Public Law
What is law?
⇒ Norms, Enforced, By Authority, As supervised by Courts
⇒ John Austin = “Law is a command of a Sovereign Power enforced by coercion”
A. V. Dicey and the Rule of Law (19th C theorist)
⇒ All citizens are subject to the law in the same way (as opposed to a ruler being above the law
in divine right)
⇒ You are only punished if you have done something wrong and not because you do not like
someone
⇒ Everyone should be treated equally by the law (Equality)
⇒ Everyone has individual rights
Examples of Classifications
⇒ France has a codified (i.e. written) constitution where statutes, laws and other procedures
are laid out in the Civil Code of France
⇒ The UK has an uncodified (i.e. unwritten) constitution and common law
⇒ Criminal law directly applies sanction to criminal behaviour
⇒ Civil law deals with private issues with no state intervention
⇒ Common law is the part of English law that is derived from custom and judicial precedent
rather than statutes
⇒ Statute is laws made by parliament
⇒ Substantive law is the rules we have e.g. shoplifting is a crime
⇒ Procedural law is what we then do with the shoplifter, where they are taken, and how long
they can be questioned for, for example (thus, you build procedural law aroudn the substantive
law)
⇒ Domestic Law is the law of England and Wales
⇒ International law is the law that governs the relationship between states
Public and private law
⇒ Private law:
• Private law involves the relationship between individuals e.g. contract, family, land
, • It is to do with the interest of the individual
⇒ Public law:
• Public law involves the relationship between the individual and the state e.g.
constitutional, administrative, criminal law
• It is to do with the interest of the community
⇒ You can usually tell if a case is public or private by looking at the actors → if one is the State it
is probably a public case e.g. R v Clarke
Domestic and international law
⇒ Domestic Law is the law within a state and concerns the internal affairs of the state
⇒ International law regulates the relationship between states (usually by treaties) e.g. treaties
on labour rights to ensure workers have same protection abroad as they do at home
• Treaties can be bilateral (one country and another) e.g. trade
• Or multilateral (many countries) e.g. migration paths
⇒ Both Domestic and International law involve public and private law
⇒ Private International Law:
• This is to do with conflicting laws between jurisdictions (usually involving goods, capital
and people) e.g. if your ex-wife leaves jurisdiction with your children and therefore have
no access to them this will be an issue of private international law
⇒ Public International Law:
• This is to do with the relations of states with one another
EU Law
⇒ EU founded 1957 by 6 member states who want to trade with each other to lift them out of
post war gloom
⇒ Now it is more focused socially and politically
⇒ The member states have surrendered some sovereignty (i.e. pooled sovereignty) to the EU to
exercise power over them
⇒ It is a supranational legal framework with its own structure
⇒ The EU can enforce norms on member states and citizens
, Constitutional Law
Constitutional Law
⇒ Constitutional law is NOT politics; cases and the legal issues are key
⇒ Constitutional law is very dynamic
What should a constitution contain?
⇒ A constitution should contain a set of rules
• It is NOT a complete and accurate description of all power relations in the State
⇒ Both politics and law are about conflicts/power and the systems by which conflicts can be
resolved
⇒ The constitution lays down how rulers exercise their powers and what the government can
and cannot do
⇒ It lays down the relationship between the citizen and the state
⇒ There is no definite definition of a constitution or what is should contain
Definition of a constitution
Thin definition of constitution:
⇒ “Law that establishes and regulates the main organisms/institutions of government their
organisation and powers”
⇒ A collection of legal and non legal rules making up a system of government
Thick definition of constitution:
⇒ The constitution defines the powers of government and their main organisations
⇒ It is a framework of rules
⇒ It could be in one or many documents
⇒ It operates as a superior form of law e.g. the constitution may limit the power of the state
⇒ Entrenched provisions
• Constitutional provisions are not easy to amend/change
⇒ Constitutional provisions are judiciable
• So the courts have the last say on the meaning of the constitution
, ⇒ The constitution is a “mirror reflecting the national soul” (Ishmael Mahomed, chief justice of
Namibia and later CJ of South Africa)
Where is the British constitution?
⇒ The British constitution is uncodified (i.e. it is unwritten)
• Jack Straw, modernising the Magna Cart (2008): “No one document” exists. The
constitution exists in “hearts and minds and habits as much as it does in law”
⇒ The constitution can be changed at will by those in power, but we do have a lot of
constitutional legislation that makes it difficult to change it
Arguments for an uncondified constitution
⇒ Historic constitution
• Our constitution has evolved over a long time and we have never needed it codified.
Most constitutions are only ever written up due to a great change in the country
⇒ Political constitution
• Our constitution comes from the principle of parliamentary sovereignty i.e. the
constitution itself is created through political will and is what the crown and parliament
says it is
⇒ Parliamentary constitution
• The principle Parliament is supreme in the UK is a key part of our constitution
The British system of government
⇒ Constitutional monarchy
• The Monarch is bound by the constitution and acts as Head of State
• The Monarch plays a largely ceremonial role today but historically had absolute power
• Now, the Monarch’s power is exercised by government (this is known as the royal
prerogative)
⇒ Cabinet Government
• Our Government is made up of ministers of state (e.g. the Home Secretary, the Secretary
of State for business, etc.) – cabinet is a meeting of these ministers
⇒ Parliamentary structure
• The UK has a bicameral legislature consisting of the House of Commons and House of
Lords
What is law?
⇒ Norms, Enforced, By Authority, As supervised by Courts
⇒ John Austin = “Law is a command of a Sovereign Power enforced by coercion”
A. V. Dicey and the Rule of Law (19th C theorist)
⇒ All citizens are subject to the law in the same way (as opposed to a ruler being above the law
in divine right)
⇒ You are only punished if you have done something wrong and not because you do not like
someone
⇒ Everyone should be treated equally by the law (Equality)
⇒ Everyone has individual rights
Examples of Classifications
⇒ France has a codified (i.e. written) constitution where statutes, laws and other procedures
are laid out in the Civil Code of France
⇒ The UK has an uncodified (i.e. unwritten) constitution and common law
⇒ Criminal law directly applies sanction to criminal behaviour
⇒ Civil law deals with private issues with no state intervention
⇒ Common law is the part of English law that is derived from custom and judicial precedent
rather than statutes
⇒ Statute is laws made by parliament
⇒ Substantive law is the rules we have e.g. shoplifting is a crime
⇒ Procedural law is what we then do with the shoplifter, where they are taken, and how long
they can be questioned for, for example (thus, you build procedural law aroudn the substantive
law)
⇒ Domestic Law is the law of England and Wales
⇒ International law is the law that governs the relationship between states
Public and private law
⇒ Private law:
• Private law involves the relationship between individuals e.g. contract, family, land
, • It is to do with the interest of the individual
⇒ Public law:
• Public law involves the relationship between the individual and the state e.g.
constitutional, administrative, criminal law
• It is to do with the interest of the community
⇒ You can usually tell if a case is public or private by looking at the actors → if one is the State it
is probably a public case e.g. R v Clarke
Domestic and international law
⇒ Domestic Law is the law within a state and concerns the internal affairs of the state
⇒ International law regulates the relationship between states (usually by treaties) e.g. treaties
on labour rights to ensure workers have same protection abroad as they do at home
• Treaties can be bilateral (one country and another) e.g. trade
• Or multilateral (many countries) e.g. migration paths
⇒ Both Domestic and International law involve public and private law
⇒ Private International Law:
• This is to do with conflicting laws between jurisdictions (usually involving goods, capital
and people) e.g. if your ex-wife leaves jurisdiction with your children and therefore have
no access to them this will be an issue of private international law
⇒ Public International Law:
• This is to do with the relations of states with one another
EU Law
⇒ EU founded 1957 by 6 member states who want to trade with each other to lift them out of
post war gloom
⇒ Now it is more focused socially and politically
⇒ The member states have surrendered some sovereignty (i.e. pooled sovereignty) to the EU to
exercise power over them
⇒ It is a supranational legal framework with its own structure
⇒ The EU can enforce norms on member states and citizens
, Constitutional Law
Constitutional Law
⇒ Constitutional law is NOT politics; cases and the legal issues are key
⇒ Constitutional law is very dynamic
What should a constitution contain?
⇒ A constitution should contain a set of rules
• It is NOT a complete and accurate description of all power relations in the State
⇒ Both politics and law are about conflicts/power and the systems by which conflicts can be
resolved
⇒ The constitution lays down how rulers exercise their powers and what the government can
and cannot do
⇒ It lays down the relationship between the citizen and the state
⇒ There is no definite definition of a constitution or what is should contain
Definition of a constitution
Thin definition of constitution:
⇒ “Law that establishes and regulates the main organisms/institutions of government their
organisation and powers”
⇒ A collection of legal and non legal rules making up a system of government
Thick definition of constitution:
⇒ The constitution defines the powers of government and their main organisations
⇒ It is a framework of rules
⇒ It could be in one or many documents
⇒ It operates as a superior form of law e.g. the constitution may limit the power of the state
⇒ Entrenched provisions
• Constitutional provisions are not easy to amend/change
⇒ Constitutional provisions are judiciable
• So the courts have the last say on the meaning of the constitution
, ⇒ The constitution is a “mirror reflecting the national soul” (Ishmael Mahomed, chief justice of
Namibia and later CJ of South Africa)
Where is the British constitution?
⇒ The British constitution is uncodified (i.e. it is unwritten)
• Jack Straw, modernising the Magna Cart (2008): “No one document” exists. The
constitution exists in “hearts and minds and habits as much as it does in law”
⇒ The constitution can be changed at will by those in power, but we do have a lot of
constitutional legislation that makes it difficult to change it
Arguments for an uncondified constitution
⇒ Historic constitution
• Our constitution has evolved over a long time and we have never needed it codified.
Most constitutions are only ever written up due to a great change in the country
⇒ Political constitution
• Our constitution comes from the principle of parliamentary sovereignty i.e. the
constitution itself is created through political will and is what the crown and parliament
says it is
⇒ Parliamentary constitution
• The principle Parliament is supreme in the UK is a key part of our constitution
The British system of government
⇒ Constitutional monarchy
• The Monarch is bound by the constitution and acts as Head of State
• The Monarch plays a largely ceremonial role today but historically had absolute power
• Now, the Monarch’s power is exercised by government (this is known as the royal
prerogative)
⇒ Cabinet Government
• Our Government is made up of ministers of state (e.g. the Home Secretary, the Secretary
of State for business, etc.) – cabinet is a meeting of these ministers
⇒ Parliamentary structure
• The UK has a bicameral legislature consisting of the House of Commons and House of
Lords
