of the constitution and tries to interpret it on that basis.
This kind of interpretation is focusing on finding the meaning of a constitution in a way,
which is traceable to the context of the constitution.
The other mode of interpreting a constitution is using a functional” approach. In this
approach, the constitution is interpreted by moving to a higher level of generation than the
text of the constitution employs. Such interpretation is sought to give effect to the overall
function served by a particular provision.
The USA supreme court uses this way of interpretation to determine whether the congress’s
(the law-making of USA) act giving judicial power to the administrative agencies is
constitutional or not. The court ignoring the relatively clear text of Article III of the
constitution, which rests judicial power in judges (courts) hold the act of congress giving
judicial power to the administrative. The court arrives at this conclusion following the
functional line. The court holds that the function of Art,’ I’ vesting judicial power in courts is
avoiding congress’s influence in decision of cases and, thus congress’s act giving power to
administrative agencies to adulate case must not be held as against Art III of the constitution
if the danger of congressional influence over a category of cases is zero and if the congress
interest in referring those cases to be adjudicated by administrative agencies is efficient and
expertise.
Activity
Some people argue that “social courts” and other tribunals set up to handle land lease
disputes are unconstitutional. Can we use the functional approach to interpret the FDRE
constitution provisions to show that they are not unconstitutional?
___________________________________________________________________________
___________________________________________________________________________
_______________________________________________________________________.
Interpretive methods
There are two competing extreme positions on methods of interpreting constitution. The first
position is known as the “originalist or strict interpretivist “position. The other position on
the opposite extreme is known as “non-interpretialist “or “fundamental rightists”. Of course,
there are positions that may fall between the two position of the two will not discuss them
here as the discussion of the two extremes will in a way introduce you those hybrid positions.
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The proponent of the former position hold that in interpreting the constitution, the interpreter
must rely on the values that directly traceable to the text of the constitution or its history .
They argued that the interpreter must go for the original intent of the framers of the
constitution, it is illegitimate go beyond that. The proponent of the latter position, however ,
hold that in interpretation of the constitution it is needed to go beyond the text of the
constitution to find fundamental values using contemporary notion of fairness.
Activity
Which position do you support the first or the latter?
_________________________________________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
Debate over Interpretive

The originalist hold that, as we have discussed it above, that interpreters of the constitution
must rely on values not directly traceable to its text or its history in the interpretation of the
constitution. They argue that if interpreters are free to go beyond the text of the constitution,
then interpreters will start to write their own values in the constitution in disguise of
interpretation. There will be no guarantee that interpreters will not write their own political,
economic or social views in the constitution in the disguise of interpretation.
They assert that once text and original intent are abandoned, there are no limits to what
values interpret could ascribe to constitutional provisions. Thus, the originalists stick to the
idea that interpreters of the constitution must rely on the values and principles that can
directly be traceable to the text and history of the constitution. However, the originality view
is also controversial as it raises many questions. The first difficulty could be that the original
intent of the framers can be undiscoverable.
Even it is difficult to get it from the minute of the meeting of framers in the drawing up of the
constitution. In the minutes, we find a range of opposing views over a certain matter and it is
difficult to know which view finally gets its way in to the constitution.
Activity
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How do we understand here the originalist idea that “the intent of the framers must be sought
for in the interpretation of the constitution” and with the idea that “constitution is the
manifestation of the will of the people”?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
In general, the originalist view of close textual interpretivism is not a pragmatic argument.
Their view may result a constitution not reaching many important questions that the framers
could not have foreseen, but which are as important today as any issues the framers deemed
worthy of constitutional treatment in their day. Obviously, a constitution must be something
which can be invoked to deal with the problem of the current society .Issues that deemed
important by the framers may become non-issues and new important problems may arise that
the framers could not have for seen and amendment may not be possible, the interpretation
seems the way out here.
As you have already noticed above, the title of this units is ‘Making the constitution
Adjustable”, can you explain why “the interpretation of constitution “comes as section under
this unit (hint see the last line of the above paragraph)?
_________________________________________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
Contrary to the view of originalist, non-interpretivist maintain that it is proper for

interpreters( having the power of interpreting a constitution) to find general provisions of the
constitution ”fundamental rights” that must be respected by the government and to use
contemporary notions of fairness and rights in determining what those fundamental values
are.
The proponents of this theory point to the fact that the framers place several open-ended
provisions in constitutions like “liberty”, “equal protection of the laws” – that could only
have been intended to be applied with contemporary frame of reference.
Some people argue that a close of the view of the “non-interpretivists “ reveals that they still
base their argument on the idea of giving weight to the intention of the framers and their
difference from the originalist is that they hold that it is the intention of the framers that
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unwritten fundamental principles must be given constitutional status. What do you make of
this argument?
_________________________________________________________________________________
_________________________________________________________________________________
_________________________________________________________________________________
Review Questions
 List down the four steps a constitution goes through in its making.
 What is the holding of the originalist as to the interpretation of a constitution
 What is the holding of the non-interpretivists as to the interpretation of a constitution
 What is the strong side of the originalists’ argument?
 What is the weak side of the originalist stand?
 What are the strong and weak side of the non-interpretivists’ arguments?
 Amendment and interpretation of a constitution can be used to achieve the same goal.
What is that goal?
 Originalists use the “functional” and “structural” approach to interpret the
constitution. Do you agree with this statement?
Unit Four
Salient features of working constitution

Introduction
Constitution is one of the laws of countries, which is concerned with distinct features from other
laws which validity is ensured with observance of the former. As we know, constitution is the
framework for government as well as for citizens in order to regulate the actions and activities
played by each. Being a framework, in turn, show that the constitution has upper hand over other
laws. Here, if constitution is considered as the reference material for government, citizens and other
organizations, the relative acceptance of these other laws will be ensured. Because of this relative
acceptance, i.e. the acceptance that other laws have when they are seen in terms of constitution,
the citizens as well as organization will have full confidence on the statutory laws or laws, which
have been made in reference to that constitution.
These salient features of the working constitution have quite difference from other laws features.
These features difference in turn is shown in the hierarchy constitution has from the laws. When we
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see this hierarchy, we do have constitution at the top of other laws. Being at the top of the hierarchy
makes constitution the supreme law of the land. If supremacy of constitution is workable for the
laws, organizations or bodies of government and citizens or people of a country at large then are
responsible for its observance. When this becomes applicable for all citizens with well informing
about that constitution, the popularity of that constitution will be increased.
In addition to above information, there is also one element to be taken into consideration in order
to get full context of its features. For instance, constitution from its early creation is permanent. This
permanence of constitution, on the other hand should go with the changing circumstance in that
country. If that constitution is not ready to accommodate the changing circumstance, there will be
failurity in that constitution. However, in democratic states, this accommodation of changing
circumstances and amendment procedures has greater value in order to protect the basic concept
of the constitution. When we say accommodation of changing circumstance we should not influence
the basic concept of the constitution, but some provisions must be amended in order to go with
those ongoing issues.
Objectives
At the end of this unit, the students will be able to
- Discus features of constitution

- Define each features of constitution
- Describe the main features of constitution
- Explain about these features by reasoning out about their difference from other laws
features
- Know the general concept of constitutional supremacy
- Recognize differences between constitution and other ordinary laws
- Understand ways of ensuring constitutional supremacy
- Write salient features of constitutional supremacy
- List down the ways in which supremacy of constitution is manifested.
- Relate other laws by considering relative generality of constitution.
- Appreciate how to keep/protect stability of constitution in situation where there are
opposes.
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- Indentify popularity of constitution from another laws

- Distinguish the difference between constitutional law and other laws by looking at their
features
- Understand how to shoulder responsibility in order to protect constitution.
- List down the reasons why constitution becomes supreme law of the land.
- Discuss the factors that affect constitution’s permanence.
SALENT FEATURES OF CONSTITUTION
Although it is very difficult to argue that all constitution in the world have similar features, there are
some features, which are common to most of the constitution of the world. These features
distinguish a constitution from other forms of laws. A clear understanding of these features of
constitution is necessary, because these features distinguish constitution from other statutory laws.
Some of these features are described as follow:-
A. Generality:-
As constitution consists of basic and general principles, it is more general than other laws,
which get their validity from it. Here, the generality of the law is relative that means the
generality of a given law can be seen in relation to other laws. Thus, constitution needs
other laws less general than itself for enforcement. Here, the absence of generality that
means, when these laws are made to be specific, the size of this document can increase.
Since other laws get their validity and forces from the constitution, it is more general than
other laws. If the constitution is specific, it will be subjected to changes. If continuous
change is reflected in supreme law, it affects the law itself and peace of the society and
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government. It becomes predictable and leads to the change of all substantive laws.
However, this feature of constitution gives the power to stretch high and accommodate
changes that are predicted from the very beginning of the creation of that constitution and
introduced at different times.
Activities 4.1 how can constitutional stability durable? Discuss with you
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B/ Stability/ permanence/
Statutory laws are more vulnerable to changes than constitution. A constitution is made for
undefined and expanding future. That is, it is made to serve for a long time in the future. A
stable constitution shows at least two things: First, it was made in the manner that it can
accommodate the changing circumstances. As a result, it has survived the different changes
that have occurred in the country. Second, it is beyond the reach of tempers emotions of
the people. Here, if the constitution is very close to the inclination of opponent, it will be
subject to violence. Some constitutions are up rooted by violence because of political
upheavals. In terms of stability the USA’s 1787 constitution is one the most stable
constitution in the world. It has stayed for more than 200 years without fundamental
changes to it.
However, changes in constitution usually bring about change in government, when such
changes are fundamental and radical. However, changes in government do not necessarily
bring about change in constitution. That means this change occurs in rare cases. For
Example, if the former government is non-democratic one, the latter may change the
constitution completely. Here, changes in governments are feared because the benefits of
changes in governments are not usually certain.
C/ Change/Constitutional dynamism
Even though stability is a required feature, change is also important. Some constitutions
may fail to accommodate changes and at some point, the constitution itself may be
changed. This is due to the miss match between newly created circumstance and the
constitution that circumstance is found necessary. As there is no room to entertain these
changing circumstances the full context of the constitution or part of it may be changed
since; these changing circumstance make some challenges firmly to the old constitution.
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There are different mechanisms by which constitutions change. These are:

1/ formal change
Constitutional rules and principles can be changed through formal amendment procedure in
accordance with the procedure provided in the constitution itself.
Constitutional amendment does not bring about complete change in the constitution.
Rather it introduces some change to meet new circumstances, while preserving the basic
concept of the constitution. It has to be noted that the method of amending constitution.
Activity 4.2
What will happen to constitution, if the general concept of constitution is changed?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
__________________________________________________________________________
2 Informal change:
In most countries of this world, judiciary organ of government is entitled with the authority
to interpretation of constitution. It is concerned with the informal change of constitution in
order to reflect the constitutional dynamism to some extent rather than changing the basic
concept of constitution.
In some country, there are also some another body to interpret constitution. For, instance
the House of Federation conducts the interpretation of FDRE constitution. Constitutional
interpretation envisages a situation where somebody tires to reveal the intent of those
who drafted the constitution and the electorate who ratified it.
Constitutional interpretation usually required confirming the constitutional provisions to the
prevailing of circumstance. It may slightly modify the values of the constitution so that the
changing circumstances are embraced by the constitution. Hence, interpretation does not
necessarily change the basic concepts of the constitution, however, the changes introduced
into a constitution. These changes have mainly made through interpretation in countries of
this world.
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3 Violence: - Violence is also another mechanism through which constitution can be

changed. Thus, this method of changing constitution occurs/happens when the new one
through sudden substitution substitutes the old constitution.
When an existing political system is overthrow, the new holders of power customarily seek
to organize and legitimatize their regime by adoption of a new constitution. Here, we do not
necessarily mean that the change in government bring the substitution of constitution by
other. Nevertheless, this situation created by some cases. For instance, if the government to
be changed is not constitutional, there should be change in system as well as change in
constitution to make the government to come to power. In most cases, such changes
introduce radical changes in the system by destroying the old constitution. In Ethiopia, we
have witnessed two incidents where the existing constitutions were destroyed by violence.
D/ Supremacy:
As we know, there are various types of laws. These laws do not have the same status. This status
emanates from the organ that drafted them and from the function, they program. Some
constitution are drafted and adopted by constitutional assembly or the legislative organ drafts
constitutional framers or others. There are also laws that are issued by the executive organ. This
contributes to different status and levels of laws in the country.
The status achieved by each law determines its position in the hierarchy. For, instance, laws issued
by the legislatives organ of the government are primary legislation, while those issued by the
executives organ of government are normally called subordinate legislations. This reflects the
hierarchy or chain of subordination that exists between laws.
In most countries with democratic system, the national constitution comes on the top of all other
laws. That means constitution is the supreme law of the land. One of the reasons why it is held
supreme is that a special organ called constitutional Assembly or constitutional framers establishes
it- it establishes a government and its organs moreover, defines the power and functions of these
organs examples, the executive organ does not exercise the power of legislature.
It states as the source of all other domestic laws.
In modern democracies, the typical function of constitution is to serve as standard of legitimacy by

which government may be judged and to put everyone including the rulers under the law.
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By observing the above discussion, you might conclude now that constitution is the supreme law of
the land. This is because of all state organs including the parliament, the law-making organ are
bound by it and are obliged to act within the limits laid down by it. Since all organs over their
existence and powers to the constitution, every action of them gets its support in the constitution. If
it lacks support or is contrary to constitution, it is declared unconstitutional acts have no legal
validity. They cannot be enforced.
For instance, the Federal Democratic Republic of Ethiopian constitution recognizes the supremacy of
constitution and states that why law contravenes the constitution shall be of no effect. This means
not anybody who prepares the law should legislate any law that contravenes the constitution.
There should not be customs that contradict constitution. For instance, According to FDRE
constitution traditional practices against women are unconstitutional right. Constitutional law has
also laid down an obligation on all citizens, state organs, political organizations and Associations to
ensure the observance of the constitution and to obey it.
As it has been stated above, the supremacy of constitution is manifested in the following ways;
- First, any law made by the legislative organs (e.g. Proclamation the executive organ
regulation), customary practices (e.g. those that discriminate women), judicial decisions or
administrative decisions of government officials must not contradict the provisions of
constitution.
- If any of these contradict the constitution, they have no legal effect. That means, they are
null or void. Governmental Association and offices of the government are duty bound to
ensure the observance of the provisions of the constitution. Even if citizens are expected to
observe other laws, as well, they have to give more emphasis to the constitution and they
are expected to obey it since it is above all other laws, which need some emphasis less than
that of constitution. Thirdly, the government official
cannot assume their powers through the means, which are not provided for by the
constitution.
There are also some reasons why constitution is considered as supreme law of the land.
Some of these reasons could be:-
 It is the law that establishes the state together with its various organs,
 The constitution gives the powers and prescribes the function of the organs of the
government.
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 It recognizes the fundamental freedoms and human rights of citizens
 It contains rules and principles which have bearing on the life of the society
 It is the expression of sovereignty of the people
 It is made by the people not by the government
 It cannot be amended by ordinary procedure of the parliament; etc

Activity 4.4 What are the ways in which constitutional supremacy is manifested in?
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The fact that the constitution is the supreme law of the land is a guarantee for the protection and
observance of rights and freedoms of citizens recognized by the constitution. That is the lawmaker
may easily disregard rights and freedoms, which are recognized by the laws, by the ordinary
procedure of repeal of laws. However, constitutions provisions cannot be easily disregarded.
4.5. Popularity
It is said that constitution is the national symbol that defines the relation between the state
(government) and citizens and warrantee for the unity and existence of certain state. This indicates
that, constitution is the Vote of the people, which realizes their peaceful co –existence.
On the other hand, constitution is know mode and ways of defining the relation between citizens
themselves & as well as citizens and their governments.
Constitution is commonly known way of defining the ruling system across the world.
Constitution drives its power from the people [HPR]
In addition to the above common features of constitutions, there are also other distinctive
features of individual states’ constitutions. From these the following are some of them.
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Basic features of UK constitution

1 An evolved constitution
The fact that Britain does not possess a coherent, well-formulated and written constitution does
not substantiate the charge that ‘there is no constitution in England’. The true position is that the
English constitution is a growth, not a make. It was never made in a way as the American
constitution was made by the Philadelphia convention in 1787. In simple terms, it means that it was
never created by a stroke at a particular period of history. And yet there is very much a thing like the
English constitution despite the obvious political fact that the English “have left the different parts of
their constitution where the waves of history has deposited them ;they gave not attempted to bring
them together, to classify or to complete them, or to make of it a consistent and coherent whole.
2. An unwritten constitution
The British constitution is a model of an unwritten constitution. Its written part is limited to some
important charters signed by the monarchs, statutes passed by the parliament and decisions given
by the courts. The bulk of the English constitution is contained in the form of usages, precedents and
customs what Mill as termed the ‘unwritten maxims of the constitution’. These customs relates to
the office of the monarch, the prime minister and his cabinet, the parliament and Commonwealth of
Nations.
3. Unitary constitution
A unitary constitution is a one in which there no division of powers between the national or central
government on the one hand and regional or the provincial government on the other. All powers are
assigned to the central government and if some local units are created for the sake of administrative
efficiency convenience, they are the creation of the central government. Here, the central
government located at London is constitutionally supreme and the governments of the units
relatively derive their authority from the central government.
4. Flexible constitution
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The British constitution is in a view of the fact that it can be changed very easily; moreover there
is no distinction between the higher(constitution) and the lower(ordinary) law as the parliament
may make any law by the same process of legislation. Any law passed by the parliament by its
simple majority may amount to a change in the constitution. That is no special process laid down for
passing a bill of constitutional amendment. The unwritten character of the constitution is
responsible for making the English fundamental law as highly flexible affairs.
That is, why we find that the slow and gradual way in which the power passed from the monarch to
the parliament and from the parliament to the cabinet, thereon to the Prime minister, speaks of the
highly flexible character of the English constitution.
5 Concentration and Diffusion of powers
One of the peculiar features of the English constitution should be discovered in the unique
manner in which powers have been concentrated in the executive and legislative organs of
government and, at the same time, these have been separated rather, diffused, in the midst of what
Bagehot calls ‘supposed checks and balances’ of the constitutional system of Britain.
Activity 4.4 what are the major differences between unitary and federal constitutions?
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Unit Five
Typology, functions and orientation of constitution
5.1. Typology
Introduction
This unit devoted to discussing the various types of constitution. It is obvious that
constitutions of different countries differ from each other in their content, form, pattern of
political arrangement. Constitutions in different political system different from one another in
terms of their principles on the distribution of political power, in the structural separation of
authority among the branches of government , and on the limitations they set on government
authority. These variations are due to different historical back grounds, social traditions, and
political practices. In some cases, constitutions tend to forces of the society.
B. Nevertheless, it has been historically observed that in other cases of securing their
desired political and socio- economic interest what distinguish the constitution of
different countries are not only their forms of appearances, but also their contents of
underlying principles & procedures taking different parameters. One way of
classifying them is to create a distinction between written constitutions while some
countries have unwritten constitution while the majority of countries have written
constitution depending on how easily constitution are also classified into Monarchial
and Republican or parliamentary and presidential. Constitutions are also classified
based on how they distribute power geographically into unitary and Federal
constitution. Each type of constitution will be discussed below.
Objectives
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After studying this unit, you will be able to:

 Identify the basis of classifications of constitutions;
 Distinguish constitutions from one another based on various grounds
 Classify constitutions in to different categories
 Create various typologies of constitutions
 Compare and contrast the written and un written constitution
 Differentiate monarchial and republican type of constitution
 Identify parliamentary constitution from presidential; constitution
 Discuss the difference between unitary and Federal types of constitution.
5.1.1. Forms of constitution documents: Classification of

constitutions based on the nature of constitutional
documents.
In this section, you will discuss about the classification of Constitutions based on their
(constitutional documents) nature. Based on such grounds, constitutions are classified into
various categories. This will be discussed under distinct subsections.
Objectives
At the end of this section, students will be able to:
 Classify constitutions based on their nature
 Distinguish constitutions from one another on the basis of their nature and
 Create various typologies of constitutions based on their nature.
Written (codified) vs unwritten (un codified) constitution
- The first mechanism of classification of constitution on the basis of the nature of
constitution takes us to the distinction between written and un written or codified or un
codified. This type of classifications of constitution is a traditional one and hence known
as the traditional approach classification of constitution.
- Activity 5.1
- Why do we say such classification is a false distinction?
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___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
It has been submitted that such classification is false distinction as no single constitution in
the world is entirely written or unwritten. A constitution is one that all its terms are set out in
a distinct document or code Therefore, written constitution may be regret to as a codified
constitution as all its terms are usually embodied in a single document as the organic and
fundamental law of the country in their entry. C.F Strong says that a written constitution
represents a rather complete document or instrument in which the framers of the constitution
have attempted to arrange for every foreseeable contingency in its operation. The most
important example in this category is the US constitution.
- A written constitution is one contained within a single document or a series of

documents. With or without amendments, defining the basic rules of the state. In other
words, all political structures and institutions of the country are organized in accordance
with the principles stated in a single or series of documents. In almost all countries,
constitutions are written documents.
The written constitutions of some countries are incorporated in one document and in some
other countries; they are included in a number of series of related documents.
The majority of constitutions in the world are in a written form. As far as unwritten
constitution is concerned, one is generally observed as an outcome of institutionalization of
customs and values through time rather than of written law. Therefore, unwritten constitution
designates a constitution that is not written or codified, as all its terms are not provided in a
single statutory instrument that would be regarded as the basic law of a country.
Unwritten constitution consists of wisdoms, conventions, traditions and norms of the society.
It is a collection of documents, statutes and traditional practices that are generally accepted as
governing matters.
Un written constitution is basically meant that the fundamental principles and powers of
government are not written down in any single legal document In other words, there is no a
single specially written document that specifies the rights and duties of citizens and the
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composition and respecting powers of institutions of government. In the countries with

unwritten constitution, basic laws also may be derived from previous acts and judicial rulings
that serve as precedents for giving decisions on similar other cases.
In this sense, the rules and principles of an unwritten constitution may be considered as
complex collections of articles found in different documents countries are Great British, New
Zealand, Oman, Saudi Arabia and Israel have unwritten constitutions. However, some of the
terms of constitution may be embodied in different statutes in countries with unwritten or un
codified constitutions. Moreover, precedents constitution of England, for example, differs
from that any other countries.
- It is the cumulative result of all legal actions over the centuries beginning with Magna
Carta of 1215.
- When it is said that England has no written constitution, does it mean that there is no
constitution in England?
- Does it mean that there are no constitutional rules and principles in England? Do you
know any other country without constitution?
- When it is said that England has no written constitution, it does not mean that England
has no constitutional rules and principles. In England, there are constitutional rules and
principles. However, these constitutional rules and principles are not included in one or a
number of series of documents, which for many referred as a constitution. Rather in
England, the constitutional rules and principles are found in various laws Acts made by
the parliaments, other legal documents.
The above discussion show that the classification of constitutions as written and unwritten
constitution provided that, it is regarded as dealing with three aspects of constitutions. The
first aspect is the degree of codification. The second aspect is with the degree of written
details. The third aspect is the origin of the written forms of the statutory documents. Dealing
with this aspects of constitutions is not a simple task rather, it needs the establishment of
some criteria.
Activity 5.2
- What are the advantages and the disadvantages of written constitution?
Advantages
1. ______________________________
2. _____________________________
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3. _____________________________
Disadvantages
1.______________________________________
2._____________________________________
3 .________________________________________
-what are the disadvantages and advantages of unwritten constitutions?
1. ______________________________
2. _____________________________
3. _____________________________
Disadvantages
1.______________________________________
2._____________________________________
3 .________________________________________
Can you give an example of countries having written and unwritten?

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-Both written and unwritten constitutions have certain advantage and disadvantages. In order
to understand some of the advantages and disadvantages of both written and unwritten forms
of constitutions you will discuss below.
Advantages of written constitutions

- As it is readily available to citizen to enable them monitor the behavior of their government,
it may prevent the emergency of dictatorship.
- Citizens can easily learn their Fundamental rights and duties and the basic laws governing
the patterns of political process of their nation.
- In amending the constitution, citizen could understand provision before making the amen
dements.
- Since the constitution clearly establishes the basic political principles, uncertainties of
political life and process will be avoided, or at least reduced to the minimum.
Disadvantage of written Constitutions
- The implementation of the constitution usually involves interpretation. In some instances,
such interpretation may lead dispute between branches of government.
- It is not possible to absolutely decide the extent of devolution of power among different
levels of government in a country.
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- It is not easily adaptable to changes circumstances. To be adaptable to new situation

amended or modified.
Advantage of Unwritten constitutions
- It is relatively more flexible than a written constitution because it can be easily adaptable
to changing circumstances.
- It may ensure smooth ruining of the government in accordance with the various
contentious and customs. This may contribute to the political stability of the state.
Disadvantages of Unwritten Constitutions
-Since there is no single document that clearly states the fundamental rights and duties of
citizens and of governments, it would be difficult quickly determine which aspects of the
constitution is Violated.
- Since there is no legal restraint and because it is not accessible to the public, it can easily be
distorted or even changed without the consent of the stakeholders.
- It is not simple to determine what an established convention or custom is. As a result,

there may arise differences in society regarding which convention or custom is acceptable
and which is not, since there could exist different conventions and customs in a country.
- Because of its in accessibility, it is nearly impossible to create awareness through
education on the fundamental constitutional rights and Freedoms, duties and obligations
of citizens.
Complied Vs Uncomplied constitution
-By complied constitution we are simply referring that part (kind) of constitutional text,
which is organized and written in a document form. The complied constitution is composed
of articles or series of articles and found in a single document form. On the other hand,
uncompelled constitution is that part of constitution, which is not attached (complied) in a
single document form, and found in a series of related articles and documents. Therefore,
uncompelled constitution needs to be gathered in a one-document form to be considered as a
complied constitution.
Nominal VS practical Constitutions

- Constitution by its nature, in most cases provide a set of general /principles and frame
work that guide (directs) the actions of government visa vis the people. In accordance to
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that general framework, there exist legal provisions going to state about the
specifications.
Unfortunately, the constitutions of some states are not practically implemented and serve
only the will of the ruling parties, while ignoring the interest of the public. We can call such
constitutions as factious constitutions; therefore, they could be regarded as a mere provisions
and remains paper tiger. On the extreme side of the nominal constitution, there exists a
normative or (Practical) constitution, which serve us to limit the power of rulers
(governmental officials) and guide the day to day endeavor of the society altogether. The
normative constitution serve as a reference point for every branch of government while
performing their activities, we as a power map in a sense that it practically sketch the
skeleton of government structures with the powers and authorities of each party. Such kind of
constitution is imagined to be found in democratic countries.
Indigenous and Imitated (Adventurous)

constitutions
The type of constitution that can be drafted based on the history of one country’s economical,
historical, cultural and political experiences is called Indigenous constitution. For example,
the French constitution, which was drafted, based on the French historical, cultural and
political experiences. On the other hand, some constitutions make their base on others
experiences of politics. Their content shape will generally be taken from other countries,
such constitutional are known as Example the Japan constitution, which was approved in
1947, is an imitated constitution. Because, it was drown after the defeat of Japan in the
Second World War, Allied forces (USA, Britain, and France etc) imitated the main content
and structure of the constitution from these countries.
Stable and unstable constitutions
Stable constitutions are constructed based on the countries objective conditions and in line
with the needs of countries citizens and is approved by the majority of citizens of the
country. Therefore, such constitutions are stable or cannot be changed now and then. Most
countries of the world are said to have a stable and comprehensive constitutions. For
example, the constitutions of USA, India, and Kenya Malaysia etc are considered as a stable.
On the other constitutions, a result stable and are being changed from time to time. Such
constitutions are the opposite of above constitutions. For example, the constitutions of most
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Latin American and African countries are unstable. Similarly, the constitution of some
countries like Pakistan, Ghana, Nigeria, Somalia, etc are not practical and are being changed
from time to time.
General Vs detailed constitutions
It is all known that constitution is relatively general law /document) while compared with the
other ordinary rules, proclamations and laws. However, this does not the case when
comparing the constitutions of one state with the other. In other worlds, the constitutions of
some countries are written by specifying very detail issues and it does not need more
specification to make it practical. Only the general frame work of the government. Such
constitution needs other ordinary laws to lower it down to the practical situation of the
society.
Generally, constitutions therefore, need decrees, proclamation and other provisions to be
practical enough and can be implemented in the real situations.
5.1.2 Classification of constitution based on the amendment procedures

I. Rigid and time- taking procedures vs Flexible brief procedures
What are flexible and rigid constitutions?
The traditional division of constitution by some writers is flexible and rigid the constitution
needs to be changed or modified in order to cope up with the changing internal and external
circumstances of a country. It is by writing a new provision or provisions of the constitution
that usually the modifications take place. This process is called amendment. Thus, all
constitutions especially written constitutions provide formal mechanisms and procedures that
must be followed in the process of amendment.
Whether or not explicitly stated in a constitution, certain factors may necessitate amending it
so that the constitution can address contemporaneous practical problems and be adoptive.
This classification rests primarily on the question whether or not constitution can be amended
easily.
A constitution may be regarded as a rigid or flexible depending on the state will naturally
seek to project its constitutional provisions from subsequent repeal of amendment Towards
this end, all or many of the rulers will be entrenched, that is to say the constitution will
stipulate stringent procedures to be followed in any attempt to amend the provision prevents,
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or makes difficult, amendment or repeal. Some constitutions are amended through the same
process as any other ordinary law.
In this regard, a flexible constitution is the one that has simpler requirement procedures for
constitutional amendment, and therefore, easier to amend. UN written constitution is the best
example of flexible constitutions. Simply passing an Act of parliament by a single majority
vote can amend a flexible constitution. No special procedure is required and no court may
hold an Act of parliament to be void. Under this category, the Indian constitution may be
considered as a good example. In forty – five years (1950-1996), it was amended by normal
legislative process.
This does not mean that flexible constitutions are frequently amended and the rigid
constitutions are not necessarily). The amendment of a predominant political and social
groups in the community and the extent to which they are satisfied with or acquiesce in the
organization and description of political power Wight the constitution prescribes.
On the other hand, if a constitution is to be amended only with in accordance with some
special procedures or dependant on some special procedures or dependant on some
conditions, it is classified as rigid. In this case, special procedures need to be followed to
amend such constitutions, and therefore, difficult to amend. In other words, the so-called
rigid constitution is making difficult to a change because it requires a series of procedure
requirements for an amendment. Most constitutions of the world would belong to the latter
(rigid) group. The main aim of such kind of constitution is to protect the constitution from
subsequent repeal or amendment.
The best example of rigid constitutions may be Federal Australia’s, Ethiopia’s, USA’s,
Canada’s and Nigeria’s constitutions which stipulated as series of amendment procedures in
their constitutions. In ninety years, (1900-1990) forty-two proposals for amendment to the
Australian constitution were for warded and only eight were approved. In the USA, in one
hundred thirty – eight years (1813-1969) the constitution was amended only ten times.
Classification of constitution as rigid and flexible has gained recognition all over the world
and is designated as the true basis of classification.
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The next point needs to be noted is the confusion the terms ‘flexible and rigid’ may cause can
be avoided by using strictly to frequency of change and other terms suggested by scholars of
constitutional law to the procedure of amendment. Such scholars suggested that the term
unconditional’ and conditional may be used with respect to the procedure of amendment of
constitutions. Accordingly, a constitution that allows unconditional amendment is flexible
constitution whereas; a constitution that allows only conditional amendment is rigid
constitution.
Activity 5.3
1. What are the factors (basic parameters) to classify constitution as rigid and flexible?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
_____________________________________________________________________
2. Does flexibility of constitutions necessarily suggest frequent amendment?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
3. Why did scholars of a constitutional law coin the term unconditional and conditional
with respect with special to classification of constitutions?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
4. Is a constitution with special amendment procedure necessarily rigid? Why?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
List some good examples of countries with
a. Rigid constitution
b. Flexible constitution
Amendment of a constitution:
Introduction
Generally speaking, constitutions are supposed to last very long obviously a society changes
and some provisions of the constitution may fall short to reflect and meet the values and
needs of the changed society, and this gives rise to the need of changing(amending) some
parts of the constitution. A constitution will have a great value society if it can be adjusted to
the changed circumcise of the society. Therefore, the procedures of amendment of a
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constitution are mechanisms of adjusting the constitution to the realizes of the society or it is
a way of keeping it relevant to society. In this section, thus we will deal with different
procedures of amendment of a constitution.
Objectives
After completing this section, students will be able to:
 Tell what is meant by amendment
 Explain the purposes of amendment and
 Explain the different types of amendment procedures.
A- Amendment by simple act of the legislature
In some countries, the legislature amends the constitution in the same way as it enacts
ordinary laws. The uncodified constitution of the United Kingdom (UK) consists partly of
important status and part of certain unwritten conventions evolved overtime.
Activity 5.4
Can we talk about constitutional supremacy if a constitution can be amended with the simple
act of the legislature?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
B- Amendment by a special, Extra large majority “Qualified” or weighted” majority)

- Meaning in some Jurisdictions, a constitution can be amended if the extra majority of
the legislature agrees to the amendment. This is usually a majority of two-third, the
total number of votes cast. In a bicameral parliament it may be required that a special
majority be achieved in both chambers of the legislature. In addition, many
constitutions required that an amendment receive the votes of a minimum absolute
number of members rather than simply the support of those present at a meeting of
the legislature, which is in quorum.
- For example, the German Basie law (the Grud gesetz) may be amended with the
consent of a majority of two -third in both the bundestag (Lower house) and bandesrat
(upper house). The constitution of Brazil may be amended with consent of both
houses of congress by a majority of three – fifth (3/5)
C- Amendment by referendum
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Some constitutions may only be amended with the direct consent of the electorate in a
referendum. In some states, a decision to submit an amendment to the electorate must first be
taken the legislature in others a constitutional referendum may be amended by a citizen’s
initiative. The constitutions of the Republic of Ireland, Denmark, Japan and Australia are
amended by means of a referendum first proposed by parliament. The constitutions of
Switzer land and several states of the United States may be amended through the process of
popular initiative.
D. Amendment by special convention

This is when the amendment business is carried out by a special convention exclusively
called up on for this purpose on an ad hoc basis. This way of amendment procedure is used in
Latin American countries.
- This concludes amendment procedure varies from jurisdiction to jurisdictions In
Canada; different types of constitutional amendments have different requirements to be
amended.
There are five amendment formulas included in the constitution of Canada, each relating to
different elements of the constitutions. Some Jurisdictions combine elements of more than
one of the usual amendment procedures. For example, one of two processes, either a special
legislative majority or a referendum, may amend the French constitutions. A special
legislative majority but a change to the status of the state as an “Independent Democratic
Republic “must be endorsed by a three quarters majority in a referendum may amend most
provisions of the constitution of Lithuania Unlike its other provisions, A referendum is
required to amend that part of the constitution of Iceland that deals with the relationship
between church & state.
Activity 5.5 what is the amendment procedure of the FDRE constitution?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
__________________________________________________________________________
5.1.3 Classification of constitution based on the nature of the state

The second type of classification of constitutions is made on the basis of the nature of the
state. Dear student as you recall from your course on the state, government and citizenship, a
state is consisting of a government population and a defined territory, among other things. In
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that course you had discussed that depending up on the form of state structure, the relation
exists b/n the governmental organs, concentration of power /power holding) etc, state is
classified into different categories. Likewise, here, you are going to use the nature of the of
constitutions.
Objectives
 After studying this section, students will be able to :
 Classify constitutions based on the nature of the state
 Distinguish constitutions from one another based on the nature of the state
 Create various typologies of constitutions on the basis of the nature of the state
 Differentiate federalism from unitary
 Categorize government into different classes
 Classify government organs in to different categories and
 Distinguish the various types of legislatures, executives & judiciaries
Federal Vs Unitary constitutions

Based on the systems of government, the constitution in the world may be classified into
distinct categories. This means, based on whether they distribute legislative power or not,
constitutions may be classified as unitary or federal types. In many countries such as
Ethiopia, United States of America Canada, Austria and Malaysia, there exists a division of
powers between central government and the individual states or provinces which make up the
federation systems of government have various aspects that differentiate them from one
another and those aspects may be used as a bases of classifying constitutions in to different
groups
. The powers divided between the federal government and states (provinces) will be clearly
set down in the constituent document. Some powers will be reserved exclusively to the
Federal Government. (most notably such matters as defense, state security and foreign
relations), some powers allocated exclusively to the regional government/ such as raising
local taxation, planning local education policy) and other will be held on the basis of further,
power being given to each level of government without overriding power, perhaps, reserved
for the central government (This latter statement may not be true in all federal counties.)
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The common feature of all federal states in the sharing of power between the center and
region each having an area of excusive power, other power being shared on some define
basis. Equally common to all federations is the idea that the written constitution is sovereign
over government and legislate there and that their respective powers are not only defined by
the constitution but are also controlled by the constitution which will be interpreted and
upheld by a supreme court (not in all countries).
The federal constitutions establish two types of government at national and constituent levels
where each government enjoy a legislative power in its areas. In Federal constitutions, the
powers of the government are divided between a government for the whole country and
governments for the regional states in such a way that each government is legally
independents within its own sphere. The central government has its own area of power and it
exercises them without any control from the government of the regional states, and these
latter in their turn exercise their powers without being controlled by the central government.
There are two tiers are of governments and neither subordinate to the other but rather are
coordinate. The principle here is sharing of powers between the central governments and the
regional governments.
In a unitary constitution, the constituent parts (or administrative regions) are subordinate to
the government of the whole country. The administrative regions have no or little power to
make laws. The parts may exercise powers with the mercy of the central government. To
sum up, government systems have various aspects, which can differentiate them from one
another, and those aspects may be served as bases of classifying constitutions.
One aspect of system of government is the state or political structure.
Activity 5.6
How would the government in a state be organized?
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
On the one hand, the government in a state may be organized in such a way that there would
be two tiers of government each having the control over its own affairs and one of them,
known as the central or federal government, controlling the other, known as the regional or
state government for national decisions. This kind of organization is commonly known as
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federalism or federal systems. Therefore, the constitution that establishes federal system of
government would be classified as federal constitution. On the other hand, the government
in a state may be organized in such a way that there would be one government that operates
through a centralized structure. There would not be other state structures with
constitutionally guaranteed control over their own affairs. This kind of organization of a state
in usually known as unitary system. Hence, the constitutions that establish unitary system of
government would be classified as unitary constitutions.
In addition to the above types of state organizations, another one is similar to the federal
system. It is known as confederation. In this system, there are two tiers of government like
the federal system as it is a common organization for national decisions, but the association
loose unlike the federal system. In confederation, the unit or regional governments control
over the national governments unlike the federal states where the vice versa is true. The
constitutions that establish confederate system of government would be classified as
confederate constitutions.
The above discussion may also be seen in light of government power. Organization of the
state has to do with the manner of distribution of powers of government in a state.
Accordingly, under a federal constitution, government power are divided between two there
of government, the central or federal( governments) for the whole) and regional or state
governments (governments for units or parts).
As far as unitary constitutions are concerned, government powers are not divided between
different tiers of governments, but centralized in the hands of and monopolized by the central
government (the only government of the whole country with constitutional powers). With
respect to confederate constitutions, there is division of government powers to two tiers of
government like in the case of federal constitution. Their difference lies on the fact that the
central government is subordinate to the regional governments under the former.
Activity 5.6 does a division of power between the central government and units necessarily
show federalism?
___________________________________________________________________________
___________________________________________________________________________
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___________________________________________________________________________
_______________________________________________________________________
Now, it is important to see that through government powers are divided between the central
and units, a constitution may not necessarily be a federal one. A good example in this regard
is the constitution of the Republic of South Africa, 1996. Under this constitution, the units do
not have a constitutionally guaranteed judicial power over their matters or any other matter
but only executive and legislative powers over their matters.
Finally, the second aspect of system of government that has to do with the classifications of
constitutions of constitutions is the organization of government organs. A government in a
state has three organs the legislative, executive and the judiciary .These organs correspond to
the three power of government as distinguish in relation to the doctrine of separation of
powers. Federal constitutions provide that the legislatures, the executives and judiciaries at
all live is have law making law – enforcing and law – interpreting powers over their
respective affairs in particular. Unitary constitutions, however, provide that the legislature of
the central government is the supreme law – making organ, and has the discretion to allow
the existence of other subordinate legislatures that exercise law- making power and the
power to overrule them confederate constitutions are similar to federal constitutions in this
respect. Apart from all the above, some constitutions are unitary establishes a unitary form of
government but allows some tasks to be performed by administrative officials more
decentralized and hence known as decentralized unitary constitution.
Parliamentary presidential constitution

The executive is one of the three organs of government. Among the three organs of
government, the nature of executive can be used as a basis of classifications of constitutions.
Accordingly, classification of constitutions based on the nature of the executive organ of
government will be discussed here.
The discussion begins with the following premises .The executive are entrusted with
enforcing the laws made by the legislative. While exercising its powers, the executive is
under a check from other organs of the government or other independent institutions. This
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makes the executive is under a check from other organs of the government or other
independent institutions. This makes the executive answerable to these organs.
Based on the organ to which the executive is made immediately answerable under the
constitution, constitutional states with presidential executives. Where the executives and
states with presidential executives where the executive is immediately answerable to the
parliament it is called parliamentary executive. In constitutions that provide for parliamentary
executive, the prime minister and other ministers (the cabinet) may sit in the parliament and
hence may be accountable to the parliament. In the parliamentary system, the prime Minister
is the Head of the Executive organ. He is a member of the legislative body. All his actions
are accountable to the legislature. United kingdom (UK) and Ethiopia are the good example
of such system.
It is said that the parliament is supreme in that it has the power to elect and move the
executives however, the extent of exercise of such powers may vary from the constitution of
one country to the other. A constitution that establishes an executive immediately answerable
to the parliament is known as parliamentary (executive) constitution.
 On the other hand, if the executive is immediately answerable at properly defined period
to some wider body and is not open to election and removal by the discretion of the
legislature, it is called provide for prudential executive. In other words, in constitutions
that provide for presidential executive, the president and his subordinates may not sit in
the legislature, as there is a rigid separation of institutions from the bottom upwards. The
people elect the president directly. He has well defined executive powers and functions
under the constitutions. He is not a merely a ceremonial head. In addition, the president
not the parliament appoints the minister’s /cabinet/). Moreover, the president is both the
head of state and the head of government. A constitution that provides for an executive
immediately answerable for the president is known as a presidential ( executive)
constitution
Check list
 Put a tick ( ) mark in the boxes for the activities you can perform.
1. Can You list down and explain all of the salient features of a constitution
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2. Discuss the mechanisms by which a constitutional change is brought about

3. Enumerate the pairs of types of constitution and then discuss them thoroughly
4. Identify which mechanism of change of constituent has mainly played a role in
bringing changes of Ethiopian constitutions
5. Place the FDRE constitutions in the relevant pair in the types of constitution
6. Propose a mechanism by which the supremacy of a constitution is ensured.
Did you successfully answer all of the above questions? If that is the case, you have done
well as far as the studies of this unit are concerned. If you were unable to answer none of
them you need to revise the whole unit. If you were unable to answer one or more of them
you have to consult again the sections that correspond the questions you were unable to
answer successfully.
Monarchial vs. Republican constituents

This classification of constitution depends on the kind of rulers of a state as well a state that
is governed by leaders elected by the people is known as a republic. If a constitution of a
given state entitles the people to elect their leader who should hold office for a defined period
of time, it is a republican constitution. A state that is ruled by a monarch, i.e. a king or queen,
which comes from recognized linage is known as monarchial state. A monarchial rule is
lifelong and hereditary in its nature. A constitution that provides for a monarchical system of
government is known as monarchial constitution. Today such classification is insignificant as
elected leaders govern almost all countries and almost all constitutions in the world are
republican. The most important example of a state with monarchical constitution today is
Saudi Arabia.
Monarchial constitution established a rule by a royal family while Republican constitution

has its establishment as government by a democratically elected president. The president may
be effective Head of state and Head of government like in the United States and south Arica.
In some states, the president may be the head of state, but may not have real political power.
For example, in Ireland, the president is the Head of state, but the Head of the government is
the prime minister. Another example can be the FDRE constitution. This constitution has
established a government with a president as the Head of state. However, the head of
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government is the prime Minister. This will be exemplified when you study the FDRE
constitution.
Other classifications based on the nature of the executive

Under this sub- topic, constitutions are classified based on the nature of the executive but the
executive is seen from different angle unlike the above discussion on the nature of the
executive. In the above discussion, the classification was based on the designation of the
executive as parliamentary or presidential based on the organ to which the executive is
immediately answerable under the constitution under consideration. Here, the classification
of constitution is made based up on the quantity, quality and configuration of power
entrusted to the executive. The executive to be classified here can be either a parliamentary
or presidential. It exists in a parliamentary form of government presidential form of
government or the mixture of both.
Having regard to the value, quality and configuration of power, the executives in different
states may be classified into three types: Monosepalous, Bicephalous and Tetra cephalous
executives. The world cephalous comes from Greek. It refers to’ multiple headed Gods’ here,
it is employed to designate various types of executive on the basis of the number of persons
with significant Powers involved in the executive or on the manner of leader ship in the
executive.
Monacphalous elective is an executive with a single or one (mono) head. It is well

examplfied by the kind of executive/ in English and. In this kind government, the executive
is an entity independent from the parliament. However, the executive is to be drawn from the
parliament. The executive is consisting of two distinct but related offices. These offices are
the offices of the prime minister and the council of ministers. They are connected through the
prime minister, as he is the holder of the leader of the council of ministers, thus he has the
power to determine the agendas of the council and prioritize governmental actions. He is also
responsible to organize the council.
In discharging his responsibilities, the prime ministers are assisted by a number of experts of
different professions in the office of the secretariat. Moreover, the positions or system of
administration of the various agencies of the executive are manned by professionals that are
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appointed, promoted and discharged on the basis of civil service law. These features show
the single headedness of the executive. However, the parliament in such state may be where
the supreme authority overall governmental affairs resides. The most important example of a
monosepalous executive is the executive in England.
In us government system, one finds a hybrid of that of England. The crucial difference is that
the executive is a system does not owe its origin to the parliament. It is elected and is
accountable to the people In the US system ,it is the president who is elected by the people
directly and his secretaries enjoys a lot of power and there exists a system of check and
balance between and among the three departments of government, the political power in the
us government system could not be regarded dispersed. Instead, a close looks the top
manager of the state. Thus, US the government is monosepalous an in England.
Therefore, a Constitution that exhibits such features may be classified as a constitution that
establishes or provides for monocephalic executive. Bicephalous executive is on executive
with two heads. The executive established under the reformulated constitution of France,
1958, exemplifies such executive. Under this constitution, the executives have the President
and the Prime Minister as its heads. The president has a lot of executive power and seven
years on his term of office. He appoints the Prime Minister, therefore, owes his position to
the electorates, which makes him a contending power owner.
The executive of two heads become clearly visible when then President and the Prime
minister are from different parties.
This Usually happens after the lapse of the term of office of the prime Minister and a new
election is held for the premiership. In such circumstances, the president will be required to
appoint a prime Minister from a party, which has been in opposition. As result, there will
certainly be two heads of government in France for the remaining these years of the
presidency. This was deliberate formulation of the maker of the 1958 constitution. It intended
to prevent the prevalence of such a single headed leadership as Charles De Gaul. The
executive under the French constitution, 1958, could be characterized as Bicephalous. A
constitution that creates such kind of executive will fall in to this category a system where
executive power is haired among different entities It is exemplified by the constitution of
western Germany, Japan and Italy.
NSS 123
Under the constitution of Western Germany, the chancellor holds the top executive office.
Nevertheless, he shares many of his powers with various other institutions. This was
deliberately made by the makers of the constitution (USA, Britain and France) It was made
with a view to prevent the emergence of single headed. Executive like Hitler’s executive, for
example, he shares his executive power with the central Bank of Germany. The Governor of
the Bank is independent and leads the country’s financial industry and the national currency.
He fixes rates on loans and the exchange rate of the national currency of the country
(Deutsch mark). This and other remaining powers of the Governor place him in a more or
less equal position with the chancellors in the governance of the economic life of the country
such executive power sharing in Germany has been characterized a cephalous executive or
dispersed leadership.
A constitution that provides such power configuration is called a constitution that establishes
a cephalous executive. The above discussions show that a given constitution can be,
therefore, is classify into different groups on the terms to the head of the executive.
Unicameral bicameral, trilateral and tetra cameral

constitutions
By looking at the nature of the legislature, the constitution of a given state may also be
classified as a unicameral (legislative), bicameral (legislative), Trilateral (legislative) or Tetra
cameral (legislative) constitution. In the following paragraphs, the nature of these legislative
will be briefly discussed.
The legislative organs of state have different structures. In particular they different on the
number of chambers (camera in Latin), usually known as houses, they have constitution as a
document that organizes the state structure plays a great role in establishing the legislature
in a particular state.
It also provides for the various chambers or house the legislatures) in a given state. Based on
the chambers or houses, the legislature (s) in a given state may be classified as unicameral,
bicameral, tricameral and tetra cameral legislature(S) In light of this classification, the
constitutions of the states in the world are classified as said above.
 If the legislature in a country as established under the constitution has only ( uni- in
Greek) chamber or house, then it is called a unicameral legislature. Unicameral
Legislatures are usually established in small and homogenous unitary states unilateralism
NSS 124
has been justified on submission that if an upper chamber is democratic, it reflects an

equally democratic lower chamber. Therefore, to establish an upper chamber with the
power review or revise legislation prepared by the lower one can be done by
parliamentary committee in the lower house. Counter arguments for ward that uni-
cameralism lacks the double checks and balances that force greater consensus on
legislative issues. Un cameral legislatures are found in china, Cuba, Croatia, Finland,
Denmark, and New Zealand. A constitution that provides unilateral legislature (S) is
known as constitution with unicameral legislature (S)
 A bicameral legislature refers to a legislature that has two (bi in Greek) Chambers or
house with distinct power under the constitution one of the chambers would be the upper
house and the other would be the lower one. Bicameralism can be traced back to the time
of Ancient summer and later ancient Greece, ancient India and Rome. However,
recognizable bicameral legislature emerged during the Medieval Europe. The rational to
establish bicameral legislative was to realize separate representation of different sections
or classes in a state. The most important example is the representation of the commoners
in the other chamber. Later on, the rationales have change. Still, the older justification
that bicameralism present opportunities for second thoughts about legislation services.
For instance, Bicameralism has been provided for under the US constitution to have equal
representation of states and representation of states proportional to their respective
population. The senate the upper house is for the representation of states and the congress
lower house, is for the representation of states based on the size of their respective
population.
The relationship between the two chambers of bicameral legislatures varies from
constitution of one country to the other. In some countries both chambers are given
equal power; where as one chamber is superior in power to the other in other
countries. The parliament in England and the US are among Bicameral Legislatures, a
constitution with bicameral legislature.
When one comes to tri-cameralism, it refers to the practice of establishing legislature with
three (tri in Greek) chambers. It was practiced in the past and is not common to day. The
most important examples of cameral legislature are the parliament in south Africa under the
previous constitution of 1995 Simon Bolivar’s model state and the French states- General,
NSS 125
which had three estates. Let us see the former as an example. The 1983 constitution of South
Africa established a legislature with three houses based on race. They were the House of
assembly. House of Representatives and House Delegates.
The first house, which had 187 members, was reserved for the whites. The second House,
which had 85 members, was reserved for the colored (mixed race) Population Finally, the
third house, which had 45 members, was reserved for the Asians. Dear students, if a
constitution establishes a legislature that has three house or branches it is known as a
constitution with tri-cameral legislature.
Finally the legislature in a particular state may be tetra cameral. Tetra cameral legislature is
one that has four /tetra in Greek) chambers or Houses. Tetracameralism was a traditional
practice in Medieval Scandinavians where three were deliberate assemblies of four estates,
i.e., the nobility, the clergy, the burghers and the peasants. The Risk dag of the Estates
deliberates assemblies in Sweden and Finland, maintained tetracameralism for the longest
period. Finland practiced tetra cameral system of legislature until 1906. A constitution with
tetra cameral legislature four chambers is known as a constitution with tetra cameral
legislature.
Classification of Constitutions based on the nature of

the Judiciary
Introduction:
Dear students in this section, you will learn how constitutions are grouped on the basis whiter
the executive is subject to the power of the ordinary courts are not.
Objectives
up the completion of this section students should be able:
- Identify how constitution can be grouped based on whether the executive is subject to the
power of the ordinary courts or not.
- The judiciary is one of the three branches of government. It is entrusted with the power to
interpret law passed by the legislature. The judiciary might the classify the judiciary in
the world into two: the one in which the executive is subject to the judiciary and thereby
NSS 126
the operation of rule law and the executive is not subject to the ordinary process of law
and the judiciary, but to a special system of administrative law.
- The constitution of the states with the first kind of executive are known as constitutions
with the rule of law system were as the constitution of the states with the second type of
executive are known as constitutions with prerogative system
Review questions
1. What is the difference between Federal and con federal constitutions?

2. What are the factors that can be used to classify Constitution?
________________________________________________________________________
______________________________________________________________
3. How do you classify the 1931, 1955, 1989 and 1995 constitutions of Ethiopia based up
on the various basis of classification
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
Functions of constitution
- Constitutional text may reflect spectra of qualities are at one extreme three have been a
number of sham constitution. At the other end three are those whose provisions are fully
operative; but sometimes all provisions of constitutional may not be operate with
complete authority For instance, U.S president and lapis letters have never taken
Seriously their constitutional document requirement that a regular statement and account
of the receipts and expenditures of all public money shall not be published from time.
And for almost a hundred years, Legislators president, judges and the most of voters also
responded that state were full filling their obligation under the fourteenth amendment to
accord equal protection of the haws to black and women.
Activity
Why do you think that such derivation from the constitution is sometimes foreseeable?
NSS 127
___________________________________________________________________________
___________________________________________________________________________
The prevalence of derivation from text indicates, the complex nature of state and then
difficult in the allocation and the management of state’s resources. Thus when we speak of
and hortative constitutions, we are talking about those that are only reasonably auth ort a tire.
A sham constitutional text is three may be to deceive yet even reasonably yet even
reasonably authoritative texts may have to play a cosmetic role, allowing a nation to hide its
failures behind ideals. But as far as text it is out hortative. It renews nationals/citizens /as-
better selves.
Activity
What else role do constitutions play besides whet we have just seen?
Constitution is an instrument of direction and guidance for different activities and practice in
a society. It determines the structure and function of government. It outlines the rights and
duties of citizens and their relations with the government. A constitution contains the
common destinies/ purpose of citizens in a society. Being the supreme law of the nations it is
also the source of all other laws in the nations.
In general constitution has the following functions
A, It limits governmental power
A constitution limits/ restraints) the degree and the extent of government officials power.
The constitutions out lines what government officials must do and not to do however, the
mere existence of constitution is not a guarantee for constitutional limited government. The
full implementation constructional provisions and the working of government officials in the
spirit of the constitution in turn ensure the rule of law as opposed to the rule of men.
Constitutional government protects right and Freedom of citizens, The constitution honest the
government should neither too strong or too weak. If a government as too a strong, this , has
un If a government is too strong, this, has unlimited power it tends to abuse the rights and
freedoms citizens, on the other hand, government is too weak it cannot protect citizens.
Hence, constitutions need to great enough power to government and make some limitation on
it.
B. Constitution Serves as a charter for government
NSS 128
At minimum, an authoritative constitutional text would more often sketch the fundamental
modest legitimate governmental operations; who its officiates are, how they are chosen and
what their term of office ( tenure ), how authority divided among them, what process they
must follow,
A constitution serves as guardian of fundamental rights:- If a text is authority a take for it
embodies democratic theory, it must protect rights to political participation and if it is
authoritative and embodies constitutionalism , it must protect substantive rights by limiting
the power of those even freely chosen represent active.
D. Constitutions serves as the supreme low of the state
Constitutions are considered as the supreme low the land. So, specific and details laws are
derived from the constitutions. Because, Constitutions an agreed up on Supreme/ highest /
Law the land which governs and gives directions to all activities of the state.
The lawmakers should make a constant reference of the constitutions which making the
constitutions while making the law. If a law is found to be against the constitution, it will be
taken as law is if no legal effect.
E/ it shows the frame work of government
Constitution outlines the structure, power principal functions of governmental organ. Hence,
it is a’’ power map” which shows the powers and procedures of regulating the structure and
relationships of public authorities as well as the relationship between government officials
and citizens of state.
F/ Constitution serves as covenant, symbol, and aspiration:
As far as a constitution is a covenant by which a group of people agree to (retransform
themselves from mere state into nation, it may function for founding generation like a
marriage consummated through the pledging partners; consenting to remain a nation – for
better or sores, through prosperity and poverty, in peace and war. If that is not so, say for
later generations, a constitution may operate more as an arranged marriage in which consent
is passive, for the degree of choice had been limited. Even where cancellation of contract is
recognized right, exit from membership of such association is unlikely to offer viable
alternatives. Revolution become legal right only it succeeds and transforms revolution into
founders, otherwise a system usually endures only by bringing in to and then binding many
groups into its forms
NSS 129
The myth that, peoples forming them into a nation presents a problem not unlike that
between chicken and egg. To agree in their collective name to apolitical covenant, individual
must have already had some meaningful corporate identify as are “ a people’’. Thus the
notion of constitution as a covenant should therefore be one, which formalizes or solidifies/
other than solemnize a previous alliance in to more perfect union.
A constitution may, thus function or a uniting force- the only principle of order, far there may
be no ( other) shared moral or social vision that might bind together a nation It is difficult to
imagine what has united the supposedly united states more than political ideas of the
declaration of independence and the text of 1787 constitution.
Reference for the constitution may transform itself in to a holy symbol of the people
themselves. The created “tabot” may become (the people’s) own mythical creators. These
symbolism may help show how, sometimes, constitutional text transform itself into semi
sacred covenant, serving the unifying function of civil relation In America that is what
happened to the verbal inspiration, which gave the constitution of unquestionable authority.
In related fashion, a constitution may serve as binding statement of people’s aspiration for
themselves aspiration. A text may outline the sort of community it member would like to
become not only their governmental structures, procedures and basic rights out also their
goals, ideas and the moral standards by which they want and others including their own
posterity. In short, a constitutional text may guides as well as express hopes for people
themselves as a society. The ideas, the words, enshrined in their constitution, the processes
they describe and the action they legitimize must either help to change the citizen or not at
least, reflect their current, values
G/Constitution grants power to government

Granting power means that the constitution permits authority to government to accomplish its
tasks and to make different decisions for instance, the FDRE constitution allows the federal
government of Ethiopia to makes law operational at all national levels and enforces and
carries out these laws and to makes necessary measures when the laws are broken.
Generally, the constitutions are aimed at:-
 Generally the constitution are aimed at:
NSS 130
 Defining the nature of the given state ( as unitary) federal l and con federal.
 Describing the compotation and powers of the deferent organist the state)
 Defining the material needed the state that is defining the socio-economic order of the
society.
 Defining the form and structure of government, (Democratic oligarchy and monarch.
Again there are different Structure of government such as presidential, parliamentary
and hybrid.
 Defining the rights and duties of citizens
 Defining the relationship between governmental and peoples /citizens)
 Defining the foreign policy principles and directions
 Defining the principle of national defense.
These are the purpose of the constitution. The idea indicated in the constitutional are general.
The details are mostly left for legislation. In another words subsequent legislation are based
on the principles contained in the national constitution/subsequent legislation do not violate
the principle contained in the national constitution.
Contents and validity of constitution

A. contents of constitution and constitutionalism
As you understood from the meaning of constitution, any modern government has
constitution. But drafting or writing and approving of constitution alone do not realize or
make the constitution constitutional, constitutional or constitutionalism refers to the
fundamental principles of democratic governance, in which the government of a country acts,
decides, directs etc, in the with the constitution. It is the principle that a government is
organized and limited in the way that adhere to the constitutional laws, that is considered to
be above the government. A constitutional government is identified how the contents of its
decisions affect human rights . In order to be constitutional government realizing or fulfilling
the following criteria’s is very important. They are also included in the principles of
democracy.
1. When the constitution is respected and be practical
NSS 131
The government should respect the basic the basic roles stated in the constitutional and
should not change them or expire them randomly or spontaneously. Because what it is taken
to day as a legal system, should not be illegal later on. Because of this a government is said
to be constitutional, when it makes the governments action and arrangement practical
based on stability and law.
2. The existence of accountability
A government is said to be constitutional, when it has accountability to the people and the
law. Accountability can be expressed different ways.
 The day to day activity of the government.
 Conducting processes and in respecting professional code of ethics
 In the use of finances and budgeting system
 In the making of referendum respecting the referendum and in making it practical etc.
3. The existence of justice peoples Representatives
The manifestation of constitutional government is by giving and taking justice and proper
representativeness. A government is said to be constitutional when the people become active
participants in their countries affairs when it is possible or when they can realize their
participation in different stages through their representatives.
4. The existence of justice division of power
The manifestation of constitutionalism is when it is based on just division of power. This just
division of power can be manifested in different ways according to the governments form
and content. For example, when the existence of division of power is realized and when there
is just division of power between the legislative, executive and judiciary in regional or
central governments, we judiciary in the regional or central governments, we can say that
there is constitutionalism.
5. The existence of transparency
All the activities of the government should be based on the law and should not be mysterious
or secret. Because democracy can be practical by the active participation of the people and
when the government draft clear activities to exist such participations.
B. Validity of Constitution
In the medieval times, before the independence of states the question of goodness and
validity were not distinct.
NSS 132
The will God as revealed by the church was sufficient to validate the regime or the
monarch. In the modern times there are evil governments or regimes that wish constitutional
system. Are the laws such regimes valid in the face of violating basis and universally
accepted moral values?
A constitution may out some basis of it own legitimacy, fore example the constitution of
USA and Germany appeal to the ultimate “sovereignty of the people. In every democratic
government, the power of the state officials and their responsibilities are officials stated in
their constitution. This implies that limitation of governmental power and the enforcement of
individual freedoms. Government official are limited by the constitution against any arbitrary
action and therefore, cannot be abuse the rights and freedoms of citizens.
NSS 133

Constitution and Constitutional Development: Suplementary Material For Grade 9-12

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BY DIRIBA

CONSTITUTION AND CONSTITUTIONAL

Ways of ensuring popular Sovereignty...............................................................................................57

The American model: Listing citizens rights........................................................................................49

Unicameral bicameral, trilateral and tetra cameral constitutions.....................................................121

family law, criminal law, civil law and administrative laws.

 Analyses the definition forwarded by different personalities

 Encyclopedia Britannica defines constitution as body of doctrines and practices that

Process of growth (Constitutional Growth)

Necessity of a good constitution

Constitutionalism is a political culture; where by the constitution is observed by both the

Constitutionalism connotes in essence limited government or a limitation on government.

In an effective constitutional system, constitution is supreme. It regulates the exercise of

Besides, there are elements of an effective constitutionalism that include a system of

The concept of constitutionalism suggests, at least the following core ideas:

The big argument behind constitutionalism is simply putting-up restraint on governmental

The idea of constitutionalism witnessed rejection of theological (propositions and

A constitutional government now identified with a democratic government. In other words,

Notions of constitutionalism; Liberal Vs Marxist Notions

Different form this is the Marxist view of constitutionalism. In a socialist country,

Problems and prospects:

Self-government is no substitute of a good government how so ever good it may be.

In medieval Europe, Monarchy was considered as divinely ordained institution, i.e. as it is

Historical precedents of Constitutional development in the

II. The Roman and Republican constitutionalism

2.1 The English Revolution and Thomas Hobbes

2.2 The American war of independence and J. Locke

2.3. French Revolution and Rousseau

The general will and French Revolution

Regarding the form and structure of governmental administration, Baron De Montesquieu

The principle of separation of power and

A. Historical over view

FIGURATIVE ILLUSTRATION OF SEPARATION OF POWER

The concept of Checks and Balances

III .checks and balances in USA government

Iv. Checks Balances in other countries

balance monarchy. Aristocracy and democracy was gradually transformed in to a system to

3.1 The Rule of Law

of consequences. Conversely, the existence of the rule of law has many

- The executive organs of government must be effective in maintaining law and

Limited Government and Rights of Citizens

Limited governments are government that rule according to constitution as opposed to

The American model: Listing citizens rights

The systematic approaches seek to define everything comprehensively, to set boundaries.

3.2. Popular Sovereignty

Ways of ensuring popular Sovereignty

Representation is another ways of ensuring popular sovereignty. Representatives of the

3.3 Constitutionality (Constitutional Order)

Majority Rule and minority rights

The US constitution inspired by the characteristics religious diversity. Of course, the US

existence of and hence completion between different religions. If a multicultural state to

religion, in descending order of separateness, from complete separation to complete lack of

Secularism of strict separation

Secularism implies a restrictive understanding of “private life” where religion is supposed to

Fig1. Religious liberty and degree of separation of church and state

With regard to the USA’s constitution, H. Jefferson powers, concludes:

1. The Canon or principles of legal and constitutional interpretation in

Depolarized public bureaucracy

3.5. Democracy, Freedom and Equality

Transparency and Accountability

Citizens Participation: Equality of opportunities

Separation of powers and checks and balances

Thus, the constitution should be designed in a way that no organ of government be