Definition of Constitutions

Rainer Grote

Content type: Encyclopedia entries

Product: Max Planck Encyclopedia of Comparative
Constitutional Law [MPECCoL]
Article last updated: March 2018

Subject(s):
Constitutions and international law — Principles and objectives of constitutions — Comparative
constitutional law — Constitutions and amendments
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
Managing Editor: Ana Harvey

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved. Subscriber:
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 A.  Historical Meanings
1.  The term ‘constitution’ existed long before modern constitutions emerged. Originally
used to describe a person’s physical state, it was soon applied to the body politic, yet not in
a normative sense, but as a description of the situation of a country as determined by a
number of factors such as its geography, climate, population, customs, and laws (Grimm
100). Still today, it retains a multiplicity of meanings, as even a short look at the definitions
given in general dictionaries will show. Even in legal usage, the concept of constitution is
not reserved to states as the most powerful political organizations, but is equally applied to
designate the basic rules of governance of a multitude of other organizations, including
nongovernmental organizations and civic groups.

2.  The concept of constitution first appears in the work Politics of Aristotle (384–322 BC)
who defined a constitution as an organization of offices in a state, by which the method of
their distribution is fixed, the sovereign authority is determined, and the nature of the end
to be pursued by the association and all its members is prescribed. He distinguished from
the constitution thus defined the laws as the rules by which the magistrates should exercise
their powers, and should watch and check transgressors (Aristotle 1289a). In medieval
Europe, the term was not used consistently. While certain important laws enacted by the
Emperor or King were frequently referred to as constitutiones, such practice was neither
uniform nor based on a shared understanding of certain unique qualities of the edicts or
laws thus designated (Mohnhaupt and Grimm 19). The first detailed written constitution
adopted by a modern state following the English Civil War in order to provide a legal basis
for the Protectorate of Oliver Cromwell was not called a ‘constitution’, but an ‘Instrument of
Government’. The same term is still used today with respect to the constitution of Sweden
(Instrument of Government (SFS nr 1974:152): 1974 (as Amended to December 7, 2010)).

B.  Modern Definitions

3.  It was only with the revolutions of the late eighteenth century that the modern concept
of constitution emerged. The rise to prominence of the concept was linked to the desire, as
well as the urgent need, to fill the political vacuum which the successful revolutions had
created. The revolutionaries aimed to establish the legal bases for a new kind of
government, one which was fundamentally different from the kind of rule from which they
just had freed themselves, ie the unfettered powers of the British Parliament and the
absolutist rule of the French King, respectively (→ absolutism). In order to achieve this
objective, they resorted to the natural law ideas which had gained wide currency in the
eighteenth century: that it is the consent of the ruled expressed by means of a social
contract which constitutes the ultimate justification of political rule, and that the main
purpose of any political association so constituted is the preservation of the rights of its
members from the vicissitudes of the state of nature, rendering illegitimate any rule which
strays from this objective and degenerates into tyranny and despotism (see → theory of
natural law).

4.  The revolutionaries set out these rules in the form of written and solemn documents
officially designated as constitutions (Constitution of the United States of America:
September 17, 1787 (as Amended to May 7, 1992); Constitution of France:3 September
1791). The constitution in the modern sense is no longer descriptive, but prescriptive. It is a
set of legal norms which is set apart from other legal norms, the ordinary law, by its specific
purpose and its specific characteristics. The purpose of the constitutional norms is to
regulate the way in which legitimate public authority is constituted and exercised. In order
to achieve this purpose, constitutional norms must bind the exercise of public authority in
all its forms, including those forms of public power which have as their object the
enactment of new laws and the amendment or abolition of existing laws. If these powers
were to be exempt from constitutional regulation, the purpose of the constitution could

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 easily be frustrated. Therefore the constitution is higher law in the sense that it enjoys
supremacy over all other laws and legal acts emanating from government (Grimm 104) (see
→ supremacy / primacy).

5.  Competing definitions of constitutions have from time to time been advanced, mainly by
constitutional theorists. A prominent example is the concept of constitution developed by
Carl Schmitt. In his book Verfassungslehre he defines the constitution as the decision of the
constituent power (→ pouvoir constituant), usually the people, about the nature and the
form of its polity. According to Schmitt, this decision precedes the drafting of the
constitutional text and does not require or even allow a formal act (Schmitt 23). This
definition rejects a formal understanding of the constitution and blurs the line between the
normative and the descriptive constitution.

6.  In constitutional practice, by contrast, the legal concept of constitution prevails today. A
recent illustration is the decision of the United Kingdom (‘UK’) Supreme Court on the
constitutional requirements for a withdrawal of the UK from the European Union (→ R (on
the application of Miller and another) v Secretary of State for Exiting the European Union
Case (2017) (UK)). Referring to the absence of a written constitution as a source of higher
law in the legal system of the UK, the Court noted: ‘[u]nlikemost countries, the United
Kingdom does not have a constitution in the sense of a single coherent code of fundamental
law which prevails over all other sources of law’ (para. 40). However, whilethe UK does not
have a constitution in the sense of a single coherent code of ‘higher law’, it still has a
constitution in the material sense. The way in which the concept is used in the UK has been
strongly influenced by Albert V Dicey (1835–1922) who distinguished between two elements
of the English constitution: the law of the constitution and the conventions of the
constitution. While the constitution is made up of all the rules, customs, and conventions
having as their object the organization and operation of the institutions of government, the
law of the constitution is defined more narrowly as consisting only of those rules affecting
the structure and powers of government which are enforceable in the courts (Dicey CXLI).

C.  Related Concepts

7.  While the constitution is the most important source of constitutional law, it is not its only
source and therefore does not comprise the whole body of constitutional law. Constitutional
norms may also be found outside the document officially designated as constitution.
Constitutions frequently refer to implementing statutes which ‘fill in the details’ by
providing for the procedures and mechanisms necessary for the establishment and
functioning of the public authorities provided for in the text of the constitution. In France
and other Romanic countries, these frequently form a distinct category of constitutional
laws (loisorganiques, leyesorganicas), which in France are an integral part of the bloc de
constitutionnalité against which the constitutionality of ordinary statutes is measured.
Similarly, the precise scope and meaning of more broadly framed constitutional provisions,
including fundamental rights and general principles like → democracy, or → rule of law, is
often determined by the courtsin cases and controversies concerning their proper
interpretation and application. Thus the constitution in the formal sense is the most
important, but not the only source of constitutional law, or the constitution in the material
sense.

8.  The constitution also has to be distinguished from the concept of → constitutionalism. As
shown above, the purpose of modern constitutions is to regulate the establishment and the
exercise of public authority comprehensively. Forms and uses of public authority not
provided for or at least admitted by the constitution are both illegitimate and unlawful.
Thus modern constitutions have an important limiting function as they contain the criteria
for distinguishing between admissible and inadmissible forms of public power. Historically,

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 the concept of constitution as the primary vehicle for limiting the powers of government
was particularly strong in the American and French constitutions of the late eighteenth
century, which wanted to get rid of → parliamentary sovereignty and monarchical
sovereignty respectively. However, the revolutionaries in France soon came to consider it
more important to create an effective state power able to defend the revolution against its
internal and external enemies than to impose effective limits on public power, without
ditching the concept of constitution altogether. This in many ways anticipated developments
in the nineteenthand even more in the twentieth century, when political regimes of a
different variety would often find it useful to enact constitutions primarily designed to serve
the interests of the ruler(s), not to impose effective limits on their powers, giving rise to
semantic (Loewenstein 147) or instrumentalistic (Neves 96) constitutions. While the late
twentieth century saw a renaissance of constitutionalism following the end of the Cold War,
with the adoption of new constitutions explicitly providing for institutions (particularly
constitutional courts) and procedures (constitutional review) to supervise and to enforce the
limits they impose on the powers of government in many countries which had previously
lacked such institutions, the return of authoritarian and illiberal political regimes and
practices in recent years has shown that any progress made in advancing the goals of
constitutionalism remains vulnerable to abrupt reversal and dramatic setbacks (see
→ authoritarianism). Thus it is fair to say that while almost all countries today have
constitutions, constitutionalism as a specific form of constitutional practice has taken root
only in a limited number of them.

D.  Elements of Definition: Formal

9.  Formal definitions of the constitution emphasize the distinction between written and
unwritten constitutions (→ codified / uncodified constitutions). This distinction was fairly
prominent in the nineteenth and early twentieth century, when written constitutions in the
form of constitutional codes were still a novelty and the unwritten constitution of the UK
was widely admired and emulated, including in the form of written constitutions codifying
the institutions and rules perceived as central to its smooth operation (Norway
(Constitution of the Kingdom of Norway: May 17, 1814 (as Amended to May 9, 2014));
Belgium 1831 (Coordinated Constitution of the Kingdom of Belgium: February 17, 1994 (as
Amended to January 31, 2014)); Sardinia-Piedmont (Constitution of Sardinia-Piedmont:
March 1848)). It is of less relevance today. With very few exceptions, all sovereign states
have a written constitution in which the basic institutions, procedures, and principles of
government are codified, the main exceptions being Britain, Israel, and New Zealand. Even
with regard to the latter countries, however, a plausible claim can be made that central
parts of their constitutions can be identified by ‘stapling together’ a number of written laws,
such as the Basic Laws in Israel, or statutes of a fundamental character, like the → Bill of
Rights (1689) or the Human Rights Act 1998, in the UK (Tushnet 222). Thus the relevant
distinction today is the extent to which the constitution is codified. In most countries, the
starting point for identifying a constitutional rule would be the ‘single coherent
constitutional code’ referred to in the UK Supreme Court’s definition, and published under
the official title of ‘constitution’ in the law gazette.

10.  With regard to the coherence of the constitutional code, countries steeped in the civil
law tradition are more likely to put greater emphasis on a detailed code as the main source
of constitutional law than common law countries where judicial → precedent and political
practice have traditionally played a bigger role in the shaping of constitutional governance.
However, also in civil law countries considerations of doctrinal consistency are of much less
importance in the area of constitutional regulation than in other branches of the law. In
addition, a number of global trends have further eroded traditional differences between
common law countries and civil law countries. On the one hand, countries which have
historically been influenced by the common law tradition like India (Constitution of the

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 Republic of India: January 26, 1950 (as Amended to May 28, 2015)) and Kenya (Constitution
of the Republic of Kenya: May 6, 2010) are today more likely than not to adopt
constitutional codes as comprehensive and detailed as countries steeped in the civil law
style of codification, eg in Latin America. On the other hand, the rise of constitutional
courts and constitutional adjudication has given unprecedented weight to judicial precedent
in the development of the constitution and constitutional law in many parts of the world,
including in those legal systems which otherwise deny or minimize the creative function of
the courts in the application of the law (see → constitutional courts / supreme courts,
general; → judicial review).

11.  Closely related to the distinction between written and unwritten constitutions is the
distinction between flexible and rigid/entrenched constitutions (→ rigid (entrenched) /
flexible constitutions). Flexible constitutions can be changed quite easily, through (ordinary)
legislation, revision of judicial precedent, and modification of constitutional conventions,
whereas rigid constitutions can only be changed through formal constitutional amendment,
in a special procedure designed to ensure that changes to the basic law of the country are
based on sufficiently broad support (→ amendment or revision of constitutions). While it is
in principle possible to imagine that written constitutions can be changed in the normal
→ legislative procedure, the universal trend has been towards entrenchment. The
amendment of constitutional provisions requires special (qualified) majorities. Some
chapters of the constitution, especially the → bill of rights, may be more difficult to amend
than others, while certain key provisions or principles—eg provisions enshrining the
republican, federal, or democratic character of the state—may not be subject to amendment
at all (see → entrenched clauses).

E.  Elements of Definition: Substantive

12.  Substantive definitions try to identify the main principles and institutions which
constitute the core of constitutional regulation. However, what is considered as
‘fundamental’ in a society may—and often does—change over time. As has already been
mentioned, the concept of constitution in the modern sense is closely linked to the rise of
the concept of → separation of powers as an institutional arrangement—or a web of
institutional arrangements—designed to regulate and limit the powers of the state so as to
prevent their arbitrary or tyrannical use. These twin principles, the protection of
→ individual rights and the determination of the separation of powers, were already
identified as the primary objects of a modern constitution in the famous Article16 of the
→ French Declaration of the Rights of Man and of the Citizen (1789): ‘Any society in which
no provision is made for guaranteeing rights or for the separation of powers, has no
Constitution’ (TouteSociétédanslaquelle la garantie des Droitsn’est pas assurée, ni la
separation des Pouvoirsdéterminée, n’a point de Constitution).

13.  While the huge majority of contemporary constitutions continue to pay at least lip
service to the separation of powers and the protection of individual rights, the scope of
modern constitutions often goes considerably beyond these traditional principles by
formulating the basic tenets of a just political and social order. This captures an aspect of
the constitution which was familiar to constitutional theorists like Rudolf Smend and central
to their thinking but has received less attention in the era of economic liberalism and
globalization: constitution as a means to integrate modern societies which are not
homogeneous per se and, left to their own devices, risk to become ever more disintegrated
under the relentless pressures of disruptive economic and social modernization. The
integrative function of the constitution thus requires more than a comprehensive guarantee
of individual rights and the effective implementation of the separation of powers. The
emphasis on the integrative function of the constitution, which has seen a renewed interest
more recently, may lead the framers of the constitution to formulate concepts of social

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 justice, of national unity or religious identity etc which are meant to allow the members of
the polity to imagine themselves as stakeholders in a political and constitutional project
transcending individualist aspirations and claims. Constitutions of socialist countries, for
example, deal in considerable detail with the structure of the economy, a concern which is
largely absent from constitutional texts of a liberal inspiration (see → socialism;
→ liberalism). The growing influence of religion in constitutional discourse, particularly in
Islamic countries, is reflected in a growing number of constitutional texts reaffirming a
traditional religious identity and establishing institutional arrangements for its protection
(→ relation of religion to state and society). But, the influence of the integrative approach
can also be seen in the widening of the concept of human and minority rights. In recent
years, constitutional regulation of human and citizens’ rights has seen a particularly
dynamic development which has left its marks on constitutional texts: from the codification
of an ever growing number of economic, social, and cultural rights; to the express
protection of rights of particularly vulnerable persons (→ vulnerable groups), like children,
women, and disabled people (→ rights of children; → rights of women; → rights of disabled
persons); to the recognition of special → collective rights for certain minority groups and
indigenous peoples (see eg→ protection of ethnic minorities; → protection of linguistic
minorities; → protection of religious minorities; → rights of indigenous communities). The
trend to define more broadly what is considered as‘fundamental’ in a polity is also reflected
in agrowing willingness to make reference to indeterminate concepts like social justice or
sustainable development in the constitutional text, and to confer binding force not only on
the operative text, but also on the → preamble of the constitution. All this reflects shifting
priorities in contemporary societies on what should be considered as ‘fundamental’ for the
purpose of constitutional codification, leading to a change in scope and focus of modern
constitutions which would hardly be recognizable to the framers of eighteenth and
nineteenth century constitutional texts.

F.  Elements of Definition: Hierarchical

14.  Central to the modernconcept of constitution are its unique legal characteristics which
place it at the top of the domestic legal hierarchy. In this perspective, the constitution is the
paramount law—the law that prevails over any other law. For many holding this view, the
special position of the constitution is a direct consequence of the fundamental character of
the rights and the institutions it tries to safeguard: their importance to the existence and
the preservation of the legal-political order means that they must be defended against
attempts to bend them or to derogate from them. Thus any legal provision which is found to
be at variance with one or several provisions of the constitution is denied any legal effect.
The concept of the constitution as ‘higher law’ found an early expression in eighteenth
century American constitutional thinking, which in turn invoked, and gave new meaning to
precedents from early seventeenth century English jurisprudence, and in particular the
famous dictum of Edward Coke CJ in Doctor Bonham’s Case (1610) (UK):

[a]ndit appears in our books, that in many cases, the common law will control Acts
of Parliament, and sometimes adjudge them to be utterly void; for when an act of
Parliament is against common right and reason, or repugnant, or impossible to be
performed, the common law will control it, and adjudge such an Act to be void…

15.  Although this view was to remain largely inconsequential in English constitutional
history, it resurfaced in eighteenth century America and became central to the reasoning of
the → Supreme Court of the United States in the seminal → Marbury v Madison Case (US):

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 [t]he Constitution is either a superior, paramount law, unchangeable by ordinary
means, or it is on a level with ordinary legislative acts, and, like other acts, is
alterable when the legislature shall please to alter it. If the former part of the
alternative be true, then a legislative act contrary to the Constitution is not law; if
the latter part be true, then written Constitutions are absurd attempts on the part of
the people to limit a power in its own nature illimitable. Certainly all those who
have framed written Constitutions contemplate them as forming the fundamental
and paramount law of the nation, and consequently the theory of every such
government must be that an act of the Legislature repugnant to the Constitution is
void (Marbury v Madison (1803) 178 (US)).

16.  However, the same result can be reached, and indeed has been reached, by adopting a
purely formalist approach which abstracts from the concept of ‘higher law’ and its natural
law implications. The most influential version of such a formalist approach was developed in
the early twentieth century by Austrian scholars Adolf Merkl and Hans Kelsen. According to
their ‘Pure Theory of Law’, each order of positive law forms a hierarchy. In this hierarchy, a
legal norm is qualified as valid if it has been created in accordance with the relatively
higher norm which authorizes its creation. In the broad sense, each relatively higher legal
norm is thus a ‘constitution’ in relation to any norm created under its authority. This need
not, however, supersede a narrower meaning of ‘constitution’, which identifies those
relatively high legal norms that can be changed only through a particularly demanding
process, involving qualified majorities and/or a popular referendum (Kelsen 68, 71). In
order to enforce the hierarchy, a special procedure is needed in which the conformity of the
statute or other juridical norm created under the authority of the constitution with the
latter can be verified in an authoritative manner. This led Kelsen as early as 1919 to
propose the creation of a special institution whose mission was to issue authoritative and
binding rulings on the meaning of the Constitution and the conformity of all inferior
juridical norms to its provisions: the constitutional court. (See in general → theories
concerning the hierarchy of norms.)

17.  Constitution in this sense covers all legal norms—irrespective of their substance—
which enjoy primacy over all rules of the same legal system created under their authority.
Legal supremacy has become a defining feature of constitutions and is today expressly laid
down in the supremacy clauses that, in varying formulations, feature in most constitutions.
A recent example can be found in Article 4 of the Constitution of the Republic of Colombia:
5 July 1991 (as Amended to 4 November 2011) (Colom), which states ‘[t]he Constitution
provides the norm of regulations. In all cases of incompatibility between the Constitution
and the statute or other legal regulations, the constitutional provisions shall apply’ ([l]a
Constituciónesnorma de normas. En todo caso de incompatibilidad entre la Constitución y
la ley u otra norma jurídica, se aplicarán las disposiciones constitucionales). Supremacy in
this sense, however, is limited to the respective domestic legal system. It does not prejudice
the relationship between the constitution and legal norms originating outside the domestic
legal system, in particular international and supranational law. As a matter of fact, the
precise relationship between constitutional law and international law is one of the most
intensely discussed issues in contemporary legal debate, both at the theoretical and the
practical level.

G.  Conclusion
18.  Definitions of the term constitution appear already in the early stages of modern
constitutionalism. Among the three main criteria used to define constitutions—formal,
substantive, hierarchical—the first and the third elements are today largely uncontroversial.
As a practical matter, lawyers will normally know when they are dealing with a constitution,
as constitutions and constitutional laws are identified as such by their official title when

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 published in the law gazettes. The legal supremacy of the constitution is nowadays
regularly proclaimed in the text of the constitution itself. By contrast, attempts to define
constitutions in substantive terms have become more difficult as the nation- and state-
building projects pursued by constitutional drafters, and the concepts and institutional
arrangements used to bring them about, have grown more diverse and complex and the
scope of constitutions has expanded accordingly.

Select Bibliography
Alexy, R, ‘Hans Kelsens Begriff der Verfassung’ in Paulson, SL, and Stolleis, M, (eds),
Hans Kelsen: Staatsrechtslehrer und Rechtstheoretiker des 20. Jahrhunderts (Mohr
Siebeck 2005) 333.

Aristotle, The Politics, translated and with an introduction by E. Barker (Oxford

University Press 1948).

Corwin, ES, ‘The ‘Higher Law’ Background of American Constitutional Law’ (1929) 42
HarvLRev 365.

Dicey, AV, Introduction to the Study of the Law of the Constitution (8th edn Macmillan
1915).

Grimm, D, ‘Types of Constitutions’ in Rosenfeld, M, and Sajó, A, (eds), The Oxford

Handbook of Comparative Constitutional Law (OUP 2012) 98.

Kelsen, H, ‘Die Funktion der Verfassung’ in Vorstand des Österreichischen

Juristentages (ed.), Verhandlungen des Zweiten Österreichischen Juristentages Wien
1964 vol. II (Manz 1964) 65.

Loewenstein, K, Political Power and the Governmental Process (University of Chicago

Press 1957).

Mohnhaupt, H, and Grimm, D, Verfassung: zur Geschichte des Begriffs von der Antike
bis zur Gegenwart (2nd edn Duncker and Humblot 2002).

Neves, M, Symbolische Konstitutionalisierung (Duncker and Humblot 1998).

Schmitt, C, Verfassungslehre (Duncker and Humblot 1928) (English: Seitzer, J, (tr. and
ed.) (Duke University Press 2008)).

Smend, R, Verfassung und Verfassungsrecht (Duncker and Humblot 1928).

Tushnet, M, ‘Constitution’ in Rosenfeld, M, and Sajó, A, (eds), The Oxford Handbook

of Comparative Constitutional Law (OUP 2012) 217.

Select Cases
Doctor Bonham’s Case, Bonham v College of Physicians (Court of Common Pleas)
(1610) 8 Co Rep 107 (UK).

Marbury v Madison (1803) 5 US 137 (US).

R (on the application of Miller and another) v Secretary of State for Exiting the
European Union [2017] UKSC 5 (UK).

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