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CLASSIFYING CONSTITUTIONS: PRELIMINARY

CONCEPTUAL ANALYSIS
Pasquale Pasquino †

TABLE OF CONTENTS

I. ANCIENT AND MODERN............................................................................................999

A. Constitution A—Modern .......................................................................... 1000
B. Constitution B—Ancient ........................................................................... 1005
II. FLEXIBLE AND RIGID: A POST-KELSENIAN TYPOLOGY OF CONSTITUTIONAL
SYSTEMS ................................................................................................................... 1008
CONCLUSION................................................................................................................... 1016

I. ANCIENT AND MODERN

Notwithstanding Joseph de Maistre’s 1 and Hegel’s 2 doctrines, and

unlike the British practice, most of the political actors in the
contemporary world, going back to the American and French

† Pasquale Pasquino is Global Distinguished Professor in Politics at NYU and Senior

Research Fellow at the CNRS in Paris; his publications concern mostly theory of constitution
and democracy. This Article is a fragment of my research on constitutional theory, a segment of
the section on how to classify constitutional systems. It puts together two short texts, the
second is on rigid and flexible constitutions and the first is on two meanings of the word. By
contrasting two concepts of constitution, which could be called vaguely ancient and modern,
we might improve our understanding of constitutional theory—even starting from a very
simple point.
1 See infra Part I.B.
2 G.W.F. HEGEL, PHILOSOPHY OF RIGHT § 273, at 221 (S.W. Dyde trans., 2001) (“Here it is
natural to put a second question:—Who shall frame the constitution? This question seems
intelligible at first glance, but on closer examination turns out to be meaningless. It presupposes
that no constitution exists, but merely a collection of atomic individuals. How a heap of
individuals is to obtain a constitution, whether by its own efforts or by means of others,
whether by goodness, thought, or force, must be left to itself to decide, for with a mere mass the
conception has nothing to do. If the question, however, takes for granted the existence of an
actual constitution, then to make a constitution means only to modify it, the previous existence
of the constitution implying that any change must be made constitutionally. But it is strictly
essential that the constitution, though it is begotten in time, should not be contemplated as
made. It is rather to be thought of as above and beyond what is made, as self-begotten [sic] and
self-centered [sic], as divine and perpetual.”).

999
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1000 CARDOZO LAW REVIEW [Vol. 34:999

experience of the end of the eighteenth century, have been thinking that
they could and even ought to write down a constitution and they did. To
be sure, a customary (vulgo unwritten) constitution still exists in the
United Kingdom, a constitution made up by a mix of written statutes
and conventions, as A.V. Dicey used to say. 3 Still this remnant of a
venerable medieval legal culture is only an important exception, which
was able, from inside a monarchical regime and the structure of a
“mixed government” that characterized the “Old English Constitution,”
to develop a longstanding form of democratic representative
government. Nonetheless, the constitutional world of the twenty-first
century from Ireland to China is one of written and quasi-universally
rigid 4 constitutions. The ambiguity of the word constitution, evident
from these few sentences, is worth some conceptual and historical
inquiry in order to avoid misunderstandings or purely verbal disputes.
To clarify these ambiguities we can start considering two texts,
which use the same word in the title: the first one encompasses the
Constitution of the United States. The other, written twenty-three
centuries ago by Aristotle—or more likely by one of his students—and
fortunately rediscovered in the sands of Egypt in the nineteenth
century—is named, in Greek, the Athenaion politeia—and is often
translated, in English, like in other languages, the Constitution of
Athens. 5 The same word appears in the title of these two texts. Does this
word design the same object/reality? Not quite!
These two texts represent a good example of the ambiguity and
multiple meanings of a word and concept crucial to us, and I intend to
discuss them in this Article. 6

A. Constitution A—Modern

Nowadays when we speak of a “constitution”—with few

exceptions, notably the United Kingdom—we have in mind first of all a
textual object similar to the Constitution of the United States or the

3 See ALBERT VENN DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE
CONSTITUTION 277 & n.25 (Roger Michener ed., 8th ed. 1982).
4 See infra Part II.
5 It has often been disputed whether the word “constitution” is the best or simply the
correct translation of the Greek politeia. I do not need to enter, for now, into details about this
philological question. But it has to be said that “regime” and “form of government” are possible
(and perhaps better) translations of the Greek term. See infra Parts I.B, II for a discussion of the
multiple meanings of the term in the Aristotelian language.
6 The most important theoretical/historical enquiry concerning the concept of constitution
is still to this day that written by Carl Schmitt. See CARL SCHMITT, VERFASSUNGSLEHRE (1928),
translated in CARL SCHMITT, CONSTITUTIONAL THEORY (Jeffrey Seitzer ed. & trans., 2008).
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2013] CLASSIFYING CONSTITUTIONS 1001

German Grundgesetz. In actuality it is a set of rules, norms, or

provisions 7 that generally have the following characteristics:
They, the provisions of a“constitution A,” define:
A. Citizens’ Rights
Citizens’ fundamental rights—notice that the U.S.
Constitution specifies these rights mostly in the
amendments (the first ten of which were approved in
1791, but also the Thirteenth, Fourteenth, Fifteenth
(1865–1870) 8 and Nineteenth (1920)); 9 the French
Constitution of 1791 did not formally include the
Declaration of Human Rights passed by the Constituent
Assembly two years earlier. But both the American
amendments and the Declaration of 1789 are substantively
part of these two constitutions. 10 A notable exception is
the French Constitution of the Fifth Republic; only in 1971
with the famous decision of the Constitutional Council
known as bloc de constitutionalité did the fundamental
rights become a substantive part of the chart. In general
and virtually each constitution after World War Two
follow the model of the Weimar Reichsverfassung: the
rights are explicitly part of the Constitution.
B. Separation of Powers 11 or Polyarchy
Distribution of governmental powers among different
agencies, hence the constitutional text determines and
specifies competences (powers, functions) of the branches
of the government 12—of the central government and—in
federal constitutions—of both the central political agency

7 There are evidently always exceptions in these attempts at conceptual definitions, which
use Weberian Ideal types.
8 U.S. CONST. amends. XIII–XV. These amendments are known as the Post-Civil War
amendments.
9 U.S. CONST. amend. XIX. This amendment is known as the Woman Suffrage
Amendment.
10 Gerald Stourzh, in his important article, quotes an interesting text from 1776 from the
resolves of the Concord, Massachusetts town meeting, where we read: “We conceive that a
Constitution in its proper idea intends a system of principles established to secure the subject in
the Possession and enjoyment of their rights and privileges, against any encroachments of the
governing part.” Gerald Stourzh, Constitution: Changing Meanings of the Term from the Early
Seventeenth to the Late Eighteenth Century, in CONCEPTUAL CHANGE AND THE CONSTITUTION
35, 46 (Terence Ball & J.G.A. Pocock eds., 1988).
11 This doctrine is obsolete in its classical formulation and, in my opinion, needs to be
reconsidered.
12 I use the plural (branches) since constitutions in the sense I’m considering here
describe/prescribe polyarchy. See DÉCLARATION DES DROITS DE L'HOMME ET DU CITOYEN
[DECLARATION OF THE RIGHTS OF MAN AND THE CITIZEN] art. 16 (1789) (claiming that without
“separation of powers” there is no constitution).
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1002 CARDOZO LAW REVIEW [Vol. 34:999

and of the states, Länder, regions, provinces or whatever

subunits the constitution establishes or recognizes.
C. Rigidity
Moreover, the norms included in the constitution have a
special character: the majority 13 can’t modify them. 14 For
this reason, I tend to define a constitution as a “counter-
majoritarian” device. Another way of qualifying this
property of constitutional norms is to speak of the legal
system as a “hierarchy of norms,” as a pyramid (Kelsen),
where the constitutional norms are supposed to be more
stable than the other ones (this is one of the possible
meanings of the so-called “superiority” of the
constitution). 15
D. Amendment Rules
Any “rigid” constitution [rigidity 16 is the European name
for point C, above] includes special norms for the
amendment of the constitution—in the U.S. Constitution
Article V; in the German Grundgesetzt Art. 79(2). 17 It is
worth noticing moreover that some constitutions include
[entrenched] provisions that are not susceptible to
amendment, e.g. the republican form in the French and
Italian Constitutions; (some) fundamental rights in the
Bonner Grundgesetz.
E. Constitutional Adjudication
Most of the contemporary liberal democratic
constitutions—notably those written and enacted after the
Second World War—have another characteristic: they can
be modified, supplemented, and stabilized through

13 Normally of the legislative (representative) body.

14 Consider here that we need to distinguish two majorities: 1) the majority of
representatives—here there may be an agency problem, and 2) the majority of the citizens.
15 James Iredell, from North Carolina, denounced the “principle of unbounded legislative
power” in Britain, a principle that the constitution of North Carolina “reprobates.” Stourzh,
supra note 10, at 47–48. Additionally, James Madison argued in The Federalist No. 53 that the
so-called supremacy of the Constitution is a metaphor for limited government. THE FEDERALIST
NO. 53 (James Madison) (“The important distinction so well understood in America, between a
Constitution established by the people and unalterable by the government, and a law
established by the government and alterable by the government, seems to have been little
understood and less observed in any other country. Wherever the supreme power of legislation
has resided, has been supposed to reside also a full power to change the form of the
government.”).
16 The term was introduced, apparently, by the British legal theorist J. Bryce. See infra Part
II.
17 GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC
LAW] July 2010, Art. 79(2) (Ger.) (“Ein solches Gesetz bedarf der Zustimmung von zwei
Dritteln der Mitglieder des Bundestages und zwei Dritteln der Stimmen des Bundesrates.”).
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2013] CLASSIFYING CONSTITUTIONS 1003

interpretation; 18 and in case of conflict and disagreement

among citizens and governmental agencies, or among
branches of the government concerning the meaning of
the constitution, the constitution attributes the power of
interpretation to a special agency which is a court or a
court-like body [I’ve in mind the French Constitutional
Council] normally politically irresponsible to the voters
[meaning a non elected/non accountable organ].
If we think about this (modern/normative) concept of constitution
we have to be aware of the great variety among the different texts, which
are part of this family; notably the modern constitutions, characterized
at least by A and B. We have to consider, for instance, that some
constitutions had a long life: the American Constitution, one of the
oldest ones in the world, is still in force; the Neapolitan Constitution of
1799 was never actually promulgated, 19 the first Italian constitution
(Statuto Albertino) survived for one hundred years (1848–1947), etc.
Some are short texts (again, such as the U.S. Constitution), and some
instead very long (as is often the case in Latin American countries; but
see also the French Constitution of the year III, 1795). Some are very
“counter-majoritarian,” 20 some quasi-majoritarian (Italy), and some—
nowadays exceptionally, but in the past very often—can be modified by
the simple majority of the representatives, 21 and, as we will see, they are
called “flexible.” It is important to note: Some old constitutions, notably
in countries with a long and stable democratic pedigree (but also in
some authoritarian regimes), do not have a full form E. 22 Mogens H.
Hansen drew to my attention the fact that perhaps the first written
constitution in the modern world was the one of the Danish absolute
monarchy: the Kongeloven, or Lex Regia of 1665.
Since these constitutions are written 23 we will have to ask the
question: who writes the constitution? Why? Or to use the language

18 I cannot discuss this very complex question here. Generally speaking, I believe we can
distinguish between: 1) protection, enforcement, and development of citizens’ rights [see for
instance the two decisions of the French Constitutional Council on détention de sécurité and
internet], see Conseil constitutionnel [CC] [Constitutional Court] decision No. 2009-580DC,
June 10, 2009, Rec. 107; Conseil constitutionnel [CC] [Constitutional Court] decision No. 2008-
562DC, Feb. 21, 2008, Rec. 89, and 2) Organtreit (conflicts among organs of the government),
see Corte Cost. 18 gennaio 1996, n.7, Foro. it. 1996, I, 386 (It.), available at http://www.jus.
unitn.it/cardozo/review/Constitutional/CorteCost/Sent-7-96/mnc1.html.
19 See BENEDETTO CROCE, LA RIVOLUZIONE NAPOLETANA DEL 1799: BIOGRAFIE, RACCONTI,
RICERCHE (3d ed. 1912).
20 See, e.g., U.S. CONST. art. V (requiring super-majorities to propose and ratify an
amendment to the U.S. Constitution).
21 New Zealand, for example.
22 For instance, United Kingdom and Netherlands.
23 Israel—like the Third French Republic in the past—has no single text called a
constitution, but has written constitutional laws. For a discussion of Israeli constitutional laws,
see CLAUDE KLEIN, LA DÉMOCRATIE D’ISRAËL (1997).
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1004 CARDOZO LAW REVIEW [Vol. 34:999

imposed by the French legal culture: who is and/or exercises the

constituent power? Notice that this expression is actually older, and was
already used by George Lawson 24 and Filippo Mazzei. 25 We realize
immediately that if we consider the constitution as a norm or set of
norms superior to the ordinary laws (a point already clear to the
Athenians in the fourth century) 26 this implies the “superiority” of the
constituent power vis-à-vis the legislative. The hierarchy of norms
implies a hierarchy of normative agencies.
Constitution A (that is, the modern concept of constitution)—to
stress a point which seems especially important to me—is an “artifact.”
That seems to imply that there is an “artifex,” some agent producing it.
One of the most important theorists of this idea of constitution, the
French political thinker Emmanuel Sieyes, wrote at the beginning of the
French Revolution: “Une constitution suppose avant tout un pouvoir
constituant” (a constitution presupposes first of all a constituent
power). 27
It seems important from this perspective to distinguish
constitutions enacted by transformative elites from those incorporating
written text established conventions. To different degrees, the French
Constitution of 1791, the Chinese Constitution of 1954 and the U.S.
Philadelphia Constitution are instantiations of more or less successful
attempts to modify the stricture of the political order; political decisions
that were able over time to become accepted. Examples of the second
type of charts are the more recent Chinese constitutions as well as
important revisions of some Scandinavian old constitutions.
A more complex analysis needs to be developed concerning the
role of the people as subjects of the constituent power. Here I want to
stress only that one has to avoid conflating the concept of authorship

24 GEORGE LAWSON, POLITICA SACRA ET CIVILIS 34–35 (Conal Condren ed., Cambridge
Univ. Press 1992) (1678) (explaining that the real sovereignty (majestas realis), consisting of the
power of constitution, is granted to the community).
25 FILLIPO MAZZEI, RECHERCHES: HISTORIQUES ET POLITIQUES SUR LES ETATS-UNIS 43–44
(1788) (speaking of “pouvoir constitutionnel” and adding: “Il est clair que si la puissance
législative ordinaire pouvoit déroger à la constitution, les fondemens du gouvernement seroient
toujours peu sûrs.”).
26 See MOGENS HERMAN HANSEN, THE ATHENIAN DEMOCRACY IN THE AGE OF
DEMOSTHENES: STRUCTURE, PRINCIPLES, AND IDEOLOGY (J.A. Crook trans., 1991) (providing
the remarks on Aristotle and the hierarchy between nomoi, the constitutional norms
concerning the structure of the Athenian democracy, and psephismata, the decisions of the
people’s assembly).
27 EMMANUEL SIEYES, RECONNAISSANCE ET EXPOSITION RAISONNEE DES DROITS DE
L’HOMME ET DU CITOYEN (1789), reprinted in 1 ORATEURS DE LA REVOLUTION FRANÇAISE, LES
CONSTITUTANTS 1013 (François Furet & Ran Halévy eds., 1989).
The ancients surely knew of “legislators,” but they were often mythical figures like Minos
or Lycurgus, and Solon himself. See ARISTOTLE, POLITICS. Still, Rousseau spoke of the
“législateur” as a sort of individual constituent power. See JEAN-JACQUES ROUSSEAU, THE
SOCIAL CONTRACT bk. 2, ch. 7 (1762).
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2013] CLASSIFYING CONSTITUTIONS 1005

with the one of authorization. The people (meaning the members of a

political community) are never the authors of a constitution; they
mostly authorize ex post the text directly (through a referendum) or
indirectly (through elected representatives), a text nowadays prepared
by legal experts and supported by the major political forces (when the
constitution is not imposed over the citizens unilaterally by a legal
coup).

B. Constitution B—Ancient

If we move now to the constitution in the sense of the Aristotelian

booklet, we face a quite different object. Let me start by considering
what seems prima facie and, wrongly so, a paradox. Professor Joseph
Weiler, who has written extensively on the topic, constantly maintained
the thesis that the European Union should not have a “constitution.” 28
His book is not a pamphlet. Its object was not a polemic against the
attempt to write a constitutional treatise for the E.U. The book is in
large part a remarkable description of the institutions and rules that
characterized, and continue to characterize, the governance of the
European Union. The author gave to this description the name of
Constitution—like any Aristotelian would have done—even though he
opposes the idea of having a written text called the Constitution of the
E.U.
Weiler’s book is not the first example of this linguistic paradox. In
a very different context and notably as a reaction to the French
Revolution, many people in Europe between the eighteenth and
nineteenth centuries supported the idea that one does not need and in
any event should not write a constitution, since each society has a
constitution. 29 From Joseph de Maistre to Edmund Burke, from Hegel
to August Wilhelm Rehberg, the enemies of the Enlightenment thought
more or less that “[o]ne of the grand errors of an age, which professed
them all, was, to believe that a political constitution could be written and
created à priori.” 30
Independently from the counter-revolutionary polemic against
what we now call “constitutionalism,” the concept of constitution as a

28 See J.H.H. Weiler, In Defense of the Status Quo: Europe’s Constitutional Sonderweg, in
EUROPEAN CONSTITUTIONALISM BEYOND THE STATE 7, 23 (J.H.H. Weiler & Marlene Wind
eds., 2003); see generally J.H.H. WEILER, THE CONSTITUTION OF EUROPE (1999).
29 At that time, the meaning of this position was the defense of the constitutional status quo
against the changes induced by the French Revolution!
30 JOSEPH DE MAISTRE, ESSAY ON THE GENERATIVE PRINCIPLE OF POLITICAL
CONSTITUTIONS (1810), reprinted in SCHOLARS’ FACSIMILES & REPRINTS 25 (Boston, Little, &
Brown 2d prtg. 1977) (1847). The original French book was published in 1810 in St. Petersburg,
where de Maistre was ambassador to the Czar’s court for the King of Sardinia and Piedmont.
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1006 CARDOZO LAW REVIEW [Vol. 34:999

description of the essential institutions of a political community goes

back to the Greeks and notably to Aristotle, who, with his students,
produced a collection of 159 contemporary constitutions (politeiai),
now unfortunately lost (with the exception of the Athenaion Politeia).
Notice that the confusion could be easily avoided by translating
politeia into “form of government” or, even better, using the German
dichotomy: Verfassung/Konstitution, the first term designating the
Aristotelian concept and the second one the modern idea of a written
prescriptive set of legal provisions.
It is quite clear that the first crucial difference between constitution
A. and constitution B. is that A. is, as just said, a legal object and a
prescriptive text (a collection of norms) and B. the product of an analysis
of the institutional reality, the object of descriptive social science. In the
Kelsenian language, A. is a Sollen (a set of legal prescriptions) and B. is
the description of a Sein, an intellectual enterprise that the Austrian
thinker, Hans Kelsen, wanted to exclude from his narrow conception of
constitutional theory.
If B. is accurate, we will get a lot of information about the real
working of a given society and its government; thanks to Aristotle, we
know a lot about the way the Athenian courts and many other
important institutions of the Greek polis used to function. 31
Another paradox of the concept that we are considering is that
sometimes constitution A., which in principle is a
normative/prescriptive text, can conceal rather than reveal the real
functioning of political institutions. Cases in point are most of the
written constitutions of the ex-communist countries.
Ferdinand Lassalle, in one of the first important texts devoted to
constitutional theory, 32 presented what I suggest calling the theorem of
impossibility. The intuition is that if the distance of A. vis-à-vis B. is too
big, A. cannot work; it is just a wishful constitution without relevant
effect. 33 In other words, 34 some constitutional conventions have to be
existent and integrated into the written constitution to make it
somehow effective, or at least a significant majority of the constituent
political actors have to share written norms so that they may easily
become a respected convention. So, the general point here is that it is
not enough that a bunch of people sit down and write a set of norms, to
transform them into something more than a parchment barrier. As

31 See generally ARISTOTLE, CONSTITUTION OF ATHENS (John Edwin Sandys ed. & trans.,
London, MacMillan & Co. 1893) (328 B.C.).
32 FERDINAND LASSALLE, ÜBER VERFASSUNGSWESEN (1862). A partial English translation
can be found at http://www.marxists.org/history/etol/newspape/fi/vol03/no01/lassalle.htm.
33 Alternatively, it may take a long time to become objectively relevant, as was, for instance,
the case of the French constitutional revolution, which took at least one century to become
significantly descriptive of the reality, from 1789 to the Third Republic.
34 Adrian Vermeule pushed me to think about this question.
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2013] CLASSIFYING CONSTITUTIONS 1007

such, a text pompously called constitution may boil down to be a sheer

utopia or a simple fiction.
Be that as it may, it is important to stress that a claim of
constitution B. is more or less accurate (it represents a more or less good
description of a given society or more exactly of its government), where
a provision of constitution A. is more or less enforced, or obeyed. In this
sense, constitution A. is a norm; something which is relevant or not in a
way different from a claim such as “the vote in the people’s court in
Athens was secret.” This last sentence is either factually true or false. We
can establish its truthfulness if we have—as we do—independent
sources to control the accurateness of Aristotle’s claim. When a
constitution A. instead says: “The members of the judiciary are
independent from executive and the legislative power,” we do not know
to which extent this claim corresponds to the reality of how the
government functions. We can only say that according to that
constitution the judiciary ought to be independent. We need to analyze
the society in question and the working of its institutions to assess to
which degree the legal rule included in the constitution describes the
reality. The norm as such could have an empty/null descriptive value.
Hence the claim that in both cases (constitution A. and B.) a strong
distance vis-à-vis the reality, prescribed (in the case of Constitution A.)
or described (in the case of Constitution B.), makes the text called the
“constitution” irrelevant. In the first case this is because the prescription
is not followed, and in the second case it is because the description is not
exact or accurate, so the term “constitution” is worthless. Therefore, the
need exists for us to understand what causes the constitution A. to be
obeyed or applied. 35
As a final remark, I would like to add that constitutional theory
needs more than taking into account B. and A. We need moreover ex
post some sort of B. (a description of the enforced constitution) to
measure the effectiveness of the written prescriptive constitution; ex
ante we need an analysis of the political possibilities to avoid building a
(constitutional) castle on the sand.

***

35 We have to notice, though, that the written, normative constitutions most of the time are
not nothing! I mean that if they were nothing, there would be no reason to change them. There
are extreme cases were they are almost nothing. But I do not believe they are nothing at all. In
Nazi Germany the constitution (the Weimar Reichsverfassung), which was never formally
abrogated, was de facto irrelevant, but it was respected formally, at the beginning at least, to
avoid criticisms from the democratic countries and perhaps also to stay away from the
opposition of a legalist public opinion, such as the German one. In Stalinist Russia, the
constitution was also irrelevant, but if we look at China nowadays I could show that the
Chinese constitution has a real function. See infra Part II.
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1008 CARDOZO LAW REVIEW [Vol. 34:999

To finish, but not to conclude. Written constitutions are a

relatively recent event in world history; the Danish Lex regia is perhaps
the first one. But we have to remember that (with the possible exception
of some Greek politeiai) 36 one of the first significant attempts to
establish a written constitution was made during the Interregnum by the
Lord Protector Oliver Cromwell, whose INSTRUMENT OF GOVERNMENT
was rejected by the English Parliament.
But even before that, we know of some written texts from the
“Magna Carta” to the “Entrée Joyeuse de Brabant,” that historians call
Herrschaftsverträge (compacts of government), and which represented
agreements between the prince or the king and some of his subjects—
mostly the aristocracy—notably about the exercise of the King’s power
and privilegia or libertates for (some) subjects.

II. FLEXIBLE AND RIGID: A POST-KELSENIAN TYPOLOGY OF

CONSTITUTIONAL SYSTEMS

Legal doctrine distinguishes, from the “historical” point of view,

between ancient and modern constitutions. 37 It would be more accurate
to speak of concepts of constitutions rather than of institutional
realities, since the ancient idea of a constitution still makes perfect sense
nowadays; it describes something existing by definition in virtually any
human society and that certainly did not disappear with the eighteenth
century. More important for the topic of this Article is the “systematic”
distinction introduced by James Bryce at the end of the nineteenth
century, the one between flexible and rigid constitutions. 38 Here I will
propose a different typology stemming from a suggestion of Jon Elster,
who in a recent article spoke of “political norms” to qualify
constitutional conventions. 39
For the sake of conceptual clarity, I shall begin by summing up
briefly the meaning of the classical dichotomies, considered in the first
part of this text, before moving to the one I want to suggest. By modern
constitution, we usually mean a set of written provisions or norms,
enacted by political actors, 40 which mostly define the fabric and

36 See supra note 5 and accompanying text.

37 See generally CHARLES HOWARD MCILWAIN, CONSTITUTIONALISM: ANCIENT AND
MODERN (1940) (discussing the classical reference of ancient and modern constitutions).
38 See JAMES BRYCE, Flexible and Rigid Constitutions, in CONSTITUTIONS (1905).
39 Jon Elster, Political Norms, Paper Originally Presented at International Research Seminar
on Social Sciences and Political Studies on “Legal, Moral and Social Norms” (Oct. 2007)
[hereinafter Elster, Political Norms]; see also Jon Elster, Norms, in THE OXFORD HANDBOOK OF
ANALYTICAL SOCIOLOGY 195, 209 (Peter Hedström & Peter Bearman eds., 2009) (“I shall look
at a subset of political norms, (unwritten) constitutional conventions, to argue that some of
them fall under the heading of social norms as defined here.”).
40 The so-called “constituent power.”
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2013] CLASSIFYING CONSTITUTIONS 1009

structure of the governmental machine (Sieyes wrote for instance: “ce

n’est pas la nation ou la société qu’on constitue, mais son
gouvernement”). The constitutional provisions spell out moreover some
citizens’ fundamental rights that the political actors—who will assign to
themselves the name of “representatives”—pledge to respect and
enforce. Often these written norms, notably from the end of the
eighteenth century and almost always nowadays, are not only written
but also rigid, an aspect to which I will come back soon. The expression
“ancient” constitution is used instead both to translate the Aristotelian
term of “politeia” and to qualify the English constitution, given its
political system that since the end of the Middle Age was qualified as
ancient. In certain scholarly works, the term constitution doesn’t refer to
a specific text that would take the name of “constitution,” even though
some written texts are qualified as “constitutional laws” in England
ratione materiae or nomoi in the Athenian demokratia of the fourth
century B.C.E. 41 In this family—the regular political systems that lack a
single text called a constitution—are not only the United Kingdom, the
constitution of which is essentially customary, but also the French Third
Republic and the contemporary Israeli state. 42
On the basis of this dichotomy, any political system has a
constitution 1) Verfassung (a structure, or a form of government), but
only most of the modern political systems also have a constitution 2)
Konstitution: a written (sometimes rigid) document defining citizens
rights and the organization of the government—as we read in article 16
of the French Declaration of Human Rights of 1789.
It may be relevant here to try to make sense of the reasons why,
outside the United Kingdom as well as some other very few exceptions,
almost all the political systems in the contemporary world have a
written constitution, a Konstitution, or why they needed to write down
the rules of the government, since the English example shows that this is
not a requirement. I would suggest that there are mainly two reasons to
write down a Konstitution, reasons which for historical circumstances
seem to have been de facto compelling outside the United Kingdom.
Firstly, if we think of the rules for governing a country as a pact among
political elites and citizens, or more often among different segments of
the political elites, we may suppose that writing down the rules is a
symptom of a lack of trust. If a rule is written down, it is probable that
those who have expectations concerning the respect of the rule do not
have enough trust in the silent agreement that would support an

41 See JEAN LOUIS DELOLME, THE CONSTITUTION OF ENGLAND (1775); J. POCOCK, THE
ANCIENT CONSTITUTION AND THE FEUDAL LAW: A STUDY OF ENGLISH HISTORICAL THOUGHT
IN THE SEVENTEENTH CENTURY (1957).
42 On Israel, see CLAUDE KLEIN, ISRAËL: ETAT EN QUETE D’IDENTITE (1999); CLAUDE
KLEIN, THEORIE ET PRATIQUE DU POUVOIR CONSTITUANT 49 (1996).
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unwritten convention. Hence we can assume that writing down the rule
could produce clearer evidence of a breach and produce a more obvious
signal of the responsibility of the party that transgresses the rule. It is a
different and more complex question to determine if this signal would
be a guarantee of a greater respect of the rule or of the agreement
underlying it. But I am focusing here on the reasons for writing down a
constitution, not a systematic inquiry concerning its effects. I’ll come
back to an importantly related question later on.
There exists a second reason for writing down a Konstitution.
Sometimes, political order is not traditional or based on an old (real or
fictitious) constitution in the ancient sense of the term, Verfassung.
Sometimes a “revolution” does not have the meaning of the English
Glorious Revolution, a coming back to the previous just political order,
but “revolution,” as we are used to thinking since 1789, is instead a
break with the past (an ancient regime) and the beginning of a new
political order. 43 Now, in that case a written constitution is a signal, a
sign, and a manifesto of the new order; both a death declaration (of the
ancient regime) and the trumpet of the new world; at the same time a
pledge and a hope, but also a chart organizing (proposing the
organization of) governmental power.
We may want to add a third category, or a different reason to write
a Konstitution, based on the case of the U.S. Constitution which ratified
the “closer union” of a group of previously loosely confederate political
entities, the ancient colonies of North America.
The classical dichotomy I just summarized—written vs. unwritten
or customary constitutions—came under attack as marginal and
irrelevant by James Bryce at the end of the nineteenth century, who
suggested replacing it with the alternative dichotomy presented in the
title of his essay, a bipartition which is presently commonly accepted. 44 I
do not need to reproduce Bryce’s argument in detail. The core of his
thesis, which originates the dichotomy, asserts a procedural quality, a
legal norm—“rigidity”—meaning the prohibition for the elected
legislative representatives to modify through majority rule the written
text called constitution. This constraint upon the elected majority and
its power—the one imposed for instance by Article V of the American
Constitution upon the majority of the Congress—is the distinctive
element of a rigid constitution. 45 In the absence of this meta-rule, the
constitution, written or customary, is flexible. Therefore, a

43 On the concept of revolution, see KARL GRIEWANK, DER NEUZEITLICHE

REVOLUTIONSBEGRIFF: ENTSTEHUNG UND ENTWICKLUNG (3rd ed. 1992).
44 BRYCE, supra note 38, at 3.
45 We have to consider, moreover, that bicameralism and executive veto power represent,
in turn, limits to the simple majority of the members of a parliament in their capability to
declare statutes.
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2013] CLASSIFYING CONSTITUTIONS 1011

supermajority, or some other form of special procedure, is required for

the exercise of what we call the amendment power that distinguishes the
two families of constitutions. 46
This is my summary of Bryce. But it is worth looking more closely
at his explicit definition that is both very interesting and somehow
problematic. As far as I can see, the British legal scholar doesn’t speak of
majority and supermajority as I did. He claims simply that the “ordinary
legislative authority” cannot change the rigid constitution, since the
latter “takes rank above the ordinary laws . . . the Constitution being
entirely superior to the other laws which are passed by the legislature in
the ordinary every-day course of its action.” 47 Rigidity seems to result
from the circumstance that such a constitution derives its peculiar status
from a “source different . . . exert[ing] a superior force.” 48 So, the
superiority of the rigid constitution that makes it un-amendable by the
ordinary legislative power is an effect and a consequence of the fact that
it is the creature of a superior creator, what the Founding Fathers of
eighteenth century constitutions called “constituent power.” It is not
entirely clear why this is so. Bryce says nothing concerning the reasons
behind the superiority of this constituent power, which like the
legislative is often a representative power making a final decision for the
citizens, each time, in any event, that the constitution is not popularly
ratified. The quality that makes the constituent power superior is not
specified. Rigidity of some norms implies superiority of their creator, 49
but the superiority can only be deduced from the rigidity of the
constitutional norms. Somehow the argument risks seeming circular if
we do not understand what is superior in the constituent power.
Moreover, perhaps, the same argument is not robust enough to ground
the dichotomy.
I want to suggest a further step, this time beyond Bryce, based on
developments of constitutionalism in the twentieth century, something
Bryce could not know nor anticipate, even though he had a clear
intuition of these developments in the section of his remarkable text
devoted to constitutional interpretation. 50
To begin, a criticism can be addressed to Bryce from inside his
taxonomy. England seems to represent for him a type—the Ur-type, if I
may say—of a flexible constitution, since there is no hierarchy between a

46 See BRYCE, supra note 38, at 5–7. For an updated analysis, see Dag Anckar & Lauri
Karvonen, Constitutional Amendment Methods in the Democracies of the World, Paper
Delivered at the 13th Nordic Political Science Congress (Aug. 15–17, 2002) (on file with the
author).
47 Id. at 8 (emphasis added).
48 Id.
49 This thesis is evidently unappealing to those who believe that the constitution is “prole
senza madre creata,” a creature that has no mother!
50 BRYCE, supra note 38, at 72–77.
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parliamentary act—what we qualify as ordinary law (statute)—and a

constitutional act (ratione materiae). 51 Of course, we should take into
account the complex legislative procedure typical of the Ancient English
Constitution, which, if we ignore the royal veto, was still alive when
Bryce wrote his text. It was notably not majoritarian at all. Granted, as I
just mentioned, the King’s veto was virtually dead, but the Commons—
the majority of them—could not easily pass a law without the agreement
of the House of Lords, an assembly not entirely controlled by the
political parties. What I am calling attention to here is that the Ancient
English Constitution was a glorious and belated survival of the classical
regime that the Aristotelian tradition called “mixed government.” This
type of political order is de facto rigid since no major decision can be
made by a single member of the legislative body (the King, the Lords, or
the Commons in England) without the consent and the agreement of
the other two. Moreover, no power could be superior to the “King in
Parliament” for the evident reason that this body included the totality of
the social forces, and nothing could be superior to the totality of the
social body and its essential parts (mere tes poleos). 52 We may recall that
the French Revolution started legally when the representatives of the
Third Estate rejected the “rigid” mechanism for voting in the Estates
General, the vote by estates. Then, it doesn’t seem inappropriate to
speak of the ancient English constitution as a rigid one. Technically
speaking, and from the point of view of Bryce, it is neither rigid, since
there is no formal (Kelsenian) hierarchy of norms, nor flexible, in my
sense, 53 since until recently the majority of the Commons could not
easily impose its will, even for non-constitutional, ordinary acts (ratione
materiae). 54 So what characterizes the classical English constitution is
the factual absence of a hierarchy of norms, something that doesn’t
differentiate it from most of the nineteenth-century written
constitutions, as I’d like to show now.
However, another question needs to be discussed before I
introduce the typology alternative to the one suggested by Bryce and

51 The Act of Settlement and the Septennial Act are examples of this contrast. This absence
of hierarchy doesn’t stand from the point of view of the Kelsenian doctrine of the validity of
norms. The United Kingdom, too, has a “material constitution,” a set of norms regulating the
procedures by which to enact norms, which is the foundation of the validity of Parliamentary
acts. Moreover, we could claim that there is normally an implicit hierarchy between a
parliamentary act and a convention of the constitution. Further, it is likely much more difficult
and rare to modify a convention by an act of the Parliament in England than it is to amend the
U.S. Constitution or to write a new constitution in France.
52 Only the modern post-Hobbesian (more specifically, Lockian) theory of the structure of
government can formulate the hypothesis of a “principal” (constituent power) superior to its
“agent” (constituted power).
53 The majoritarian sense.
54 Like fox hunting, abolished only by the “Hunting Act 2004” because of the stubborn
opposition of the House of Lords. See Hunting Act, 2004, c. 37 (Eng. & Wales).
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2013] CLASSIFYING CONSTITUTIONS 1013

later on consecrated by H. Kelsen. If we accept the doctrine presented by

Albert Venn Dicey according to which the bulk of the English/British
constitutions are made up of constitutional conventions (rather than by
written norms), 55 we should have something to say about how they
emerge and how they change over time. If we do not know anything
about that, it is pointless and futile to qualify a constitution as one
falling under the category of rigid or flexible. If it is very difficult to
modify constitutional conventions (the norms characterizing customary
constitutions), then it may be that a flexible constitution is much more
rigid, that is, more difficult to modify that any other constitution in the
world. 56
Indeed Dicey qualifies the constitutional conventions of the British
customary constitution as norms/rules/provisions which are not
subordinated to the “rule of law,” which seems to be itself a
constitutional convention. Here, rule of law means that the violation of
a law (a jurisprudential precedent or an act of the Parliament) is
subjected to a sanction by the state-specialized organs in charge of this
task. More exactly, the agent supposed to have violated the law can be
brought to a Court of justice, which has the power to declare him guilty
of the violation and punish him or, alternatively, to reject the
indictment. This is exactly what does not happen in a case of infraction
of constitutional conventions. The violation may actually be just the first
instance of a new convention—difficult to know, by the way, the first
time that the convention is violated; but this problem doesn’t need to be
considered here.

55 See DICEY, supra note 3.

56 One might object that I’m conflating Bryce’s difference between legal systems with or
without a hierarchy of norms (his flexible and rigid constitution) with the difference between
systems using majority or supermajority to modify norms that are constitutional ratione
materiae. But it seems to me (and I join Kenlsen on this point) that the only tangible form of
the hierarchy is the mechanism of decision-making used to enact the norms. It is not easily
understandable, at least to me, in which sense a norm x is superior to norm y if the rules to
enact and modify x are exactly the same as those to enact and modify y! If the rule lex posterior
abrogat priorem is the general rule of norms enactment I do not see how it is possible to speak
of hierarchy of norms or of their sources. Or perhaps the hierarchy is like that of the angels in
Christian medieval theology that I admit, like Voltaire, I am not able to grasp. The French
philosopher wrote in his article Ange in the Dictionnaire philosophique:
L’auteur de l’article ANGE, dans l’Encyclopédie, dit que “toutes les religions ont
admis l’existence des anges, quoique la raison naturelle ne la démontre pas.” Nous
n’avons point d’autre raison que la naturelle. Ce qui est surnaturel est au-dessus de la
raison. Il fallait dire (si je ne me trompe) que plusieurs religions, et non pas toutes,
ont reconnu des anges. Celle de Numa, celle du sabisme, celle des druides, celle de la
Chine, celle des Scythes, celle des anciens Phéniciens et des anciens Égyptiens,
n’admirent point les anges.
VOLTAIRE, Ange, in DICTIONNAIRE PHILOSOPHIQUE, reprinted in 17 ŒUVRES COMPLÈTES DE
VOLTAIRE 245, 245 (Louis Moland ed., 1878).
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1014 CARDOZO LAW REVIEW [Vol. 34:999

In the British context, we have to deal with a different dichotomy:

laws and constitutional conventions, where the violation of the latter
cannot be the object of a judicial sanction. 57 This dichotomy can be
qualified as static since it distinguishes two categories of norms at any
moment in time, whereas the dichotomy of Bryce is diachronic since it
has to do with the rule to modify norms, more specifically norms of a
constitutional nature—formally or materially—and I’m using here the
Kelsenian classical distinction between the material and the formal
concept of constitution.
In the Article I quoted, Jon Elster suggests implicitly calling the two
classes of Dicey’s dichotomy (laws and conventions) respectively: legal
and political norms. 58 I do not need to discuss here Elster’s general
sociological theory of norms. 59 I’ll simply borrow some elements of his
language that seem clearer to me than the ones used by Dicey, and
present my own tentative typology of constitutional systems. First of all,
the reason why it seems useful to me to call constitutional conventions
political norms is because the violation of them can be sanctioned only
by political actors—in democratic systems: the voters. As to what is a
violation of the law, there are specialized agencies in charge of both the
declaration of the violation—such as courts through their opinions—
and of the material sanction—such as the executive branch. Notice that
in a rule of law system the judiciary and the executive make their
declarations and impose sanctions on the basis of previous and known
rules that may be codified statutes or jurisprudential precedents. 60
The judiciary seems to be the agency in charge of guaranteeing the
principle of legality, meaning it is charged with ensuring both that laws
ought not to be transgressed and that there is no transgression in the
absence of a given law. 61 In its most comprehensive meaning, a
Rechtstaat is a political regime in which it is possible to sue a public
official or a member of government in a court of justice if he

57 We may want to include constitutional conventions inside the legal order (like positivists
tend to do), but this is just a nominalist/definitional move that changes nothing as to the
substance of the problem I’m discussing here.
58 Elster, Political Norms, supra note 39; see also Elster, Norms, supra note 39.
59 See generally JON ELSTER, EXPLAINING SOCIAL BEHAVIOR: MORE NUTS AND BOLTS FOR
THE SOCIAL SCIENCES (2007); Elster, Norms, supra note 39.
60 In absence of that, the system is not based on the rule of law but is despotic.
61 This is reminiscent of Montesquieu’s definition of freedom/liberty:

In governments, that is, in societies directed by laws, liberty can consist only in the
power of doing what we ought to will, and in not being constrained to do what we
ought not to will. We must have continually present to our minds the difference
between independence and liberty. Liberty is a right of doing whatever the laws
permit, and if a citizen could do what they forbid he would be no longer possessed of
liberty, because all his fellow-citizens would have the same power.
MONTESQUIEU, THE SPIRIT OF LAWS 161 (J.V. Prichard ed., Thomas Nugent trans., G. Bell &
Sons 1914) (1748).
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transgresses a law. Now this is not possible, as we saw, if he transgresses

a convention, and—I would add—a constitutional provision if there is
no court to which the supposed violator could be brought. The point
I’m suggesting is very simple: it seems that between a conventional,
customary constitution—such as the British one according to Dicey—
and a rigid constitution such as the French constitutions of the
revolutionary period until the 1970s, from the point of view we are
considering now, there is no difference at all. That instead of convention
we have written and rigid norms doesn’t change anything, since in both
cases the violation is not the possible object of a legal suit. That a rigid
constitution in itself doesn’t establish an effective hierarchy of norms
and so represents a limit to the political majority can be proven beyond
any doubt if we consider the case of the present Chinese constitution.
Notwithstanding a repeated and superficial opinion, as I have
already said, the Chinese constitution of 1982 matters. 62 It is a fact that
this constitution is formally rigid. 63 Now, in spite of the fact that the so-
called Communist Party controls a very large supermajority inside the
National People Congress (NPC), we have to pay attention to what
seems prima facie a quite surprising phenomenon. In 2004, when the
constitutional amendment introducing “property rights” to China was
passed, there was barely any opposition within the NPC. On the other
hand, when the same NPC approved an ordinary statute on exactly the
same topic in April 2007, the statute was the object of a real debate and
of a significant opposition. Why is a statute more important than a
constitutional amendment? It would be incorrect to state that the
constitution is insignificant. In reality, the constitutional amendment
was at the same time the signal and the precondition of the statute. The
point is different. Since the violation of the constitution cannot produce
a suit in a court of justice, unlike the violation of a statute, it is not
surprising that the members of the Parliament hostile to private
property have been opposing the statute more seriously than the
amendment of the constitution. We could say that in this case the
hierarchy of norms is reversed on its head and that the statute is
superior to the constitution. This is a less confused and hypocritical
conception than the French one concerning the relationship between

62 For my discussion of this topic in another article, see Pasquale Pasquino, Rigidity of a
Unilateral Constitution: Takes the CCP the Constitution Seriously?, in MODELLI GIURIDICI
EUROPEI NELLA CINA CONTEMPORANEA 210 (Gianmaria Ajani ed., 2009).
63 Its article 64 reads:

Amendments to the Constitution are to be proposed by the Standing Committee of

the National People’s Congress or by more than one-fifth of the deputies to the
National People’s Congress and adopted by a vote of more than two-thirds of all the
deputies to the Congress. Laws and resolutions are to be adopted by a majority vote
of all deputies to the National People’s Congress.
XIANFA art. 64 (1982) (China).
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1016 CARDOZO LAW REVIEW [Vol. 34:999

the loi (parliamentary statute) and the constitution, which are both at
the same hierarchical level, since they are both supposed to be the
expression of the “general will.” So in China nowadays, as with all the
rigid constitutions of the nineteenth century (with the partial exception
of the U.S. and Norway), the constitutional rigidity and the hierarchy of
norms is in the best case a bit of legal theory, but not at all an element of
the legal and political reality. The enemies of private property in Beijing
were not worried because of the constitutional amendment of 2004,
wrongly so because they did not understand its signaling function. What
made them nervous was the simple statute, which is perfectly
understandable. What happens if the Chinese constitution is
transgressed? From a legal point of view, pretty much nothing. On the
contrary, if there is an ordinary statute protecting private property and
this statute is violated, one can sue the culprit of the breach of law in
court.
So in what sense is a constitution rigid, if there is no legal
consequence of its violation? 64 The only consequence is exactly the same
as that incurred from a violation of a convention under a customary
constitution: other political actors can oppose and punish the author of
the violation. This is what happened in England at the time of the Great
Rebellion when the Stuarts attacked the Ancient English Constitution. In
democratic systems, at the end of the day, the voters (the electoral
mandate) act as a court adjudicating the conflict.
Under closer scrutiny, Bryce’s dichotomy seems to evaporate. This
is the reason I would suggest an alternative dichotomy.

CONCLUSION

I believe that it is more interesting from a heuristic point of view to

distinguish between constitutional systems that contemplate the
possibility of a legal sanction for a violation of the constitution and

64 The First French Constitution declares:

Aucun des pouvoirs institués par la Constitution n’a le droit de la changer dans son
ensemble ni dans ses parties, sauf les réformes qui pourront y être faites par la voie de
la révision, conformément aux dispositions du titre VII ci-dessus. L’Assemblée
nationale constituante en remet le dépôt à la fidélité du Corps législatif, du roi et des
juges, à la vigilance des pères de famille, aux épouses et aux mères, à l’affection des
jeunes citoyens, au courage de tous les Français.
1791 CONST. tit. VII, art. 8, available at http://www.conseil-constitutionnel.fr/
conseil-constitutionnel/francais/la-constitution/les-constitutions-de-la-france/constitution-de-
1791.5082.html. It is interesting to note that the judges are, here, among the guardians of the
constitution at the same time as the king, the legislative body, and the citizens (including the
women excluded from active citizenship.) This text may be considered at the same time a naïve
instantiation of the Enlightenment culture and the first example of what we could call now
Verfassungspatriotismus!
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2013] CLASSIFYING CONSTITUTIONS 1017

systems that just have political sanctions as mechanisms to protect and

stabilize the hierarchy of norms and the balance of powers. First, notice
that in this perspective I agree with Kelsen: any constitutional system
can be presented as a hierarchy of norms. Second, the legal sanction of
violations of the constitution can exist only in constitutional systems
where there is constitutional adjudication—constitutionalized, like in
Germany and Japan, quasi-constituionalized, like in France until 2010, 65
or customary like in the U.S. and Israel. I wish to focus now on a special
aspect of this control that is normally disregarded.
For lack of a better expression, I suggest that we speak in these
cases of a quasi-legal sanction. Here is why: a legal norm in Elster’s sense
presupposes (as in Hobbes) a power (Hobbes speaks of the power of the
sword) able to enforce the sanction pronounced from the agency
declaring the breach of the law. In the Athenian democracy of the fourth
century B.C., the citizens themselves, as jurors in a trial, adjudicated
decisions made by the people’s assembly that were possibly para-
nomon 66 (contrary to the democratic constitution/politeia) and
themselves enforced the judicial decisions—in Athens like in
Republican Rome there were no police. In the modern political society,
legal sanctions are normally enforced by the executive power. Now, if it
may be expected that the executive enforces infractions of the laws, it
may be a bit more problematic that it will enforce judicial decisions
against the executive power itself. Nonetheless, something similar
happens with constitutional adjudication as happens with the French
administrative courts. Born to shield the state vis-à-vis citizens’
demands of justice, the administrative courts and the Conseil d’Etat
became over time a central element of the Rechtstaat since they protect
the citizens’ rights versus governmental actions ultra vires. By that, I
mean that a political power that would refuse to accept the decisions of a
constitutional/supreme court (that like any administrative court has no
power of the sword!) could easily trigger a reaction of sanction by the
voters.
It is useful to develop briefly this point since it can help us to
understand the role of constitutional adjudication in a limited
government or, as we say now, in a constitutional democracy. In such a
regime, conceptualized systematically and clearly for the first time by
the Founding Fathers of America, and more specifically by Alexander
Hamilton in the Federalist Paper No. 78, there is no sovereign or
absolute power inside the constitutional system, but only limited
competences of each single agency of the polyarchic structure of the

65 When the Constitutional Council started to control enacted laws, and not only the
approved statutes before their promulgation.
66 On this legal institution, see HANSEN, supra note 26, at 205–18.
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1018 CARDOZO LAW REVIEW [Vol. 34:999

government. 67 Now, since abuses of power are always possible, the

judiciary has among other functions the task of signaling the violation of
the constitution.
To be sure, most of the time a constitutional violation is from an
epistemic point of view similar to an emergency situation; there are no
objective standards to say if event x qualifies as an emergency situation,
likewise if some norm or action represents a constitutional violation.
The latter case arises only if an institutional agency has the power of
qualifying event x as contrary to the constitution—which is not the case,
for instance, in China today 68 and was not either in France under the
first three Republics. What I’m saying is that there will be no violation
(at least no declared violation) if there is no court or another
independent 69 organ competent to declare the existence of the alleged
violation—we could perhaps say the constitutional emergency. The
function of the court in this case is first of all to send a signal, to raise a
red flag, declaring the existence of the violation. In a variety of
circumstances the court cannot enforce the decision; it needs the
cooperation of the other constituted powers, notably of the lower courts,
the executive branch, and the citizens to transform a signal and
declaration into an effective legal sanction. There are enough cases of
un-enforced court decisions (from the crucifixes in Bavaria to the
sentence of the Italian Constitutional Courts asking for more pluralism
in the media system, not to speak of the U.S. Supreme Court) to make
my point more than a mere academic fantasy. Based on the previous
considerations it would be possible to represent the new typology with a
diagram:

67 THE FEDERALIST NO. 78 (Alexander Hamilton).

68 This claim has to be qualified: There is no Court that can declare unconstitutional a legal
norm; but the Standing Committee of the National People’s Congress can declare a legal norm
incompatible with the constitution—which shows that the Chinese government believes, in
principle, in the hierarchy of norms.
69 From the parts in conflict: the citizens and the government.
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Figure 1

On one side, we could classify constitutional systems where the

violation of conventions or formal (in the Kelsenian sense)
constitutional law has no other potential consequence than a popular or
political sanction—in that sense both constitutional convention à la
Dicey and constitutional provisions of written and rigid constitutions
without constitutional adjudication are political norms in Elster’s
language. Here, rigidity is not more than a flatus vocis. It is like the
mansardes in the Parisian Haussmann’s buildings: they are higher in the
building but less important than the lower floors from any other point
of view. Remember the Chinese distinction between constitutional
amendments and statutes!
On the other side, we can classify a very large number of post-
Second World War Constitutions, along with the American one, that
introduced a mechanism of signaling constitutional transgressions:
judicial review and/or constitutional courts with the power to declare
laws or other acts of the government as violations of the content of the
rigid constitution: the separation of powers and the rights of individuals
constitutionally protected. The declaration of unconstitutionality is all
that the courts ought to and can do. It is the task of the other branches
and of citizens to enforce the judicial decision.