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1. Constitution and Constitutional
Development
Department of Civics and Ethics
College of Law and Governance
Mekelle University
1

2. Chapter 1: Understanding the Nature and
Basics of Constitution
Major themes
Conceptual frame works: definitions and concepts
 Unique features of Constitutional laws of a state
variation among constitutions of a state
The need for constitutional order
2

3. Lesson 1: Understanding the nature of rules
Question
• What are rules?
• what form rules can take?
3

4. On the nature of human interaction
Rules:
• Courses of conduct prescribed by a
competent body… (eg. The society, the
gov`t).. . And imposed for a group of
people.
• In their purpose rules may formulate
either to prohibit some undesirable
human behavior or to permit persons
and their organization to take some
justifiable actions. 4

5. On the nature of human interaction
• Broadly speaking, rules can be formulated and
followed either though some informal or formal
process of human interaction.
• All forms of rules which are informally formulated
and followed by the society as part of its moral and
cultural interactions are termed as Moral Rules.
• A little bit similar, but largely different to the moral
rules, there are other forms of rules which formally
established and followed among members of some
politically organized societies and technically termed
as Legal Rules.
5

6. On the nature of human interaction
Question
• What are moral rules? What about legal rules?
• What are the similarities and differences exist
b/n moral and legal rules?
6

7. On the nature of human interaction
Similarities
1. The designers and enforcers of both moral and legal
rules assume that human beings are
“rational” creatures and have “will” to
recognize and follow them.
– Being rational, man`s k/ge does not stop in
the sensual perceptions and physical
existences, since his sensual k/ge
(perceptions) is further processed by his
intellect in the form of obstruction. i.e. man
does not simply perceive things, but also
analyze, asses, criticize, inward and
intellectualize things.
7

8. On the nature of human interaction
2. Both artichters of moral and legal rules roughly intend
or seek to achieve what is desirable to the society.
• Helping the society in promoting healthy,
smooth, stable and sustainable interaction
among its members.
3. Both are well articulated.
• once they are established, no one can undermine
them. But, still are subject to variation in
observation.
4. Both makes the people limited in their action.
• They prescribe up on acceptable human
behaviors
8

9. Differences
Legal rules
Focused only on outward
human behavior and actions.
Formulated and Imposed by
the state and other related
public authorities.
Relatively precise and well
codified.
Relatively objective and
applicable to all uniformly.
Followed by physical
punishment. (E.g.
Compensation,
impressments, sentence …)
 exist only within politically
organized society.
Moral rules
Include both outward and
inward human behavior
Formed by cultural
community and their
organizations.
Less precise and less
codified.
Highly subjective and
conventional to their
observance.
Followed by psychological
punishment. ( eg. Social
dissatisfaction, social out
cast, in some case violence)
Exist in both social and
political environment.
9

10. On the nature of human interaction
Remind:
– While all issues laying under the moral rules are emphases
by a field of study called moral philosophy or
ethics, issues related to the legal rules are studded under a
field of study called philosophy of law or
jurisprudence.
– The philosophy of law,( the most important in the
discourses of constitutional laws), focuses the triangular
formal relationships existing in b/n or among state, gov`t
and citizens among them selves.
– So, a critical and analytical interpretation of the behavior
and function of the state, gov`t and the individual is a the10

11. LESSON 2:
Understanding Law of the State
with due focus to Constitutional Law
A. Definitions and concepts
Question
2.1. What is Law of a state?
11

12. Understanding law of a state
Law of a state;
 A rule of human conduct imposed up on and
enforced among members of a given state such as:
Citizens of a state
 Organization ( both private and public)
Institutions (both private and public)
 A body of rules that identify, formulize, and
reinforce patterns of social behavior that the
majority consider it as acceptable and beneficial.
12

13. Understanding law of a state
Briefly speaking, law of a state can be refer to one or
more of the following points.
– Legal rules
– Guidance of human behavior and conduct
– State legislated and imposed upon its subjects
– Effective and enforceable even through some
coercive mechanisms or apparatus of the state
– Dynamic things – changeable when necessary
– products of human decision not gift of all perfect
diets or supra-natural forces
13

14. Understanding law of a state
In terms of their content or subject mater, law of a
state may take the following forms.
1. Contract law - legal promise or agreement
2. Property law – rules of ownership, usage and
transferring property, including patent rights
3. Family law – relating with birth and custody of
children, making and nullifying marriage, death and
burials etc.
4. Administrative law – regulate how state services
will provided to its citizens.
5. Constitutional law – the highest law of the land
14

15. Understanding the nature and essentials
constitution
Question
What is constitution to you?
15

16. Definitions and concepts
this straightforward question admits of more than one answer
depending upon the context in which the word ‘constitution’ is
used.
• In its narrow sense, the term constitutions is used to
refer to a single, authoritative document( written
constitution), the aim of which is to codify major
constitutional provisions: it constitutes the highest law
in the land.
NB
• Since not all major provisions can be covered by a single
document , a constitution, in the above sense, is not
coextensive with constitutional law. Compare the
suggested definitions out lined below.
16

17. Definitions and concepts
• Constitution is, broadly, a set of fundamental rules ,
written or unwritten, that seek to establishes the
duties, powers and functions of the various
institutions of a gov`t, regulate the relationships b/n
them, and define the relationship b/n the state and
the individual.
• The character of a gov`t which define the basic
principles to which a society must conform; describe
the organization of the gov`t and regulation,
distribution, and limitations on the functions of
different gov`t departments; and prescribe the extent
and manner of the exercise of its sovereign powers.
17

18. Definitions and concepts
the above statement can be break down to the following specific
points.
constitution is an organic and fundamental law of a state
which prescribe primarily:
 the way how a gov`t will organized
The specific powers and functions to be given to the principal
organs of gov`t and its agencies.
The limitation imposed upon extent and method of exercising
political power
 the relationship that will exist b/n the gov`t and the governed
who lives under it.
The basic principles and philosophical values followed by the
political society in regard to their political, economic, cultural,
social perspectives or orientations.
The substantive rights of citizens 18

19. B. Unique Features of Constitutional Law
Question
What differentiate a constitution from other forms of
laws of a state?
19

20. Unique features of constitutional law
1. Constitutions states only the general principles
– It build a substantial foundation or basic and
general frame work for the laws of a
government
2. Constitutions include only principles which are design
qualified enough to be elastic
– It accommodates various questions and can
further interpreted
– It leave possibilities for the derivation of other
specific laws
20

21. Unique features of constitutional law
3. Relatively speaking constitutions includes
Principles that are permanent in their duration.
Reasons
A. Constitutional provisions are adopted based on
identifying problems existing the past, present and
in the future life of the society.
B. The process of developing and endorsement on
constitutional laws is based on wide public
participation.
21

22. Unique features of constitutional law
Consequently,
– Constitutional laws are made to be stable for
undefined and expanding future.
– Constitutional laws don`t adopt to work by the
temper of the time
– It will not be rise or fail by the occasional and
emotional events
– Unlike to the above, laws other than the
constitution are tentative and occasional and
capable of changing frequently.
22

23. Unique features of constitutional law
4. Constitutions include principles that are primary and
supreme laws of the land.
– Constitution is primary, being the command of the
sovereign, the people in the case of democracy.
– All laws other than the constitution are secondary
and derivative being the command of the
representative or delegate of the sovereign, in most
case the gov`t and its agencies.
– Constitution rule over all components of the state.
» The gov`t and its established agents
» Institutions / laws of the state
» The society in general
» Interest groups
» Individual persons
23

24. Lesson 3
Typologies of Constitutions and
constitutional structures
Questions
How Constitutions can vary each other?
24

25. Typologies of Constitutions
• It is imperatively important to see constitutions via
categorical approach there by reach to understand the
heart on the nature of Constitutions and constitutional
order.
• The nature of the structures designed as constitutional,
varies among political systems.
– Some may operate on the basis of a more general
document. ( eg. Ethiopia, USA…). Some others
operate on the basis of a very detailed documents.
(eg. India…) and still others have no single document
as key to their constitution. (eg. Israel, Britain…..).
25

26. Typologies of Constitutions
– Over all things such systems may also vary in the
degree of observing their constitutional frame works.
– It is also attractive to see distinctions among
constitutions on the basis of mode of amendments
and procedural requirements.
– Beyond that, it is also helpful to look at constitutions
in terms of their content, particularly by the type of
institutional structure they underpin/support.
26

27. Typologies of Constitutions
1. Form of the Constitution and Status of its Rules
(Level/scope of codification )
Codification
– constitutions may be written or unwritten, in the sense that
they either exist or do not exist in a documentary or codified
form.
27

28. Written constitutions
• Constitutions that are
enshrined in laws/legal rules.
• key provisions are brought or
collected together and
compiled or outlined in a
single elaborated document.
• a formal document defining
the nature of the
constitutional settlement,
the rules that govern the
political system and the
rights of citizens and gov't in
a codified form.
• They are human artifacts in
the sense that they have
been created.
Unwritten constitutions
• Constitutions which are
supposedly embodied in the
customs and traditions.
• A set of rules, regulations,
declarations, statues etc… by
competent bodies ( e.g. The
parliament, the executive,
the king …)
• A collection of documents
(statues, decrees and
traditions…) that are
generally accepted as
governing matters but not
well documented in single
written material.
• They are organic entities that
have evolved through
history.
Typologies of Constitutions
28

29. Typologies of Constitutions
Remind
The system of classifying constitutions on the basis of
their form has now largely been abandoned or
minimally focused for the following reasons.
1. an overwhelming majority of states now possess
basic written documents that lay down major
constitutional provisions. Only few liberal
democracies (Israel, Britain and New Zealand)
continue to have unwritten constitutions together
with a hand full of nondemocratic states such as
Bhutan, Saudi Arabia and Oman.
29

30. Typologies of Constitutions
2. Such system of classification is misleading which could
be seen via the following angles.
– written constitutions can`t be expected to provide for
every single aspects of gov`t operations.
– All most all gov`ts, in some measure, operates on the
basis of unwritten rules called conventions.
– In essence then, no constitution can be wholly
written in the sense that all its rules are formal and
legally enforceable .
– Every constitution then is a blend of written and
unwritten rules, although the balance b/n these
varies significantly.
30

31. Typologies of Constitutions
• A political system is designed as having a written
constitution, not because all conceivable aspects of its
constitutional practices are specifically provided for, in
the written document , but b/c most or very large part
of them are codified.
• So, written constitution are constitutions which
incorporate a large written organic laws superior to
statutory laws ( practices which can`t be changed by
enactments of the legislative body.
• Unlike to the above unwritten constitutions are
constitutions that have no organic laws or practices
which can`t be changed by enactments of the legislative
bodies.
31

32. Typologies of constitutions
3. Categorizing constitutions as written or
unwritten seems crude classification.
– it says nothing about the actual content of the
constitution or the system of gov`t within the state.
– Moreover, it does not help us to distinguish b/n one
constitution and another since, as we have already
noted, virtually all constitutions are written.
– therefore, we must look to other ways in which
constitutions have been classified.
32

33. Appraisal: Merits and Demerits of un/written constitutions
Written constitutions
Merits
• Major principles and key provisions
are entrenched, safeguarding them
from interference by the gov`t of the
day.
• Power of the legislature is
constrained, cutting its sovereignty to
down to size.
• Nonpolitical judges are able to police
the constitution to ensure that its
provisions are upheld by other public
bodies.
• Ind.l liberty is more securely
protected, and authoritarianism is
kept at bay.
Unwritten constitutions
Merits
• It has the quality of
elasticity and
adaptability to changing
circumstances.
• It is resilient with the
result that it can absorb
and also recover from
shocks that may destroy
written constitutions.
• It is dynamic in that it
prevents chances of
popular uprisings
33

34. Appraisal: Merits and Demerits of un/written constitutions
Written constitution
Merits
• The codified document has an
educational values, in that it highlights
the central values and over all goals of
the political system.
• It is full of clarity and definitions b/c
key provisions are written.
• It has the quality of stability. b/c
people know the nature of
constitutional provision and they feel
a sense of satisfaction.
Demerits
• It is rigid
• It is vulnerable to any possible shocks
Unwritten constitution
Demerits
• It leads to a state of
confusion.
• Create vast room for
authoritarians.
• It may suit to
monarchialism or
aristocracy, but it does
not suite to
democracy where the
people are generally
suspicious of
constitutional
prescriptions. 34

35. Typologies of Constitutions
2. Constitutional Amendments
( the easy with which the constitution can be
changed)
• Where a constitution is a reflection of a societies basic
values and traditions, there is inherent resistance to
changing and modifying it.
• However the values and traditions underlying it are
constantly changing and, if the system is to operate
smoothly, constitutions should be amendable.
• There are two ways in which amendments may be
conducted.
35

36. Typologies of Constitutions
a. Some constitutions can be amended by resort to the
normal or ordinary procedure requiring the
approval of majority of the parliament. In such
cases the guarantee against hasty and insufficiently
considered change is inherent in the conventions
surrounding the constitutional machineries.
b. In contrast, change in other constitutions has been
made relatively difficult to obtain it through
ordinary procedures.
• So, with the help of the process through which
constitutions can be amended, it is possible to classify
constitutions as rigid and flexible.
36

37. Rigid constitutions
• Constitutions that prescribe
their own method of
amendment other than the
normal legislative
procedures.
• Constitutions that does not
adopt it self to changing
circumstances immediately
and quickly.
• Amendment procedures may
be more or less a complex or
difficult.
E.g. the current constitution of
USA, Ethiopia, German….
Flexible constitutions
• Constitution that can be
amended through the
ordinary procedures of the
parliament .
• Constitutions that adapts
easily and immediately to
changing circumstances.
• The legislature has
unchallenged or
unconstrained power to
make laws on any issues and
affaires.
E.g. the current constitutions of
Israel, Britain, New Zealand..
37

38. Typologies of Constitutions
Remind
• The element of rigidity to constitutions, arises not from
their immunity from amendment but from the fact that such
political systems accepts the supremacy of the constitution
over the legislature. So it can`t be amended through the
ordinary legislative process.
• Even the rigid constitution vary each other due to their
difference of the amendment method that they prescribe.
a) Some of them, for example, requires endorsement
by the legislature which supported by required
results of popular referendum.(eg. Australia,
Denmark, Spain etc.)
b) Some others still, requires only achieving special
majorities by in the legislature. ( eg. German , India
38

39. Typologies of Constitutions
• This can be easily understood through some comparative
explanations up on the experience of some selected
constitutional systems.
I. In the case of USA, constitutions can amend in one of the
following methods.
1. If an initiation for constitutional amendments is
supported by 2/3 majorities in both houses of the
congress (HPR + Senate) and if ¾ of the federating
member states support it.
2. a proposal for constitutional amendment which
initiated and supported by 2/3 of states and the
congress is done, if it supported by ¾ the federating
states.
39

40. Typologies of Constitutions
II. In the case of the Germans, the constitutional
provisions can amend if the initiation gains 2/3 support
of in both the Bundestag and Bundara.( the lower and
the upper houses in in German).
III. In the case of the Indian, a constitutional provision can
amend if 2/3 majority of the members present and
voting in both houses of the Indian parliament.
IV. In the case of USSR, constitutional amendment can
conduct if 2/3 majority of each houses of the supreme
soviet reach at censuses.
40

41. Typologies of Constitutions
NB.
From the above two last models, we can insight that,
though not amendable through the normal legislative
procedure there are constitutions which may stile be
amendable by the legislature without requiring the
approval and consent of the out side bodies as do rigid
constitutions.
41

42. Typologies of Constitutions
V. In the case of FDRE constitution: The FDRE constitution
stipulates the initiation and enactment of
constitutionally amendment in its last articles, article
104 and 105.
Article 104
Initiation of Amendments
Any proposal for constitutional amendment, if supported
by 2/3 majority vote in the HPR, or by a 2/3 majority
vote in the HF or when 1/3 of the State Councils of the
member States of the Federation, by a majority vote in
each Council have supported it, shall be submitted for
discussion and decision to the general public and to
those whom the amendment of the Constitution
concerns.
42

43. Typologies of Constitutions
Article 105
Amendment of the Constitution
1. All rights and freedoms specified in Chapter Three of
this Constitution, this very Article, and Article 104 can
be amended only in the following manner.
a. When all State Councils, by a majority vote, approve
the proposed amendment;
b. When the HPR, by a 2/3 majority vote, approves the
proposed amendment; and
c. When the HF, by a 2/3 majority vote, approves the
proposed amendment
43

44. Typologies of Constitutions
2. All provisions of this Constitution other than those
specified in sub-Article 1 of this Article can be amended
only in the following manner.
a. When the House of Peoples’ Representatives and
the House of the Federation, in a joint session,
approve a proposed amendment by a two-thirds
majority vote; and
b. When two-thirds of the Councils of the member
States of the Federation approve the proposed
amendment by majority votes.
44

45. Typologies of Constitutions
3. Validity of constitutions
• this system of classification takes account of the
relation ship b/n constitutional rules and principles, in
one hand, the practice of gov`t (the `working`
constitution) on the other hand.
• Accordingly constitutions may take of two forms,
namely effective and nominal constitutions.
45

46. Effective constitution
• The practical affaires of the public
authorities cross ponds to the
provisions of the constitution.
• The behaviors, judgments and
actions of gov`t, through what ever
means, is limited by the
constitution.
• Observance for the principle of
constitutionalism
• There fore, an effective constitution
requires not mere existence of
constitutional rules and laws but
also the capacity of these rules and
laws to constrain gov`t bhr and
establish constitutionalism.
Nominal constitutions
• Constitutions which remain
as textual, facade, nominal
or symbolic in their value.
• They describe the proper
behavior of public
authorities, but fail to limit
their action.
• Mere existence of
constitution rules and laws.
• At best they have only
propaganda role.
46

47. Typologies of Constitutions
4. Content of the constitutions
(the institutional structures they underpin)
– In this system of classification a lot of distinctions can
be made.
»Monarchical or Republican constitutions
»Unitary and federal constitutions
»Parliamentary and presidential constitutions
»Pluralist and monopolistic constitutions
– A brief description about the nature of the above
stated constitution is discussed as follow.
47

48. Typologies of Constitutions
Monarchial constitutions
• Constitution that invest
constitutional supremacy
in a dynastic ruler.
Republican constitutions
• Constitutions which
stipulate political
authority to be derived
from the people.
NB.
•The emergence of constitutional monarchies, in which
power has effectively been transferred to representative
institutions, has meant that, apart from in the surviving
absolute monarchies in states such as Nepal and Saudi
Arabia, This distinction is no longer of central importance
48

49. Typologies of constitutions
Federal constitutions
• Constitutions that distribute
power of the state among
the different branches and
levels of government.
• they create a nearly
autonomous (at least within
their sphere of influence)
sub-national levels of gov`t.
• Local gov`ts have
constitutional guarantee to
their existence.
Unitary constitutions
• Constitutions that
concentrate power of the
state at the center.
• They empower the central
gov`t with right of
determining the form,
composition, existence as
well as the power and
responsibility of the sub
national gov`ts.
• Local gov`ts do not have
constructional guarantee for
their existence.
49

50. Typologies of constitutions
Presidential constitution
• The two branches of gov`t
(the executive and the
legislature) function
independently on the basis
of separation of powers
Parliamentary constitutions
• In such constitutions, the
executive is derived from
and accountable to the
assembly.
50

51. Typologies of constitutions
Pluralist constitutions
• Constitutions that allow the
dispersion of Political
power , usually through
guarantees of participatory
rights and party
competition
• Constitutions in liberal
democrat state.
Monopolist constitutions
• Constitution that support
the unquestionable
authority of a 'ruling‘
party or supreme leader is
formally entrenched
• Constitutions in the
communist and
authoritarian states are
typical instances of this.
51

52. Lesson 4
The Purpose of Constitutions
Question
• why we need to bother with constitutions
and constitutional order?
• Are constitutions a one way street in their
function?
• Who should worry with constitutions?
52

53. Purposes of constitutions
• Not only do the vast majority of states have
constitutions, but all most institutions and
organized groups have rules that have some kind
of constitutional effect. This applies in the case
of int`l bodies such as the UN , AU, EU, and is
also true of regional and provincial gov`t,
political parties, interest groups, corporations,
churches, clubs and so on.
• The popularity of these constitutional rules
draws attention to the fact that constitutions
somehow play a vital role in the running of
organizations. 53

54. purposes of Constitutions
Why is difficult, and perhaps impossible, for states and
other organized bodies to function without
constitutions?
• The difficulty with answering this question is that
constitutions do not have a single or simple purpose.
• Rather they have a number of functions and are used in
a Varity of ways. The most important of these are the
following.
54

55. Purposes of constitutions
1. Constitution provide description of gov`t it self, a net
introduction to key institutions and their roles.
• However, while constitutions may aim to lay
down a frame work in which gov`t and political
activity are conducted, none has been entirely
success full in this respect. Inaccuracies,
distortions and omissions can be found in all
constitutions.
55

56. Purposes of constitutions
2. Constitution regarded as key player of liberal
democracy, even its defining feature.
NB
• Although the idea of constitutionalism is
closely linked to liberal values and
aspirations, there is nothing to prevent a
constitution being undemocratic and
authoritarian. The illiberal character of the
constitutions is frequently evident in the
developing countries.
56

57. Purposes of constitutions
3. Constitution serves to empowering states:
– Constitutions serve as two way street in their function.
 They Limit power of the gov`t thereby widening the
realm for individual and group freedoms.
 They mark out the existence of states and make
claims Concerning their sphere of independent
authority, there by provide gov`ts with legitimate
violence right.
– Newly emerging states invariably accompanied by the
enactment of a constitution.
– In deed, it can be argued that such states exist only
once they have a constitution, since without one they
lack formal jurisdiction over a particular territory or a
governing apparatus that can effectively exercise that
jurisdiction.
57

58. Purposes of constitutions
4. Constitutions establish values and goals sought
in common within the political community.
– Constitutions invariably embody a broader set of
political values, ideals and goals.
– The social, political and economic philosophical
orientations are always lay down in the constitution.
– This is why constitutions cannot be neutral; they are
always entangled, more or less explicitly, with
ideological priorities.
58

59. Purposes of constitutions
5. Constitutions Provide stability, order and predictability
to the workings of gov`t.
– Constitutions act as 'organizational charts',
'definitional guides', or 'institutional blue prints.'
– they serve the above purpose through allocating
duties, powers and functions amongst the various
institutions of gov`t.
– In doing so, Constitutions formalize and regulate the
relationships b/n political bodies and provide a
mechanism through which conflicts can be
adjudicated and resolved.
– Complex patterns of social interaction can be
maintained only if all concerned know the 'rules of
the game‘ and therefore who can be expected to do
what
59

60. Purposes of constitutions
6. Constitutions protected the irrefutable liberties or
freedoms of citizens and provide them with some
privileges and rights or benefits.
• The central purpose of a constitution, particularly
in the liberal democracies, is to constrain gov`t
with a view to protecting individual liberty.
• They are seen as devices for establishing and
maintaining limited gov`t.
Question
What is limited gov`t?
Why for limited gov`t?
60

61. Purposes of constitutions
• Constitutions lay down the relationship b/n the state
and the individual, marking out the respective spheres
of gov`t authority and personal freedom.
• In this case, constitutions are expected to reflect both
the positive and negative rights in their contents.
NB.
• Negative rights: Rights that mark out a realm of
unconstrained action, and thus check the
responsibilities of gov`t.
• Positive rights: Rights that make demands of
gov`t in terms of the provision of resources and
support, and thus extend its responsibilities
61

62. Purposes of constitutions
7. Constitutions Legitimize regimes.
– The legitimacy process has two dimensions.
1st , The existence of a constitution is almost a
prerequisite for a state's membership of the
international community and for its recognition
by other states- external legitimacy
2nd , More significant, however, is the ability to use
a constitution to build legitimacy within a state
through the promotion of respect and
compliance amongst the domestic population –
internal legitimacy
62