Understanding Constitutional Sources: Law, Custom, and Pacts
Constitutional Sources
Primary Sources
Primary sources do not presuppose the existence or operation of other prior sources. Examples include genuine constituent power, assumed habit when the law is against it, and the social contract.
Secondary Sources
Secondary sources presuppose the existence or operation of other sources. An example is the case law of constitutional reform.
The Role of Custom
Customary, repeating actions and behaviors can effect changes in constitutions. For this to happen, constitutions must last for a while, allowing the custom to consolidate.
The practice in constitutional law is superior to that which occurs in ordinary law because:
- Positivism limits customary law in ordinary law.
- It is much harder for legislators to foresee the many details and situations in constitutional law than in ordinary law.
If a strong constitutional tradition, alien or contrary to the law, were to consolidate, and the law fell into disuse, the possibilities for the legislature to reduce or cancel such a custom are very slim.
If a practice contrary to the Constitution were to succeed, it would be imposed against the highest court in positive law, so one would not expect any new effective action by a further instance.
Conventions and Uses
Within the mass of custom applications, one can distinguish between conventions and uses.
- Conventions: Mandatory rules stemming from agreements, which may be express or implied.
- Uses: Ritualistic practices that are repeated, with less binding force than conventions. For example, constitutional rules of courtesy that work in different countries.
Ways in which uses and conventions act on the constitution:
- Aborting a constitutional provision.
- Transferring powers or functions from one constitutional body to another.
- Completing or specifying when constitutional precepts are unclear or insufficiently detailed.
Law as a Source of Constitutional Law
Law is a source of constitutional law for the following reasons:
- The law itself, in the formal sense, is a law.
- There is a substantial body of legal standards established by the legislature to supplement, develop, modify, or adapt the constitution.
- Formal constitutional reforms are carried out through legislation.
Jurisprudence
If the law cannot create, amend, or repeal laws, can it be a source of law? Is it constitutional or not constitutional law?
Jurisprudence is and is not legal and constitutional power, as appropriate, and in the affirmative, it is not always the same way.
In what cases is the law a source of constitutional law?
In common law countries, judicial tradition and constitutional law were not conceived as something radically different from private law.
In which case is the law not or was it not a source of constitutional law?
In civil law countries (continental Europe), although this has been changing.
Do not confuse the issue of whether the law is a source of constitutional law (if judges can create, modify, or terminate constitutions) with the control of the constitutionality of laws.
The Pact
- In the end, the Constitution is a covenant, a contract between the people and the rulers.
- A pact establishes limits and rights. Beyond those limits, citizens can lawfully become rebels.
- We can speak of the covenant as a constitutional source in a different sense: the constituent power.
The Constituent Power
Origin: The English and Scottish Presbyterian Church in the seventeenth century, which opposed Parliament and royal absolutism.
This concept traveled from Britain to New England, where it was applied in the charters of Connecticut and Rhode Island.
The constituent power at the time involved:
- The constituent power belongs to the people.
- It is a special power to be exercised by the people themselves and not their representatives.
It can be divided into:
- Genuine, original, or revolutionary (raw power).
- Power that is socially accepted, more or less institutionalized and regulated.
It is not bound by any legal constraints – positive. It is bound by:
- Legal and political values,
- The general rules of justice,
- The constitutional traditions common to civilized nations,
- The common good.