Constitutional law

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The principles from the French Declaration of the Rights of Man and of the Citizen still have constitutional importance Declaration of Human Rights.jpg
The principles from the French Declaration of the Rights of Man and of the Citizen still have constitutional importance

Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in federal countries such as the United States and Canada, the relationship between the central government and state, provincial, or territorial governments.

State (polity) Organised community living under a system of government; either a sovereign state, constituent state, or federated state

The term state refers to a form of polity, that is typically characterised as a centralized organisation. There is no single, undisputed, definition of what constitutes a state. A widely-used definition is a state being a polity that, within a given territory, maintains a monopoly on the use of force, but many other widely used definitions exist.

The executive is the organ exercising authority in and holding responsibility for the governance of a state. The executive executes and enforces law.

Parliament legislature whose power and function are similar to those dictated by the Westminster system of the United Kingdom

In modern politics and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: representing the electorate, making laws, and overseeing the government via hearings and inquiries.

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Not all nation states have codified constitutions, though all such states have a jus commune , or law of the land, that may consist of a variety of imperative and consensual rules. These may include customary law, conventions, statutory law, judge-made law, or international rules and norms. Constitutional law deals with the fundamental principles by which the government exercises its authority. In some instances, these principles grant specific powers to the government, such as the power to tax and spend for the welfare of the population. Other times, constitutional principles act to place limits on what the government can do, such as prohibiting the arrest of an individual without sufficient cause.

Nation state Political term for a state that is based around a nation

A nation state is a state in which the great majority shares the same culture and is conscious of it. The nation state is an ideal in which cultural boundaries match up with political ones. According to one definition, "a nation state is a sovereign state of which most of its subjects are united also by factors which defined a nation such as language or common descent." It is a more precise concept than "country", since a country does not need to have a predominant ethnic group.

Constitution Set of fundamental principles or established precedents according to which a state or other organization is governed

A constitution is an aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity, and commonly determine how that entity is to be governed.

Jus commune or ius commune is Latin for "common law" in certain jurisdictions. It is often used by civil law jurists to refer to those aspects of the civil law system's invariant legal principles, sometimes called "the law of the land" in English law. While the ius commune was a secure point of reference in continental European legal systems, in England it was not a point of reference at all. The phrase "the common law of the civil law systems" means those underlying laws that create a distinct legal system and are common to all its elements.

In most nations, such as the United States, India, and Singapore, constitutional law is based on the text of a document ratified at the time the nation came into being. Other constitutions, notably that of the United Kingdom, [1] [2] rely heavily on unwritten rules known as constitutional conventions; their status within constitutional law varies, and the terms of conventions are in some cases strongly contested. [3]

United States constitutional law is the body of law governing the interpretation and implementation of the United States Constitution.

Constitution of India Supreme law of India

The Constitution of India is the supreme law of India. The document lays down the framework demarcating fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental rights, directive principles, and the duties of citizens. It is the longest written constitution of any country on earth. B. R. Ambedkar, chairman of the drafting committee, is widely considered to be its chief architect.

Constitution of Singapore Supreme law of Singapore

The Constitution of the Republic of Singapore is the supreme law of Singapore. A written constitution, the text which took effect on 9 August 1965 is derived from the Constitution of the State of Singapore 1963, provisions of the Federal Constitution of Malaysia made applicable to Singapore by the Republic of Singapore Independence Act 1965, and the Republic of Singapore Independence Act itself. The text of the Constitution is one of the legally binding sources of constitutional law in Singapore, the others being judicial interpretations of the Constitution, and certain other statutes. Non-binding sources are influences on constitutional law such as soft law, constitutional conventions, and public international law.

Constitutional laws n be considered second order rule making or rules about making rules to exercise power. It governs the relationships between the judiciary, the legislature and the executive with the bodies under its authority. One of the key tasks of constitutions within this context is to indicate hierarchies and relationships of power. For example, in a unitary state, the constitution will vest ultimate authority in one central administration and legislature, and judiciary, though there is often a delegation of power or authority to local or municipal authorities. When a constitution establishes a federal state, it will identify the several levels of government coexisting with exclusive or shared areas of jurisdiction over lawmaking, application and enforcement. Some federal states, most notably the United States, have separate and parallel federal and state judiciaries, with each having its own hierarchy of courts with a supreme court for each state. India, on the other hand, has one judiciary divided into district courts, high courts, and the Supreme Court of India.

Unitary state state governed as a single unit with a supreme central government

A unitary state is a state governed as a single power in which the central government is ultimately supreme. The central government may create administrative divisions. Such units exercise only the powers that the central government chooses to delegate. Although political power may be delegated through devolution to local governments by statute, the central government may abrogate the acts of devolved governments or curtail their powers. A large majority of the world's states have a unitary system of government.

A legislature is a deliberative assembly with the authority to make laws for a political entity such as a country or city. Legislatures form important parts of most governments; in the separation of powers model, they are often contrasted with the executive and judicial branches of government.

The judiciary is the system of courts that interprets and applies the law in a country, state or an international community. The first legal systems of the world were set up to allow citizens to settle conflicts without violence.

Human rights

Human rights or civil liberties form a crucial part of a country's constitution and uphold the rights of the individual against the state. Most jurisdictions, like the United States and France, have a codified constitution, with a bill of rights. A recent example is the Charter of Fundamental Rights of the European Union which was intended to be included in the Treaty establishing a Constitution for Europe, that failed to be ratified. Perhaps the most important example is the Universal Declaration of Human Rights under the UN Charter. These are intended to ensure basic political, social and economic standards that a nation state, or intergovernmental body is obliged to provide to its citizens but many do include its governments.

Civil liberties or personal freedoms are personal guarantees and freedoms that the government cannot abridge, either by law or by judicial interpretation, without due process. Though the scope of the term differs between countries, civil liberties may include the freedom of conscience, freedom of press, freedom of religion, freedom of expression, freedom of assembly, the right to security and liberty, freedom of speech, the right to privacy, the right to equal treatment under the law and due process, the right to a fair trial, and the right to life. Other civil liberties include the right to own property, the right to defend oneself, and the right to bodily integrity. Within the distinctions between civil liberties and other types of liberty, distinctions exist between positive liberty/positive rights and negative liberty/negative rights.

France Republic with majority of territory in Europe and numerous oversea territories around the world

France, officially the French Republic, is a sovereign state whose territory consists of metropolitan France in Western Europe and several overseas regions and territories. The metropolitan area of France extends from the Mediterranean Sea to the English Channel and the North Sea, and from the Rhine to the Atlantic Ocean. It is bordered by Belgium, Luxembourg and Germany to the northeast, Switzerland and Italy to the east, and Andorra and Spain to the south. The overseas territories include French Guiana in South America and several islands in the Atlantic, Pacific and Indian oceans. The country's 18 integral regions span a combined area of 643,801 square kilometres (248,573 sq mi) and a total population of 67.0 million. France is a unitary semi-presidential republic with its capital in Paris, the country's largest city and main cultural and commercial centre. Other major urban areas include Lyon, Marseille, Toulouse, Bordeaux, Lille and Nice.

Bill of rights Proclamation of fundamental rights to citizens of a polity

A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and private citizens.

Some countries like the United Kingdom have no entrenched document setting out fundamental rights; in those jurisdictions the constitution is composed of statute, case law and convention. A case named Entick v. Carrington [4] is a constitutional principle deriving from the common law. John Entick's house was searched and ransacked by Sherriff Carrington. Carrington argued that a warrant from a Government minister, the Earl of Halifax was valid authority, even though there was no statutory provision or court order for it. The court, led by Lord Camden stated that,

United Kingdom Country in Europe

The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a sovereign country located off the north-western coast of the European mainland. The United Kingdom includes the island of Great Britain, the north-eastern part of the island of Ireland, and many smaller islands. Northern Ireland is the only part of the United Kingdom that shares a land border with another sovereign state, the Republic of Ireland. Apart from this land border, the United Kingdom is surrounded by the Atlantic Ocean, with the North Sea to the east, the English Channel to the south and the Celtic Sea to the south-west, giving it the 12th-longest coastline in the world. The Irish Sea lies between Great Britain and Ireland. The United Kingdom's 242,500 square kilometres (93,600 sq mi) were home to an estimated 66.0 million inhabitants in 2017.

Statute Formal written document that creates law

A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by legislative bodies; they are distinguished from case law or precedent, which is decided by courts, and regulations issued by government agencies.

Case law is the collected body of decisions written by courts and similar tribunals in the course of deciding past cases, in which the tribunals analyzed the law to resolve ambiguities and fill gaps to set principled rules for deciding those past cases. These past decisions are called "case law", or precedent to the extent that those past decisions are used by future judges to decide future cases. Stare decisis—a Latin phrase meaning “let the decision stand”—is the principle by which judges are bound to such past decisions. These judicial interpretations are distinguished from statutory law, which are codes enacted by legislative bodies, and regulatory law, which are established by executive agencies based on statutes. In some jurisdictions, case law can be applied to ongoing adjudication; for example, criminal proceedings or family law.

"The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. By the laws of England, every invasion of private property, be it ever so minute, is a trespass... If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment." [5]

The common law and the civil law jurisdictions do not share the same constitutional law underpinnings. Common law nations, such as those in the Commonwealth as well as the United States, derive their legal systems from that of the United Kingdom, and as such place emphasis on judicial precedent, [6] [7] [8] [9] whereby consequential court rulings (especially those by higher courts) are a source of law. Civil law jurisdictions, on the other hand, place less emphasis on judicial review and only the parliament or legislature has the power to effect law. As a result, the structure of the judiciary differs significantly between the two, with common law judiciaries being adversarial and civil law judiciaries being inquisitorial. Common law judicatures consequently separate the judiciary from the prosecution, [10] [11] [12] thereby establishing the courts as completely independent from both the legislature and law enforcement. Human rights law in these countries is as a result, largely built on legal precedent in the courts' interpretation of constitutional law, whereas that of civil law countries is almost exclusively composed of codified law, constitutional or otherwise.

Legislative procedure

Another main function of constitutions may be to describe the procedure by which parliaments may legislate. For instance, special majorities may be required to alter the constitution. In bicameral legislatures, there may be a process laid out for second or third readings of bills before a new law can enter into force. Alternatively, there may further be requirements for maximum terms that a government can keep power before holding an election.

Study of constitutional law

Constitutional law is a major focus of legal studies and research. For example, most law students in the United States are required to take a class in Constitutional Law during their first year, and several law journals are devoted to the discussion of constitutional issues.

The rule of law

The doctrine of the rule of law dictates that government must be conducted according to law. This was first established by British legal theorist A. V. Dicey.

Dicey identified three essential elements of the British Constitution which were indicative of the rule of law:

  1. Absolute supremacy of regular law as opposed to the influence of arbitrary power; [13]
  2. Equality before the law;
  3. The Constitution is a result of the ordinary law of the land.

Dicey’s rule of law formula consists of three classic tenets. The first is that the regular law is supreme over arbitrary and discretionary powers. "[N]o man is punishable ... except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts of the land." [14]

The separation of powers

The Separation of Powers is often regarded as a second limb functioning alongside the Rule of Law to curb the powers of the Government. In many modern nation states, power is divided and vested into three branches of government: The Legislature, the Executive and the Judiciary. The first and the second are harmonised in traditional Westminster forms of government. [15]

See also

Related Research Articles

The separation of powers is a model for the governance of a state. Under this model, a state's government is divided into branches, each with separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches. The typical division is into three branches: a legislature, an executive, and a judiciary, which is the trias politica model. It can be contrasted with the fusion of powers in some parliamentary systems where the executive and legislative branches overlap.

English law Legal system of England and Wales

English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.

The Canadian legal system has its foundation in the English common law system, inherited from being a former colony of the United Kingdom and later a Commonwealth Realm member of the Commonwealth of Nations. The legal system is bi-jurisdictional, as the responsibilities of public and private law are separated and exercised exclusively by Parliament and the provinces respectively. Quebec, however, still retains a civil system for issues of private law.

The law of Australia comprises many levels of codified and uncodified forms of law. These include the Australian Constitution, legislation enacted by the Federal Parliament and the parliaments of the States and territories of Australia, regulations promulgated by the Executive, and the common law of Australia arising from the decisions of judges.

The law of Germany, that being the modern German legal system, is a system of civil law which is founded on the principles laid out by the Basic Law for the Federal Republic of Germany, though many of the most important laws, for example most regulations of the civil code were developed prior to the 1949 constitution. It is composed of public law, which regulates the relations between a citizen/person and the state or two bodies of the state and the private law (Privatrecht) which regulates the relations between two people or companies. It has been subject to a wide array of influences from Roman law, such as the Corpus Juris Civilis, to Napoleonic law, such as the Napoleonic Code.

<i>Entick v Carrington</i>

Entick v Carrington [1765] EWHC KB J98 is a leading case in English law and UK constitutional law establishing the civil liberties of individuals and limiting the scope of executive power. The case has also been influential in other common law jurisdictions and was an important motivation for the Fourth Amendment to the United States Constitution. It is famous for the dictum of Lord Camden: "If it is law, it will be found in our books. If it not to be found there, it is not law."

Australian administrative law defines the extent of the powers and responsibilities held by administrative agencies of Australian governments. It is basically a common law system, with an increasing statutory overlay that has shifted its focus toward codified judicial review and to tribunals with extensive jurisdiction.

Judicial review in the United States Ability of a court in the US to examine laws to determine if it contradicts current laws

In the United States, judicial review is the ability of a court to examine and decide if a statute, treaty or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or ultimately the United States Constitution. While the U.S. Constitution does not explicitly define a power of judicial review, the authority for judicial review in the United States has been inferred from the structure, provisions, and history of the Constitution.

The supreme court is the highest court within the hierarchy of courts in many legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and highcourt of appeal. Broadly speaking, the decisions of a supreme court are not subject to further review by any other court. Supreme courts typically function primarily as appellate courts, hearing appeals from decisions of lower trial courts, or from intermediate-level appellate courts.

Sources of law are the origins of laws, the binding rules that enable any state to govern its territory.

Law of California The law of California consists of several levels, including constitutional, statutory, and regulatory law, as well as case law. The California Codes form the general statutory law.

The law of California consists of several levels, including constitutional, statutory, and regulatory law, as well as case law. The California Codes form the general statutory law.

Judicial review is a process under which executive or legislative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompatible with a higher authority: an executive decision may be invalidated for being unlawful or a statute may be invalidated for violating the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries.

Constitution of the United Kingdom Set of laws and principles under which the United Kingdom is governed

As opposed to the majority of countries in the world, the United Kingdom does not have a codified constitution. Instead of such a constitution, certain documents stand to serve as replacements in lieu of one. These texts and their provisions therein are considered to be constitutional, such that the "constitution of the United Kingdom" or "British constitution" may refer to a number of historical and momentous laws and principles like the Acts of Union 1707 and the Acts of Union 1800 which formulate the country's body politic. Thus the term "UK constitution" is sometimes said to refer to an "unwritten" or uncodified constitution. The British constitution primarily draws from four sources: statute law, common law, parliamentary conventions, and works of authority. Similar to a constitutional document, it also concerns both the relationship between the individual and the state and the functioning of the legislature, the executive, and the judiciary.

Law of the United States Overview of United States law

The law of the United States comprises many levels of codified and uncodified forms of law, the supreme of which is the United States Constitution, the foundation of the federal government of the United States. The Constitution sets out the boundaries of federal law, which consists of Acts of Congress, treaties ratified by the Senate, regulations promulgated by the executive branch, and case law originating from the federal judiciary. The United States Code is the official compilation and codification of general and permanent federal statutory law.

The royal prerogative is a body of customary authority, privilege, and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy, as belonging to the sovereign and which have become widely vested in the government. It is the means by which some of the executive powers of government, possessed by and vested in a monarch with regard to the process of governance of the state, are carried out.

The conception of the separation of powers has been applied to the United Kingdom and the nature of its executive, judicial and legislative functions. Historically, the apparent merger of the executive and the legislature, with a powerful Prime Minister drawn from the largest party in parliament and usually with a safe majority, led theorists to contend that the separation of powers is not applicable to the United Kingdom. However, in recent years it does seem to have been adopted as a necessary part of the UK constitution.

The rule of law is one of the longest established common law fundamental principles of the governance of the United Kingdom, dating to Magna Carta of 1215, particularly jurisprudence following its late 13th century re-drafting. It as a minimum subjects an otherwise absolute monarch (executive) and all free people within its jurisdictions, primarily those of England and Wales, Scotland and Northern Ireland to legal doctrines known as the general principles of law. It has evolved to work only alongside equal application of the law to all free people 'equality before the law' and within the framework of the constitutional monarchy supports the legal doctrine of parliamentary sovereignty. Exactly what it entails beyond this and the way that different aspects of the rule of law principle are applied, depends on the specific situation and era.

Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over all other government institutions, including executive or judicial bodies. It also holds that the legislative body may change or repeal any previous legislation and so it is not bound by written law or by precedent.

References

  1. Blick, Andrew; Blackburn, Robert (2012), Mapping the Path to Codifying - or not Codifying - the UK's Constitution, Series paper 2. Centre for Political and Constitutional Studies, King’s College London, Parliament UK, retrieved 19 November 2016
  2. H Barnett, Constitutional and Administrative Law (5th edn Cavendish 2005) 9, "A written constitution is one contained within a single document or a [finite] series of documents, with or without amendments"
  3. Markwell, Donald (2016). Constitutional Conventions and the Headship of State: Australian Experience. Connor Court. ISBN   9781925501155.
  4. Entick v. Carrington (1765) 19 Howell's State Trials 1030
  5. "Entick v. Carrington". 19 Howell’s State Trials 1029 (1765). United States: Constitution Society. Retrieved 2008-11-13.
  6. Garner, Bryan A. (2001). A Dictionary of Modern Legal Usage (2nd, revised ed.). New York: Oxford University Press. p. 177. In modern usage, common law is contrasted with a number of other terms. First, in denoting the body of judge-made law based on that developed in England… [P]erhaps most commonly within Anglo-American jurisdictions, common law is contrasted with statutory law ...
  7. Black's Law Dictionary - Common law (10th ed.). 2014. p. 334. 1. The body of law derived from judicial decisions, rather than from statutes or constitutions; CASE LAW [contrast to] STATUTORY LAW.
  8. Lloyd Duhaime. "Common Law Legal Definition". duhaime.org. Judge-declared law. ...
  9. Washington Probate, "Estate Planning & Probate Glossary", Washington (State) Probate, s.v. "common" Archived 2017-05-25 at Archive-It , 8 Dec. 2008:, retrieved 7 November 2009."1. A law based on a prior court decision"
  10. Hale, Sandra Beatriz (July 2004). The Discourse of Court Interpreting: Discourse Practices of the Law, the Witness and the Interpreter. John Benjamins. p. 31. ISBN   978-1-58811-517-1.
  11. Richards, Edward P.; Katharine C. Rathbun (1999-08-15). Medical Care Law. Jones & Bartlett. p. 6. ISBN   978-0-8342-1603-7.
  12. Care, Jennifer Corrin (2004-01-12). Civil Procedure and Courts in the South Pacific. Routledge Cavendish. p. 3. ISBN   978-1-85941-719-5.
  13. A. V. Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 10th ed, 1959) p.202
  14. A. V. Dicey, Introduction to the Study of the Law of the Constitution (10th ed, 1959) p.188
  15. W B Gwyn, The Meaning of the Separation of Powers: An Analysis of the doctrine from Its Origin to the Adoption of the United States Constitution, Tulane University (1965).