¹ This study is based on a paper presented at the Conference of Futuribles in Paris in April 1965. Oriented as it is toward the present and the future, it does not deal with constitutional developments ante-dating the American and French revolutions.

² The “due process” clause in the United States Constitution did become for a long period a repository of laissez-faire conceptions, but this seems to have been due to later judicial interpretation; the original meaning of the clause may well have been a modestly procedural one.

³ After the First World War, several new States appeared in Europe, and several formerly autonomous or semi-autonomous territories, especially within the British Empire (later: Commonwealth) emerged into sovereign statehood. After the Second World War, the process of de-colonization, still continuing as of the time of writing, has brought forth a still larger number of new States. This rate of Stateemergence exceeds that of any similar period within recent centuries, including even the 1810's, when the emergence of Latin-American States was countered by the disap pearance of many small States in Germany and Italy.

⁴ Hungary, too, though far less stable and experiencing a few revolutions since 1848, got along without a proper formal Constitution; but outside of the country only a few specialists were aware of it.

⁵ Revue française de science politique, 1952, pp. 5–24, 312–34.

⁶ Akzin, B., “On the Stability and Reality of Constitutions” 3 Scripta Hierosolymitana, 1956, pp. 313–39Google Scholar. The factual data assembled in that study, on which much of the present paper is based, are not being reproduced here. The fourteen years which have elapsed since then have not improved this record of widespread constitutional instability nor of constitutional ineffectiveness. More particularly, in most of the thirty or so States which have attained independence since 1952, the greatest part of them in Africa, Constitutions proved hitherto to be as fragile, and as “nominal” while they lasted, as in the third group of the pre-1952 States investigated by the writer, if not more so.

⁷ Another telling instance of this is the downgrading of international law from the pinnacle it had seemed to occupy in the centuries between Grotius and the Hague Conferences, in favour of “international relations”.

⁸ The assumption then was rather that the monarch's mistakes and arbitrariness must be borne patiently, in the same manner as natural and heaven-sent misfortunes must be borne. At the same time, the monarch's so-called absolute powers were mitigated by the restraining normative influence of religion and custom, in addition to their factual restraint by other social forces.

⁹ It will be noted that not all of these are federal States. Wheare's idea that formal Constitutions are essential in federations, but rather superfluous in unitary States, is hardly well founded. Why, indeed, should an individual need less protection from central authorities than an autonomous regional unit? History certainly abounds in instances of attempted encroachment of central authorities on individual rights no less than in encroachment on the status of autonomous regions, which, after all, are stronger and better able to protect themselves than the individual and small groups.

¹⁰ If it is a putsch against constitutional authority, and the forces of the State are strong enough to subdue it, the attempt will fail, of course. But then it is not just the Constitution, it is the régime, the whole governmental set-up, that is being defended, and the situation would not be any different if there were no formal Constitution.

¹¹ See the quaint, if optimistic, provision in the French Constitution of 1830, art. 66; also its echo in the Greek Constitution of 1911, art. 111.

¹² On the last instance, see: Koessler, M., “Vichy's Sham Constitutionality” (1945) 39 American Political Science Review, 86 ff.CrossRefGoogle Scholar More generally: F. v. Hippel, Die Perversion von Rechtsordnungen, 1955.

¹³ The designation “unwritten Constitution”, for all its widespread use, is misleading. All parts of the so-called British Constitution (even those which, in their role of “constitutional conventions” are said to lack legal standing) have been committed to writing, in one form or another, long ago; most of them even in the form of authoritative formal enactment. This is equally the case in New Zealand. What matters is whether the “constitutional” provisions have been formally and officially accorded their special status, or whether, because of their material contents, they are merely considered such (not always unanimously) by scholars and politicians. This is why this writer prefers to follow continental usage in identifying Constitutions as “formal” and “material” rather than prevailing English usage which distinguishes “written” and “unwritten” ones

¹⁴ It is sometimes asserted that the speed with which Constitutions have been enacted in those States that emerged in Europe after the First World War and the revolutions of 1918–1919 was partly responsible for the rapid deterioration of their constitutional order. The assertion cannot yet be said to have been well proves but a certain deliberateness in enacting a Constitution is probably useful. A case in point is the U.S.A., whose first Constitution—the Articles of Confederation—proved impractical and had to be replaced by the Constitution of 1787, this time well thought out and prepared; even then, the first ten amendments had to be added after a short while. However, waiting too long has its dangers too, as shown by the case of Israel: once having missed the psychological moment for Constitution-making, soon after the establishment of the State, political leaders in Israel got used to the convenience of having no Constitution to check them; and while, on the whole, they do not abuse this freedom, still this absence of checks is to be regretted. The special case of Israel has been considered by the writer in detail in: “Problems of Constitutional and Administrative Law” (International Lawyers Convention in Israel, 1958, Jerusalem 1959, pp. 161–200); and in: “Introduction to a Project of a Constitution for the State of Israel” (5 Public Administration in Israel and Abroad, 1966, pp. 9–15).