detail - Rule of Law Programme Middle East and North Africa
Fundamental Works of Constitutional Law
In his contribution to the Handbook of Constitutional Law of the Federal Republic of Germany Dieter Grimm1 deals with the origin and development of the constitution as the basis of a state. In doing so, he does not only refer to the constitution of the Federal Republic of Germany, but fundamentally starts with the origin of constitutions in a normative sense as a novelty of state organization. It should first be noted that the term constitution can have two different meanings: (1) the constitution of a state can be understood as the prevailing political conditions in a descriptive sense, and (2) in the normative understanding of the present contribution, as the law that regulates the establishment of the state and the exercise of state power.
The second understanding of constitution is – from historic perspective – a relatively new phenomenon. Normative constitutions initially developed towards the end of the 18th century in context of the American and French Revolution and have strongly gained importance since then. Regarding this development, Grimm emphasizes the difference between legalization and conditionalization, because not every judification is a constitution in the sense mentioned above.
For a long time, there was no suitable subject matter for a normative constitution. Power was distributed among different persons and families and often resulted from existing ownership of land. Appropriate framework conditions developed through confessional splits in the 16th and 17th century. These led to a growing need to create a superior power structure. In this process, the terms of state and sovereignty were established. But at that time no constitutions in a normative sense hat yet developed. This was mainly due to the fact that in absolutist entities power was concentrated with the ruler, who did not want to see himself restricted by a constitution. Although legal norms were already in place to protect against violence of the ruling class. But these were more a hierarchization than a constitutionalization.
Normative constitutions – as they exist today – developed from the American Revolution in 1776 and the French Revolution in 1789 and the resulting power vacuums. In America this was accompanied by the declaration of independence from England, while in France absolutism prevented economic development. From a legal perspective, the French Revolution mainly referred to contract theories based on natural law. These had already gained importance before the revolution because of the religious schism. After that it was the task of the state to secure the freedom of the individual, presupposing a monopoly of force held by the state, which was only applicable in the interest of the freedom of citizens.
As a consequence, the separation of state and society developed, and state intervention in society required justification and thus limiting regulations. At the same time, the common good also changed. In the new plural society, the understanding of common good was not fixed, but had to be defined within the framework of a community decision-making process, which also made regulations necessary. A constitution, therefore, provided a legal basis and framework procedures, which were attributed primacy over the ordinary law.
The fundamental rights of the Constitution, which existed in both France and the United States, were of particular importance in securing the freedom of the individual. In addition, the constitutions contained principles of state organization. At the same time as modern constitutions were being developed, the need for a constitutional judiciary to oversee the constitution also arose. While such an approach developed early in the United States, it did not exist in France that time.
Grimm describes modern constitutions as evolutionary achievement. However, it is important to visualize that not every constitution is the product of a revolution and not every constitution is equally effective. Constitutions, can be undermined, not applied or decay to a mere facade illegitimate exercise of power. Therefore, Grimm describes necessary elements of a functional constitutional concept.
Even after the establishment of constitutions as the central normative basis of the state, they are still subject of developments. The change towards the welfare state, in particular the state’s obligation to protect fundamental rights, also play a role here. The constitution is also affected by the activities of political parties and the constitutionalization beyond the individual states, for example within the framework of the European Union.
1Dieter Grimm is a former German professor for public law at the Bielefeld University and Humboldt University of Berlin. From 1987 bis 1999 he served as a judge in the first senate of the Federal Constitutional Court of Germany.