Citizens across the world strive for a workable system with its own preferences. This is enshrined in the Constitution, which becomes a meeting ground for the state and citizens to co-exist as autonomous entities.
In most democracies, the constitution is guided by constitutionalism, which is the power to limit the government’s absolutism. This idea was propagated by the likes of John Locke, who was an architect of constitutional liberalism, which kept citizens over the elected government. Political theorist and legal philosopher Montesquieu had a different but identical proposition: to divide the government and its powers and limit its centrality. In his opus, The Spirit of the Laws (1748), Montesquieu provides a detailed overview of the differences between political power and government which were one and the same, though operated differently in philosophy and practice, i.e., policy.
Montesquieu offered what his English translator Thomas Nugent stated as an “art of government” to the sovereigns. This, indeed, was a model that was radical, controversial, methodical, scholarly, and transitionary.
The division of state power forms a standard template of today’s constitutional vision in most states. However, legal scholars have raised the issue of separation of powers as ambiguous. Aileen Kavanagh sees the separation of powers as interdependent, non-facilitatory. This model purports a purist view of how things should be instead of having a constructive view of what is actually happening. The practicality of the separation of power through constitutionalism is meant to preserve the value of the constitution that rests power in the re-public.
Many commentators of the Constitution have relied on the vagueness of the written word and thus emboldened the grammarians of constitutions to interpret. The constitution became a source of thinking and a turf of contestation. The constitution, in theory, is a piece of written code acting as a supreme law of the land. The constitution is the basis of various legislation, treatises, and a model of conducting state affairs. It provides the basis for the distribution of powers, ranks, institutions, bodies, and organs of the state. Is it why the conversation surrounding the prose of the constitution is embedded in state and subjects? To understand this part of history, we must visit the Medieval European age.
Medieval constitutions and Magna Carta
Medieval England is a source of much of the capitalist history of the modern world. The feature of this period was the reign of the Anglo-Saxon kingdom. This was when invading forces across the North Sea and the English Channel were trying to overtake the grey, isolated island that offered refuge and part-prestige to the scions of Normans and Danes. The fishing settlement of England was attractive for trade and location.
The Anglo-Saxon kingdoms were a structured hierarchy. The king was on top and had absolute authority. His family members gained special privileges and protection. Beneath them were thegns, the second-rank aristocrats, nobles. This was followed by a provincial polity of freemen, business holders and peasants. The royalty relied on the allegiance between lords and their subordinates.
Anglo-Saxons were subdued by the Norman elites, who practically displaced the erstwhile Germanic rulers of England. The English barons started to pay their obeisance and tax to the new ruler. However, the relationship was fraught. It saw rebellion and the rise of a new class willing to confront the king. The monarch, King John, received a big blow when the protesting barons captured the Tower of London. Helpless, King John decided to negotiate. The barons came up with their list of demands that came to be known as the Article of Barons, which eventually formed a sizable portion of the world’s first written constitution, the Magna Carta, in 1215. In it, the King was held responsible under the law, a practice seen as unbecoming of the king, who was usually above the law. Nay, the monarch was the law.
We have come a long way from the medieval age. The spirit of a social contract and its relationship with the state and subjects in a capitalist society has undergone profound changes. England, which had seen the birth of modern constitutionalism, did not carry the spirit of the constitution. It does not have a written constitution.
Modern legal thinking is credited much to the enlightenment era thinkers such as Thomas Hobbes and David Hume (The History of England). The modern parlance of legal maxims and protection of codes and customs through fundamental law, vis a vis constitution, is taken from recent histories of civilization and governance. This European period was marred in controversy and inconsistency, yet the intellectual provenance to guide a state with citizen rule was guaranteed through vote and tax collection.
The idea of an Indian republic established through the written word was first propagated by Samrat Ashok, who wrote down the manifesto and model of his ideal society on the rock edits as a constitutional guide—the law of the Dhamma to his empire.
In the history of the constitution of nations, the Magna Carta has a unique position. India’s history of the constitution has been confrontational. Indians relate democracy to the constitution. The existence of the constitution does not guarantee democratic ethos as a precondition for society. The Dharmashastra, Sutras, and Smritis acted as a fundamental ethic of sovereigns over multiple millennia, which did not authorize democracy centred on the liberty of individuals.
In An Argumentative Indian, Amartya Sen sees this blending of western and Indian ideals as contributing to the making of India’s modern constitutional history. This he notes through the long tradition of dialogue and debates existing in epics that are venerated as the ancient history of India’s civilizational output.
Yet, the same canon of historical thought is undergirded by immorality and the practice of hierarchy. That is why when it came to talking about the Indian Constitution, the architect emphasized its morality of it, which he contended was proof of an alive society.
Pratap Bhanu Mehta attributes this doctrine of Ambedkar as “anti-revolutionary” that partly drew upon George Grote’s faith in the archetype of constitutional authority. I think Ambedkar was also gesturing to the rebellious class to have faith in the system and not burn down the republic to ashes, as change has some portion of anxiety and patience. Morality meant a commitment to an idea but more to one’s discomfort–a premise of benevolence shown to the nation.
