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 determine the ultimate content of a constitution? • An uncodified constitution • The Rule of Law • The Supremacy of Parliament • The role and nature of Executive Power • An independent Judiciary
8. Reform Bill of Rights Written Constitution
9. The Theory of Constitutionalism
The exercise of power is within the limits defined by Parliament Those who exercise power are accountable to law The exercise of power must entail a respect for the individual and all the rights that citizens will possess Powers conferred on the institutions of the state must be sufficiently dispersed so as to avoid the abuse of power Government, in formulating policy, and Parliament, in passing legislation, are accountable to the electorate on whose trust power is held
• What you think is mean by the term ‘constitutionalism’?
• Does the term ‘constitutionalism’ represent a valid description of the constitutional arrangements of the UK? Explain and justify your answer.
• . Briefly explain the basics of the following theorists and their relevance to the study of constitutional law:
Hobbes-Rousseau-Locke-Kelsen-Foucault
• Have you been able to identify facets of these theorists within the film viewed in the lecture in week 2?
Explain and justify your answer.
• Do the constitutional arrangements of the UK accord with any of the theorists that you have examined as preparation for this seminar? Explain and justify your answer.
Primary Sources
BRB v Pickin [1974] 1 AC 765
Congreve v Home Office [1976] QB 629
A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68
Secondary Sources
All of the following extracts are available on the VLE.
T. HobbesThe Leviathan, Chapter XIV, XVII and XVIII J. Rousseau The Social Contract, Book I Chapter VI, VII, VIII and Book II
J. LockeTwo Treatises of Government, Second Treatise, Chapter II
H. Kelsen General Theory of Law and State, pp 115-118 and 124-128 or Freeman, Lloyds Introduction to Jurisprudence, pp 316–318
P. Rabinow (ed.) The Foucault Reader, pp 14-23
You May Also Find These Documents Helpful
-
i. The Constitution is essentially a political document, carefully created to stand for years to come and to serve as an example of democracy for people around the world.…
- 389 Words
- 2 Pages
Satisfactory Essays -
The UK’s constitution, once revered as the matchless constitution , has come under scrutiny in regards to whether the recent constitutional system that it holds is the best way to govern a country. The definition of a constitution can be stated as a “whole system of government of a country, the collection of rules which establish and regulate or govern the government” .…
- 1201 Words
- 5 Pages
Powerful Essays -
Constitution The ultimate document that gives governments their authority; also serves to limit governmental authority, to protect civil rights, etc. Other laws, judicial decisions and executive actions must be consistent with the applicable constitution or it falls to the courts to strike down (law, decision or action).…
- 700 Words
- 3 Pages
Good Essays -
In this essay, I will be analysing the strengths of the British constitution and comparing it to a codified constitution, I will also discuss its weaknesses and whether ‘extremely strong’ is an exaggeration and it lacks the qualities of a reliable constitution.…
- 861 Words
- 4 Pages
Good Essays -
“The idea that a public sphere to which everyone can contribute on equal terms is simply a fantasy.”…
- 1842 Words
- 8 Pages
Good Essays -
The Constitution organises the institutional life of the state by creating the most important institutions of the State, together with the framework for their effective co-existence. It embodies the concept of “Separation of Powers” by setting out the functions of the 3 organs of the State. It enshrines a Bill of Rights to safeguard basic human rights of the individual in its Chapter II…
- 1176 Words
- 5 Pages
Good Essays -
Will include – details of the key branches of government (their composition and power), protected rights and freedoms, procedure of changing the Constitution…
- 15485 Words
- 62 Pages
Powerful Essays -
Q1 : Five Organizations in Nairobi County and it’s Publics based on categories of Wragg.…
- 470 Words
- 2 Pages
Satisfactory Essays -
The bullet-proof helmet, capable of stopping a 9mm round at close range, contains a mounted flash light, thermal sensors, a night vision capability, a digital compass, video cameras, a computer, nuclear, biological and chemical sensors, and an audio headset. The visor is intended to be integrated and to act as a heads-up display monitor equivalent to two 17-inch computer monitors.…
- 25352 Words
- 102 Pages
Powerful Essays -
What is a constitution and why would a country have one? Coakley and Gallagher (2010:72) state that “Constitutions are important in liberal democracies. They lay down the ground rules about how political power is attained and how it can be exercised, about what governments can and cannot do, and they also set out rights of the citizens”.…
- 1399 Words
- 6 Pages
Better Essays -
Outline the key features of Habermas’ public sphere. Discuss how healthy the public sphere is today, with reference to the forces of commerce and politics.…
- 2044 Words
- 6 Pages
Powerful Essays -
difficulties to define the term constitution as seen in these professors’s work there are some of…
- 7771 Words
- 28 Pages
Powerful Essays -
Throughout English and Anglo- American history, the idea of checking and placing limits on political power became necessary after a history of a central government with too much control. During the 17th and 18th centuries, the English Bill of Rights and Federalist 10 were written in hopes of limiting political authority while still placing sufficient power in the hands of the government to maintain order. While both documents outlined power of the central government, they differed in terms of who’s voices mattered in politics. However, both documents focused on how a strong national legislature served as a check against tyranny.…
- 1349 Words
- 6 Pages
Good Essays -
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed.According to Thomas Paine’s definition towards the term ‘’constitution’’,he describes constitution as an antecedent to government,which is the creature of a constitution,and the constitution is not the act of it’s government,but the people themselves constituting the government.A constitution may be written or unwritten.As for the definition of written constitution,it is a formal document defining the nature of the constitutional settlement,the rules that govern the political system and the rights of citizens and government in a codified form whereas uncodified constitution is a type of constitution where the fundamental rules of government take the form of customs, usage, precedent and a variety of statutes and legal instruments.The examples of written constitution are Malaysia Federal Constitution and American Constitution while examples of unwritten constitution include United Kingdom Constitution,New Zealand Constitution and Israel Constitution.There are differences distinguished between a written and an unwritten constitution.…
- 555 Words
- 3 Pages
Good Essays -
1) We need a constitution because without it the state or country would be in a state of anarchy and also the government will be disorderly…
- 109 Words
- 1 Page
Satisfactory Essays