PBL 210
CHAPTER 1: INTRODUCTION TO THE CONCEPT AND THEORY OF
CONSTITUTIONAL LAW
1.1 What is constitutional law and what is the constitution?
Constitutional law:
o founded on the constitution of a state (written/unwritten)
o Constitutional rules also exist in forms of clearly enacted legal
rules or unwritten constitutional understandings or practices
o Linked to political, philosophical, legal theories, political science
and judicial practices.
o Sometimes regarded as having historical value.
o Sets foundation for lawmaking bodies
o Jurisprudential discipline linked to historical circumstances in
which a constitution has either been adapted or adopted.
A constitution:
o assemblage of laws, institutions and customs that were derived
from fixed principles, directed at public good, according to which
the community has agreed to be governed.
o Incorporates various elements of government, division of state
powers into different political units and rules about what power is
wielded, by whom, to what extent, over whom.
o Defined as: that particular system or body of fundamental
principles according to which nation, state or body politic is
constituted or governed, which often also embodies the rights of
the subjects of the state.
o In attorney-general v dow: a written constitution is the legislation
or pact between those placed in power and those that are subject
to such power which establishes the state itself.
o Allocates power
o Defines relationships between:
Gov institutions and citizens
People
o Involves matters of substance and procedure
o Concerned with political authority and exercise of power in a state
o Von abo v president of RSA: the purpose of the constitution:
, Carefully apportions powers, duties and obligations to
organs of state and its functionaries.
Imposes duty on all who exercise public power to be
responsible and accountable and act in accordance with the
law
o Product of a country’s unique historical and contemporary
situation.
Nelson Mandela’s definition of the constitution:
o Speaks both of past and future
o Solemn pact between South African’s that we will not repeat our
racial, brutal and repressive past.
o Charter for transformation so we can all truly share SA as it
belongs to all its people no matter race or gender.
o It can only succeed and endure if it reflects the aspirations of the
people whose destinies it serves.
o Makes more than a moral commitment to the aspirations.
o Binds all institutions of state and all the people to the realization
of the aspirations.
o Constitution, rule of law and democracy are not obstacles to the
transformation but the means through which we will achieve it.
o Commits us to build a nation based on democratic values of
human dignity, equality and freedom through constitutionalism
and rule of law.
o Describes mechanisms and institutions which we have created to
ensure we achieve this.
o Describes path we must all follow.
o It is a living document (Our understanding and requirements of it
will adapt over time).
o Fundamental principles must not change.
o A full understanding of why these principles were adopted is
needed.
Constitution has a broad and narrow application:
o Broad:
Constitution relates to an entire legal system of laws,
customs and conventions in terms of which a state is
created and governed.
o Narrow:
Constitution refers to a legal document that defines and
determines the structures, powers and obligations of all
state bodies that regulates the relationship between
CHAPTER 1: INTRODUCTION TO THE CONCEPT AND THEORY OF
CONSTITUTIONAL LAW
1.1 What is constitutional law and what is the constitution?
Constitutional law:
o founded on the constitution of a state (written/unwritten)
o Constitutional rules also exist in forms of clearly enacted legal
rules or unwritten constitutional understandings or practices
o Linked to political, philosophical, legal theories, political science
and judicial practices.
o Sometimes regarded as having historical value.
o Sets foundation for lawmaking bodies
o Jurisprudential discipline linked to historical circumstances in
which a constitution has either been adapted or adopted.
A constitution:
o assemblage of laws, institutions and customs that were derived
from fixed principles, directed at public good, according to which
the community has agreed to be governed.
o Incorporates various elements of government, division of state
powers into different political units and rules about what power is
wielded, by whom, to what extent, over whom.
o Defined as: that particular system or body of fundamental
principles according to which nation, state or body politic is
constituted or governed, which often also embodies the rights of
the subjects of the state.
o In attorney-general v dow: a written constitution is the legislation
or pact between those placed in power and those that are subject
to such power which establishes the state itself.
o Allocates power
o Defines relationships between:
Gov institutions and citizens
People
o Involves matters of substance and procedure
o Concerned with political authority and exercise of power in a state
o Von abo v president of RSA: the purpose of the constitution:
, Carefully apportions powers, duties and obligations to
organs of state and its functionaries.
Imposes duty on all who exercise public power to be
responsible and accountable and act in accordance with the
law
o Product of a country’s unique historical and contemporary
situation.
Nelson Mandela’s definition of the constitution:
o Speaks both of past and future
o Solemn pact between South African’s that we will not repeat our
racial, brutal and repressive past.
o Charter for transformation so we can all truly share SA as it
belongs to all its people no matter race or gender.
o It can only succeed and endure if it reflects the aspirations of the
people whose destinies it serves.
o Makes more than a moral commitment to the aspirations.
o Binds all institutions of state and all the people to the realization
of the aspirations.
o Constitution, rule of law and democracy are not obstacles to the
transformation but the means through which we will achieve it.
o Commits us to build a nation based on democratic values of
human dignity, equality and freedom through constitutionalism
and rule of law.
o Describes mechanisms and institutions which we have created to
ensure we achieve this.
o Describes path we must all follow.
o It is a living document (Our understanding and requirements of it
will adapt over time).
o Fundamental principles must not change.
o A full understanding of why these principles were adopted is
needed.
Constitution has a broad and narrow application:
o Broad:
Constitution relates to an entire legal system of laws,
customs and conventions in terms of which a state is
created and governed.
o Narrow:
Constitution refers to a legal document that defines and
determines the structures, powers and obligations of all
state bodies that regulates the relationship between
