A Constitution is a document which comes into existence primarily when a Nation is formed. Tracing back to the history of governing authority of the State, the inception can be marked from the time when the Divine Power (Almighty) governed the humanitarian society. When, gradually the society started growing, the Divine/ Supreme power was vested the authority in certain chosen humans which came to be known as Kings. When power corrupted these Kings, we witness a chaotic society coming into existence which was put to rest by the formation of a social contract which had elements of self-government present in it. The features that people wanted in their society were inculcated in the Constitution which ultimately formed the ultimate law of the land. This paper will take into account the Preambles of three countries to determine how the element of ‘divinity’ affected their formation of the State. The social condition at the time of the formation will be taken into account and how they have inculcated and interpreted their basic features in their State will be looked it. It will provide an analysis of how the Power of Divinity or the Role of Kings is still prevalent in most prominent countries of the world and how, with gradual passage of time, this role of divinity has been used in order to obtain obedience from the subjects as the reality being that the social contract theory ultimately has formed the basis of the state formation in the modern times.
Preamble. The word itself holds different connotations and standards of importance for different countries across the global arena. Finding consensus to provide justice to this terminology can be done by looking for a universal interpretation that is placed on it. It presents the history behind the constitution’s enactment as well as the nation’s core principles and values. It is not a grund-norm to have the preamble at the beginning of the Constitution. Taking into account Poseidonius’s opinion of a Preamble in the first century B.C., he claimed that a law with a preamble to be nothing but dull or foolish. Later, Schmitt attaches a totally different sentiment to the working of a Preamble by stating it to be a ‘guiding principle’ acting as a legislator’s direct or intensive prologue depicting the law to be positive in nature. Undertaking Plato’s ideology of law-making by two methods: force and persuasion, a justification to the preamble is provided. He considers it to be a prelude to a particular piece of legislation which is used to persuade those who are governed to follow the edicts of the supreme law. He states that “the preamble, thus, should be written for three reasons: to put the recipient in the right mood, to meet the professional standard of rhetoric, and to sharpen the reader's memory for a certain statement by explaining its specific motives”.
The mention of the divine power in the legislations can be traced back to the Justinian characterization of the empire where he is seen taking the responsibility of the welfare of the empire. He hints towards God’s special fondness of him which forms the reason behind him taking paternal care of the citizens. He constantly professes that the imperial power of the ruler is derived from ultimate divine power. The duty as well as the right of the Emperor according to him is to imitate God on earth to seek obedience and to act as the torch-bearer to the subjects.
The inception of considering the Divine authority as the ruling force can be traced to the Latin preambles of the early Middle Ages. The State took power in the name of God depicting that the power to govern the subjects was vested in him by God himself; that the rule of the land were the edicts of God himself and that they assume the role of the ruler in the name and on behalf of God himself. The purpose of that such a preamble served was that it acted as a declaration of creed, evidenced the imperial legitimacy of the land and was a living record of history. Plato’s assertion that ‘these magnificent preludes put the reader in a docile spirit’ , thus, stands affirmed.
The dilemma that arises in regard with the presence of divine theory in the formulation of the States is that whether the role of divinity is restricted only till that extent wherein the name of God is used only to seek obedience from the citizens and to instill a sense of fairness of the law amongst the citizens which in return would ensure the undivided devotion of the subjects to the States. Most of the modern states today trace back their formulation to the core of the social contract theory: self-governance. Rousseau’s Social Contract clearly makes the civil man not dependent on men but on the laws itself. He advocates the natural law by stating that ‘man himself was good and the elements of the society led to the loss of this goodness.’
An inclination towards concretizing the edicts of the law in the form of drafting of written constitution has been mostly adopted by modern states. The general will of the nation in relation with the manner in which they seek to mould their State can be deduced from it. Relating this present line of argument, reliance can be placed on the political theory given by Rousseau where he uses ‘the analysis of the human nature to explain the character of a State, the nature and functioning of the general will and the relationship between the principles of the political right and the practical science of the legislator.’ The nature of man leads to his demands and expectations from a State. His nature inherits influence from the State of nature and conditioning which can be related to the ultimate Superior power. Thus, the natural man’s behavior finds reasoning in the natural law leading to the coming together of people and willing to form the State together. His argument in Second Discourse (Discourse on the Origin and Foundations of Inequality Among Men) establishes the foundation that ‘the natural law is the only way to explain evil, justify nature, and thereby justify the author of nature, God.’ The justification to nature is the justification to God. The general will is given a theological nuance. In his work, Political Economy (1775) , he states that ‘the most general will is also always the most just …and the voice of the people is in fact the voice of God.’ He is seen believing that the state is formed with the general will of the people but he acknowledges that ‘all justice comes from God’ and ‘all power comes from God’. The natural manner in which order is present in our State is because of the supreme power. To maintain the discipline, the dictates of divinity will always find their reference in those States which are formed with a social contract. The divine terminology in the preludes of Constitutions of the contemporary nations may differ. What started as a practice by the Christian nations to base the foundation of their States in the name of God found its culmination even in the ultimate rule of the land was laid in the written form. Reference to God per se may be made in two broad forms: invocation dei and nominatio die. The former meaning the ‘invocation of God’ and the latter being ‘naming of God’ .The presence is mainly seen in those Constitutions of those countries wherein the Church held a strong position and where the prominence of Islam is remarkable. Use of ‘God’ in the beginning of any legal document was construed as a sign of fairness in the formulated legislation. Most countries use an invocation of ‘God of Almighty’ or ‘Supreme Ruler of the Universe’ in their preludes.
It is an impossible task to sever the mention of either God or Religion from the law of the land which is formulated on the basis of the general will of the citizens. Men are the real source of power and the transformation of the ‘natural state’ to a ‘civic society’ loss of relevance of the divine power still cannot be witnessed.
The legal fashion that has been undertaken presently is based on Grotius’s philosophy of natural law. He derives so from the ‘higher law’ doctrine given by Marcus Cicero. For Grotius, God is activist and providential. His laws are consistent, logical and non-contradictory. Grotius tells us that the Law of nature is inherent to man because at the inception of mankind, it was written in the conscience of the man and the human reason necessary to discover it was also a part of creation and a gift of God Grotius believed God gave to man the power to reason so he could discover natural law and use it to guide his life without reason man would not be free to choose how to conduct their lives. The natural experiences formed the knowledge of man and the imperative instructive scriptures relating to religion formed the role of God, the dialogue of God based on which humans were to govern themselves. Law of nature cannot be separated from the divine law. The primary law of nature derives its authority from the express will of God.
Some modern nations where dominance of the superior power on their preambles but ultimately having the social contract theory to outline to when the same were formed that can be witnessed are:
South Africa: The Constitution was enacted in the year 1996 which advocated ideologies of equality, justice, democracy and rights. The preambles advocate the concept of transformative constitutionalism as the subjects come together to achieve welfare and development of their constitutional machinery. It recognizes the struggles of their past and the injustices faced by them. It aims at building the nation and thus, seeks protection of God. The citizens of the nation vouch to come together to ensure the improvement of their quality of life and that they are able to establish such a society where they are recognized as a ‘sovereign’ nation by the other nations. At the time when the country was a dominion of Britain, influence of the manner in which the European states used to draft their legislations could be witnessed in the Constitution. Also, religion itself played a major role in the African States that both the ideologies of ‘having a supreme power’ and faith in the ‘existence of God beyond life and death’ could be seen deep rooted with the society. The expectation to lead a life in accordance with laws created by the ‘Ultimate power’ and handed down to the ancestors was present since time immemorial. The role that was established of the Constitution between God and man was to derive a link between the eternal and the temporal values of the community. Traditionally, the presence of a communal religion led to the formulation of the communal laws. The sole aim was to maintain social solidarity and to restore the peace in the society. The present national unification and communal values are thus, edicts of religion, in the name of God which have found their legitimization in the form of various articles in the Constitution. The expression of God is taken into consideration. Since, the constitution has undergone a vast transformation; a transformation of the initially based natural law legislations to the present scenario can be traced.
Though, the country has rich heritage and reliance on the ‘Supreme Power’, we see that the Preamble does not culminate any submissions in the name of God, nor does it establish rule in the name of God. It merely seeks protection from God: Protection of the State, of the citizens, of the herculean task of instilling the democratic machinery in the country and the prevalence of peace and justice in the society. This shows that what started as an amalgamation of the natural laws with the influence from the divine edicts to the coming together of citizens and acting towards their betterment. This makes the South African Preamble a classic example of transformation of the divine origin theory to the social contract theory.
Pakistan: The Constitution of Pakistan was adopted in 1973. The Preamble recognizes the presence of the Almighty Allah, “Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust..”
An amalgamation of the modern democratic principles of ‘democracy, freedom, equality and social justice’ has been inculcated in the Preamble. The interpretation has to be derived from what is observed in Islam, order in the individual and collective sphere has to be maintained in accordance with the Holy Quran and Sunnah. The people of Pakistan, thus hold themselves responsible to Almighty Allah to ensure that the democracy adequately works in the Islamic Principles of social justice prevail. The Prophet gave to the community a code which enumerated the categorization of what is right and what is wrong. This Code advocated the morality which we witness becoming the basic of this Constitution as the prelude, i.e. the Preamble to it clearly puts forth the dominance of Islamic teachings in its functioning.
During the period in which this Constitution was being drafted, a clear enthusiasm can be noticed in the drafters for achieving an Islamic State which eventually led to amalgamating the traditional theory and the modern concept of State to their best capabilities. This, though became a major task for both the liberals and the conservatives. The former were presented with the unprecedented opportunity of proving the world that Islam is a progressive religious faction, whereas the latter had to attempt to ensure that the essence of this colossal religion was not lost while the formation of this State.
The Preamble therefore, is very strategically used as it sets the tone for the entire constitution by introducing the elements of religion and by stating that ultimately, the citizens are answerable only to the Supreme Power and that, the authority ruling the State of Pakistan has been vested and in the name of Almighty Allah.
The prevalence of the divine theory can be witnessed in this Constitution. Though an attempt is made to crystallize the existent norms and customs in the society to lead towards the welfare of the citizens, existence of the supreme power forms prominence. The theory propounded by Rousseau finds its influence. The State is said to be vested with the Supreme power. This Supreme power is laid down by the creator of the universe and the supremacy of the State is only provided to ensure that the edicts of the creator are duly abided by the citizens. Rousseau’s ‘general will’ of the citizens led to the incarnation of the idea of a State : Pakistan where people decided to come together in order to govern them. Since, he considers the State to being a moral person, the role of an ultimate power is crystallized as the rightness and wrongness can be traced by to the natural laws which itself leads us to the divine power. The Presidential form of government that was advocated by Jinnah vested the power in a singular authority i.e. in the Prime Minister was to be identified as the Supreme Head of the Nation. Influence of being ruled by one Supreme power which infact is one of the pillars of the divine theory is clearly seen.
Bangladesh: The preamble of the Constitution of Bangladesh is an introductory statement which shows the source of power and acts as a document wherein the ideals and aspirations of the State are laid down. The Constitution begins with stating “BISMILLAH-AR-RAHMAN-AR-RAHIM” i.e. resting trust on Almighty Allah, this legislation is done ‘In the name of Allah, the Beneficient, the Merciful)/In the name of the Creator, the Merciful.’
It is firmly alleged that though Bangladesh believes itself to be a secular state, the authority of Islam cannot be taken away from it. The divine theory can be seen in the formation of the State as when the Constitution was adopted in 1971, the preamble imbibed the high ideals of absolute trust and faith in Almighty Allah and undertook the concepts of nationalism, democracy and socialism as the fundamental principles of the Constitution. This basis of terminology finds its presumption of the fact that Bangladesh was an Islamic State. Eventually, importance of the minority groups was acknowledged leading to the 15th Constitution of Bangladesh (Fifteenth Amendment) Act, 2011 . The substitution of the aforesaid divine reference was made by the inspiration from dedication of the heroic people and the brave martyrs, their sacrifices alongwith the national liberation struggle found its recognition.
Here, a clear transformation of the ideology can be noticed here. The State formation was done initially keeping Allah as the ‘Supreme Power’. Later, the citizens are seen coming together, taking into account the opinions of the minority group, it was realized by the legislators that the use of the terminology of ‘Allah’ to depict the presence of a ultimate authority was not able to facilitate those who did not belong to the Islamic faction. Thus, social contract itself advocates the coming together of all citizens, forming a consensus to ensure that the rule of law is universally applicable to those who are governed. The 15th Amendment itself culminated this. It took into account the opinions of all the citizens equally leading to the subsequent amendment.
India: The preamble of the Constitution was discussed on October, 17th, 1949 when the incorporation and interpretation of the term ‘secular’ took most of the Assembly’s time. It was introduced by H.V. Kamath who began by suggesting that an amendment should be carried out where the phrase ‘In the name of God’ should be used as an opening dialogue to the Preamble. The objections were raised by different members of the Assemble. According to Pandit Kunzru. ‘the name of God, a narrow and sectarian spirit’ can be witnessed. Pandit Malviya stood in favour of acknowledging the presence of a divine force in the ultimate rule of the land . In his view, it was not anti-secular if this was added in the Preamble: ‘By the grace of the Supreme Being, Lord of the universe, called by different names by different peoples of the world’ as this statement does not provide any specifications to a particular religion. Rajendra Prasad tried defending the stance by stating that ‘it shall be against the spirit of religious freedom of the Constitution’. Another objection was made by Purnima Banerji who said that “references to god should not be put into the constitution since that would make the sacred depend on the vagaries of democratic voting.” She requested Kamath 'not to put us to the embarrassment of having to vote upon god.”
It was clear before the legislators at the time of Independence that the use of divine terminology will not be able to profess the secular ideology that the Indian nation-state wanted to advocate. Also, an individualistic approach would have been motivated amongst the citizens if the name of God would have been used as people belonging to different religious sects would have interpreted it in accordance with their beliefs leading to divide. Instead a more collective approach was used thus leading to the avoidance of mention of GOD in the Preamble. The people came together and fought for the Independence from the British regime which led to self-governance. Also, they themselves had their representatives in the constituent assembly which in return drafted the ultimate legislation of the land. The Indian citizens gave the Constitution to themselves. This, itself shows that Indian Constitutional Machinery is based on the social contract theory.
The inception of law is alleged to be traced back to the times when ‘God’ or a ‘Superior Power’ was said to have ruled the Universe to ensure that human beings that were the subject to the rule could be governed adequately and in the lines of fair concepts like equality, liberty and justice. The Almighty was the ultimate ruler which further vested his powers and chose another human being, elevated his status and made him the monarch. The functions of ruling the State were to be adequately carried out by him. This unwarranted power led to the corruption of this Ruler leading to an awakening amongst the people that they needed to be governed according to their own predilections. We see the social contract theory coming into existence. The people come together, decide the edicts of the land and seek abidance from it.
Applying these theories to the preludes of the contemporarily formed/drafted constitutions, it can be seen that the divine theory is only used for the purpose of seeking obedience and instilling the belief that the law is favorable to them at large. The presence of one supreme power is there used to facilitate the working of particular State machinery as subjects relate to this power as it is an individualistic phenomenon to believe in the presence of a superior power. The covert understanding of the same is that the citizens formed hegemony when they decided on taking the path of self-governance for their own betterment. A strategic use in the political framework is used of the terminologies relating with the ‘divine’ presence. Thus, the nations that have used them are the ones acknowledging their rich religious heritage or the predominance of a particular religious denomination. Since the Preambles are introductions to the law of the land, the use of divine power is seen here since they tend to set the tone of it. It forms beneficial if a positive outlook is embedded in the subjects. Therefore, the Preambles, though are only the Preludes of the Constitution are capable to decide the fate and manner in which the laws will be construed and further, the use of ‘God’ is mainly done as per Plato’s ideology that obedience will be duly seek when it is used because in reality, the form of the theory is that of social contract theory.
- 15th Constitution of Bangladesh (Fifteenth Amendment) Act, 2011 available at http://www.clcbd.org/document/834.html accessed on 24.11.2018
- Ahmed, manzooruddin, and manzooruddin ahmad. “Sovereignty of god in the constitution of pakistan: a study in the conflict of traditionalism and modernism.” (Islamic Studies, vol. 4, no. 2, 1965, pp. 201–212)
- Aijaz Ahmad, ‘Lineages of the Present’, Tulika, New Delhi. 1996, p 313
- Al-Quran, III : 110 (Pickthall’s translation)
- Arthur M Melzer, ‘The Natural Goodness of Man: On the System of Rousseau’s Thought’ (Chicago: University of Chicago Press,1990)
- B Shiva Rao, ‘The Framing of India's Constitution: Select Documents’ (Vol IV, Government of India Press, Nasik, 1968, p 593)
- Browning R, ‘Herbert Hunger, Prooimion. Elemente Der Byzantinischen Kaiseridee In Den Arengen Der Unkunden.’ (1964) 54 Journal of Roman Studies p 207)
- Cf AJGM Sanders ‘On African Socialism and Natural Law Thinking’ (1978 Comparative and International Law Journal of Southern Africa) accessed from https://www.jstor.org/stable/pdf/43109441.pdf accessed on 24.11.2018
- Constituent Assembly Debates - Vol X, p 439
- Constitutional Machinery debates of Pakistan available at https://defence.pk/pdf/threads/presidential-system-the-only-solution-for-pakistan.76495/ accessed on 23.11.2018
- Dyzenhaus, D. ‘The Concept of the Rule-of-Law State in Carl Schmitt’s Verfassungslehre’. (The Oxford Handbook of Carl Schmitt. : Oxford University Press) Accessed 29 Nov. 2018http://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199916931.001.0001/oxfordhb-9780199916931-e-019
- E. I. J. Rosenthal, ‘Political Thought in Medieval Islam’ (1958, 24 Cambridge)
- Ed. Douglas Farrow. 'Recognizing Religion in a Secular Society: Essays in Pluralism, Religion, and Public Policy.’ (McGill-Queen's University Press, 2004)
- Ed. R. Schoell, G. Kroll, ‘Corpus luris Civilis’ (1912, vol. III, Berlin)
- 'Forum Religion & Sozialkultur’ (in German). p. 345. ISBN 978-3-8258-7609-8
- Fundamental Principles of the Bangladesh Constitution available at http://www.commonlii.org/bd/legis/const/2004/preamble.html accessed on 23.11.2018
- Fundamental Principles of the South African Constitution https://www.sahistory.org.za/archive/in-humble-submission-to-almight-god... accessed on 23.11.2018
- Hugo Grotius , ‘The Rights of War and Peace Cosimo Classics’ (De jure Belli ac Pacis ed. 2007)
- J. J. Rousseau, The Social Contract and Discourses, with an introduction by G. D. H. Cole, New York, 1950
- J. W. Garner, Political Science and Government, (New York, 19)
- Johannes A. ‘Religious Freedom and the Public Church’(2003).
- M. Th., ‘Law and Legislation in Byzantium, Attempt at Functional Analysis’ ( Jus Commune 14 (1987) 137-158)
- Patrick Riley, ‘The General Will Before Rousseau: The Transformation of the Divine into the Civic’ (Princeton: Princeton University Press, 1986)
- Plato, ‘The Laws of Plato: Edited with an Introduction, Notes Etc’., (Edwin Bourdieu England ed. Vol. 2 Cambridge University Press 2013)
- Preamble of Bangladesh available at http://bdlaws.minlaw.gov.bd/pdf_part.php?id=367 accessed on 22.11.2018
- Preamble of Pakistan available at http://www.pakistani.org/pakistan/constitution/preamble.html accessed on 24.11.2018
- Preamble of South Africa 15th Constitution of Bangladesh (Fifteenth Amendment) Act, available at http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf accessed on 23.11.2018
- Roger D.Masters, The Political Philosophy of Rousseau (Princeton: Princeton University press, 1968), pp.261-65
- 'Rousseau, Political Economy, pp.213-14
- Schmid, Konrad 'In The Name of God? The Problem of Religious or Non-religious Preambles to State Constitutions in Post-atheistic Contexts' (PDF). (February 2004). Religion in Eastern Europe. Nappanee, Indiana, U.S.A: Evangel Press. XXIV (1): 19–32. ISSN 1069-4781. Accessed https://www.jstor.org/stable/pdf/43109441.pdf accessed on 24.11.2018
- The Preamble of the Charter—a Critical Analysis (8(2) J. Pol. 134, 1946)
- Valpy AJ and Barker EH (eds), “AN EDICT OF DIOCLETIAN” in ( The Classical Journal, vol 34 Cambridge University Press 2013)