CSL2601
SUMMARY
BY ARIA
THE LAW TUTOR
, 1
CLS cc
Constitutional Law Summary
CONSTITUTIONAL LAW SUMMARY
SOURCES AND DEFINITIONS
Binding sources
1. The constitution
2. Legislation
3. Common law
4. Case law
5. International law
Constitutionalism: a government in accordance with the constitution,
the government gets its power from and is bound by the constitution
Constitutional law: is the sum total of binding rules relating to the
distribution and exercise of state authority. The rules of constitutional
law define the relationship between organs of state and between
organs of state and individuals
The dividing line between public and private law has become blurred:
1. The state has become involved in private relationships –
employer and employee, landlord and tenant and husband and
wife.
2. The constitution states that private relationships are often
unequal – bill of rights apply to private relationships
3. Public functions have become increasingly privatized – Telkom
and Transnet
What makes our government different from the previous
dispensation is:
• The fact that we have an inflexible constitution
• Our constitution is supreme
• We apply certain aspects of the rule of law
• We are both a formal and material rechstaat
• We are a democratic state
• Constitutional democracy
• Separation of powers limits the power of government
Flexible constitution: enjoys the Inflexible constitution: enjoys
same status as the other laws of superior status to the ordinary
the country and requires no laws of the land and require a
special procedure for amendment special amendment procedure.
e.g. SA constitution of 1961 E.g. SA 1996 constitution
S74:
Critical Law Studies cc ©
, 2
CLS cc
Constitutional Law Summary
Supreme constitution Not supreme:
Ranks above all other laws in a Doesn’t enjoy any special status
state = Any law which is The legislature can pass laws,
inconsistent with it will be which are inconsistent with the
declared invalid constitution. The courts cant
E.g. SA 1996 constitution question the validity of such laws,
provided the correct procedure
has been complied with
E.g. Britain
Autochthonous and allochthonous constitutions
Autochthonous: are said to be indigenous and allochthonous are
borrowed constitutions.
Van der Vyver said there are 3 kinds of constitutions:
1. Reactive constitution: which was the result of specific problems
in the past and which seeks to resolve those problems =
indigenous
2. There are constitutions which are intended to maintain the
continuity with established norms in legal tradition of the
society concerned – indigenous
3. Superimposed constitutions: the contents of the constitution
are unrelated to the history of the country concerned
State:
1. Geographically defines territory
2. Community of people who live on the territory
3. A legal order
4. An organized system of government to uphold legal order
5. Separate political identity
The rule of law
1. The absence of arbitrary power: no one is above the law and no
one is punishable except for a distinct breach of the law
2. Equality before the law: every individual is subject to the
ordinary law and the jurisdiction of the ordinary courts.
3. A judge made constitution
Critical Law Studies cc ©
, 3
CLS cc
Constitutional Law Summary
The Rechstaat principle
Refers to a government by law and not by force.
Formal rechstaat: requires Material Rechstaat: the state
compliance with: authority is bound by higher legal
1. Due process values, which are embodied in the
2. Separation of powers constitution.
3. Legal certainty
Constitutional mechanisms to limit the powers of the
government:
1. Bill of rights
2. The constitution is subject to judicial review
3. Democratic elections of representatives to parliament
4. Collective and individual responsibility of cabinet to parliament
5. Separation of powers between the legislature, executive and
judiciary
6. An independent judiciary
7. The demarcation between the national and provincial spheres of
government
DEMOCRACY:
S1 of the constitution proclaims that SA is a democratic state
GOVERNMENT BY THE PEOPLE
Democracy is derives from ancient Greek words demos (the people)
and Kratos (strength) – this implies that a democracy is a government
by the people.
Direct democracy: Representative democracy: the
Means that all the major political citizens of the state elect a
decisions are made by the people representative and then the
themselves – may work in a small representative exercises their
community where the people can wishes. All the inhabitants of the
meet on a regular basis and state should via direct
decide matters representation have a say in
which the state is governed –
usually be being represented in
the legislature. It’s created by
elections, which need to be held
at regular intervals.
Criticisms of direct democracy:
§ The people cant be said to govern in any real sense if they go to
the polls once every 4 or 5 years to elect representatives who are
free to govern as they see fit
Critical Law Studies cc ©
SUMMARY
BY ARIA
THE LAW TUTOR
, 1
CLS cc
Constitutional Law Summary
CONSTITUTIONAL LAW SUMMARY
SOURCES AND DEFINITIONS
Binding sources
1. The constitution
2. Legislation
3. Common law
4. Case law
5. International law
Constitutionalism: a government in accordance with the constitution,
the government gets its power from and is bound by the constitution
Constitutional law: is the sum total of binding rules relating to the
distribution and exercise of state authority. The rules of constitutional
law define the relationship between organs of state and between
organs of state and individuals
The dividing line between public and private law has become blurred:
1. The state has become involved in private relationships –
employer and employee, landlord and tenant and husband and
wife.
2. The constitution states that private relationships are often
unequal – bill of rights apply to private relationships
3. Public functions have become increasingly privatized – Telkom
and Transnet
What makes our government different from the previous
dispensation is:
• The fact that we have an inflexible constitution
• Our constitution is supreme
• We apply certain aspects of the rule of law
• We are both a formal and material rechstaat
• We are a democratic state
• Constitutional democracy
• Separation of powers limits the power of government
Flexible constitution: enjoys the Inflexible constitution: enjoys
same status as the other laws of superior status to the ordinary
the country and requires no laws of the land and require a
special procedure for amendment special amendment procedure.
e.g. SA constitution of 1961 E.g. SA 1996 constitution
S74:
Critical Law Studies cc ©
, 2
CLS cc
Constitutional Law Summary
Supreme constitution Not supreme:
Ranks above all other laws in a Doesn’t enjoy any special status
state = Any law which is The legislature can pass laws,
inconsistent with it will be which are inconsistent with the
declared invalid constitution. The courts cant
E.g. SA 1996 constitution question the validity of such laws,
provided the correct procedure
has been complied with
E.g. Britain
Autochthonous and allochthonous constitutions
Autochthonous: are said to be indigenous and allochthonous are
borrowed constitutions.
Van der Vyver said there are 3 kinds of constitutions:
1. Reactive constitution: which was the result of specific problems
in the past and which seeks to resolve those problems =
indigenous
2. There are constitutions which are intended to maintain the
continuity with established norms in legal tradition of the
society concerned – indigenous
3. Superimposed constitutions: the contents of the constitution
are unrelated to the history of the country concerned
State:
1. Geographically defines territory
2. Community of people who live on the territory
3. A legal order
4. An organized system of government to uphold legal order
5. Separate political identity
The rule of law
1. The absence of arbitrary power: no one is above the law and no
one is punishable except for a distinct breach of the law
2. Equality before the law: every individual is subject to the
ordinary law and the jurisdiction of the ordinary courts.
3. A judge made constitution
Critical Law Studies cc ©
, 3
CLS cc
Constitutional Law Summary
The Rechstaat principle
Refers to a government by law and not by force.
Formal rechstaat: requires Material Rechstaat: the state
compliance with: authority is bound by higher legal
1. Due process values, which are embodied in the
2. Separation of powers constitution.
3. Legal certainty
Constitutional mechanisms to limit the powers of the
government:
1. Bill of rights
2. The constitution is subject to judicial review
3. Democratic elections of representatives to parliament
4. Collective and individual responsibility of cabinet to parliament
5. Separation of powers between the legislature, executive and
judiciary
6. An independent judiciary
7. The demarcation between the national and provincial spheres of
government
DEMOCRACY:
S1 of the constitution proclaims that SA is a democratic state
GOVERNMENT BY THE PEOPLE
Democracy is derives from ancient Greek words demos (the people)
and Kratos (strength) – this implies that a democracy is a government
by the people.
Direct democracy: Representative democracy: the
Means that all the major political citizens of the state elect a
decisions are made by the people representative and then the
themselves – may work in a small representative exercises their
community where the people can wishes. All the inhabitants of the
meet on a regular basis and state should via direct
decide matters representation have a say in
which the state is governed –
usually be being represented in
the legislature. It’s created by
elections, which need to be held
at regular intervals.
Criticisms of direct democracy:
§ The people cant be said to govern in any real sense if they go to
the polls once every 4 or 5 years to elect representatives who are
free to govern as they see fit
Critical Law Studies cc ©
