What Is A Constitution ?

LAW 120 Constitutional Law of UK and USA Muhammad Naimur Rahman
What is a Constitution?
Recent years have witnessed renewed attention to constitutions by both academics and policy
makers. This is hardly surprising given that constitutions are the foundation for government in
virtually every society around the world. They simultaneously create, empower, and limit the
institutions that govern society. In doing so, they are intimately linked to the provision of public
goods. Outcomes, like democracy, economic performance and human rights protection, are all
associated with the contents of countries' constitutions. It is little wonder, then, that
constitutions are often blamed for poor economic and political outcomes or that such
outcomes commonly result in constitutional change.
Despite the centrality of constitutions in both scholarship and practice, there is some confusion
about the precise definition of a constitution. For instance, the late Walter Murphy, one of the
most distinguished scholars of constitutional law, was fond of interrupting conversations about
"constitutions" with the pointed interjection, "you mean the text, right?" Others have
elaborated Murphy's point that the written text is not perfectly contiguous with the larger
constitutional order of a country, an order that might include "super-statutes," decisions of
judges and agencies, and even informal institutions. If one is to understand the difference
between a country's written constitution and its larger constitutional order, it is important to
distinguish between the functions of a constitution and its form.
Constitution-As-Function versus Constitution-As-Form

The principal divide regarding the use of the term constitution has to do with its reference to
either certain functions (however achieved) or a certain form (whatever its function). The
constitution in the first connotation comprises those elements (e.g., laws, theories, and
interpretations) that perform what are traditionally understood as "constitutional" functions.
The constitution in the second connotation refers to the formal written charter, a form that is
now nearly universal among modern states.
To understand the first conceptualisation, that of constitution-as-function, we should clarify

what scholars view to be the traditional purposes of constitutions. A central idea here is the
limitation of government power. Constitutions generate a set of inviolable principles and more
specific provisions to which future law and government activity more generally must conform.
This function, commonly termed constitutionalism, is vital to the functioning of democracy.
Without a commitment to higher law, the state can operate for the short-term benefit of those
in power or the current majority. Those who find themselves out of power may find that they
are virtually unprotected, which in turn may make them more likely to resort to extra-
constitutional means of securing power. By limiting the scope of government and
precommitting politicians to respect certain limits, constitutions make government possible.
A second function that constitutions serve is the symbolic one of defining the nation and its
goals. In this conception, the constitution functions not so much as a set of rules as an ongoing
LAW 120 Constitutional Law of UK and USA Muhammad Naimur Rahman
set of practices that define the political unit, facilitating, under some circumstances, the
emergence of constitutional identity.
A third and very practical function of constitutions is that they define patterns of authority and
set up government institutions. This function differs from the constitutionalism function of
limiting government. Although the mere process of defining an institution involves some
constraints on its behavior, these organizational maps are conceptually distinct, albeit subtly,
from the substantive and entrenched limits on government action incorporated into the notion
of constitutionalism.
Functional definitions identify the constitution as comprising those rules or understandings that
purport to accomplish the functions described above. The functional constitution includes the
formal, written constitution as well as the collection of legal theories, norms, customs, and
understandings that make up some intersubjective consensus about what constitutes the
fundamental law of the land. The functional constitution is sometimes referred to as the
constitutional order or the "small-c" constitution.
More formal definitions limit the term to encompassing only the founding charter - that is, the
nominal or written constitution - regardless of whether it adequately serves the
aforementioned functions. This is sometimes referred to as the "large-c" Constitution and is
more in tune with what ordinary citizens in most countries think of when they hear the word
constitution. A standard operational definition of written constitutions is the one developed by
the principal investigators of the Comparative Constitutions Project (CCP), which involves a set
of three conditions to assess a law's status as a "Constitution":
1. The document is identified explicitly as the Constitution, Fundamental Law, or Basic Law
of a country
2. The document contains explicit provisions that establish it as the highest law, either
through entrenchment or limits on future law
3. The document defines the basic pattern of authority by establishing or suspending an
executive or legislative branch of government.
The first condition is sufficient to qualify a document as a constitution, whereas the others are
applied as supplementary tests if the first is not met. According to this operational definition,
the United Kingdom is the only country in the world without a written constitution.
This description of a constitution is based on the distinction between formal constitutions and
the constitutional order in Chapter 3 of The Endurance of National Constitutions.

What Is A Constitution ?

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LAW 120 Constitutional Law of UK and USA Muhammad Naimur Rahman

Constitution-As-Function versus Constitution-As-Form

To understand the first conceptualisation, that of constitution-as-function, we should clarify

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