Definitions & Conceptual Issues
Last Updated: January 21, 2009
What is a constitution?
Glossary of Related Definitions on ConstitutionsConstitution
Noun: “A supreme law of the land promulgated to exercise sovereignty.”
Constitutional
Adjective: “Power or action in compliance with the provision of the constitution; related to the constitution.”
Constitutionalism
Noun: “A practice or philosophy of adherence to constitutional principles involving limits on the power of the government put by those constitutional principles and words of the constitution.”
Source: Cottrell, Jill. A Glossary of Constitutional Terms. Stockholm: International Institute for Democracy and Electoral Assistance (International IDEA), 2007, 22-88. According to the United Nations Development Programme, “The constitution refers to fundamental principles of government of a nation implied in laws, customs or contained in a document or collection of documents (which may be referred to collectively as a ‘constitution,’ as ‘basic laws’ or ‘organic laws’). A constitution delineates the basic organization and operations of government, describing both its powers and limitations. Essentially, a constitution outlines the rules of the political game.”1
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Terminology on constitutional processes
Constitutions refer to a set of principles enacting a basic legal structure, upon which the sovereignty of the state rests. However, the tangible and concrete document of a constitution must be distinguished from the notions of constitution building and ideas of constitution making (also called constitutional engineering) that largely connote a process by which this document is formed, deliberated upon, instituted, and amended. In modern discourses, deliberation and participation are seen as instrumental not only to the constitution-building process but also to constitution making.Constitution building, constitution making, and constitutional engineering
Whereas constitution making, or constitutional engineering, refers to the technical act of rendering a constitution, constitution building largely connotes a broader, and lengthier, process,2 now generally considered instrumental in peacebuilding. Indeed, according to Kirsti Samuels, “Constitution Making can be considered a sub-component of Constitution building that focuses on actually making the constitution, and begins with the decision to create, review, or renew a constitution.”3 Constitution building has progressively been transformed from an elite-driven moment into a much more participatory progression that, in ideal circumstances, takes deliberative action. This can be significantly tied to the notion that state sovereignty is no longer merely thought of as top-down legitimate coercion, but also as bottom-up popular sovereignty. Go to Constitutions and peacebuilding processesHence, constitution building implies the process by which this document is formed, deliberated upon, instituted, and amended.4 It includes social transformation processes, as it engages in civic education and consensus-building projects.5 The process defines a rights-and-responsibility relationship in order to establish a social contract between citizen and state.6 Notions Used in Constitutional Processes
Constitutional Building
It “refers to the process whereby a political entity commits itself to the establishment and observance of a system of values and government. It is necessary to make a distinction between the written text that is the constitution and the practices that grow out of and sustain the constitution. Constitution-building stretches over time and involves state as well as non-state organizations. Constitution-building in this sense is almost an evolutionary process of nurturing the text and facilitating the unfolding of its logic and dynamics.”
Source: Ghai, Yash and Guido Galli, Constitution Building Processes and Democratization, Stockholm: International Institute for Democracy and Electoral Assistance, 2006, 9.
Constitution making (constitutional engineering)
It refers to the technical process of drawing up or amending a constitution.
Source: Sakuntala Kadirgamar-Rajasingham, email correspondence, June 3, 2008.
Participatory constitution making
Participation and deliberation is conceived as an inherent feature in the technical process of drawing up a constitution, which “has become one criterion of a legitimate process. Where the premise of constitutionalism as conversation is taken on board, constitution making can no longer be confined exclusively to the domain of ‘high politics’ and negotiations among elites who draft texts behind closed doors.”
Source: Hart, Vivien, Democratic Constitution Making, Washington, DC: United States Institute of Peace, July 2003, 5.
Deliberative and participatory constitution making
Recently, many scholars have emphasized the importance of a deliberative constitution-making (or constitutional engineering) process, that is, the idea of participation as inherent to the technical process of drawing up a constitution. In this thinking, the constitution as a framework should no longer be fashioned solely by elites. It is rather recommended that the constitution be subject to public oversight in its original crafting, and ultimately in adaptations made pending circumstantial changes. Some even argue that “participatory constitution making has become one criterion of a legitimate process. Constitution making can no longer be confined exclusively to the domain of ‘high politics’ and negotiations among elites who draft texts behind closed doors.”7 Thus, in this view, inclusion of citizenry in the formulation of the constitution itself is seen as important.This participatory criterion is both important and quite difficult to apply in post-conflict settings. Indeed, different options exist for the drafting of a constitution in such contexts:
- As part of a peace agreement (in some cases, this may be the result of an international imposition);
- Through a parliamentary or ad hoc commission (this is generally limited to cases where only constitutional reforms are made, with no real change of government, or may be used in the context of interim mechanisms); and
- Through a constitutional assembly, after a first series of post-war general elections.
