The constitution can be defined as the main legal document or a set of documents that governs the key aspects of life in countries. There are no established rules regarding the form and content of constitutions taking into account the different approaches to establishing and ruling the states along the history. As Newton and Deth (2010) fairly notice, “Every modern democracy has a unique set of government institutions, and combines them in unique ways” (p. 71). It determines the functions of the main government institutions and politicians who serve as country’s representatives. Therefore, it specifies the separation of power into three main branches – legal, executive and judiciary. Moreover, the constitution has exceptional binding force and its provisions prevail over any other legal documents.
Newton and Deth (2010) compare constitution to a book that contains the rules of the game. Indeed, this Basic Law organizes the fundamentals of a state that provides a framework and allows it to function. The measurement of the effectiveness of the constitution can be the observance of its principles by the nationals. If its rules are accepted as granted, the constitution is considered to be effective. However, it does not necessarily means that the constitution should remain constant and resistant to change. The process of making amendments is usually quite complex, but this is mostly because any ideas should get approval of the masses and recognition as indeed very important and significant for the common wealth. This certifies the most important function of any constitution: it defines relations between government and citizens and serves as the main source of democracy in the country.
One should understand that separation of power which Newton and Deth (2010) define as “the doctrine that political power should be divided among several bodies or offices of the state as a precaution against too much concentration of power” (p. 74) is the main condition for the successful implementation of democratic principles. One can hardly imagine adherence to the human rights and public opinion, if the power is concentrated within one institution or in one person’s hands. Constitutions are designed in order to prevent such monopolization of power. However, the issue of separation of power had been neglected by scholars for a long time. It received due attention only after “third wave” of democratization which started after the 1960s.
Benwell and Gay (2011) state that the idea of separation of powers belongs to Montesquieu in 1748 who said that it is difficult to expect liberty from those who monopolize the legislative and executive powers in the country. He also stated that no liberty can be achieved, if judging is not separated from the legislative and/or executive branch. The most developed and the majority of developing countries follows this rule and adheres to the idea of separation of powers. The authors fairly notice that every country reserves exceptional competence and independence in terms of how exactly this separation function in the country. They write, “Parliamentary systems of government have usually united legislature and executive for the sake of expediency. By contrast, presidential systems tend to be strictly separated” (Benwell and Gay, 2011, p. 2).
The executive branch is usually associated with the president or prime minister. They are both in charge of the decision-making process, coordination of state affairs and implementation of policies. However, some nations empower either the president or prime minister with more powers that leads to changes in their roles in the governing process. Newton and Deth (2010) use example of Germany and the US that perfectly demonstrates how the role of the president may be only ceremonial as in Germany, and exceptionally important as in the US. Such political extremes make the issue of the separation of powers quite complex.
The legislative power is a law-making branch. In the majority of democracies around the globe, it is constituted by parliaments which have different amounts of members. Some countries favor bicameranism, others prefer unicameralism. National Demographic Institute for International Affairs distinguishes such benefits of bicameral systems as follows:
“formally represent diverse constituencies (e.g., state, region, ethnicity or class);
facilitate a deliberative approach to legislation;
hinder the passage of flawed or reckless legislation; and
provide enhanced oversight or control of the executive branch” (p. 2-3).
At the same time, unicameral legislatures have more opportunities to enact law promptly without any delays. The number of deputies in such parliaments may be decreased and they are easier to monitor. Therefore, taxpayers have to pay less and the costs of maintaining state apparatus are less. It allows stricter accountability of the members of parliament. Newton and Deth (2010), however, state that bicameral parliaments demonstrate better political development and state coordination compared to the unicameral ones. The judiciary branch may have power of legislative initiative and serve as “the best independent and incorruptible source of experience and wisdom on constitutional matters” (Newton and Deth, 2010, p. 79). However, it has lots of opponents who doubt that judges can be that incorruptible and independent in their decisions, and that any decision on any case can establish a precedent or can be taken as a model decision for the similar cases.
It is obvious that such complex issue as the constitution provided a basis for debates regarding its role and necessity in the political life of the state. The old constitutionalism is mostly based on the idea that “constitution” always means a particular administrative enactment” and “is apparently never used in our modern sense” (McIlwain, 1947, p. 23). Later, this approach was mostly supported by lawyers and comparative political scientists and could not satisfy rapidly changing political situation. As Newton and Deth (2010) write, it was subjected to severe criticism and gave up its place to the theory of the new constitutionalism. It diversified the number of issues that the constitution was supposed to deal with by adding protection of citizen rights, balancing of powers and government accountability, necessity to establish a constitutional design of the state and so on (Newton and Deth, 2010, p. 85). Such re-orientation was necessary because the nations were becoming more diversified in terms of race, ethnicity and other characteristics that stimulated the idea of “consensus” democracy. It was possible only with the assistance of constitution as the recognized main legal document.
In this context Newton and Deth (2010) also consider the ‘new institutionalism’ that assumes that institutions also play a crucial role in the state development. They matter because they themselves are political actors that are devoted to serve as a framework for individuals. Moreover, they are places where politicians gather to exchange their ideas and to create particular organization that may best satisfy the needs of the society. They are necessary for constitutional processes and legal procedures.
Consequently, the constitution along with all philosophies regarding its use and advantages are important elements of the policy-making process in the country which defines how people co-exist and cooperate with each other. The constitution defines rights and obligations that everyone should have. Countries are not limited in their choice of leaders and parliaments, but they are suggested to act within legal frames. These frames are provided by the main document – constitution.
References
Benwell, R. and Gay, O. (2011, August 15). The Separation of Powers. House of Commons Library. Retrieved from
http://webcache.googleusercontent.com/search?q=cache:OPKZ-p6vY5MJ:www.parliament.uk/briefing-papers/sn06053.pdf+&cd=1&hl=ru&ct=clnk&gl=ua&client=opera
McIlwain, C. H. (1947). Constitutionalism: Ancient and Modern. New York: Cornell University Press. Retrieved from http://files.libertyfund.org/files/2145/McIlwain_7850_LFeBk.pdf
National Demographic Institute for International Affairs. (n.d.) One Chamber or Two? Deciding Between a Unicameral and Bicameral Legislature. Retrieved from https://www.ndi.org/files/029_ww_onechamber_0.pdf
Newton, K. and J. W. van Deth. (2010). Foundation of Comparative Politics: Democracies of the Modern World (2nd ed.). New York: Cambridge University Press.
Samuels, D. (2007). Separation of Powers. In Boix, C. & Stokes, S. C. (Eds.), The Oxford Handbook of Comparative Politics (703-726). Oxford: Oxford University Press. Retrieved from
http://www.polisci.umn.edu/~dsamuels/Boix%20&%20Stokes%20Samuels%20ch.pdf
