Probably everyone knows what the Constitution is. Moreover, not everyone knows how exactly the basic law of the state is adopted. This article will discuss the main ways to adopt the Constitution.
The concept of the Constitution
Before talking about the main ways of adopting the Constitution, you need to decide on the concept itself. The most common definition says that the Constitution refers to the set of basic rules and laws enshrined in the form of a regulatory act. This combination is the most important law in the territory of any state. It is the Constitution that determines the political regime, territorial structure and system of government in the country.
The first Constitution, in the form in which people represent it today, was adopted in 1787 by US lawmakers. Three years later, such vaults appeared in France and in the Kingdom of Poland. Moreover, it was the main US law that laid the foundation for the creation of similar documents around the world. A feature of the Constitution is its relatively small volume and the highest legal force.
Adoption of the law in a referendum
There are a considerable number of ways to adopt and amend constitutions. All possible options can be divided into two groups: those directly connected with the authorities or those that appear directly during the decision-making process by the people. The formation and adoption of the Constitution in a referendum is a phenomenon that is just included in the second group. It is in this case that the basic law of the state is created by the source of power, that is, by the population of the state itself.
However, it is worth noting that history does not know at least one case when a people without any interference from the authorities created the basic law of the country. In addition, the referendum itself is a process that does not fully reflect the popular will. What is the reason for this? Firstly, any Constitution has a very complex and multifaceted structure, and therefore only citizens with the highest level of legal culture can engage in its creation. Secondly, the referendum process itself determines the attitude not to individual parts of the adopted law, but to the entire act as a whole.
Thus, a constitutional referendum is a very peculiar way of adopting the Constitution, although it has been used many times in history (France, 1799, European states in the 20th century). Despite the external democracy, the fact remains that the law itself is adopted by state bodies, and the procedure for interviewing the population does not give a complete understanding of the attitude of the people to the adopted document.
Election corps
In 1958, in France, by decree of the head of state Charles de Gaulle, a special committee was developed, the tasks of which included the implementation of two stages: the development and approval of the main law of the state. The committee consisted of 39 members, most of whom were representatives of parliament, and the smaller were government officials. A preliminary draft developed by the electoral corps was approved by other government bodies and was soon submitted to the approval process. Thus, the temporarily created state body, which included officials from state bodies, was able to create the basic law of the fifth French republic.
The creation of an interim government body with a specific purpose is a very common way of adopting the Constitution. France is far from the only state that has developed the basic law in this way. At the same time, there is a simpler way, which will be described below.
Adoption of the Constitution by government bodies
One of the most common ways of adopting the Constitution is to convene separate bodies within the state system. In this case, there is no need to create any separate commissions, which could include representatives from different branches of government. In the case under consideration, everything is much simpler: a constituent assembly is created within the legislative system of power, which implements a number of procedures for the formation and adoption of the main state law. The only condition here is the presence in the body of representations from various groups of the population. This principle reflects the democratic nature of the entire system that is involved in the legislative process. Where was this way of adopting the Constitution implemented? An example of a country is France in 1946, where the legislature independently developed a draft law, after which it submitted it to a referendum.
About the concept of octroing
Probably the most peculiar, and therefore the rarest, way and procedure for adopting the Constitution is octroization (gift). If you look at historical examples of the constituted constitutions, you can see countries that are not the most developed, and sometimes even have far from a democratic power structure. These are, for example, Iran, Monaco, Jordan, Pakistan, Kuwait and some other states that received such an important law in the first half of the 20th century. The very first case of giving the Constitution to the people is France of 1814. It was then that the French monarch was forced to enact a law that significantly limited his authority.
Contrary to popular belief, it is worth noting that octroization is not a "good gesture" of the sole ruler, but a forced concession to those liberal political forces that advocate restricting monarchy in a particular state.
A simple way to change constitutions
It is necessary to turn to another rather urgent topic - namely, how to make additions or changes to the basic law of a country. Here experts single out one important classification, according to which constitutions are “flexible” and “rigid”.
In the first case, everything is quite simple: the basic law of the country has the same strength as other regulations. Any changes here can be made without any difficulties and additional procedures. No need to convene special bodies, hold referendums or form special powers of the legislative branch. All that is needed to change the basic law of the country is the corresponding requirements from representatives of the authorities. A simple example of flexible constitutions is the laws of Great Britain and New Zealand.
The difficult way to change the constitution
Most states have “hard” constitutions. Depending on the type of power structure in a given country, amendments to the basic law also take place in different ways. So, if parliamentary elections should be adopted by a simple majority - 50% + one vote, then a special procedure must be established to amend the Constitution. For example, you can take the basic law of the United States, adopted three centuries ago.
One can also single out the
Constitution of the Russian Federation. So, the first two chapters of the constitution are considered “unattainable” at all, and therefore they cannot be considered by the parliament (Federal Assembly). The only option to amend the chapters 1, 2 and 9 of the Russian fundamental law is to adopt a new draft constitution. The rest of the chapters are a bit simpler. The legislature is voting on the revision of the provisions and amendments, in which approval will be possible only after receiving two-thirds of the positive votes. As a result, the Federal Constitutional Law is adopted, which has a much greater legal force than other normative acts.
About the Constitution of the Russian Federation
It is also worth talking about the method of adopting the Constitution of the Russian Federation, as well as what constitutes the domestic basic law. As in the case of the constitutions of other states, the Russian fundamental law has the highest legal force throughout the country. The law regulates the political system, the functioning mechanisms of the current government, the judicial system and the prosecutor's office, human rights, as well as the way the Constitution of the Russian Federation is adopted and amended.
The law consists of nine chapters, which set out 137 articles. There is also a preamble that summarizes the purpose of the Russian Constitution.
The history of the adoption of the basic law of the Russian Federation
The development of a new constitutional draft began in 1990 by the Congress of People's Deputies. However, representatives of the executive and legislative branches did not like the high development time. In addition, many were not happy with the concept that introduced numerous changes to the 1978 Constitution. In 1993, by decree of the head of state, constitutional reform began .
Two bodies appeared within the legislative branch - the constitutional commission and the
constitutional meeting. The method of adoption of the Constitution of the Russian Federation, therefore, concerned only the authorities. A little later, a nationwide referendum was held, during which 58% of the vote was cast for the adoption of the new fundamental law of the country.