- Created by: Majid
- Created on: 04-12-13 14:44
Constitutions and Constitutional Law (1)
Significance of Law: Some human relationships are regulated by law and there can be many weaknesses to this. Human nature has many imperfections, but this shouldn't be a reason for us to completely discard the law. This is because the Law is a necessary tool for social needs.
Constitutional Law is concerned with: The role and powers of the State of the institutions within the State [Queen; The Executive (government); Parliament; Judiciary]. (e.g. of a horizontal relationship). The relationship between the citizens and the State. (e.g. of a vertical relationship).
The consitution is a framework of rules which dictate the way in which power is divided between the various parts of the state and the relationship between the state and the individual.
What does Constitution mean?
Narrow meaning: Its a document (or sets of docs) that have special legal sanctity which sets out the framework and the principal functions of the Government within the State and declares what principles must operate.
Wider meaning: Its the whole system of government of a country and the collection of rules that establish/regulate and govern the government.
What is a constitution? Its essentially a system of rules. The constitution of a country sets out how the power is held by the State and how that power relates to the citizen.
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Does the UK have a constitution?
From a narrow perspective: The UK does NOT have a 'Constitution' as it is idiosyncratic (messy) in Europe and almost unique to any other country.
From a wider perspective: Yes The UK does have a 'Constitution'. The UK does have a complex and comprehensive system of Government. It has a constitution, even though it isn't a written (codified) document. (It's uncodified i.e. unwritten).
In fact, in most other countries this system of rules is contained in a single document which is called 'the constitution' and this illustrates that there are two ways in which the term 'constitution' may be interpreted: (1) As a system of rules ('abstract' term); (2) A piece of paper which sets out that system of rules ('concrete' term). This is an important distinction when comparing the unwritten constitution of the UK with other countries (such as the USA) which has a written constitution.
What are the main sources of the British constitution?
- Acts of Parliament
- Judicial decisions
- Constiutional Conventions
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In order to understand the British Constitution, other disciplines will be taken into account:
- Political Science
Written (codified): Almost every country (apart from the UK), has a written constitution, which contain the main rules governing the power of the state and the relationship between the state and the individual in a single document. For the citizens of that country, the constitution is an enormously important document because it prevents the state from abusing its powes and safeguards the right of the individual.
Its a single document (or sets of docs) with or without any amendments and it defines the basic rules of the State. It aims to highlight a fresh constitutional start and historically they follow after (on many occasions) after a revolution has happened (or even through a dictatorship) etc.
Written (codified c's) are the Fundamental Laws of these particular countries. In these states, there's a Highest Constitutional Court which focuses on the compatibility of the remaining legal framework with the Fundamental Law or Norma Normarum. It may declare the unconstitutional nature of a piece of legislation
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Changing a written constitution: The procedure to amend a written (codified) constituion is complex and time-consuming. This is because in order to protect the citizen against the state, the constitution has to be strong (otherwise the gov't will simply change it) but if its too strong, then it can't be amended to reflect the changes in society. e.g. the original US Constitution included the right to own slaves, which was later abolished after many people recognised this as being unacceptable. This requires a delicate balance between a constitution which is rigid and entrenched and one which is sufficiently flexible in order to reflect the changes in society.
Key provisions of the US Constitution: Article 1 = Legislature; Article 2 = Executive; Article 3 = Judiciary; Article 4 = provides that all states must honour the laws of the other states; Article 5 = Outlines the procedure for amending the constitution. It can also be noted that many written constitutions are produced after a revolution, where the citizens rise up against what they see as an oppressive state. In this way the US Constitution was written after the War of Independence from Britain, and the French Constitution was produced after the French Revolution. In fact, whilst most countries have a written constitution, the UK isn't the only country without such a document. Both New Zealand and Isreal have unwritten constitutions.
Unwritten (uncodified c's): There isn't a fundamental law. There are historical reasons which explain it i.e. the absence of violent changes and generally speaking, a peaceful historical evolution. By contrast, countries such as the UK who have an unwritten constitution (no single document) that sets out the power relationships within the state, we do instead have many sources (i.e. written/unwritten) which combine both aspects of rules regulating the state.
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Rigid/Flexible: It refers to whether or not a Constitution can be amended with ease.
Entrenchment: It either prevents or makes amendments or repeals difficult. The US constitution is an example of an entrenched constitution, and the UK constitution is an example of a constitution that is not entrenched (or codified). In some states the text of the constitution may be changed; in others the original text is not changed, and amendments are passed which add to and may override the original text and earlier amendments.
Can we identify written and rigid as opposed to unwritten and flexible? It can be a good response in principle, but isn't accurate. In fact, there are written (codified) constitutions which can be flexible to an extent. Although unwritten (uncodified) constitutions are flexible, there may be significant limits to this flexibility.
Federal: There is a division of powers between the central government and the individual states or provinces which make up the federation. Infact in some countries, state powers are divided into those exercised by the states or regions. This results in a 'federal' constitution. E.g. in the USA, central government (aka 'federal gov't) retains the most important powers relating to matters such as defence, whereas the individual 'states' have powers on a local level and have their own constitutional status.Unitary: The powers are vested in central government. Local gov't may exist but not with the constitutional status of the states under a federal constitution. By way of contrast, the UK has a 'unitary constitution' where all power resides in the central state institutions. We do have a local government, in the form of local councils, but these can be altered (or abolished) by the central government at any time.
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Separated Powers: Different functions must be exercised by different institutions. It aims to avoid concentration of powers. Fused Powers: Concentration of powers within the same institutions.
Monarchy: A constitution with an elected president as the head of state who exercises power in the name od the state. Under a 'monarchical' constitution, the head of the state is a King or Queen and state powers are exercised in their name. In this way, although the majority of power in the UK now resides with Parliament and the government, the Queen remains the head of the state.
Republic: A constitution with an elected president as the head of state who exercises power in the name of the state. By contrast, a 'republican' constitution has at its head of state a president, who has far more power than the current Queen. Such powers are justified on the basis that the president is elected and so accountable to the people, unlike a monarch, who is head of state simply by birth.
Rights and the Constitution: One of the most important aspects of a written constitution is that it provides protection for individual rights. For example, the US constitution specifically lists a number of rights as amendments to the constitution (e.g. the First Amendment - the right to freedom of speech). Such rights can't be taken away from the state. Under a written constitution, the state can take away individual rights because they aren't protected by the constitution. It should be noted however, that although the unwritten nature of the UK Constitution doesn't protect rights, we now have the European Convention on Human Rights, as implemented by the Human Rights Act 1998, which does provide greater protction for certain rights.
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Religious: There is one or more official faith in the State. Secular: Public authorities do not have, in principle, relationships with religious bodies and no faith is official.
Characteristics of the UK Constitution:
-Partially written/unwritten: Is the UK's constitution becoming more written in recent years?
-Flexible: Broadly speaking, it is flexible, but there are restrictions which may not be legal, but can be political, economic etc.
-Unitary: However, some powers have been devolved to different regional/national institutions (e.g. the Scottish Parliament).
-Separation of Powers: However, this is arguable in the British model
Could the UK ever have a written constitution? Demands for a written constitution in the UK aren't new and regularly appear in the press and in Parliament. It should be recognised, however, that producing such a document would be an enormous task which would be sure to encounter fierce opposition from those who value the unique flexibility of the current system. Any attempt to agree the wording of a written constitution would be certain to strain relations between Conservatives and Liberal Democrats within the current coalition government, as evidenced by the recent discussions over the future of the Human Rights Act 1998. For this reason, and given the curren economic crises facing the gov't, it may well be assumed there are more pressing problems to be addressed.
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- All key provisions are contained within a single document
- It provides a clear statement of how the state should operate with no uncertainty over words. Everyone can read and agree what it says.
- Protects the individual from abuses by the government of the day
- Provides clear protection of individual rights.
- Require one document to encompass the regulation of the entire constitution
- May lead to litigation over the precise meanings over the precise meanings of the terms used, particularly if the language is outdated
- May be difficult to amend if the provisions become outdated (e.g. the USA and slavery)
- May be inflexible and unresponsive to change.
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-Flexible and responsve to changing circumstances
-Leaves the state free to develop the law for the benefit of the citizens
-Encourages the evolution of the constitution
-Can appear vague and uncertain. No single agreed source of constitutional law.
-Leaves the statefree to abuse its powers and develop the laws which act against its citizens.
-Provides no protection for individual civil liberties.
Public Law: Constitutional/Admin Law: It isn't a clear distinction, precisely because of the absence of a written (codified) constituion in the UK.
Constitutional: It's mainly concerned with the structure of the primary organs of Government
Administrative: It deals with the work of official agencies in providing services and in regulating the activities of citizens.