Constitutional Frameworks: Concepts, Classifications, and Evolution
Understanding Constitutions: Concepts and Classifications
Throughout history, several concepts of the Constitution have emerged, shaping our understanding of this fundamental legal document.
- Decisionist Concept: According to Carl Schmitt, the Constitution represents a fundamental decision on how to organize the political community.
- Legal Concept: Attributed to Hans Kelsen, this concept views the Constitution as the fundamental legal norm (Grundnorm) upon which the entire legal system is based.
- Formal Concept: The Constitution is understood as a written text, superior to all other laws, which also outlines a more difficult process for its reform compared to ordinary legislation.
- Historicist Concept: This concept contrasts with the liberal-normative view. It posits that a country’s constitution does not emanate solely from human reason but from its historical development. Therefore, it cannot simply be copied and applied to another country, as it may not align with its unique reality. Instead, a country’s constitution is seen as a collection of its historical institutions.
Types of Constitutions
By Form
- Customary (Unwritten): Based on custom and tradition, not codified in a single written document (e.g., the United Kingdom).
- Written: Codified in a single, comprehensive written document (e.g., most countries worldwide).
By Mode of Establishment
- Granted (Octroyée): Given by the King or monarch, who voluntarily grants it and often imposes self-limitations.
- Agreed (Pactada): Agreed upon between the monarch and the representative assembly (e.g., Parliament). These are based on the principle of shared sovereignty between the monarch and the nation, represented by its assembly.
- Imposed (Impuesta): Imposed by the people upon the monarch, reflecting national or popular sovereignty.
Currently, this distinction is less relevant, as most modern constitutions are considered imposed, reflecting popular sovereignty.
By Difficulty of Amendment
- Rigid: According to James Bryce, these constitutions can only be reformed by a special process specifically outlined within the Constitution itself, which is typically more difficult than ordinary legislation.
- Flexible: These constitutions do not specify a special procedure for their amendment and can be changed through ordinary legislative processes (e.g., United Kingdom, Israel).
By Validity and Effectiveness (Karl Loewenstein)
- Normative: These constitutions are fully effective and genuinely reflect the political reality of the country (e.g., North America and Europe). Metaphor: “The constitution is a suit that fits the body well.”
- Nominal: Found in developing countries (e.g., Latin America), these constitutions contain pragmatic rules intended for future implementation once the country achieves sufficient development. Metaphor: “The Constitution is a suit hanging in the closet, waiting for the social body to grow into it.”
- Semantic: These are texts formally called Constitutions, but whose content does not genuinely organize state powers or reflect fundamental rights. In this case, “the constitution is not a suit, but a costume.”
Constitutional Mutation
Constitutional mutation occurs when the meaning or interpretation of a constitution changes without formally amending its text or following the prescribed amendment procedure. This phenomenon alters the practical application of the constitution and can arise due to several factors:
- Introduction of political practices not explicitly covered by the constitution, such as:
- Where the constitution is silent on a particular political practice.
- Political practices that contradict the constitution (e.g., a constitution prohibiting mandatory instructions).
- Desuetude (Disuse): When a constitutional provision grants power but is no longer applied in practice.
- Changes in interpretation by the judiciary and the legislature.