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.

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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.

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]

Constitutional laws can 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.

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.

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,

"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 second is that all men are to stand equal in the eyes of the law. "...no man is above the law...every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals" [15]

The third is that the general ideas and principles that the constitution supports arise directly from the judgements and precedents issued by the judiciary. "We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution... are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts" [16]

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. [17]

See also

Related Research Articles

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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.

The separation of powers is a representation for the governance of a state. Under this model, a state's government is divided into branches, each with separate, independent powers and responsibilities so that powers of one branch are not in conflict with those of 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 parliamentary and semi-presidential systems, where the executive and legislative branches overlap.

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.

Constitutionality is the condition of acting in accordance with an applicable constitution; the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When one of these directly violates the constitution, it is unconstitutional. All the rest are considered constitutional until challenged and declared otherwise, typically by courts through judicial review.

Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and a straightforward meaning. But in many cases, there is some ambiguity or vagueness in the words of the statute that must be resolved by the judge. To find the meanings of statutes, judges use various tools and methods of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose. In common law jurisdictions, the judiciary may apply rules of statutory interpretation both to legislation enacted by the legislature and to delegated legislation such as administrative agency regulations.

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.

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.

<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.

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Supreme court highest court in a jurisdiction

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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,

Law System of rules and guidelines, generally backed by governmental authority

Law is commonly understood as a system of rules that are created and enforced through social or governmental institutions to regulate conduct, although its precise definition is a matter of longstanding debate. It has been variously described as a science and the art of justice. State-enforced laws can be made by a collective legislature or by a single legislator, resulting in statutes, by the executive through decrees and regulations, or established by judges through precedent, normally in common law jurisdictions. Private individuals can create legally binding contracts, including arbitration agreements that may elect to accept alternative arbitration to the normal court process. The formation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politics, economics, history and society in various ways and serves as a mediator of relations between people.

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 The principles, institutions and law of political governance in the United Kingdom.

The constitution of the United Kingdom is the system of rules that shapes the political governance of the United Kingdom of Great Britain and Northern Ireland. The UK constitution is not contained in a single code, but principles have emerged over the centuries from statute, case law, political conventions and social consensus. In this sense, it can be said that the United Kingdom does not have a constitution or a basic law. In 1215, Magna Carta required the King to call "common counsel" or Parliament, hold courts in a fixed place, guarantee fair trials, guarantee free movement of people, free the church from the state, and enshrined the rights of "common" people to use the land. After the English Civil War and the Glorious Revolution 1688, Parliament won supremacy over the monarch, as well as the church and the courts, and the Bill of Rights 1689 recorded its fundamental unit of right in "Person" and that the "election of members of Parliament ought to be free". The Act of Union 1707 unified England, Wales and Scotland, while Ireland was joined in 1801, but the Republic of Ireland formally separated between 1916 and 1921. By the Representation of the People Act 1928, almost every adult man and woman was finally entitled to vote for Parliament. The UK was a founding member of the International Labour Organization (ILO), the United Nations, the Commonwealth, the Council of Europe and the World Trade Organization (WTO). The principles of Parliamentary sovereignty, the rule of law, democracy, and internationalism guide the UK's modern political system to advance the social and economic development of its people.

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, of which the most important is the United States Constitution, which prescribes the foundation of the federal government of the United States, as well as various civil liberties. 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.

Judicial interpretation refers to different ways that the judiciary uses to interpret the law, particularly constitutional documents and legislation. This is an important issue in some common law jurisdictions such as the United States, Australia and Canada, because the supreme courts of those nations can overturn laws made by their legislatures via a process called judicial review.

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 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. A. V. Dicey, Introduction to the Study of the Law of the Constitution (9th ed, 1945) p.193
  16. A. V. Dicey, Introduction to the Study of the Law of the Constitution (9th ed, 1945) p.195
  17. 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).