INTRODUCTION

Walter Murphy, one of the most distinguished scholars of constitutional law, is fond of interrupting conversations about “constitutions” with the pointed interjection, “you mean the text, right?” To pre-empt this valuable intervention, we reiterate that we do indeed mean the text, specifically the written constitutional charter of independent countries. Ours is the (wo)man-on-the-street's idea of the constitution and very close to S. E. Finer's (1979: 15) canonical definition of constitutions as “codes of rules which aspire to regulate the allocation of functions, powers and duties among the various agencies and offices of government, and define the relationship between these and the public.” Nonetheless, it is a delicate step to refer to such texts as the constitution in a particular country. We do so only partly for convenience, for we believe that the written text – although in some cases incomplete or even misleading – often forms the core of the formal constitution for most states. A focus on the formal constitution has its limits, as we will be the first to attest. Certainly, not all that is constitutional is written, and not all that is written is constitutional. However, a focus on the text pays extraordinary dividends both in terms of analytic leverage and in understanding change in the broader constitutional order. In this chapter we evaluate these potential dividends against what may appear to be substantial costs.

It is worthwhile at the outset to clarify the relevant criteria by which to evaluate our choice of concepts.