Process of constitutionalization of the état de droit

• Author: Allan R. Brewer-Carías
• Profession: Emeritus Professor of Law, Central University of Venezuela Fellow, Trinity College, and Simón Bolívar Professor, University of Cambridge, UK (1985-1986)
• Pages: 105-144

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PART TWO

PROCESS OF CONSTITUTIONALIZATION OF

THE ÉTAT DE DROIT

I. THE WRITTEN CONSTITUTIONAL PROCESS

The conso lidation an d further deve lopment of the État de dr oit from the

beginnin g o f the l ast century is, undoubtedly , c losely related to the process of

constitutionalization of the state. This process was cha racterized by the establish-

ment of a system of norms of a higher level in a given legal order, containing in a

global way, the basic rules related to the f undamental functions of the s tate, its

different organs and powers and its in terrelations, and related to the fundamen tal

rights and liberties of the citizens.

Thus, the constitutionalization of the state according to law, started two hundred

years ago with the introduction of written constitutions in the practice of politics.

These written constitution s w ere co nceived as formal documents containing the

will of the people considered as sovereign in regard to the political organization of

a nation. As a consequence of this process, the organs of the state, including kings

and par liament, wer e converted, p recisely, in to such organ s o f the state, and

sovereignty was in general depersona lised and attributed to the people represented

by those organs.

During the last two centuries, after the app roval o f the first of the written

constitutions of modern times, the Constitution of the United States of America in

1787, the practice of written constitutions had spread and written constitutions exist

in almost every co untry in the world today, with ve ry f ew exceptions, amon g

which is that of the United Kingdom. Of course, the fact that in this country and in

a few others such as Israel or New Zealand there is no written constitution, does

not mean that there is no constitution at all. On the contrary, in these countries a

collection of rules exists, pa rtially wri tten, partial ly unwri tten, which establishes,

regulates and governs its government.1 Thus the constitutionalization of the state

according to law has also taken place in constitutional systems with no written

constitutions.

In any case, this process of constitutionalization of the État de droit,reflected in

a constitution, has produced a system of guarantees of individual liberties, whi ch

are specified in the recog nition of fundamental right s; th e es tablishment of the

1M.C. WHEARE,Modern Constitutions, Oxford 1966, p. 1, 2.

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ALLAN R. BREWER󰜔CARÍAS

division of powers; pr ovision for the people󰜚s participation in legislative power by

means of popular representation; and submiss ion of the state to the rule of law.

Most important of all in the context of modern constitutions, it has produced a

system that responds to a political decision of society, ado pted by the people, as a

constituent power through a particular constituent assembly.

In particular, the principle of separation of pow ers, with its distinction between

legislative, governmental and administrative bodies and courts of justice, has been

considered a necessary content of any constitution since the eighteent h centur y,

except in socialist countries, because it is thought, in itself, to be the organic guarantee

against abuse of power on the part of the state. We have on ly to remember the

article 16 of the 1789 French Declarati on of the Rights of Man and the Citizen,

which r eads as follows:

«Every society in which the guarantee of rights is not assured, or the sepa ration

of powers not determined has no Constitution at all».2

As we have sa id, the first writ ten constitut ion in modern time s was the

American Constitution of 1787, the United States being the first common law country

to have parliamentary sovereignty replaced by the paramount law of a constitution

given by the people, and its enforceable fundamental rights.3 Indeed, the idea of a

higher and fundamental law established as a social contract had also English origins

and a ntecedents in the process of colonization.

The higher law background of the American Constitution,4can be traced back

to the medieval doctrine of the supremacy of law, drawn from the pa ges of the

works on the laws of England, by the gr eatest English medieval lawyer, Bracton

(1569) mainl y in terpreted by Sir Edward Coke. This prin ciple led to a re action

against the doctrine of the divine right of kings, based on the doctrine of divine

origin of law upon which the basis of civil society is built, and on the principle that

law is supreme above king and people equally.5

1. Historical Origins

Written constitutions of modern times, on e can sa y, do not have their formal

historica l o rigins in the medieval char ters, but particularly in the Instrumen t of

Government (1653), considered to be the first written constitution in constitutional

history.

Nevertheless, the remote antecedents of written constitutions can be found in

the medieval formal pacts made between a prince and h is vassals, or a prince and

popular representation, which was subsequently taken as the expression of the will

of the people.

Certainly, in the Middle Ages, these written agreements, which were called

charters, were established between the Princes and their barons. The most famous

of them is the Magna Carta of 1215. However, these documents were not constitutions

in the modern sense of the word, although their legal nature has been in terpreted

2See in W. LAQUEUR and B. RUBIN,The Human Rights Reader, 1979, P. 120.

3A. LESTER, «Fundamental Rights: The United Kingdom Isolated», Public Law, 1984, p. 58.

4See in general, F. CORWIN , «The Higher Law» Background of American Constitutional Law, New York

1955

5T.F.T. PLUCKNETT,A Concise History of the Co mmon Law, London 1956, p. 49.

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in various ways. They have been termed laws, because they were issued by the

king and took the form of ro yal con cessions, and as suc h, they have even been

described as public law contracts. They have also been present throughout British

history, acting either as a factor of rea l integration, or as the ideological content of

competition between parties, or as a symbol of the parli amentary party. And as of

the eighteenth century, they even symbolized the sp irit of the constitution in its

entirety .

Actually, the Magna Carta was the r esult of a resistance movement by the

privileged barons against the crown policy during the reign of King John (1199󰜔

1216).6 It was just one of the many general charters established between the prince

and his barons, guara nteeing them privileges in exchange for certain commitments

on their part, which were created in feudal times.

Consequently , no ne o f th e dis tinctions belonging to modern constitu tional

law can be a pplied to medieval relations. The Magna Carta was a stabilimentum, that

is to say, an agreement or stipulation lacking any precise sense of political law. The

fact tha t it was in writing is no argument in favour of a constitution, and its very

name, Magna Carta, is not explained histori cally by the fact that it contained a

fundamental law in the sense of modern constitutions; it was a popular description

to distinguish it f rom the Carta Foresta or Chart of the Forest of 121 7 rela ting to

hunting rights.7

The original name of the Magna Carta w as Cartam Libertatis or Carta Baronum.

It was only centuries later, during the Revolution, with Parliament󰜚s struggle against

the absolutism of the Stuarts, that the modern s ense was a ttributed to it, making it

the origin of a Liberal constitution. But as Carl Smith has pointed out, it would be

a historical error to see, even if only by approximation, anything in it analogous to

a modern liberal or democratic constitution.8 Nevertheles s, in medi eval time s, it

was considered to be an unalterable, fundamental and perpetual 9 part of the enacted

law, and was confirmed by different kings more than thirty times thus being an

important part of the progress of common laws.10

In the same English context, the first example of a modern written constitution

is undoubtedly the Instrument of Government 1653, which was the result of the only

real brea k that had occurred in E nglish constitu tional history a nd its political

continuit y.11

In effect, the Great Civil War , which started in 1642 and divided the country

into Parliamenta rians and Royalists, can be thought of as the final step in the long

struggle between the parliamen t and the king. With its religious, econ omic an d

political causes and mutual accusations of breaking and subverting the fundamen-

tal law,12 it brought about the execution of King Charles I, the destruction of the

whole s ystem of central government and the assumption of the government of the

country by the Long Parliament (1649󰜔1660).

6See in general, I. JENNINGS,Magna Carta, London 1965, p. 9.

7W. HOLDSWORTH,A History of English Law, Vol. II, 1971, p. 207, 219.

8C. SCHMIDT,󰜙Teoría de la Constitución (Spanish ed), México 1961, p. 52󰜔53.

9Ch. H. MCILWAIN,The High Court of Parliament and its Supremacy, Yale 1910, p. 64󰜔65.

10 W. HOLDSWORTH,op. cit., Vol. II, p. 219.

11 M.C. WHEARE,Mo dern Cons titutions, Oxford 1966, p. 9 . Cf. J.D.B. MITCHELL ,Constitutiona l Law,

Edinburgh 196 8, p. 27.

12 M. ASHLEY,England in the Seventeenth Century, London 1967, p. 76, 79, 80, 82.