Constitutional Law

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Constitutional law 2013

Greg Lowndes

1. Constitutions and Constitutional Law.

a). What is a Constitution?

* The empowering structures of a government that allows them to govern. * Along with the limitation f the power that they can exercise.
* In totalitarian systems of government a Constitution may place far more emphasis on the empowering of organs of the government rather than on the limits of power.

* Emphasis on the democratic constitutionalism

* Government power is defined and limited.
* A written constitution is the legislation which establishes the state itself. * Allocates power, defines relationships between such institutions and people. * The constitution provides for the protection of rights and freedom of the people. * It embodies the hopes and aspirations of the people.

* S v Makwanyane
* Constitutions seek to articulate the shaped aspirations of a nation, the values which bind its people and which discipline its government and national institutions. * SA Constitution has a ringing rejection of the past which was disgracefully racist, authoritarian, insular and repressive. * There is a commitment to a democratic, universalistic caring and a egalitarian ethos. * Therefore: contrast is stark and dramatic.

* Munro’s factors considered when seeking to identify a countries Constitution. * Designation, document that claims to be a constitution. * Usage, regarded as a Constitution.
* Speciality of enactment
* A higher law status, hierarchically superior.
* Source of authority if the principle organs of government. * Contains rules on specified matters. Contains most important rules about the government.
* Constitutions are concerned with the political authority and the exercise of power in a state. * It determines the location, conferment, distribution, exercise and limitation of authority and power among organs of state. * Procedure and substance.

* A countries Constitution is as product of unique history and its contemporary political situation * Therefore: no pre-ordained stereotype.
* Initially Constitutions had an abstract wide definition { principles and ideas according to which a state is governed} * After the American and French revolutions, a concrete and narrow definition was precipitated. * A written document that limits government power.

b). What is Constitutional Law?

* Constitutional Law is part of public law.
* The rules to which the extent of the legislature and how it works, the rules and the authority that it has * The relationship between the Judiciary, Executive and Legislation. * Along with the individuals relationship with the J E L. * Normative rules that determine:

* Principle organs of state
* Composition, powers and duties of J E L
* Relationships between these organs
* Dispute resolution mechanisms
* Relationship between individuals and state
* Civil liberties, when state acts with power.
* The Constitution protects the civil liberties of the people, their human rights.
* Constitutional law is the cornerstone (foundation) of any legal system. * Its rules identify the law making authorities.
* Bill of Rights is a cornerstone of Democracy in South Africa. * It enshrines the rights of all people in SA.
* It affirms the democratic values of Dignity, Equality and Freedom. * Moreover the state is obliged to respect, protect and fulfill these foundational rights. * This enriches the ambit of the Constitutional Law, which now infiltrates every other branch of law in SA.

* Constitutional Law is a product on an historical process * Therefore: it is intertwined with political and legal theory.
* It has a wider hostilic {unfriendly} sense.
* Constitutional Law as a jurisprudential discipline is inescapably...
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