What is a 'Constitution'?

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What is a ‘Constitution’?

The ‘constitution’ is usually the ‘higher law’ of any legal system - to a certain extent it is the the very law (usually contained in a single document) which constitutes, or brings into existence in the first place, a legal system.  The constitution is the source from whence all particular or occasional laws derive their validity.  It is the legal source of validity of particular laws.  To a certain extent two ideas follow from this initial idea of ‘validity’.

  • Firstly the constitution legitimises the particular and occasional laws of a legal system - it is the reason for the validity of the particular and occasional laws.  It provides the ‘legality’ of the exercise of political power.
  • Secondly the constitution seems to inherently include an idea of the limitation of the arbitrary use of power in any society - there is a duty upon those who occupy state positions to act within the framework of the powers given, and in the manner specified by the constitution.  The constitution will usually apportion out legal competence in any political society.

These two principles go together.  Those who are granted power by the constitution (say, to legislate - or ‘make new law’) will appeal to the constitution as the source of the legitimacy or justification of their exercise of this power.

Similarly, since the constitution itself defines the scope and nature of ‘legal’ power in any political society (it allocates the “who” “what” and “how” of acts which have legal effect as acts of legislation, or adjudication) then failure to follow the procedure laid down by the constitution will mean that a behaviour has no legal effect if ‘unconstitutional’ and, more importantly, will be a reason for criticism of any political act of power which is ‘unconstitutional’.

We are already here within an area which seems to me to be problematic when it comes to talking about the British (or UK) constitution.

First, and generally, it appears strange that a ‘constitution’ which is itself supposed to be part of the legal system of any political state can confer this legitimacy, or indeed, illegitimacy upon acts of political power.  In short, ‘What justifies the constitution to perform this role’?  

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It seems that we already need recourse to some political, moral or ethical (or extra-legal - in any case non-legal) justifying principle here such as the value of ‘legality’ or the democratic idea of the constitution as the outcome of a ‘founding act of the people (or ‘democratic will’) in setting up the Constitution’ such as when after the French and American Revolutions constitutions were enacted as the first free act of the newly free people (the ‘creation’ of legitimate political power through this founding act of ‘democratic will’ which, as it were, itself stands ‘above’ the merely legal constitution as the ...

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