Constitutional law

Society and order

In history, humans have always lived in communities. Communal life is necessary for the security
and survival of mankind. Communal life also presses the need of order for preventing the people to
each other. Whenever humans have established a social organization, they have also put some
orders for preventing anarchy and chaos. Without some degree of order, society cannot serve it’s
purpose and cannot provide security of members. Even in rudimentary (primitive) society customary
way of rules and orders carry out social activities.

State and law

In the state as a political society, nobody is absolutely free. Each person is subjected to social rules
and written. Social rules as custom, moral and religion are observed laws voluntarily. Legal
rules(norms) are observed mandatorily by the state. Only the state has power to make and
apply(enforce) the law. The law defines the certain types of violations of the social order as crime.
The state punishes the offenders.

Private law main branches:

1. Civil law = medeni hukuk
2. Obligations law = borçlar hukuku
3. Commercial law = ticaret hukuku
4. Private international law = özel uluslararası hukuk

Public law main branches:

1. Constitutional law = anayasa hukuku
2. Administrative law = idari hukuk
3. Criminal law = suç hukuku
4. Tax law = vergi hukuku
5. Public international law = uluslararası kamu hukuku

Public law versus Private law

Public law aims to protect the public Private law seeks to protect private
interest. interest.

Individuals and the state are the main Private entities or organizations acting in
parties involved. the private capacity are the main parties
involved.
Ensure the public interest of the general Secure private interests/ freedom of the
population. individuals in the community.
Responsible for regulating a harmonious Responsible for regulating the activities
relation between the citizens and the state. between two or more private entities in a
just and fair manner.
Penal sanctions are more severe. Sanction usually include the payment of
damages.

Constitution: It is the fundamental political principles on which a state is governed, especially

when considered as embodying the rights of the subjects of that state.
WHAT IS CONSTITUTIONAL LAW?

Constitutional law is a body of law that defines the role, powers, and structure of different entities
within a state, namely, the executive, the legislature, and the judiciary; the relationship between the
central government bodies, as well as the basic rights of citizens.

1. Content of Constitutions
1.A. Preamble

1.B. General Principles Chapter

1.C. Institutions of the State Chapter

1.D. Fundamental Rights and Freedoms Chapter

1.E. Amendment Procedure Chapter

1.A Preliminary chapter

Ideological part of the constitutions. Explains why the constitution has been made. It is not written in
the form of an article, but history and politics. It is controversial, is the preliminary chapter inside the
constitution or not.

Some constitutions haven’t got preliminary chapter. Finland, Italy, Norway, Romania

Some constitutions have got very short preliminary chapter. France, Germany, Ireland, Greece

If the state has an official ideology preliminary chapter is long. Iran, China, Turkey

1.B. General Principles Chapter

The general principles chapter of a constitution regulates the main principles of the state and
determines the type of the state and the government (unitary, federal, confederal, monarchy,
republic, religious, or secular).

1.C. Institutions of the State Chapter

One of the core functions of any constitution is to frame the institutions of government and to
determine who exercises the power and authority of the state, how they do so and for what purpose.
But constitutions neither fall from the sky nor grow naturally on the vine. Instead, they are human
creations and products shaped by convention, historical context, choice, and political struggle.

In the democratic system, the citizen claims the right of original bearer of power. For him or her, the
constitution embodies a social contract that limits the use of power by government to benefit the
citizen in exchange for his or her allegiance and support.

The term ‘constitutionalism’ sums up this idea of limited power.

Institutions of state chapters regulate the legislative, executive, judicial institutions of the state and
their functions.
1.D. Fundamental Rights and Freedoms Chapter
Democracy is a political system guaranteeing fundamental individual rights and freedoms by the
Constitution.

To preserve the stability of democratic political order, fundamental individual freedoms, and rights
are guaranteed in constitutions that are rigid (with the exception of the United Kingdom) so that they
cannot be changed or annulled by ordinary law.

In the late 18th century, Constitutional democracy replaced radical or absolute democracy, which
was the product of revolutionary dogmas on both sides of the Atlantic.

Whereas radical democracy is perceived as sovereignty that lies in the whole people, expressing itself
through an all-powerful assembly, constitutional democracy is, by definition, a system where there is
a balance of values and powers.

The powers allotted between different organs and subject to limitations, – which, under a regent
charter, becomes a cogent guideline for the governmental process.

It is the longest part of the democratic constitutions. Because the aims of the constitutional
movements are safeguarding the rights and freedoms of the individuals against the power of the
state.

1.E. Amendment Procedure Chapter

A constitution is the supreme law of a country. In contrast to ordinary legislation, it embodies the
fundamental choices a government and its people make that establish the basis for political and
social life.

Constitutions develop the system of government, distribute, and constrain power, protect the rights
of citizens, and deal with various additional issues of identity or substantive policy that are
considered foundational in the specific context of a particular country.

However, while intended to be both foundational and enduring, constitutions are not meant to be
immutable; if they are to endure, they must be able to respond to changing needs and
circumstances.

Motivations for changing the written text of a constitution differ.

Amendments may be made to (a) adjust the constitution to the environment within which the
political system operates (including economics, technology, international relations, demographics,
and changes in the values of the population); (b) correct provisions that have proved inadequate over
time; or (c) further improve constitutional rights or to strengthen democratic institutions.

At other times, changes may be motivated by selfish or partisan goals.

Since a constitution sets the rules of the ‘political game’, those in power may be tempted to change
the rules to extend or secure their tenure, marginalize the opposition or minorities, or limit civil and
political rights. Such changes may weaken, or even undermine, democracy.

Similarly, constitutions must be responsive to changes over time in social mores and values, but they
need to be protected against short-term changes or changes hastily approved without due reflection
and consideration.
FUNCTIONS OF CONSTITUTIONS
1.Legitimization of the state authority

2. Recognition of the rights and freedoms of citizenship

3.Delineation of the roles and the limits of the authority of different political actors

4.Establishment of mechanism for adjudication

5.Expression of basic beliefs and symbolism

6.Provision of the flexibility of amendment

7.Provision of a mechanism for effective citizen participation

Essentials of Good Constitution

1. Clarity or definiteness
2. Brevity
3. Comprehensiveness
4. Flexibility
5. Declaration of rights
6. Independence of judiciary
7. Directive principles of state policy

CLASSIFICATION OF CONSTITUTIONS
1. Written and Unwritten Constitutions

2. Soft and Rigid Constitutions

3. Frame and Regular Constitutions

1.Written and Unwritten constitutions

A written constitution is a type of constitution where in there is a legal and formal book or series of
documents bound a as a book containing the nature of the constitutional arrangement, the laws
governing the entire system, and the rights and duties of the citizens and the government. It
explicitly lays down the primary organs and bodies of the government.

Unwritten Constitution refers to a constitution wherein the fundamental laws, legal decisions, and
rules that govern the nation are not embodied in a single written document systematically. However,
they are defined by customs, usage, precedents, formal and legal enactments, and instruments such
as certificates, bonds, deeds, contracts, acts, writs, processes, wills, etc., as manifested in statutes
and decisions taken by the judiciary. The laws evolve through continuous use and practice, which
become a part of the constitution.

2.Soft and Rigid constitutions

In a soft (or flexible) constitution, there is no distinction between ordinary law and constitutional law.
Both laws are enacted in the same manner, and their source is also the same. In this type, the
constitution may be written or mainly based on agreements. The amendment of the flexible
constitution requires no special procedure. The constitution of Britain is a classic example of a
flexible constitution.

Rigid constitutions are those which require a special procedure for the amendment. The
constitutions of the USA, Australia, and Switzerland are the best examples of rigid constitutions. The
rigid constitution is above the ordinary law and can be changed by a procedure, which is different
from the procedure of ordinary law, thus making it difficult to change. The objective is to emphasize
that constitutional law embodies the will of the sovereign, and it should be treated as a sacred
document.

3.Frame and Regular Constitutions

Frame constitutions do not go into details in their regulations but only draw a framework. They are
constitutions that outline the legal status of state organs and leave the details to other (regular) laws
and legal norms.

Regular constitutions consist of long and detailed rules, in which definite provisions are determined.

CONSTITUTIONALISM
Constitutionalism refers to a set of principles that determine the legitimacy of government actions,
which goes beyond the concept of legality that simply requires official conduct to conform to
predetermined legal rules. Essentially, constitutionalism ensures that the government acts lawfully
and that officials carry out their public duties in compliance with established laws. Constitutionalism
embraces limitation of power (limited government), separation of powers (checks and balances) and
responsible and accountable government.