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There is no law or rule, national or international, that prescribes what
the constitution of a country should lay down; or that proscribes what it
must not lay down.
Yet, there are at least three quite distinct matters such a constitution
may deal with: first, the territory (contiguous or not) which the country
owns (and possesses), and therefore has jurisdiction (and control) over;
second, the one or more organizations that govern the country; and, third,
the norms and values (or ideals) which characterize the country.
'By definition', i would say, an organization that has no jurisdiction
over any territory does not constitute a 'country'.
Maybe it used to have a territory before, and maybe it is on the way of
obtaining one in the (near) future, but then it was a country once
or it will be a country relatively soon.
The way a national territory is defined in a constitution may vary
considerably, from the most accurate way in which a surveyor would also
delineate a private property to the mere use of a name which is common
in natural geography as well.
(The word country has several meanings.
Among others, it may refer to an expanse of land, that is, a territory,
and it may refer to a political state, that is, a government.
Altho it is an interesting question which of these two comes or should
come first, such a question cannot be part of our present discussion.)
The way a country with a particular territory is organized is of the
utmost importance.
Political power may or may not be divided, but the more it is divided
over different persons and groups the greater the need for a constitution
that codifies who does and may do this, and who is responsible for and
must do that.
An example of a vertical separation of powers is a political entity
which distinguishes one federal state on the highest level, a limited
number of provinces or regional constituent states on an intermediate
level and many different municipalities on the lowest level.
The best-known example of a horizontal separation of powers is the
trias politica scheme, in which a legislative, an executive and a
judicial branch of government are distinguished.
But countries may have fewer than three, they may have more than three of
such branches.
In theory, the constitution of a country can be confined to the matter of
its territory and the matter of its organization on the basis of a one-,
two-, three- or more-branch scheme.
In practice, however, a constitution is also a document of so-called
'fundamental principles', among which principles which are not so
much used in the description of the territorial property and the
organizational shape of the sovereign state.
These principles concern the norms and values which (are meant to)
play a major role in the society in question, or certain convictions
with which it is (supposed to be) deeply imbued.
If technical principles lay down the form of the state, such nontechnical,
'ideal' principles lay down its content.
To those who, from a purely technical or legal standpoint, would like to
clearly distinguish the form of the state from its content this may seem
like an illegitimate mixture of the two.
In a way they are right, but what they forget then is that also with
respect to national territory and governmental organization everything in
politics is a more or less obscure mixture of fact and value.
Just ask yourself how self-evident the choice of territorial
borders and the choice of organizational structure are in the present or
were in the past!
Let us look at 'the facts' with respect to the choice of national borders.
The waters of the world are still predominantly international and
politically undivided; what is national in the first place are the chunks
and smaller pieces of the Earth's landmasses.
These landmasses were never politically divided by human beings —not
that they had to— on the basis of one or more substantive
principles, fundamental or not.
The cynic will say that they were split up and
(re)united by military might.
A more palatable, but only partially different, criterion is tradition or
history, like etymology in spelling.
Nonetheless, just like etymology in spelling, history is not a reservoir
of all the outcomes of all objective, technical decisions freely taken
in the past, nay, it is a hotchpotch of the outcomes of free and forced
objective and subjective decisions based on both formal and substantive
principles, and on a total lack of any relevant principle.
In other words, there may be facts too which have made us end up with
today's national borders, but in addition to values and sheer randomness.
The currently given political subdivision of the continents and islands
of this planet is built on quicksand; quicksand which makes this
subdivision change all the time.
And quicksand leaves us little or no room for self-evidence.
Then there is the choice of organizational structure.
Before we can speak of 'a vertical and/or horizontal separation of
powers', there is the issue of how much power the sovereign state should
have to start with.
Given that anarchists (in the true sense of the word) have already lost
out or gone elsewhere, the minimum power of the state will be more than
nothing, but the decision is definitely a value-laden, ideological one.
Once the state has been granted a territory and (some) power you would
expect the next issue to be the separation of the authorities that,
together, have this power.
Well, perhaps in a republic, but not in a monarchy, where the monarch and
Their family have priority of existence.
Whatever branches will follow, this monarch may later be made officially
or de facto part of one or —oh, irony— more of them, or
may be left out, openly or surreptitiously, with or without relatives, of
the general scheme of branches altogether as a unique case.
If a republic opts for, or if a monarchy then opts for, the trias
politica, or even more than three branches, this is done to prevent
the concentration of power and to establish a system of checks and
balances.
There will be good technical reasons for these checks and balances, and
yet, if technical reasons were the only valid criterion, the best polity
might be a dictatorship with one single branch of government instead.
Without history as the arbitrary criterion (also for the choice between
republic and monarchy) nothing is self-evident here.
The point remains that the constitution of a country cannot do without a
reference to its territory nor without defining its public organizational
structure.
Nevertheless, it can do without a reference to what really are, or what
are claimed to be, certain norms and values or convictions based on them.
As a matter of fact there still are many constitutions in which religion
does not uplift man but in which men 'and other human beings' uplift
religion to the de jure or de facto status of a state
ideology; or a particular religion to what is explicitly or
implicitly the status of a state religion, without necessarily using this
term itself.
By thus arrogating the constitution to themselves these state
religionists attempt to ensure a special position for their own creed (in
a stricter or looser sense), and they do indeed manage to give that creed
a legal supremacy unmatched by any supremacy in moral behavior.
But is this exclusive status given to their
denominational ideology
only advantageous; does it not harm these religionists and/or the
ideology they embrace in any way?
It definitely harms them in that anyone with a modicum of sense of justice
will wonder if it is right to single out your own political or
denominational ideology for constitutional recognition, provided of course
that that person also has a modicum of social knowledge about beliefs and
nonbeliefs in the society.
To argue this is nothing new.
What i want to point out here is that such constitutions also harm the
religious cause in a completely different, perhaps, totally unexpected
psychological and sociological manner: on top of the status of religion
apparently being 'man-dependent' instead of God-given, the exclusive
recognition in the constitution takes away the self-evidence of
that special position as envisioned by state religionists.
It may seem farfetched, but there is good reason to assume that
nothing in the constitution of a country is self-evident, neither
in theory nor in practice.
I will adduce three other domains of social behavior to illustrate why
not:
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If a constitution states that the language in which the constitution
itself is written is also the official language of 'the country' (such
as its laws and government), then there are one or several more or less
competing languages, in the country itself or in its neighborhood, of
which the speakers may want to make equal use (in the country itself or
in a different related country), now or in the future.
Without any alternative or competing languages or dialects at all (among
fellow-citizens or related countries) a country did, does and will not
lay down which language or dialect is the official one.
Here is an example:
The constitution of the United States of America or any of its
constituent states never declared English or 'American' the official
language of the country or state.
It was not until the growing minority of Spanish-speaking citizens
started to demand the same language rights that not only Spanish but
also English itself became an official language in separate states.
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If a constitution states that the right to vote is reserved for men
exclusively, then there are feminists around who claim that women
should have an equal right to vote.
Without any 'feminist threat' from home or abroad the constitution of a
country did, does and will not lay down that only male citizens have
the right to vote.
When women, just like men, do have the right to vote, this may be made
explicit in the constitution precisely because at the time of writing
or rewriting it there still were considerable pockets of androcentric
exclusivists opposed to the right to vote for women.
Here is an example:
Until 1887 of the Christian Era the constitution of the Kingdom of the
Netherlands did nowhere mention that solely men had the legal right to
vote.
It did not become part of that constitution until one woman, Aletta
Jacobs, explicitly demanded to be put on the voters list.
The new sexist clause remained there until 32 years later, when the
feminists finally won.
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Quite similarly, there were constitutions in which marriage was
regarded as a union between two persons and purely implicitly as one
between a man and a woman.
Once non-heterosexuals started to protest against not being allowed to
marry as well, the self-evidence of the two partners being and having to
be of different sexes collapsed, and the choice became one between either
making the heterosexual exclusivity of the institution explicit or
creating a new form of sexual inclusivity in the country's
constitution.
Where a constitution deals with rights we may take it for granted that
they are legal rights.
But any necessity to distinguish these legal rights from moral
rights is an illustration of how 'the self-evident fact' that right
must be a legal notion evaporates where certain rights should be
recognized on the basis of a moral conviction, and yet are not by law.
Once that discrepancy is or can be there, people feel the urge to speak of
"moral rights", also because of the strong emotive value of right.
Hereafter, a full correspondence between rights founded in legal or
factual reasoning and those founded in moral or normative reasoning has
entirely lost its self-evidence.
The implicit assumptions of a constitution are not self-evident —
far from that.
(Actually, this applies to laws on any level.
In a society where killing and stealing do not occur, and where people
could not even think of such things, there is no law against killing or
'murder', no law against stealing or 'theft'.)
This lack of self-evidence is a problem, for, in theory every citizen
should agree, if not on what is true and relevant, at least on what should
be considered true and relevant.
Of course, the actual practice is different.
General agreement may be possible; total agreement is not, unless it is in
terms with a lot of common connotation and little or no common denotation.
The muddy grounds of what defines many a country or territory, in a legal
and/or moral sense, will not make things clearer; the stony grounds of
what defines many another country or territory will not make things more
peaceful if these grounds nurture exclusivity or exclusion.
Ideally, the constitution of a country is better as it is emptier.
The opposite, however, demands less persuasion: where everything is in
the constitution, nothing is self-evident anymore.
M. Vincent van Mechelen
74.LSE-75.ENW
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