THE CONSTITUTIONAL HISTORY: DEVELOPMENT OF CONSTITUTION IN SOCIO-ECONOMIC PERSPECTIVE

Jaba Shadrack, Department of Public Law, University of Dar es Salaam – School of Law

• The historical development of the constitution/constitution in historical context.
  

INTRODUCTION

Etymologically, the term constitution is a Latin word which means an important law (constitutiones principis) promulgated by the Roman emperor, i.e. the edicta, mandata, decrera and rescripta. The constitution is a body or a system or a collection of important rules (above other norms or customs) which govern socio-economic and political organization of a society. In the light of this conception of the constitution, it means that the constitution is as older as human societies. Depending on the literacy level and development of a society, early constitutions were either scribed in writing (legal codes) or largely extracted from or referred to in traditions and customs (norms) of the society. Now, let us look at the earliest known constitution of humankind;

PART ONE:

THE GENTILE CONSTITUTION

The Gentile constitution, also known as a 'the tribal constitution' is a form of constitutional organization of human society which existed in early stages of human development (prehistoric stages of culture). Gentile constitution existed in the world before renaissance or modern civilization. Engels in his book "The Origin of the Family, Private Property and the State" divide gentile societies' development into three stages i.e. Savagery, Baribarism and Civilization. Savagery was a period in which man's appropriation of products in their natural state predominates; the products of human art are chiefly instruments which assist this appropriation. Societies at this stage were hunters (used arrow and bow), cannibals, gatherers, and developed speech or language. Whilst, barbarism was an epoch during which man learns to breed domestic animals and to practice agriculture, and acquires methods of increasing the supply of natural products by human activity. This stage was marked by the introduction of pottery, agriculture, iron smelting, use of bricks and stone for building. Lastly, civilization was a time in which man learnt a more advanced application of work to the products of nature, the period of industry proper and of art. It was characterized by invention of alphabet and use of written records. (p. 93).

It is believed that Gentile Constitution arose during 'Primitive Communalism', at this epoch, human societies were;

• In transition to 'early Iron Age' from 'late Stone Age',
• Socio-economic life of the society was still at its primitive rudimentary level
• Lived in communal and egalitarian societies
• Communal ownership of means of production
• Participated in the same totem
  
  
  ** A totem is a natural object or animal believed by a particular society to have spiritual significance and adopted by it as an emblem.
  
  
• Had no written codes of law, social rules were characterized by customs and traditions
• Had no centralised political groupings

**The term, 'Gentile' (not Jewish) relates or indicates a nation or clan (same clan, race, family) especially, gens. 'Gens' means a group of families in ancient Rome who shared a name and claimed a common origin/ a group of people who are related through their male ancestors.

Social determinant of the Gentile Constitution: The Family.

The family

It was the basic social unit around which labour was organised.

**Engels notes further that the word "family" (familia) is from Famulus meaning domestic slave. In other words, a man's family was the total number of slaves he owned; they were his tools of production. The man also had the right of life and death over his family, including his wife and children.

According to Morgan, there were four Stages of family life, i.e. consanguine family, punaluan family (the two emerged in savagery), pairing family (emerged in baribarism) and monogamous family (emerged in civilization). In savage society, social relation was promiscuous i.e. no restriction or prohibitions on sexual intercourse. At the time of promiscuity, human beings produced for subsistence (no surplus). The mother right was predominant due to lack of permanent settlements. The promiscuity practices gave way to consanguine family (marriage groups separated according to generation). Brothers and sisters, male and female cousins of the first, second and more remote degrees are all mutually brothers and sisters, and precisely because of this are all mutually husbands and wives. Improvement of tools of production which led to surplus products and permanent settlement restricted marriage and sex between blood relatives thus, Punaluan family emerged. Thus, parents and children, natural brothers and sisters were excluded from mutual sexual relations.

Later, group marriage/class marriage (polyandry/polygamy) i.e. one woman married to several men, and vice versa emerged, though for a short time. Increase of population and a need for alliance resulted into another form of family, pairing/patriarchal family, whereas marriage arrangements involved parents and close relatives of marriage partners. As the society advanced, monogamous marriage/family (one man, one woman; or in Engel's words, "Monogamous marriage is the subjugation of one sex by the other" (p. 128) emerged, thus the father rights became predominant and marriage within the clan was restricted (i.e. encouraged exogamous rather than endogamous marriages). However, monogamous marriage co-existed with concubinage (i.e. contubernium) tendencies.

**Engel says, "The overthrow of the mother right was the world historical defeat of the female sex.
The man took command in the home also; the woman was degraded and reduced to servitude; she became the slave of his lust and a mere instrument for the production of children." (pp. 120-121).

The Basic Organs under Gentile Constitution

(Clan Assembly, Phratry Assembly, Tribal assembly)

The Clan Assembly

The Clan

A clan is a body of kinsmen or relatives who claim common descendants. The clan was a basic organizational structure of the gentile constitution which composed a cluster of families tied together by consanguine relationship. They usually share common clan name, totem, taboos, traditions, religious institutions, ancestral rites and burial places.

The Clan Assembly

The clan assembly composed of all adult members of the clan led by a 'clan chief' or 'clan head'. The clan chief was either a clan founder or inherited that position of leadership by birth right and seniority of age (not elected).

Constitutional Features of a Clan Assembly

• The conduct of clan assembly was participatory by all adult members of the clan except those who were mentally impaired (i.e. direct participation of all adult members).
• Decisions made by consensus.
• Every one was equal irrespective of his or her gender, save for elders who had a final say in deciding complex issues.
  

The Phratry Assembly

The Phratry 

The term 'Phratry' means a descent or kinship group in some tribal societies. It is a union or a cluster of six or more clans formed after several clans detach themselves from the original clan. Normally, the Phratry recognises one clan as the founder of other clan groups.

**The Phratry functions as a social and religious organisation.

The Phratry Assembly

It is an intermediate organ composed of leaders of various clans related by geographical or consanguine ties. The Phratry leader was either the most senior and well-off or militarily powerful clan leader, thus a vassal leader/chief to the king or tribal chief.

Constitutional Functions or Features of the Phratry 

• To secure and maintain law, order and defence of clans under the Phratry
• Entertained inter-clan disputes, and acted as an appellate organ in the settlement of disputes arising from clans under the Phratry. Thus, had power to overturn or quash decisions made by the clans assembly.
• Paid tributes to the tribal chief or king, and supplied him or her with soldiers during military expeditions
• Had power to annul or amend rules made by the clan assembly

The Tribal Assembly/Council

The Tribe

A tribe may be referred to as a social or political division in traditional society consisting of linked families or communities with a common culture and dialect. A tribe is made up by several phratries or a coalition of clans recognizing each other as having a common ancestry (united to face, e.g. a common threat or enemy). The basic laws of the tribe were customary norms passed from one generation to another. If a tribe remain intact for a considerable duration of time (e.g. a century) becomes a 'Confederacy'.

**Tribe confederacy (not a state) was a union of tribe (organization of society) to assist one another in state of emergence or war. The confederacy was formed by common blood and descendant for perpetual alliance and on an equal footing.

Usually, a tribe is characterised by a common economic activities and territory, its own name, special dialect, right to elect and depose a leader, common religious conceptions (mythology) and ceremonies, and had a tribe council.

The Tribal Assembly/Council

The tribal assembly was the highest organ of power in gentile or tribal constitutional system headed by a King or Head Chief. It was composed of the King or chief, a council of Phratry leaders, and King's curia of elders who always sat with the King in his Court. The King/ head chief governed through the tribal council/assembly. It was the council, not the chief that held power.

**The king or head chief inherited the throne by descent or blood lineage, or normal member of the society who turned out to have special talent or power.

Constitutional Functions or Features of a Tribal Assembly/Council

Unlike the clan and Phratry assemblies, the tribal council was an elitist constitutional body with no direct participation of tribe members (representative body). It was the highest legislative, executive and adjudicative body. It has powers to make and unmake customary laws; hear any matter, and appeals; levy tributes upon phratries; order and receive both man and logical support from the phratries during wars; and power over war and peace. The tribal constitution was characterised by;

• Participation of all members of the tribe in discussing common matters of the tribe
• Every member of a tribe could stand for election or participate in deposing a leader
• Every one participated in implementation of decisions reached by the tribal assembly. This was because there was no special body to enforce such decisions.
• Egalitarian in nature (believed in equality and freedom).
• Traditional methods commonly used in solving disputes e.g. mediation, reconciliation, negotiation, and etc.
• Special dialect peculiar to its tribe

GENTILE CONSTITUTION: CASE STUDIES OF ANCIENT GREEK, ROMAN AND GERMANIC SOCIETIES

THE GENTILE CONSTITUTION IN GREEK SOCIETIES

Culturally, the Greek or Athenian gens were characterized by common religious rites and burial places, mutual rights of inheritance, descent in the male line, prohibited marriage within the gens save for heiress, and the right to elect chieftains and to depose them.

Forms of Tribal Constitution in Greek/Athenian Societies;

(a) Permanent authority was vested in the Council of Chiefs.

• Made up by elected clans chiefs (i.e. the Phratriarchos).
  

(b) The Assembly of the people or Popular assembly (i.e. Agora)

• It was a supreme organ in Athens
  
• Every member of the society was allowed to attend and had the right to speak
  
• Practiced direct democracy, decisions were made by rising hands or acclamation
  
• Elected people to head public offices
  

(c) The leader of the army or military commander (i.e. Basileus)

• Elected and or recommended by the people
  
• Defended the society (soldiers) and in rare occasions performed religious as well as judicial functions.
  
• Later, Basileus became noble (referred to as 'King') and their position was hereditary.
  

Decline of Athenian Gentile Constitution

Accumulation of private properties and emergence of nobility in Athens replaced Kinship ties and thus, Gentile constitution collapsed. Athens territory was divided and the people became attached politically to districts (demes). Demes were self-governing, electing president and treasurer. However, demes power were in the assembly of 'demotes' or residents of each deme. Increase of social stratification among the Athenians led to emergence of Theseus constitution (by King Theseus) which divide Greek people into three classes i.e. nobility (Eupatridae, included elders, tribe chiefs, priests and other officers); land tillers (geomori/geomoroi), included freemen and producers); and commercial and artisans/craftsmen population (demiurgi). It further separated tribal affairs (matters on which each tribe can decide on its own) from common affairs (matters controlled by the general council).

 

**In 621 BC, a scribe named Draco wrote the laws of the city-state of Athens; and being quite cruel, this code prescribed the death penalty for any offence. In 594 BC, Solon, the ruler of Athens, created the new Solonian Constitution. It eased the burden of the workers, allowed private ownership of properties, and prohibited enslavement of Athenians, but foreigners. However, the Solonian Constitution made the ruling class to be determined by wealth (plutocracy), rather than by birth (aristocracy). Cleisthenes again reformed the Athenian constitution and set it on a democratic footing in 508 BC. Cleisthenes constitution divided Greek Societies into 100 autonomous townships known as demes as per places of domicile; and vested supreme authority in the assembly of the people (demetes).

**Prepared with the help of Wikipedia encyclopaedia.

THE GENTILE CONSTITUTION IN ANCIENT ROME

Just like the Greek or Athenian gens, the Roman gens were characterized by common religious rites and burial places, mutual rights of inheritance among gentile members, descent in the male line, obligation to marry within the gens, common land (land owned by the tribe), mutual assistance among members of the gens, right to bear gentile name, and the right to elect chieftains and to depose them.

Forms of Tribal/gentile Constitution in Ancient Rome

• There were thirty (30) curiae. Ten (10) curia formed a tribe. The three (3) tribes formed the populus romanus (Roman people).
• Public affairs were managed by the Senate composed of presidents (called Patres
  i.e. elders of the gens) of three hundred (300) gentes.
• Each tribe elected a president (patre) who was both military leader and a priest.
• Patres (presidents) transformed into hereditary nobility (Patricians).
• The Senate elected higher officials (including the rex/king); declared war; and acted as a supreme court.
• The rex was not hereditary but elected by the assembly of curia.
  
  

Curia denote a division of an ancient Roman tribe (by extension), the Senate of Cities other than Rome.

Decline of Roman Gentile Constitution

Immigrants (and foreigners) and subjugated people were not considered as the populus romans, but plebs (i.e. members of the lower social classes), thus excluded from all public affairs. Since plebs controlled industrial and commercial wealth, conflicts arose frequently between them and the populus romans over power and dominance thus collapse of gentile constitution to servius tullius constitution. The servius tullius constitution was based on the Greek model. It replaced old social order (blood ties) and divide roman men into six (6) classes (above slaves) based on wealth regardless of whether one is a plebs or populus romanus.

**The Romans first codified their constitution in 449 BC as the Twelve tables. They operated under a series of laws that were added from time to time, but Roman law was never reorganized into a single code until the Codex Theodosianus (AD 438); later, in the Eastern Empire the Codex repetitæ prælectionis (534) was highly influential throughout Europe. This was followed in the east by the Ecloga of Leo III, the Isaurian (740) and the Basilica of Basil I (878). **An extract from Wikipedia encyclopaedia.

THE GENTILE CONSTITUTION IN GERMANIC SOCIETIES

The Germanic gentile societies settled in the territory between the Danube, the Rhine, the Vistula and the northern seas. The Alamannian law confirms the fact that the people settled on the conquered land south of the Danube in gentes (genealogiae). They were organised into gentes and kinships (gentibus cognationibusque) until the time of migrations. Gentes were large household communities among which the land was divided, and from which the village communities developed later on. The term fara was used by the Burgundians and Langobards (a Gothic and a Herminonian, or High German tribe) to mean the same thing that in the Alamannian book of laws is called genealogia.

Features of Germanic gentile societies 

• Common terms for gens
• Mother right of children were highly respected (they regarded the woman as being holy and something of a prophetess). For example, when hostages are demanded the sister's son is considered a better pledge than the natural son of the man whom they desire to place under bond.
• There were military leaders who always strove for power
• Inheritance of the feuds as well as the friendships of one's father and relatives;
• Accepted wergild (i.e. the fine paid in atonement for murder or injury) in place of blood revenge.
• Land was tilled in common by the gens and later on by communistic family communities. Later the land was allotted and periodically reallotted to the individual families.
• The Germans in Tacitus' time divided up the cultivated land from passages

Forms of Germanic Societies Gentile Constitution

According to Tacitus, there were;

• Councils of gentile chiefs (principes) which decided matters of minor importance and prepared important matters for the decision of the popular assembly. The council chiefs (principes) were distinguished from the war chiefs (duces) and lived in part, on honorary gifts, such as cattle, grain, etc., from their fellow tribesmen.
• The transition to father right favoured gradual transformation of elective office into hereditary office, thus giving rise to a noble family in each gens.
• The popular assembly was the real power. The king or tribal chief presided; the people decided: a murmur signified "no", acclamation and clanging of weapons meant "aye". The popular assembly was also the court of justice. Complaints were brought up here and decided; and death sentences were pronounced, the latter only in cases of cowardice, treason or unnatural vices.
• The military leaders were elected solely on their merits, irrespective of birth. They had little power and had to rely on force of example. As Tacitus explicitly states, actual disciplinary power in the army was held by the priests.
• The gentes and other subdivisions also judged in a body, presided over by the chief, who, as in all original German courts, could be only director of the proceedings and questioner. Among the Germans, always and everywhere, sentence was pronounced by the entire community.

Decline of German Gentile System

The collapse of Germanic gens was mainly fuelled by; emergence of classes due to permanent settlement, thus rise of new aristocratic class; the tendency of military commanders to aspire for kingly power; and invasion of the gentes by the Roman Empire.

**Many of the Germanic peoples that filled the power vacuum left by the Western Roman Empire in the Early Middle Ages codified their laws. One of the first of these Germanic law codes to be written was the Visigothic Code of Euric (471). This was followed by the Lex Burgundionum, applying separate codes for Germans and for Romans; the Pactus Alamannorum; Codex Laureshamensis and the Salic law of the Franks (Franks Constitution), all written soon after 500. In 506, the Breviarum or "Lex Romana" of Alaric II, king of the Visigoths, adopted and consolidated the Codex Theodosianus together with assorted earlier Roman laws. Systems that appeared somewhat later include the Edictum Rothari of the Lombards (643), the Lex Visigothorum (654), the Lex Alamannorum (730), and the Lex Frisionum (ca 785). These continental codes were all composed in Latin. ***An extract from Wikipedia encyclopaedia.

REFERENCES

Bachofen (1861) Mother Right (Mutterrecht).

Evgeny Pashukanis (1932) 'The Marxist Theory of State and Law'. In Selected Writings on Marxism and Law (eds. P. Beirne & R. Sharlet), London and; New York 1980, pp.273-301. (available at home.law.uiuc.edu/~pmaggs/pashukanis.htm).

Frederick Engels (2004) The Origin of the Family, Private Property and the State. Edited, with an Introduction by Pat Brewer. Resistance Books, 23 Abercrombie St, Chippendale NSW 2008, Australia. (First published in 1884).

Letourneau (1888) Evolution of Marriage and Family.

Morgan, Lewis Henry (1871) Systems of Consanguinity and Affinity.

Morgan, Lewis Henry (1877) Ancient Society.

Mvungi, E.S.A (2007) Constitutional Law in Context: A Book on General Principles of Constitutional Law, Vol. I. (unpublished).

Norman Schofield (2002) 'Evolution of the Constitution'. British Journal of Political Science, Vol. 32, No. 1, Cambridge University Press (Jan., 2002), pp. 1-20.

Westermarck (1891) The History of Human Marriage (London ).

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QUESTIONS ON THE GENTILE CONSTITUTIONS OF TANZANIAN SOCIETIES

Take home essay.

Answer all Questions.

(a) "Socio-political and constitutional forms of ancient European societies are no different to tribal socio-formation of pre-colonial Tanganyika's societies", Anonymous. Critically discuss the above statement by using Nyamwezi, Maasai, Haya and Hehe tribes as your case study.

NB: Students from Kenya and Uganda may wish to choose three tribes from their respective country as case studies. 

(b) "Modern constitutions have a direct bearing with constitutional forms of traditional societies". Use any East African state's constitution show how the same is rooted in pre-colonial socio-formation.

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