Public Law Lecture two - What is a constitution?
“ A body of rules, conventions and practices which describe, regulate or qualify the organisation of powers and
operation of government and the relations between (individuals) and public authorities
- Turpin & tomkins
What is a constitution?
- The word constitution is descriptive and not normative
Descriptive statement
- Factual
- Descriptive
- Verifiable
- True or false
Normative statement
- Ideal
- Prescriptive
- Justifiable
- May say that something is better or worse
- Question of judgement
What is a constitution?
- Away from politics, when do constitutions exist?
- Sports clubs, social clubs
- Committee that makes decisions
- Elected by members
- Individual people appointed to specific posts
- Mooting society?
“The word constitution is commonly used in at least two senses in ordinary discussion of political affairs. First of all, it is
used to describe the whole system of government, the collection of rules which establish and regulate it. These rules are
partly legal and partly non legal. When we speak of the british constitution that is the normal, if not the only possible
meaning of the word has. Everywhere else it is used in the sense of legal rules embodied in the one document
- KC wheare, in modern constitutions
2 constitutions described
- Can be a written document
- Constitution can be the rules
- Written or unwritten
- Formal or informal
- Fair or unfair
- Democratic or undemocratic
- Which relate to the relationship between the government and the people and the different institutions of
government
Many different types of constitutions
- Written v unwritten
- Rigid v flexible
- Supreme v subordinate
, - Federal v unitary
- Separated powers v fused powers
- Republican v Monarchial
Written or unwritten
- Codified or uncodified
- Codified means that the constitutional rules are located mainly in one place
- Codified constitutions
- USA/ france, germany
- USA
- Article 1 - congress
- Article 2 - the president
- Article 3 - courts
When do people write constitutions?
- When they gain independence from a colonial ruler
Australia (1901)
- Revolution
France (1788-9/ 1870/ 1946/ 1958)
- Overthrow of a dictator
Iraq (2005)
Spain (1978)
- Separation from an existing state
South sudan (2011)
- The document that unifies and forms the basis the state;
“ we the people”
What is included in constitutions?
- Literally anything could be included
- Austrian constitution, Article 8 (A); 2
“The federal Coat of Arms consists of an unfettered single-headed, black, gilt-armed and red-tongued eagle on whose
breast is imposed a red shield intersected by a silver crosspiece. On its head, the eagle bears a mural crown with three
visible merlons. A sundered iron chain rings both talons. The right holds a golden sickle with inward turned blade, the
left a golden hammer.”
- More usually the constitution will outline;
- The head of state
- The legislature
- The role of the courts
- Establish the government
How to change the constitution;
- Perhaps by holding a referendum and / or requiring a special majority in the legislature
Often legislation incompatible with the constitution is struck down by the courts
Each codified constitution is very different.
Unwritten or codified constitutions
- The UK
- No legal document which sets out the most basic and fundamental rules of the constitution
- Why?
- The constitution is not in one place; instead
- Acts of parliament, deal with constitutional issues;
“ A body of rules, conventions and practices which describe, regulate or qualify the organisation of powers and
operation of government and the relations between (individuals) and public authorities
- Turpin & tomkins
What is a constitution?
- The word constitution is descriptive and not normative
Descriptive statement
- Factual
- Descriptive
- Verifiable
- True or false
Normative statement
- Ideal
- Prescriptive
- Justifiable
- May say that something is better or worse
- Question of judgement
What is a constitution?
- Away from politics, when do constitutions exist?
- Sports clubs, social clubs
- Committee that makes decisions
- Elected by members
- Individual people appointed to specific posts
- Mooting society?
“The word constitution is commonly used in at least two senses in ordinary discussion of political affairs. First of all, it is
used to describe the whole system of government, the collection of rules which establish and regulate it. These rules are
partly legal and partly non legal. When we speak of the british constitution that is the normal, if not the only possible
meaning of the word has. Everywhere else it is used in the sense of legal rules embodied in the one document
- KC wheare, in modern constitutions
2 constitutions described
- Can be a written document
- Constitution can be the rules
- Written or unwritten
- Formal or informal
- Fair or unfair
- Democratic or undemocratic
- Which relate to the relationship between the government and the people and the different institutions of
government
Many different types of constitutions
- Written v unwritten
- Rigid v flexible
- Supreme v subordinate
, - Federal v unitary
- Separated powers v fused powers
- Republican v Monarchial
Written or unwritten
- Codified or uncodified
- Codified means that the constitutional rules are located mainly in one place
- Codified constitutions
- USA/ france, germany
- USA
- Article 1 - congress
- Article 2 - the president
- Article 3 - courts
When do people write constitutions?
- When they gain independence from a colonial ruler
Australia (1901)
- Revolution
France (1788-9/ 1870/ 1946/ 1958)
- Overthrow of a dictator
Iraq (2005)
Spain (1978)
- Separation from an existing state
South sudan (2011)
- The document that unifies and forms the basis the state;
“ we the people”
What is included in constitutions?
- Literally anything could be included
- Austrian constitution, Article 8 (A); 2
“The federal Coat of Arms consists of an unfettered single-headed, black, gilt-armed and red-tongued eagle on whose
breast is imposed a red shield intersected by a silver crosspiece. On its head, the eagle bears a mural crown with three
visible merlons. A sundered iron chain rings both talons. The right holds a golden sickle with inward turned blade, the
left a golden hammer.”
- More usually the constitution will outline;
- The head of state
- The legislature
- The role of the courts
- Establish the government
How to change the constitution;
- Perhaps by holding a referendum and / or requiring a special majority in the legislature
Often legislation incompatible with the constitution is struck down by the courts
Each codified constitution is very different.
Unwritten or codified constitutions
- The UK
- No legal document which sets out the most basic and fundamental rules of the constitution
- Why?
- The constitution is not in one place; instead
- Acts of parliament, deal with constitutional issues;
