Constitutional Key Terms

Question 1

Constitution meaning

Answer 1

Latin origin Constituere: To establish or set up
Today: fundamental law of the land, basic law of the country, rules of the state, grund norm (basic norm: rule that forms an underlying basis for legal system)

Question 2

Functions of constitution

Answer 2

1. Declare and define boundaries
2. Declare and define authority
3. Express identity and values of a national community
4. Declare and define rights and duties
5. Establish and regulate political institutions
6. Divide and share power
7. Declare official religious identities and demarcate sacred and secular authorities
8. Commit states to certain social, economic or developmental goals

Question 3

Qualities of a good constitution

Answer 3

1. Brevity
2. Clarity
3. Definiteness (unambiguous)
4. Comprehensiveness(encompass as much as possible)
5. Suitability
6. Stability
7. Adaptability (living document)

Question 4

Types of constitutions

Answer 4

1. Evolved and enacted
2. Written and Unwritten
3. Federal and Unitary
4. Rigid and Flexible
5. Procedural and Prescriptive

Question 5

Evolved and enacted

Answer 5

Evolved(cumulative constitution): provisions contained in form of conventions, practices, principles and judicial decisions

Enacted: deliberately made by constituent assembly, provisions contained in a book

Question 6

Written and Unwritten

Answer 6

Written(documentary/codified): provisions incorporated in a book or series of documents (USA, Japan, France, India, Canada)

Unwritten: product of historical evolution, provisions not deliberately written in a book or documents by a specific body (UK, NZ, Israel)

Question 7

Rigid and Flexible

Answer 7

Rigid: cannot be amended easily, requires special procedure, constitutional law different from ordinary law (USA, AUS, SWITZ)

Flexible: constitutional law=ordinary law, no special procedure (UK, NZ)

India is a synthesis of both

Question 8

Federal and Unitary

Answer 8

Federal: division of power between national and regional govts (USA, SWITZ,AUS, CAN, BRA, RUSSIA)

Unitary: regional is subordinate to national (UK, FRANCE, JAP, CHINA, ITALY, NORWAY)
India is quasi-federal (both)

Question 9

Procedural and Prescriptive

Answer 9

Procedural: defines legal and political structures, sets legal limits of govt power to protect democratic rights and fundamental rights

Prescriptive (in addition to the above): attempts to impose a consensus on common societal goals that public authorities must strive to achieve

Question 10

Constitutionalism vs Constitution

Answer 10

Constitutionalism: recognises the need for govt with power but with limits to prevent authoritarianism, oppression and arbitrary power.
“Arbitrary power in the hands of any individual or institution even if conferred by a constitutional document is a negation of the concept of constitutionalism.”

Question 11

Elements of constitutionalism

Answer 11

1. Popular sovereignty
2. Rule of law
3. Democratic govt (responsible and accountable)
4. Separation of powers (system of checks and balances)
5. Independent judiciary
6. Civilian control of military
7. Police governed by law and judicial control
8. Respect for individual rights