The Preamble: A Question of Jurisprudence

Abstract

Comparative historical experience shows that actual recourse to preamble is a function of local tradition: not a sine qua non, of course, but not substitutable by other means either. This is why once accustomed, it can turn to be a usual component. It defines normatively the final motive of legiferation in terms of historical devotion, transcendental and moral stand, national vocation and ethos, or long-term policy to be implemented. As to constitutions, in France, e.g., even decades ago whether or not the right to strike was legally acknowledged was debated since it had been, as part of the historical Déclaration, enacted in the preamble. To face post World-War-Two conflicts, the federal competence of national defense had to be deduced from the preamble of the American Constitution, while the enigma in Soviet eyes of the Federal Republic of Germany lied all along in the philosophy of history formulated by the preamble of the Bonn Grundgesetz, as it had expressed expectations in terms of ethos applicable to any chances, including the collapse of the German Democratic Republic and subsequent unification as well. Or, defeated Japan launched unilateral demilitarisation with explanation in constitutional preamble. Once it proved to be a dead end, Japan founded reconsideration on previous presumption refuted by world politics. India’s constitutional preamble heralded long-term governmental goal-orientation. As an ideal, it could become strong enough to channel subsequent programs but not to substantiate any criticism of particular legislation. For whatever its contents, the need of time may fertilise preamble contents in their being interpreted as normative foundation of rights/duties or competence. On last analysis, bishop Hoadly’s sermon is to prevail: those competent to serve with last interpretation will turn into the genuine law-giver. Or, preamble itself is not to cause anything. But once there is a preamble available with ambiguous message, it can as well be referred to as legal entitlement to borrow/deduce validity of a given legal conclusion. For independently of the fact that fertilisation can only fill uncertain situations in respect of the conclusiveness in logical reconstruction, authoritative practice usually concludes in favour of one single solution, undebated and unchallenged for a reasonable time. All in all, whether or not the law-giver will recourse to preamble and with what contents is a political issue. The constitutions’ preamble may express elements of historical identity, guiding values, vocation, institutional path, and symbolic ketch-words as well, i.e., substantive messages in foundation that cannot be validated through other carriers of normative declaration. But the future is changing unforeseeably. Even solemnic dictions can be subjected to judicial scrutiny without empathy towards original intents but sympathetic towards undefined ends. This is why the way how a preamble is formulated is to matter. Quasi regulation in form of preambles may be necessitated when legiferation is open ended. Then, in want of regulatibility, channeling future action may be achieved by the inclusion into preamble of philosophy of history considerations and moral aspirations, with their national credo serving as a legitimising force.

Keywords: value, norm, normative valuation-information, norm-information, legal, non-legal

JEL Classification: K10, K40