Constitutions

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  • Created by: Nikki
  • Created on: 29-04-15 21:29

Ancient constitutions

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Modern constitutions

Construction

Text

Fundamental law

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British constitution (1)

Tocqueville --> 'In England, the constitution may change continually, or rather it does not in reality exist; that Parliament is at once a legislature and constituent assembly.'

Peculiarities - History

  • modern constitutions = product of Enlightenment thinking
  • created in aftermath of war, revolution, independence, transition to demoncracy
  • no fundamental breakdown in political order since 17th century
  • but basic changes to structure of state?

Peculiarities - Philosophy

  • 2 sorts of knowledge
    • scientific --> can be formulated into rules and taught and learned
    • practical --> traditional; not taught and learned so much as imparted and acquired by participants
  • error of rationalism

Unwritten = flexibility --> can react quickly to constitutional emergency, but affords no fundamental protections of civil or personal liberty

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History

Magna Carta 1215

  • limited power of king as lord but upheld office of Kingship
  • aim = to eliminate caprices of individual king, but strenghten crown
  • king's official authority must be exercised through council --> King's Council, Privy Council...

Origins of Parliament

  • established to assist with task of governing 
  • formed by royal will, as an instrument of royal government, meeting in royal palace

The Reformation

  • Henry VIII used parliament to eliminate medieval privileges
  • breach with Roman Catholic Church
  • critical moment in creating absolute legislative authority
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History (2)

Modern ideas of law and government

  • medieval idea of law as expression of unchanging custom
  • legislation differentiated from adjudication only with emergence of law as command of sovereign
  • parliamentary sovereignty

Parliamentary government

  • intimacy of connections between govrning institutions rather than separation = basis of English medieval government
  • felected in unity of office of government 
  • modernisation --> product of political adaption not juristic reconstruction
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Constitutional sources and principles

Sources

  • statutes
  • cases --> judicial precedent forms common law
  • conventions --> non-legal rules based upon consensus
  • royal prerogative --> residual powers of crown

Principles

  • rule of law
  • parliamentary sovereignty
  • separation of powers
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Elements of GB constitution (1)

Unwritten --> misleading as almost all rules are written down somewhere --> just not all in same document

Cabinet Manual 2011

  • guide for those working in government
  • records current position rather than driving change
  • not intended to be legally binding
  • records rules and practices but not intended to be source of any rule
  • not a source of constitutional rules

Statute book

  • Acts don't come labelled as constitutional 
  • some have constitutional and non-constitutional elements
  • room for disagreement
  • only allows us to look at statutory basis of constitution --> doesn't include rules in other forms
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Elements of GB constitution (2)

Constitutional conventions

  • rules of constitutional practice that are regarded as binding in operation but not in law
  • distinction between conventions and laws --> sharp (dicey) or spectrum (Barber)?
  • enforcement
    • Dicey --> not directly enforced by courts but violation of conventions leads inexorably to breach of law which courts can enforce
    • controversial view --> some conventions should be enforceable by law
  • concordats, codes etc
    • concordats = agreements to create convention or set of conventions to regulate particular relationship --> driving force is often constitutional reform --> political in character --> not meant to be enforceable in courts
    • codes = not subject of negotiation between different institutions/office-holders --> published by one part of government
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Elements of GB constitution (3)

Judicial decisions

  • statutory interpretation
  • common law methods --> judgments creating precedents; judicial review
  • unusual view that law embodies fundamentals of constitution and in extreme situations judges may have constitutional duty to set aside an Act

EU law

  • changed idea that Act of UK Parliament are highest form of law --> takes precedent
  • membership has qualified orthodox ideas of parliamentary supremacy

International law

  • Customary international law
    • rules existed for long time and become customary in international sphere
    • source of common law and may be relied on in UK courts
    • can be ousted by Act to contrary 
    • rules change over time
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Elements of GB constitution (4)

  • Treaties
    • 2 possible arrangements for recognition
      • 'monist' systems --> self-executing in national legal system and becomes source of law that may be applied by national court
      • 'dualist' system (e.g. UK) --> need to be expressly incorporated into domestic law by national legislation --> rationale that govt should not be able to make laws without agreement of Parliament --> some treaties never incorporated (not deemed necessary) and for some there is a large delay
  • unincorporated treaties --> not completely ignored by courts
    • legitimate expectation
    • courts may refer to treaty when interpreting concept in legislation in same area of policy through assumption that legislation intended by Parliament to conform to UK's international law obligations
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Political constitutionalism

  • power and making of law is legitimised through Palriament
  • general elections put largest political power in HC as having authority to form government --> can rule legitimately because won election
  • can retain power for 5 years so long as they have confidence of HC
  • legitimacy of power of ministers through accountability to Parliament
  • PS --> courts have no constitutional power to set aside provisions of Acts as incompatible with constitutional principles
  • 'What the Queen in Parliament enacts is law'
  • majoritarianism --> view of majority, reflected by composition of HC, should be decisive
  • scepticism about constitutional role of judiciary --> judges as fundamentally biased due to background; judges having own agenda
  • idea that Parliament has greater democratic legitimacy than courts

PS --> should continue to be centrepiece of constitution --> enables elected representatives to have final say over laws under which we live our lives

Separation of powers --> downplay role of courts --> some argue wrong to view judiciary as third branch

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Legal constitutionalism

  • courts and legally enforceable rights as key to creating conditions under which governmental power is limited
  • parliamentary control of government regarded as ineffective --> reality that govt controls P
  • PS too weak to be effective restraint
  • should rely on other priniciples, notably rule of law
  • demoncracy underpins views but reject notion of majoritarianism --> democracy not about counting votes but involves insisting on protection of rights that protect individual liberty
  • courts have essential role in protecting rights
  • written constitution and entrenched rights enforced when necessary by courts, or common law as developed by judges = highest forms of law (in both cases courts as referees)

PS --> dangerous arrangement that puts our liberties at risk --> no legal constraints on politicians' ability to make law

Separation of powers --> keen on this to bolster importance of courts as a major 'check and balance' oninsittutions that carry out the other functions

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What is constitutionalism?

At formal level in UK it's an umbrella term taht consists of following limbs:

  • concentrates ultimate public power in one institution (PS)
  • government is organised by means of majority rule (representative government)
  • granting and exercise of public powers is determined and controlled by constitutional principles, sucha s rule of law, separation of powers, and respect for individual rights (limited government)
  • government held to account by Parliament for its policies and its conduct (political accountability)
  • government held to account by independent judiciary through principle mechanism of JR (legal accountability)
  • normative discussion of constitutionalism does not take place in UK public law scholarship
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