Contemporary Constitutionalism and Legal Relationships between Individuals

Abstract

THE Constitution runs against governments only.1 A common theme in the inexorable march to independence of a hundred or so countries since 1945, and the vogue of constitution-writing (and re-writing) which has affected most national legal systems during this period, has been a pronounced effort to build upon the doctrine of constitutionalism. In a general sense, a constitution is the (normally) written expression of the theory of constitutionalism as it is interpreted and applied in the context of a specific political system.2 Precisely what does this mean? The myriad details and variations in structure, wording, and origin of national constitutions today do not obscure this central fact about constitutionalism: it is a doctrine which places limits upon the State in its relationships with individuals subject to its authority.3 Formulated, as it was, during the seventeenth and eighteenth centuries when statist absolutism was perceived as the primal threat to individual liberty,4 modern constitutional theory at heart concerns limitations on government. And, in line with this idea, contemporary national constitutions are replete with what have become almost perfunctory recitations of a gamut of rights guaranteed to the individual (sometimes to all persons in the jurisdiction,5 sometimes only to