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International Alliance for Advanced Judicial Studies (IAAJS)

Constitution

 

A constitution is an aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity, and commonly determine how that entity is to be governed.

Excavations in modern-day Iraq by Ernest de Sarzec in 1877 found evidence of the earliest known code of justice, issued by the Sumerian king Urukagina of Lagash ca 2300 BC. Perhaps the earliest prototype for a law of government, this document itself has not yet been discovered; however it is known that it allowed some rights to his citizens. For example, it is known that it relieved tax for widows and orphans, and protected the poor from the usury of the rich.

In the Principality of Catalonia, the Catalan constitutions were promulgated by the Court from 1283 (or even two centuries before, if we consider the Usatges of Barcelona as part of the compilation of Constitutions) until 1716, when Philip V of Spain gave the Nueva Planta decrees, finishing with the historical laws of Catalonia. These Constitutions were usually made formally as a royal initiative, but required for its approval or repeal the favorable vote of the Catalan Courts, the medieval antecedent of the modern Parliaments. These laws had, as the other modern constitutions, preeminence over other laws, and they could not be contradicted by mere decrees or edicts of the king.

The Gayanashagowa, the oral constitution of the Iroquois nation also known as the Great Law of Peace, established a system of governance in which sachems (tribal chiefs) of the members of the Iroquois League made decisions on the basis of universal consensus of all chiefs following discussions that were initiated by a single tribe. The position of sachem descended through families, and were allocated by senior female relatives.

The English Protectorate that was set up by Oliver Cromwell after the English Civil War promulgated the first detailed written constitution adopted by a modern state; it was called the Instrument of Government. This formed the basis of government for the short lived republic from 1653 to 1657 by providing a legal rationale for the increasing power of Cromwell, after Parliament consistently failed to govern effectively. Most of the concepts and ideas embedded into modern constitutional theory, especially bicameralism, separation of powers, the written constitution, and judicial review, can be traced back to the experiments of that period.

The Instrument of Government was replaced in May 1657 by England's second, and last, codified constitution, the Humble Petition and Advice, proposed by Sir Christopher Packe. The Petition offered hereditary monarchy to Oliver Cromwell, asserted Parliament's control over issuing new taxation, provided an independent council to advise the king and safeguarded 'Triennial' meetings of Parliament. A modified version of the Humble Petition with the clause on kingship removed was ratified on 25 May. This finally met its demise in conjunction with the death of Cromwell and the Restoration of the monarchy.

In Denmark, as a result of the Napoleonic Wars, the absolute monarchy lost its personal possession of Norway to another absolute monarchy, Sweden. However the Norwegians managed to infuse a radically democratic and liberal constitution in 1814, adopting many facets from the American constitution and the revolutionary French ones; but maintaining a hereditary monarch limited by the constitution, like the Spanish one.

The Renaissance brought a series of political philosophers who wrote implied criticisms of the practices of monarchs and sought to identify principles of constitutional design that would be likely to yield more effective and just governance from their viewpoints. This began with revival of the Roman law of nations concept and its application to the relations among nations, and they sought to establish customary "laws of war and peace" to ameliorate wars and make them less likely. This led to considerations of what authority monarchs or other officials have and don't have, from where that authority derives, and the remedies for the abuse of such authority.

Codified constitutions are often the product of some dramatic political change, such as a revolution. The process by which a country adopts a constitution is closely tied to the historical and political context driving this fundamental change. The legitimacy (and often the longevity) of codified constitutions has often been tied to the process by which they are initially adopted and some scholars have pointed out that high constitutional turnover within a given country may itself be detrimental to separation of powers and the rule of law.

 
 

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