CHAPTER 1 - INTRODUCTION TO CONSTITUTIONAL LAW
Monday, 26 April 2021 10:45
WHAT IS CONSTITUTIONAL LAW?
- Study of the mechanisms that comprise the state
- That part of legal science that determine how state bodies (organs of state) are created, function and terminate
- Founded on constitution of state (written/unwritten)
- CL is a collection of laws/legal rules to govern a particular state; to which a community has agreed to be
governed, including political and civil interests
○ Social contract
- Attorney-General v Dow 1994 (6) BCLR 1 (T)
○ A written constitution is the legislation or pact/agreement between those placed in power and those
subject to power, which establishes the state itself
○ The constitution paints in broad strokes and allocate powers, and define relationships between
government institutions and the citizens of a state as well as the relationship between the people
- i.e. A constitution is concerned with political authority and the exercise of power in a state
- Van Abo v President of the RSA 2009 (5) SA 345 (CC)
- CL is cornerstone of legal system
○ Incorporates particular legal history
Bridge metaphor- Preamble to SA Constitution
- Each country has its own rules/constitutional principles
- Mandela definition (pg. 2-3):
○ Speaks of both past and future
○ Solemn pact
○ Living document
To summarise - a constitution is:
○ Fundamental law of a state
○ Agreement between people on principles to be governed by
○ The basic principles of law that create the state/state organs
○ Law that determines the distribution of state power/authority
○ The law that protects the people against the state they created
○ The law that determines in principle how disputes in a community are to be fairly resolved
○ Foundational document for a particular legal system and legal development
○ The law that enshrines the values of a particular group of people
○ The road map to an aspired future - bridge between past and future
- A constitution has a broad and narrow application
○ Broad: a constitution relates to an entire legal system of laws, customs and conventions in terms of which
state is created and governed
○ Narrow: a constitution refers to a particular legal document that defines and determines structures,
powers and obligations of all state bodies; that regulates the relationship between the organs of state and
that explains then regulates the relationship between state and its people
CONCEPT OF CONSTITUTIONAL THEORY
- Constitutional theory: an academic discipline that focusses on meaning and underpinnings of a specific
constitution
○ Incorporates many factors: historical, structural, language, ethics, politics, division of powers etc.
- It is an effort to justify prescriptions on how controversial issues are to be decided (Liberal/Conservative)
- Stransham-Ford v Minister of Justice and Correctional Services and Others [2015] JOL 33172
○ On the issue of euthanasia
Court granted the applicant, a terminally ill, mentally competent adult, an order allowing a willing
Monday, 26 April 2021 10:45
WHAT IS CONSTITUTIONAL LAW?
- Study of the mechanisms that comprise the state
- That part of legal science that determine how state bodies (organs of state) are created, function and terminate
- Founded on constitution of state (written/unwritten)
- CL is a collection of laws/legal rules to govern a particular state; to which a community has agreed to be
governed, including political and civil interests
○ Social contract
- Attorney-General v Dow 1994 (6) BCLR 1 (T)
○ A written constitution is the legislation or pact/agreement between those placed in power and those
subject to power, which establishes the state itself
○ The constitution paints in broad strokes and allocate powers, and define relationships between
government institutions and the citizens of a state as well as the relationship between the people
- i.e. A constitution is concerned with political authority and the exercise of power in a state
- Van Abo v President of the RSA 2009 (5) SA 345 (CC)
- CL is cornerstone of legal system
○ Incorporates particular legal history
Bridge metaphor- Preamble to SA Constitution
- Each country has its own rules/constitutional principles
- Mandela definition (pg. 2-3):
○ Speaks of both past and future
○ Solemn pact
○ Living document
To summarise - a constitution is:
○ Fundamental law of a state
○ Agreement between people on principles to be governed by
○ The basic principles of law that create the state/state organs
○ Law that determines the distribution of state power/authority
○ The law that protects the people against the state they created
○ The law that determines in principle how disputes in a community are to be fairly resolved
○ Foundational document for a particular legal system and legal development
○ The law that enshrines the values of a particular group of people
○ The road map to an aspired future - bridge between past and future
- A constitution has a broad and narrow application
○ Broad: a constitution relates to an entire legal system of laws, customs and conventions in terms of which
state is created and governed
○ Narrow: a constitution refers to a particular legal document that defines and determines structures,
powers and obligations of all state bodies; that regulates the relationship between the organs of state and
that explains then regulates the relationship between state and its people
CONCEPT OF CONSTITUTIONAL THEORY
- Constitutional theory: an academic discipline that focusses on meaning and underpinnings of a specific
constitution
○ Incorporates many factors: historical, structural, language, ethics, politics, division of powers etc.
- It is an effort to justify prescriptions on how controversial issues are to be decided (Liberal/Conservative)
- Stransham-Ford v Minister of Justice and Correctional Services and Others [2015] JOL 33172
○ On the issue of euthanasia
Court granted the applicant, a terminally ill, mentally competent adult, an order allowing a willing
