Statutes and Constitutions

STATUTES AND CONSTITUTIONS. - The two terms are generally not regarded as equivalent, although the particular distinctive notes of the one and the other, especially if considered in their more modern meaning, are purely external. The first derives from statuere and originally served to indicate any expression of the will prevailing in the regulation of some aspect of social life, so that its meaning came almost to coincide with that of law. In time, however, it took on a narrower sense, having been referred to those particular laws by which autonomous bodies, born and living within the orbit of the State or the Empire, govern themselves. The communal regime rested upon them. Their origin is due to the convergence of customary norms and a body of provisions accepted by oath by the magistrates of the Commune, whose source was not an authoritative act of a sovereign will. In this meaning the statutes are nothing other than the unitary body of municipal laws, by which the Commune governed itself as an autonomous body.

I. STATUTES AND CONSTITUTIONS AS THE FUNDAMENTAL LAW OF THE STATE

In more recent times the term has received a new inflection, having been used to signify the fundamental law of the State, in such a way as to approach and almost merge with that of constitution. The differences, in fact, between statutes and constitutions are extremely slight. While the statute would be a charter granted by the sovereign, in the exercise of his authority without popular consultation, the constitution would consist in that fundamental written law which regulates the principal aspects of the life of the State, as an expression of the will of the people.

If one observes carefully, the differences mentioned are only external. The first concerns origin, but it may be observed that in the final analysis both the statute and the constitution have their source in the sovereign power, which with respect to the former expresses itself through the monarch and with respect to the latter through the popular will. The second difference, which refers to written form, has little value, because even today unwritten constitutions exist, as is largely the case with the English one; the third, moreover, raises to the status of a distinguishing mark a historical fact, namely that modern constitutions, almost all of them born after the French one of 1791, rested on the concept of popular sovereignty. But such a concept is not essential to that of a constitution. So true is this that common doctrine includes the statute among constitutions as a species within a genus. To conform, however, to current terminology, one may hold that a statute is a granted constitution or a charter given to the people by the sovereign, as, for example, were in 1848 that of Pius IX for the Pontifical States of 14 March, that of Ferdinand II for Naples and Sicily of 10 February, that of Charles Albert for the Sardinian States of 4 March, and that of Leopold II of Tuscany of 14 March.

By constitution today is meant that body of written or customary norms by which the structure of the State and the form of the regime are established, in such a way that its principal features remain fixed. Generally such norms refer to power and its organs, to their mutual relation and collaboration, to the limits of its faculties, and so on. One might think that the origin of constitutions is rather recent, tracing their appearance back to the 18th century. In that century, in fact, the movement of independence from English colonial dominion led the individual States of North America to proclaim their own autonomy and to give themselves a new organization, consigned in certain declarations of rights or constitutional charters, such as those of Virginia, Pennsylvania and Maryland of 1776, which were then followed by the federal one. Shortly afterward the French Revolution condensed its social ideology in the well-known declaration of the rights of man of 1789, which then found acceptance in the constitutions of 1791 and 1793.

One must not, however, let oneself be misled by the purely historical contingency of the diffusion obtained by the system of written constitutions at that time. The State cannot exist without a fundamental law and, therefore, always takes its place on the plane of history with a constitution of its own, which by the very fact of not being written does not lose its own nature. England, as noted above, has a constitution that is predominantly customary and unwritten. Moreover, examples of written constitutions are not lacking in the earlier period, although they do not present the systematic form afterward attained. The Magna charta of Henry I of England of 1215 in its 68 articles contains many indications that refer to the structure of the State, to the limits of royal power and to its relations with the noble class. The same may be said of the Bill of rights of 1688. In the Middle Ages, moreover, pacts stipulated between the sovereign and the noble classes, which go beyond the nature of a private contract, are not rare.

Constitutions are customarily distinguished by common doctrine, taking external form as the criterion, into written and unwritten or customary, and, referring to the mode of origin, into granted (octroyées) by initiative of the sovereign, such as were the Albertine Statute and the constitution of Pius IX, and into constitutions elaborated by parliaments or by special assemblies called constituent, considered as representatives of the popular will, such as those of the American States and all the modern ones of civilized peoples, founded upon a democratic conception of social life. Those are then called flexible which can be modified by the ordinary process of lawmaking; rigid those for whose alteration special conditions or a qualified number of votes are required. The fact that a constitution is rigid does not mean, therefore, that no change can be introduced into its provisions, but only that such change is made more difficult by certain norms included in its own text. A constitution cannot be rigid in the full sense without running the risk of being overtaken by the constant evolution of social reality, whose needs it must interpret. Nevertheless it is appropriate that it have a certain fixity, particularly in modern times, in which its formulation depends in large part on political movements.

II. FORM OF MODERN CONSTITUTIONS

Modern constitutions are usually composed of two parts. In the first, called the dogmatic part, the rights of citizens, of moral persons and of the various institutions living within the State are expressed, for which, in addition to legal recognition, the due protections are established in relation to the powers of the political authority. The enumeration of these rights varies from constitution to constitution, although for the most part they follow an almost common scheme, more or less derived from the so-called civil liberties, proclaimed in their time by the French Revolution. The most recent ones, such as the Italian (v. ITALIA, REPUBBLICA) and the French (v. FRANCIA), have broadened the framework, introducing into it the recognition and protection of the rights called social. Several constitutional texts, such as the Italian one, abound in generic and programmatic statements, which do not have the character of law, but either reflect particular political conceptions or serve as guidance for the public powers.

In the second, called the organic part, are included the norms that concern the structure of the State, the form of the regime, the division of powers and the respective organs with their relative sphere of competence, the representative chambers and the organization of suffrage, the powers of the head of State and the composition of the government. Greater variety is found in this part, which depends on the political tendencies dominant at the moment of the formulation of the constitutional text.

III. LEGAL FOUNDATION OF CONSTITUTIONS

Regarding the juridical foundation of constitutions, opinions are very diverse, since the variety of ideologies concerning law and its source is reflected in the solution of the question. For a correct framing of the problem, two parts must be distinguished in every constitution: a substantial one, which is composed of those principles immanent in social life, or a group of constitutional norms implicit in every political formation, by the very fact of its existence as a natural institution; and an accidental one, which depends on man's free choice in the positive organization of the State and in practice comes to coincide with the part called organic above. The juridical foundation of the first is the natural order of justice itself and the objective and universal exigencies of social life, which are translated into norms of autonomous value, made positive by the text of the constitution as principles taken over from a pre-existing order. The validity of the second depends on the expression of the will of the legitimate power existing in every State, whether still diffused throughout the whole people, organically conceived, or already gathered in a determinate subject. In either supposition the sovereign power acts, original and immanent in the State; nor is there any need whatsoever to have recourse to the motive of contract or pact, which proves fictitious except in the case in which the constitution is the effect of a political-juridical compromise between the authority and the people.

IV. CONSTITUTIONS AND CONSTITUENT POWER

The subject just touched upon has an intimate connection with the question concerning constituent power, to which it is worth making some brief reference, in order to clarify its nature, its juridical foundation, its functions and its limits. Constituent power is not a de facto power, as it is configured by many, but belongs to the number of moral faculties originally possessed by the political organism; that is, it is a fundamental right of the State, whose specific characteristic is given by the function it is called upon to perform, the formation of the constitution or its reform. It is, therefore, an essentially legislative power, which is distinguished from the ordinary one in that, while the latter is a constituted power, whose function is exercised in the formation of ordinary law, conforming to the statutory norms already existing, the former is constituent and operates autonomously, at a time when the former remains suspended. It is not, however, necessary to conceive of them as two distinct powers, since they can very well be considered as two functions of the single and undivided legislative power, inherent in the sovereignty of the State, and thereby the question whether constituent power sums up in itself all the other powers of the State, the executive and the judicial, remains resolved in the negative. Another of its distinctive characteristics is temporariness: once its function is performed, it returns to a potential state, to rise again in case of necessity.

It has been erroneously defined as an essentially revolutionary power. It is certainly not such in the hypothesis of a constitutional reform carried out according to the norms provided by the existing constitution, nor in that of a newly formed society, with respect to which the legitimacy of its work rests upon the original right of the political organism to give itself a positive structure, establishing the fundamental laws for the regular development of social life. It might appear as such and therefore be considered a de facto power, in the supposition that its emergence is due to a movement that overturns an existing order to create a new one, in which case, according to a very widespread opinion, the legality of its acts would be obtained through a retroactive reflection of the law approved by it. Apart from the insoluble difficulty of deriving right from a pure fact, against this solution it must be observed that the State in time of revolution does not eclipse itself, but continues to exist with all its original powers. If, therefore, the revolution is just, the legitimacy of constituent power derives from the return of sovereignty to its original subject, the people, which, according to Bellarmine, Lessius and Suárez, conserves it in root and can make use of it when the legitimate holder has failed. If the revolution were, on the other hand, unjust, constituent power and all its acts would remain illegal, lacking the support of right. Nevertheless the constitution promulgated and imposed by it, once the new order had victoriously established itself, acquires a juridical value by virtue of the fundamental norm of social life, which requires the preservation of order, the stability of relations and the certainty of law. In this case it is not the fact that transforms itself into right, but a higher exigency of life that communicates juridical character to the established norms.

It is superfluous then to observe that constituent power, like any other power of the State, is limited in its faculties, not only by its specific function, but also by all the intrinsic limits that imperatively condition the exercise of sovereignty, of which it is an extraordinary function. In determining constitutional norms it is bound above all to respect the substantial constitution mentioned above and to accept its principles integrally, adapting them to the concrete conditions of social life, without however violating or disavowing them; otherwise the constitution, whether in whole or in part, cannot have the value of a directive and imperative law for the community.

Antonio Messineo