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102/213c PUBLIC LAW

Lecture No. 1: CONSTITUTIONS – NATURE, PRINCIPLES AND FEATURES

What is a Constitution?

‘the act of people constituting a government’ per T. Paine Rights of Man (1791-92)

‘a body of rules’

‘the identity of a state’

• What is the purpose of a constitution?

• What are the main characteristics of a constitution?

1. What is the Function of a Constitution

(a) THE NEED FOR ORDER AND SECURITY
• Hobbes, Leviathan (1651)
• Locke, Two Treatises of Government (1690)
• Marx, The Communist Manifesto (1848)

(b) THE HOMOGENEITY OF SOCIETY
• Rousseau, The Social Contract (1762)

(c) CITIZENSHIP: THE INCLUSION AND ACCEPTANCE OF INDIVIDUALS: the issue of inclusion and exclusion (d) LEGITIMATION: Who can do what and why

3. Designing a Constitution
(a) ALLOCATING POWER WITHIN A STATE
(b) CONFERRING LEGITIMACY ON STATE INSTITUTIONS
(c) IRREVERSIBILITY
(d) RESPONSIBLE GOVERNMENT
(e) CHECKS AND BALANCES
(f) EFFICIENCY
(g) EXPERIMENTATION

4. The Legal Nature of a Constitution
Distinguish between ‘ordinary law’ and ‘fundamental law(power point) BRB v Pickin [1974] AC 765
Congreve v Home Office [1976] QB 629

Consider H. Kelsen, The Pure Theory of Law (1960)
• the basic norm or ‘grundnorm’

(a) DO CONSTITUTIONAL RULES HAVE A SPECIAL STATUS?
(b) DO CONSTITUTIONS CONFER VALIDITY ON THE LEGAL SYSTEM?

5. Constitutions and the Relationship between Law and Politics (a) THE THEORY OF CONSTITUTIONALISM
(b) GOVERNMENTALITY and the work of Michel Foucault
(c) GOVERNANCE

6. Forms of Constitutions
(a) WRITTEN AND UNWRITTEN (or Codified and Uncodified)
(b) UNITARY AND FEDERAL
(c) MONARCHICAL AND REPUBLICAN
(d) PRESIDENTIAL AND PARLIAMENTARY
(e) DEMOCRATIC AND DICTATORIAL
(f) BILLS OF RIGHTS
7. Features of the British Constitution
• . To what extent does the definition of a constitution, its purpose and characteristics...
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