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30.06.2007
A constitution is a system, often codified as a written document, that establishes the rules and principles that govern an organization or political entity. In the case of countries, this term refers specifically to a national constitution defining the fundamental political principles, and establishing the structure, procedures, powers and duties, of a government. Most national constitutions also guarantee certain rights to the people. Historically, before the evolution of modern-style, codified national constitutions, the term constitution could be applied to any important law that governed the functioning of a government.
The term constitution comes from Latin, referring to issuing any important law, usually by the Roman emperor. Later, the term was widely used in canon law to indicate certain relevant decisions, mainly from the pope.
Excavations in modern-day Iraq by Ernest de Sarzec in 1877 found evidence of the earliest known code of justice, issued by the Sumerian king Urukagina of Lagash ca. 2300 BC. Perhaps the earliest prototype for a law of government, this document itself has not yet been discovered; however it is known that it allowed some rights to his citizens. For example, it is known that it relieved tax for widows and orphans, and protected the poor from the usury of the rich.
Detail from Hammurabi's stele shows him receiving the laws of Babylon from the seated sun deity. After that, many governments ruled by special codes of written laws, say, the commandments of Cyrus the Great of Persia.
In 621 BC, a scribe named Draco wrote the laws of the city-state of Athens; and being quite cruel, this code prescribed the death penalty for any offence. In 594 BC, Solon, the ruler of Athens, created the new Solonian Constitution. It eased the burden of the workers, however it made the ruling class to be determined by wealth, rather than by birth. Cleisthenes again reformed the Athenian constitution and set it on a democratic footing in 508 BC.
Aristotle (c. 350 BC) was one of the first in recorded history to make a formal distinction between ordinary law and constitutional law, establishing ideas of constitution and constitutionalism, and attempting to classify different forms of constitutional government. The most basic definition he used to describe a constitution in general terms was "the arrangement of the offices in a state". In his works Constitution of Athens, Politics, and Nicomachean Ethics he explored different forms of constitutions, especially those of Athens and Sparta. He classified both what he regarded as good and bad constitutions, and came to the conclusion that the best constitution was a mixed system, including monarchic, aristocratic, and democratic elements. He also distinguished between citizens, who had the exclusive opportunity to participate in the state, and non-citizens and slaves who did not.
The Romans first codified their constitution in 449 BC as the Twelve Tables. They operated under a series of laws that were added from time to time, but Roman law was never reorganised into a single code until the Codex Theodosianus (AD 438); later, in the Eastern Empire the Codex Justinianus (534) was highly influential throughout Europe. This was followed in the east by the Ecloga of Leo III the Isaurian (740) and the Basilica of Basil I (878).
Many of the Germanic peoples that filled the power vacuum left by the Western Roman Empire in the Early Middle Ages codified their laws. One of the first of these Germanic law codes to be written was the Visigothic Code of Euric (471). This was followed by the Lex Burgundionum, applying separate codes for Germans and for Romans; the Pactus Alamannorum; and the Salic Law of the Franks, all written soon after 500. In 506, the Breviarum or "Lex Romana" of Alaric II, king of the Visigoths, adopted and consolidated the Codex Theodosianus together with assorted earlier Roman laws. Systems that appeared somewhat later include the Edictum Rothari of the Lombards (643), the Lex Visigothorum (654), the Lex Alamannorum (730) and the Lex Frisionum (c. 785).
In England, King Henry I's proclamation of the Charter of Liberties in 1100 bound the king for the first time in his treatment of the clergy and the nobility. This idea was extended and refined by the English barony when they forced John to sign the Magna Carta in 1215. The most important single article of the Magna Carta, related to "habeas corpus", provided that the king was not permitted to imprison, outlaw, exile or kill anyone at a whim -- there must be due process of law first.
The following are features of democratic constitutions that have been identified by political scientists to exist, in one form or another, in virtually all national constitutions.
A fundamental classification is codification or lack of codification. A codified constitution is one that is contained in a single document, which is the single source of constitutional law in a state. An uncodified constitution is one that is not contained in a single document, consisting of several different sources, which may be written or unwritten.
Most states in the world have a codified constitution. Only three nations, Israel, New Zealand and the United Kingdom, have uncodified constitutions as of October 2006. The most obvious advantage of a codified constitution is the coherent and easily understood body of rules. A codified constitution is simple to read, being a single document. Although (entrenched) codified constitutions are relatively rigid, codified constitutions still yield a potentially wide range of interpretations by constitutional courts (see below).
Codified constitutions are usually the product of dramatic political change, such as a revolution[citation needed]. For example, the United States Constitution was written and subsequently ratified less than 25 years after the American Revolution. The process by which a country adopts a constitution is closely tied to the historical and political context driving this fundamental change. This becomes evident when one compares the elaborate convention method adopted in the United States with the MacArthur inspired post war constitution foisted on Japan (see Constitution of Japan). Arguably the legitimacy (and often the longevity) of codified constitutions are tied to the process by which they are initially adopted.
States that have codified constitutions normally give the constitution supremacy over ordinary statute law. That is, if there is a conflict between a legal statute and the codified constitution, all or part of the statute can be declared ultra vires by a court and struck down as unconstitutional. In addition, an extraordinary procedure is often required to make a constitutional amendment. These procedures may involve: obtaining ⅔ majorities in the national legislature, the consent of regional legislatures, a referendum process or some other procedure that makes obtaining a constitutional amendment more difficult than passing a simple law.
The Constitution of Australia is an example of a constitution in which constitutional law mainly derives from a single written document, but other written documents are also considered part of the constitution. The Constitution of India is the longest codified constitution in the world.[8] It is unique in that it incorporates codes from many other constitutions like those of Japan, Malaysia, and Anglosphere countries.[9]