International Journal of Humanities and Social Science

ISSN 2220-8488 (Print), 2221-0989 (Online) 10.30845/ijhss

Constitutionalism and Democracy: A Critical Perspective
Dr. Moses Adagbabiri

A constitutional framework, built on a prudent regard for human beings, must enable the government to control the governed. No less important, however, is the auxiliary precaution of checking and balancing within government itself. If human law departs from the law of nature, it is no longer law but a perversion of the law. The general idea is captured in James Otis’ Rights of British Colonies, Asserted and Proved (1764), wherein he stipulates: The Law of nature was not man’s making, nor is it in his power to mend or alter its course. He can only perform and keep or disobey and break it. The last is never done with impunity, even in this life, if it is any punishment for a man to feel himself depraved, to find himself degraded by his own folly and wickedness from the rank of a virtuous and good man to that of a brute, or to be transformed from the friends, perhaps father, of his country to a devouring lion and tiger. Under constitutional theory, however, government must be just and reasonable, not only from the viewpoint of majority sentiment but also in conformity with higher law, what the Declaration of Independence Act of 1977 refers to as “Laws of Nature and of Nature’s God”. Constitutionalism means that the power of government and Leaders should be defined and Limited by the dictates of the body of the fundamental laws of the land known as the constitution. As a body of political and legal doctrine, it refers to government that is, in the first instance, devoted both to the good of the entire community and to the preservation of the rights of individual persons. Problems of constitutional governance in the 21st century will likely be problems within government recognized as democratic. The modern day phenomenon of “illiberal democracies” gains legitimacy, and thus strength, from the fact that these regimes seem reasonably democratic. Illiberal democracy, that is, nominally democratic government shorn of constitutional liberalism is not simply inadequate but dangerous, bringing within the erosion of liberty, the abuse of power, ethnic divisions, and even war. This paper examines the nexus of constitutionalism and democracy. It is argued that the spread of democracy around the world has not always been accompanied by a corresponding spread of constitutional liberty.

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