How are law and politics interrelated?
- Politics provides the purposes and values that underpin the constitution and give the law its content
- Law operates as a delivery mechanism for particular political policies written into legislation
- The accountability of government is both legal and political and each acknowledge the other. (E.g legal accoutability to the courts through the courts' powers of JR of government decisions to ensure that they comply with law.)
- Values especially concerned with the legal process in the courts feed into the political process (E.g how far should anti-terrorist policies be subject to the right to a fair trial)
- Within law itself there is disagreement between different judges and lawyers about political values. Judges may be unconsciously influenced by their political beliefs in deciding between competing arguments.
Harlow and Rawlings: red light / green light theor
Red Light -
Emphasise the role of law as controlling government in the interests of individual rights.
Green Light -
Favour the collective goals of society, which they believe are best carried out by the government through democratic mechanisms. The role of law is to enable government to achieve important public goals effectively.
Doesn't deny the importance of the individual but emphasises collective and community means of protecting the individual and preventing the abuse of government power such as democratic participation.
How can law be distinguished from politics?
- Law relies on impersonal and usually written sources of authority in the form of binding general rules.
- Law emphasises the desirability of coherence, certainty and impartial and independent public procedures such as courts for settling disputes
- Politics is concerned primarily with outcomes, for which law is only one among several instruments. It is more willing than law to use emotions, personal relationships, rewards and compromises to achieve these outcomes.
Unwritten Constitution: Disadvantages
- Unneccesary: our constitution has proved stable and successful
- Flexible and evolutionary: responds to changing circumstances enabling practical problems to be dealt with as they arise
- Enables decisions to be made by elected politicians rather than unelected judges. Written constitution would politicise the judiciary by requiring them to pass judgement on government legislation.
- Unwritten constitution enables the executive to act quickly and flexibly to meet citizens needs
- A written constitution would diminish the significance of the monarchy
- Practical problems in deciding what to put in the consitution
Bagehot -Dignified and Efficient
Dignified: give the constitution authority and encourage people to obey it. Involves the trappings of power, notably the monarchy that underpins the central government and the mystique of ceremony. Bagehot thought it dangerous to shed the light of reality upon the monarchy since doing so would expose it as a sham.
Had reinforce tyranny by hiding reality.
Efficient: Located primarily in the Cabinet. Carries out the working exercise of power behind the scenes.
Federal and Unitary Constitution
Federal - various powers of government are divided between different geographical units and a central government. Each level is equal and independent and can exercise the powers given to it without the interference of the other level.
Have a strong legalistic element.
Unitary - ultimate power is held by a single central government, although there may be subordinate units of local government with powers given and taken away by the centre
UK is strictly a unitary state.
Unicameral or Bicameral Constitution
Unicameral - has a single lawmaking assembly
Bicameral - has two assemblies, each of which operates as a check on the other, the balance between them depending on the circumstances of the particular country.
The UK constitution is bicameral. The Lower House, House of Commons, with 646 members, is elected from the UK as a whole.
The Upper House, House of Lords, with 740 members is mainly appointed by the prime minister.
House of Lords cannot normally override the House of Commons but serves as a revising chamber to scrutinise and amend legislation proposed by the lower house, thus providing an opportunity for second thoughts.
Parliamentary and Presidential Constitution
UK - extreme parliamentary system.
Parliamentary system = the people choose representatives who form the legislature. The head of government is Prime Minister chosen by the Parliament.
The Prime Minister chooses and removes ministers, who are the leaders of the executive government. Parliament scrutinises government activities, consents to laws and provides the government with finance. It can dismiss the executive by withdrawing its support.
Separate head of state (hereditary monarch) - formally represents the state but has little political power.
Presidential system - leader of the executive is elected directly by the people independently of the legislature and holds office for a fixed period subject to dismissal by the legislature. President is usually also head of state.
Rigid and Flexible constitution
Whether it is easy for those in power to change the constitution.
Rigid - where a special process such as a referendum of the people is required to change it.
UK constitution is flexible since it can be changed in the same way as any other law.
Monarchical or Republican; Monarchy, Aristocracy a
Monarchy - rule by one person
Virtue: Authority and independence since Monarchs have quasi-godlike status
Vice: Despotism (tyrannical rule)
Aristocracy - rule by a group of the 'best' people
Vice: Oligarchy, rule by a selfish group
Democracy - rule by many or the people as a whole.
Virtue: Consent of the community
Vice: Instabilityleading to mob tyranny
Aristotle - each form has its virtues and corresponding vices. Virtues exist when the ruler rules for the benefit of others. Vices exist when the ruler rules for the benefit of herself/himself.
UK = constitutional monarchy - monarch cannot make law nor exercise executive or judicial powers. Risk of dictatorship reduced, monarchy serves as harmless symbol representing of the nation.
Written Constitution: Advantages
- Publicity and accessibility: matters of importance should be codified for all to see/understand
- Democracy: Entrenched procedures that ensure parliamentary and popular support for constitutional changes are desirable
- Sovereignty: Parliament is sovereign = unsuited to a modern democratic society in which the people should be sovereign
- Education: The absence of constitutional teaching in our schools makes it important to have one document
- Certainty: Uncertainty of some of our unwritten constitution and the dubious status of some of its rules existing outside the law
- Protecting weaker arms of government: Parliamentary supremacy means that local/devolved governments are not protected against central government. Would also strengthen separation of powers.
- National identity: Written constitution = symbol of national identity and pride
- Modernisation: Current unwritten consititution is an anachronism riddled with references to the past and unsuited the the social and political democracy of the 21st century.
What are constitutional conventions?
Rules, practices and customs which are not law, but are in force because they are consistently obeyed as established practices.
Many basic constitutional arranges rely on conventions, e.g, selection of the Prime Minister.
- They are not written down
- They are not directly enforced by the courts
No authority empowered to determine whether a convention exists and what it means. This depends on general acceptance by the politicians and officials who run the government.
Does the UK have a constitution?
UK has no written constitution, it is composed of numerous ordinary laws, other rules and practices
The constitution relies on precedent in the sense of appealing to past decisions and practices
Where is the constitution found?
- Acts of Parliament (statutes) made by the regime in power at the time
- Cases decided by the courts (Common law)
Nature of the Constitution
What are the three main purposes of the constitution?
- Enable the organisation to run effectively
- Define the powers of those in charge of the organisation
- Protect members of the community against abuse of those powers
What matters does Constitutional Law deal with?
- Choosing and removing of rulers
- Relationship between the different branches of government
- Accountability of government
- Dividing up of powers geographically
- Relationship between state and oversea bodies
- Rights of the citizen in relation to government
What is an organic constitution?
A constitution which develops naturally in the light of changing circumstances.
Product of historical development and practical compromiss generated by rival groups of power hungry persons.
House Metaphor -
UK constitution is sometimes compared to a ramshackle old house under constant repair and renovation and made of numerous bits and pieces.
Constitutional change may be disguised under a cloak of continuity, taking place in small steps in the interests of those in power at the time without adequate scrutiny.
Applies to the UK as a widely shared belief in favour of limited and accountable government.
What does it include?
- Rule of law - requires limits on government policed by independent courts
- Responsible government - requires government officials to be accountable for their actions to an institution representing the people
What does it favour?
Separation of powers between different governmental organisations.
What does it require?
Openness in government decision making and open justice in the courts
Protection of rights such as access to the courts
Rule of Law
What is it?
Desirable to have rules known in advance which are binding on government and governed.
Helps the organisation to run effectively by keeping order and produces certainty.
It ignores the content of the rules themselves, and the question of who makes them.
Substantive rule of law: what is it?
A wider version of the rule of law coined by Paul Craig.
Invokes moral and political ideas which are claimed to be especially associated with law.
These include the notion of open justice policed by independent courts resisting the natural tendency of government towards secrecy.
Separation of Powers
What does it require?
Government to be divided up into different branches of equal status and importance
What does it prevent?
Any one branch of government having dominant power.
Each branch can restrain the others since any major decision would require the cooperation of all branches.
What are the branches?
The legislature (primary lawmaker), Judiciary (settles disputes about the meaning and application of the law) and the executive (carries out all the other government functions, implementing and enforcing the law)
Executive = most powerful, controls the resources
What does it mean?
Ultimate power without limit.
What is Hobbe's theory?
There must always be a sovereign capable of having the last word in any conceivable dispute.
Why is it difficult to locate sovereignty?
Because government power is usually divided up.
Who can be sovereign?
Need not be a signle person, but unless it is, rules are needed to ensure that its components can reach agreement.
In an extreme emergency, sovereign power might be exercised by a single person.
Foundations of a constitution
What is the positivist view?
A constitution is valid or legitimate if enough of the people whom it concerns accept it so as to make it broadly effective.
What is the natural law view?
A constitution is only valid if it conforms to a set of objective moral principles
Monist and Dualist Constitutions
This concerns how far the constitution is receptive to international law in the form of treaties between nations or resolutions of the UN.
In a monist state a treaty once ratified (confirmed) by the state is automatically part of that state's domestic law.
UK is a dualist state, more inward looking and in which international law is not binding in domestic law unless it has been adopted as part of our law usually be an Act of Parliament.
Private vs. Public Law
Public law governs the relationship between government/individuals and that between different governmental agencies
Private law concerns the relationship between individuals and also deals with private organisations such as companies.
- Government represents the whole community + its officials have no self interest of their own. A private company/individual both have a legitimate self interest. A government should be accountable to the community for its actions. A private bodies accountability might be regarded as an unacceptable intrusion on its freedom.
- Private law concerns the voluntary interaction of individuals calling for recognition of agreed solutions and concessions to vulnerability, whereas public law calls for general principles designed to structure and contain power.
- Government has the ultimate responsibility to protect the community against disruption and external threats. For this purpose it must be entrused with special powers to use force.
- Scope of JR
Oliver - Constitutional Reform
Four tendencies underlie constitutional reform
- 'Principles' - developed by the courts, for example, the legitimate expectation, and also from within government.
- Governance - reforming the governmental process, this would include, for example, the modernisation of the parliamentary process
- Strengthening citizenship - in the sense of equality (Human Rights Act 1998)
- Separation - devolution and the reforms to the court system made by the Constitutional Reform Act 2005
Globalisation and Constitutional Reform
The authority of state constitutions are challenged by globalisation
- The commitment to free markets by the powerful countries who control the main international organisations.
- A commitment albeit less concrete to international human rights and environmental standards and the bringing to justice of political leaders who engage in international crimes such as genocide and torture
- The ease with which money can be moved around the world
- The international nature of problems such as terrorism, environmental protection and financial failure. State laws are sometimes ineffective in dealing with terrorism, human trafficking etc.
The constitution provides filter mechanisms which to a certain extent recognise and control the influence of international actions and relationships on our own law and vice versa but otherwise the law has not adapted to globalisation