Constitutional democracy is the success story of our age. According to Robert Maddex, in 1974 there were only 39 democratic states, whereas by 1996 179 of the 192 countries of the world elected their governments. Excepting Britain, Israel and New Zealand, all had codified constitutions. Britain and Israel have lacked codified constitutions for precisely opposite reasons: in Britain there has been sufficient consensus to make a constitution seem unnecessary while in Israel there has been insufficient consensus to make a constitution possible.
Israel has always intended to produce a constitution presented in the form of basic laws, issued in stages. The most difficult part is that dealing with relations between religion and the state. Since there is no agreement between the political and the religious authorities, this stage has not yet been completed. Perhaps it never will be.
Britain lacks a codified constitution because it seems never to have begun as an organised society. Countries normally produce constitutions at the beginning of their lives as independent states or following a change of regime. Our last change of regime was in 1660. yet this was not a beginning but a Restoration. Perhaps the nearest to a beginning was the 1707 Acts of Union uniting England and Scotland. By then parliamentary sovereignty had taken root as a fundamental principle of the English constitution. It made little sense, therefore, to produce a codified constitution when a constitutional law could be altered with the same ease as a non-constitutional law.
Albert Venn Dicey in old age wrestled with the problem of how the English principle of parliamentary sovereignty could be reconciled with the Scottish perception that the Acts of Union constituted a binding agreement, limiting the power of Parliament, In his book, Thoughts on the Union Between England and Scotland (1920), written with Scottish historiographer royal R. S. Rait, the best argument that Dicey could offer was that the Union constituted an obligation of honour. It could not create a legal obligation. Nevertheless, much Scottish opinion continues to hold that the doctrine of the sovereignty of Parliament is a purely English one with no counterpart in Scottish law. Perhaps, however, the encroachment of the European Union means that the sovereignty of Parliament is no longer applicable even to England.
Surprisingly, political scientists came fairly late to comparative constitutional analysis, and even today there is little work of real distinction. This is due, no doubt, to the fact that constitutions resist analysis in the behavioural or quantitative terms fashionable in the profession. There are a few well-known books which list the main constitutions of the world. The most familiar are Amos J. Peaslee's, Constitutions of the Nations, and Albert Blaustein and Gisbert Flanz's, Constitutions of the Countries of the World. But modern comparative analysis begins with K. C. Wheare's short book, Modern Constitutions, first published in 1951, much of it being based on material in Herman Finer's massive Theory and Practice of Modern Government, first published in 1932. In 1939. John Hawgood produced a volume on constitutions in which he sought to analyse them in terms of "families" corresponding to particular periods of constitutional upheaval, from the period of the American constitution and the first attempts of the French to fashion a workable constitution, to the post-first world war constitutions, most of which were as abortive as the early French experiments.
In 1979. Sammy Finer, Herman's younger brother, pioneered a new form of analysis of constitutions, In his Penguin Five Constitutions, he not only listed the main constitutions of the world but also broke down the components of constitutions into the categories commonly used by political scientists: constituent power, amendment, legislative, executive, judicial etc. He cross-indexed the contents of the various texts. Thus, it was possible by looking up, for example, "second chambers" to see at a glance how the second chambers in Britain, the United States, the Federal Republic of Germany, the French Fifth Republic and the Soviet Union, were composed, who their officers were, their membership qualifications, term of office, procedure and method of dissolution. It was an extraordinary achievement. How extraordinary, the present reviewer only began to appreciate when, with Bernard Rudden, he helped to produce a new edition of Finer's book (S. E. Finer, Vernon Bogdanor and Bernard Rudden, Comparing Constitutions, 1994 ). Despite the difficulties, such analytical work seems the most likely to yield greater understanding not only of constitutions but of the machinery of government. How valuable it would be to have a volume which compared and cross-indexed the constitutions of all 15 member states of the European Union. Such a task would engage a team of scholars for some time. They would, however, be more profitably engaged perhaps than those political scientists who pursue the holy grail of what it is that makes voters behave as they do.
Robert J. Maddex is a lawyer working in Washington DC who has, according to the blurb, been an adviser on constitutional issues to several nations. Constitutions of the World and Constitutional Concepts, however, neither list the main world constitutions nor apply comparative analysis to the study of constitutions. Constitutions of the World consists of brief descriptions of 80 constitutions. The British constitution, we are told,"'is a tapestry, deftly woven and embellished over time. The warp is the monarchy, and the weft is the indomitable self-esteem of the descendants of the first Anglo-Saxon invaders". This is only a little better than John Major's reference to the British constitution as being the product of a thousand years of history. Elsewhere, Constitutions of the World maintains a high standard of accuracy. But its description are neither lively enough to whet the appetite, nor analytical enough to satisfy the scholar. The bibliography is hardly adequate. For the United Kingdom it includes, apart from Halsbury's Laws of England and Halsbury's Statutes of England, just one book, Geoffrey Elton's The English. There is nothing on the new Russian constitution, the entry on Russia being confined to a work of contemporary history, Robert Daniels's End of the Communist Revolution.
Constitutional Concepts provides entries for 300 concepts and terms frequently used in the analysis of constitutions - from "federalism" to "absolute majority". Curiously, the two illustrations of federal states are Ethiopia, under the constitution of 1995, and Argentina, under the constitution of 1853. It also includes biographical profiles of those who have influenced constitutions. Influence is interpreted rather liberally. One can see why Aristotle and James Madison are included, but why Mikhail Gorbachev or David Ben-Gurion? The Israeli system of government was, admittedly, influenced by Ben-Gurion's ideas about statehood, but nothing is said about these ideas in the entry nor about his resistance to proportional representation. Indeed, the entry, like almost all of the other profiles, consists merely of a short and unilluminating biography.
The short bibliography is also inadequate, excluding most of the important writers on constitutions such as Herman Finer, Hawgood, Wheare, Maurice Vile, Sammy Finer and Leslie Wolf Phillips. No one reading either of these two books would gain much idea of the role which constitutions play in democratic states, nor of the rich seam of research in the field of comparative constitutions. These are handsomely produced books, but they have little to offer the serious scholar.
Vernon Bogdanor is professor of government, University of Oxford.
Constitutions of the World
Author - Robert L. Maddex
ISBN - 0 415 16436 2
Publisher - Routledge
Price - £50.00
Pages - 338