Writing Constitutions

This chapter unveils the fundamental role of constitutional principles—the core of any constitution. Constitutional principles form the foundation and guiding framework of the constitution, shaping the institutional order, decision-making processes, and the substantive orientation of state actions. Beyond providing guidance for governmental activities and actors, constitutional principles ensure the unity and coherence of the constitution. They also play a crucial role in constitutional interpretation and in addressing normative gaps. For these reasons, an in-depth study of these principles is of immense importance.

To properly classify these principles, the chapter examines their normative scope and mode of functioning. It first distinguishes constitutional principles from rules before categorizing them into substantive and formal principles. Substantive principles, such as the welfare state principle, obligate the state to pursue specific objectives, whereas formal principles, such as the separation of powers, define the state’s organizational structures. Particular attention is given to how conflicting principles are handled, especially through the principle of proportionality.

Additionally, the chapter discusses judicial procedures for addressing misinterpretations or violations of constitutional principles, as well as the broader role of the judiciary in ensuring their enforcement.

The far-reaching normative effects of constitutional principles make it clear that they play a central role in shaping both the interpretation and evolution of the constitution. These principles are not just theoretical concepts—they actively influence governance, legal decisions, and the stability of constitutional systems. Understanding them is essential for anyone involved in law, politics, or public administration.

Preambles manifest the self-identity of the constituent assembly, as well as the history and heritage of the nation and its people. This chapter examines references to historical legacy and future-oriented self-identification, constituent power, the sovereignty of the people, the preservation of national, ethnic and cultural heritage, transcendental or religious invocations, constitutional rights, values and principles, and state visions, ideals and societal commitments regarding political and economic cooperation and cultural affinity. Finally, the chapter underlines the legal relevance of preambles as interpretative instruments applied by leading constitutional and supreme courts. Preambles therefore serve as both symbolic declarations and meaningful guides to constitutional interpretation and national self-understanding.

The impact of international law on national constitutional law is a concept often referred to as the ‘internationalisation of constitutional law’. While general theories concerning the relationship between national and international law are not always clearly articulated in constitutional texts, the extent of this relationship ultimately hinges on the sources of international law and the precise wording of constitutional provisions. The ‘opening’ of most constitutions to the influence of international law establishes a constitutional principle that binds the state to international legal norms. This chapter evaluates references to, and the constitutional status of, various categories of international law, including international treaties and executive agreements, general rules of international law, commitments to peace and security, and provisions enabling the transfer of competencies to international organisations. Consideration is given to their object and purpose, as well as substantive limitations.

Democracy and popular sovereignty have undergone profound changes in the modern world. Acts of sovereignty have no place within a constitutional democracy that establishes limits on all powers of the State. Supranational integration adds limits to State power. Globalisation opens a new front of tension for popular sovereignty by weakening the power of the State, a limitation that is particularly important in its most advanced phase, the third globalisation (even during the current fragmentation of globalization due to geopolitical tensions). The constitutions of our time should not leave the major issues raised by globalisation out of the constitutional text. In particular, the challenges posed by the configuration of the digital society. The regulation of the digital world in the constitution itself is necessary because the constitution must be digitalsed so that it does not remain an obsolete document of the analog world, while it is also necessary to constitutionalise the digital world itself.

Designing the optimal electoral system for a country requires careful consideration, particularly when the electorate and/or the electoral system are subject to manipulation. Elections are a form of political participation and act as a periodic barometer of public opinion. They provide legitimacy and stability for political decisions, with equal, direct, secret and free suffrage being standard principles of democratic elections. However, the specifics of these principles, such as the voting age or residency and citizenship requirements, vary from country to country and can be defined individually when drafting a constitution. In addition to electoral principles, this chapter presents different electoral systems. The main groups are plurality, majoritarian, proportional, mixed, and hybrid systems. Some countries apply the ‘winner takes all’ principle, and more than one majority may be required to win elections. There are numerous variants and their intricacies, such as the ‘first past the post’ system; the ‘block vote’ system; the importance of party lists through ‘party block vote’; ranking through ‘alternative vote’; and the ‘two-round system’ if a candidate or party does not directly reach a certain quorum. Ultimately, the question arises: Which electoral system is optimal for which state? What are the decisive factors? What are the advantages and disadvantages of each system? This chapter helps to untangle the enigma of electoral designs, includes a visualisation chart and offers solutions to one of the most fundamental elements of a constitutional state.

The design of direct democratic elements, such as popular referendums, varies greatly across democratic constitutions. This chapter enables countries to configure their own constitutional clauses by offering a modular system. Firstly, it addresses the fundamental question to what extent if at all direct democracy is beneficial for each country. It then reviews the many different factors that influence the hurdles and the outcome of direct democratic elements, such as whether they are proactive or reactive, held at the local, state or federal level, whether they are a one- or two-step process, whether they involve parliamentary intervention or other external oversight, and, most importantly, what the turnout and approval quorums are at the different stages of the process. Other factors include the method of signature verification, the determination of the voting day, and the overall timeframe, all of which have a significant impact on the probability of a popular referendum’s success. All these factors must be carefully assessed against the idiosyncrasies of the electorate of each country. Finally, alternative solutions and the implementation of successful ballots are discussed, providing a comprehensive toolbox for the constitutional design of direct democratic elements.

In light of recent developments in the US and elsewhere, the world is asking: What constitutes the Rule of Law, and which principles must not be violated? This chapter and the next provide profound answers, even though the understanding of the rule of law can vary from one jurisdiction to another. When assessing the rule of law as a fundamental pillar of the constitutional order, both its structural and value-based functions require analysis. This chapter emphasizes the essential elements of the rule of law, focusing on the structure and function of law—such as clarity, certainty, and stability; the hierarchy of the legal order; the reservation of formal law; and its interaction with international and supranational law. It underscores the constitution as a functional unit, highlighting the interdependence of fundamental values and distinguishing between its necessary and non-necessary components as the constitutional core. Furthermore, it elaborates on the concept of an authentic constitution, with the rule of law as an overarching principle, and examines its internal application, extraterritorial scope, and implications for societal relationships.

What does it mean when a constitution characterises a state as a ‘social state’? This chapter examines the concept’s overall function. It describes the interventionist and welfare-oriented nature of states, which prevails worldwide today. It illustrates the emergence of the concept in intellectual history and shows how it is interpreted in jurisprudence and in the case law of constitutional courts, particularly in Germany, where the concept originated and became a model for other countries. Under the social state clause, the state is obliged to create society through legislation and establish interpersonal relations based on social justice. The interplay between the social state and social rights is also outlined. The social state clause establishes, guarantees and expands social rights to work, education, health, social security and social assistance. To this end, the state has created the appropriate institutions.

This chapter examines what the Constitution reflects and establishes in cultural matters, which can be encompassed under the term cultural Constitution. In contrast to the category of the cultural State, the cultural Constitution emphasises individual and social initiative and freedoms, which the State must respect and promote. This chapter shows that culture permeates both the process of gestation of Constitutions and their extension and formulation, and then analyses in comparative perspective the sections of the Constitutions that have the strongest cultural imprint. We recognise and explain an evolution in constitutional production in recent decades, characterised by a greater sensitivity to the cultural fact and to cultural diversity. A rapprochement between human rights and international and national standards on the protection of cultural heritage is also discernible, which has been accompanied in several legal systems by a concern to protect the environment, nature, biodiversity and natural heritage, sometimes as inseparable components of the cultural identities to be protected.

The energy transition and the rapidly changing climate require unparalleled efforts and solutions. Various legal instruments can provide institutional guidance in this unfamiliar territory and build an ecological framework in a modern constitution. This chapter outlines constitutional structures for ten key environmental elements at all levels of constitutional architecture. These include the preamble, the institutional constitution (encompassing and binding all three branches of government), the fundamental rights section, specific guiding provisions requiring the state to value and preserve nature, rights safeguarding nature itself, rights to access environmental information, independent oversight mechanisms, provisions enabling litigation in defence of nature, state of emergency clauses adapted to ecological threats, and immutable components of the amendment clause. Together, these components form a modular constitutional framework that can be adopted individually or collectively to better prepare a country for constitutional decision-making in light of the inevitable changes that lie ahead.

The territorial division of powers or competences is a form of vertical separation of powers concerning legislative, executive and judicial competences within a multi-layered system. Key arguments in favour of territorial distribution include the principle of subsidiarity, promoting collective self-identity and enhancing flexibility and stability within a political system. This chapter primarily focuses on three models of territorial distribution: unitary, regionalised and federal systems. In a unitary system, the legal order is assumed to emanate from a single central legal source. This system can be either centralised or decentralised, with the latter involving autonomous legal sub-entities (e.g. France).

Situated between unitary and federal systems are regionalised systems, which feature strong regional autonomies and typically possess their own legislative and executive competences, as granted by the central constitution and regional statutes. The dynamic evolution of these systems and the potential devolution of powers to regional entities depends significantly on the underlying model. Federal systems can emerge in various ways: they can originate from a contractual arrangement among former confederations (e.g. the United States, Switzerland and Germany), derive from pre-existing colonial structures (e.g. Australia, Brazil, India and Canada), result from fundamental constitutional reforms (e.g. South Africa), or evolve through the gradual devolution of competences (e.g. Belgium).

Competences may be distributed or shared between the states and the federation in the areas of legislation, executive power and the judiciary. The comparative analysis presented in this chapter highlights the various types of legislative distribution, such as exclusive competencies of either the states or the federation, concurrent competencies, basic federal legislation and mechanisms for resolving conflicts, either in favour of the federation or the states. Complex models also govern the administration of federal laws, whether through dualist structures or ‘executive federalism’, as well as the allocation of judicial powers between the two levels of government.