9 - Constitutionalism

Summary

The idea o f constitutionalism

The term ‘constitutionalism’ had no currency in the political thought of the late fifteenth and sixteenth centuries. A nineteenth-century augmentative of ‘constitution’, itself derived from the Latin (constitutio), the term signifies advocacy of a system of checks upon the exercise of political power. Such a system is commonly taken to involve the rule of law, a separation of legislative from executive and from judicial power, and representative institutions to safeguard the individual and collective rights of a people who, while governed, are nonetheless sovereign. As we shall see, ideas which would contribute to later conceptions of that kind were present in the thought of the period. But for those thinkers the term ‘constitution’, which certainly formed part of their technical vocabulary, conveyed a very different meaning. They used it first and foremost in a sense consistent with the definition to be found in Justinian's lawbooks, a definition which drew no distinction between the legislative and judicial spheres: ‘whatever the emperor has determined (constituit) by rescript or decided as a judge or directed by edict is established to be law: it is these that are called constitutions’ (Institutes, 1.2.6). A constitution was an explicit declaration of law by the prime political authority. Hence, in England, Chief Justice Fortescue's view that ‘when customs and the rules of the law of nature have been reduced to writing and published by the sufficient authority of the prince and ordered to be kept, they are changed into a constitution or something of the nature of statutes’.