Why is the West different from the rest?

The influence of ecclesiastical law, other than in the Papal states, was henceforth primarily concerned with matters pertaining to the individual such as marriage, inheritance and so on whereas secular law developed constitutional principles which were concerned with public law such as the raising of levies and defence.

In 1066 feudalism was introduced into England. A fundamental idea of feudalism is that both a ruler and the ruled are bound by the law. Only a free man could enter a feudal relationship of vassalage and this relationship presupposed reciprocal obligations including feudal tenure and rights of private jurisdiction or “immunities”. In exchange for his military service a feudal knight expected justice from his lord. Accordingly, feudal kings and lords established courts which were vested with jurisdiction over land holdings, feudal service and so on. The notion of feudal reciprocity was pitted against autocracy as asserted by kings who claimed to rule by Divine Right. The Magna Carta is an example of a feudal agreement between a ruler and his feudal knights.

Feudalism, therefore, needs to be distinguished from serfdom which did not impose duties and obligations of justice on the landholder. Nor did serfdom conduce to the emergence of notions of inalienable rights to the ownership of private property.

The protection of property is a potent factor in the development of legal rights and the protection of those rights by institutions such as parliaments. Leading constitutional court cases in 17th century England predominantly concern challenges to the use of royal prerogative power to impose levies such as customs duties, excises and such like.

The English Civil War (1642-1646) pitted supporters of parliamentary rule against monarchists who supported the ancient theory of mixed government. The English theory of mixed government held that the presence in the legislature of the three estates of monarchy, aristocracy and people would prevent corruption of the constitution. In response to the royalist reliance on this theory supporters of parliament formulated another idea; the idea that government should presuppose a separation of powers.

Complaints against the Stuart monarchs included the levying of taxes without consent of parliament, veto of legislation and imposition of martial law.

After the Revolution of 1688 the House of Commons resolved that before filling the throne with a post-Jacobite dynasty it would secure the religion, laws and liberties of the nation.

The result was the Declaration of Rights 1689. This act proclaimed government in England henceforth to be a constitutional monarchy. It purported to declare the “Rights and Liberties of the Subject and Settling the Succession of the Crown”. It was not as all-embracing as the title would suggest. Rather, the Declaration concentrated on removing specific grievances. Importantly, maintenance of a standing army within the kingdom was subject to parliamentary approval. In 1694 the Triennial Act provided that parliament should meet every three years. Henceforth parliament was a necessary part of the constitution.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed …” with these stirring words begins the American Declaration of Independence of 1776

Adoption of the Constitution of the United States of America which followed the Declaration of Independence is a milestone in the Western development of constitutional government.

Between 1787 and 1788 several conventions attended by some 2,000 delegates were convened, the most important being the Philadelphia Convention. Uppermost in the minds of the delegates was avoidance of the pitfalls of English-appointed royal governors as well as a belief that monarchs and their ministers regularly threaten liberties of the subject. Their debates were informed by the writings of Hume, Locke, Voltaire and in particular by Montesquieu.

A union of the original 13 states was deemed necessary in order to pursue policies which took into account national interests. One of the foremost framers of the Constitution, James Madison, wanted to create a system without interference from the states, a system which would act directly on the people and that would emanate from the people. To that end it was asserted that legitimacy of the Constitution derived from the act of ratification. Adoption of the Constitution required ratification by the requisite nine of 13 states. This point needs to be stressed. Authority for the USA Constitution derives from no sovereign or transcendental power but by “we the people” who alone gave their ratification.