constitutional law, the body of rules, doctrines, and practices that govern the operation of political communities. In modern times the most important political community has been the state. Modern constitutional law is the offspring of nationalism as well as of the idea that the state must protect certain fundamental rights of the individual. As the number of states has multiplied, so have constitutions and with them the body of constitutional law, though sometimes such law originates from sources outside the state. The protection of individual rights, meanwhile, has become the concern of supranational institutions, particularly since the mid-20th century.In the broadest sense a constitution is a body of rules governing the affairs of an organized group. A parliament, a church congregation, a social club, or a trade union may operate under the terms of a formal written document labeled a constitution. Not all of the rules of the organization are in the constitution; many other rules (e.g., bylaws and customs) also exist. By definition the rules spelled out in the constitution are considered to be basic, in the sense that, until they are modified according to an appropriate procedure, all other rules must conform to them. Thus, the presiding officer of an organization may be obliged to declare a proposal out of order if it is contrary to a provision in the constitution. Implicit in the concept of a constitution is the idea of a “higher law” that takes precedence over all other laws.
Every political community, and thus every state, has a constitution, at least insofar as it operates its important institutions according to some fundamental body of rules. By this conception of the term, the only conceivable alternative to a constitution is a condition of anarchy. Nevertheless, the form a constitution may take varies considerably. Constitutions may be written or unwritten, codified or uncodified, and complex or simple, and they may provide for vastly different patterns of governance. In a constitutional monarchy, for example, the sovereign’s powers are circumscribed by the constitution, whereas in an absolute monarchy the sovereign has unqualified powers.
Giovanni Bognetti
David Fellman
Matthew F. Shugart
A political community’s constitution articulates the principles determining the institutions to which the task of governing is entrusted, along with their respective powers. In absolute monarchies, as in the ancient kingdoms of East Asia, the Roman Empire, and France between the 16th and 18th centuries, all sovereign powers were concentrated in one person, the king or emperor, who exercised them directly or through subordinate agencies that acted according to his instructions. In ancient republics, such as Athens and Rome, the constitution provided, as do the constitutions of most modern states, for a distribution of powers among distinct institutions. But whether it concentrates or disperses these powers, a constitution always contains at least the rules that define the structure and operation of the government that runs the community.
A constitution may do more than define the authorities endowed with powers to command. It may also delimit those powers in order to secure against them certain fundamental rights of persons or groups. The idea that there should be limits on the powers that the state may exercise is deeply rooted in Western political philosophy. Well before the advent of Christianity, Greek philosophers thought that, in order to be just, positive law—the law actually enforced in a community—must reflect the principles of a superior, ideal law, which was known as natural law. Similar conceptions were propagated in Rome by Cicero (106–43 BC) and by the Stoics (see Stoicism). Later the Church Fathers and the theologians of Scholasticism held that positive law is binding only if it does not conflict with the precepts of divine law. These abstract considerations were received to a certain extent in the fundamental rules of positive legal systems. In Europe during the Middle Ages, for example, the authority of political rulers did not extend to religious matters, which were strictly reserved to the jurisdiction of the church. Their powers also were limited by the rights granted to at least some classes of subjects. Disputes over the extent of such rights were not infrequent and sometimes were settled through solemn legal “pacts” between the contenders, such as Magna Carta (1215). Even the “absolute” monarchs of Europe did not always exercise genuinely absolute power. The king of France in the 17th or 18th century, for example, was unable by himself to alter the fundamen