2024
CONSTITUTIONAL
LAW 500
, TOPIC 1: FUNDAMENTAL CONCEPTS, HISTORY OF THE
CONSTITUTION, AND SOURCES OF CONSTITUTIONAL LAW
LAW, STATE AND THE INDIVIDUAL
LAW AND STATE
Law
•Rules that prescribe the way
in which people/institutions
should conduct themselves
•Law is enforced by the state
Constitutional Law
•Legal rules that relate to the
characteristics of the 'state''
‘State’ is a very broad term and may refer to a variety of things:
Geographical People living in
territory of a state that territory
Independence of Legal system of
states states
Governmental State as juristic
authority person
1
,CONSTITUTIONAL LAW AS PART OF OUR LAW
1. Legal rules of a state that apply to the territory of the state.
a. Legal rules determine the extent of the territory of a state
b. These legal rules form part of constitutional law
2. Legal rules apply to all persons present in a state.
a. Subject to certain exceptions
b. Constitutional legal rules regulate the acquisition and loss of citizenship
3. Rules of law apply to natural and juristic persons.
a. Juristic person: group of natural persons regarded as a single entity to
which the law applies
b. State may be regarded as a juristic person
c. Constitutional law dictates the institution, functioning and powers of
government bodies, which exercise government authority on behazlf of
the state
d. Executive executes legal rules, legislative creates legal rules, juristic
interprets legal rules to settle disputes.
e. Government authority is also distributed among levels of government,
and particulars are determined by the constitution.
4. Rules of law are created by custom, legislative actions and the court.
a. Custom: customary law, common law; legislative actions: legislation or
statutory law; courts: court decisions.
b. Legislation is however the primary source of legal rules, enacted by a
state with legislative authority (aka parliament)
c. The constitution looks at the legal rules which determine the extent of
governmental executive power and the way this power is exercised
5. Rules of law/legal systems are never value-free, and are based on certain
convictions.
a. Legal rules are created by people, and thus reflect the convictions of the
creators and/or interpreters.
b. These convictions are the
foundational values, and they
reflect the content of the law
and how the law is applied.
2
, c. The constitution contains legal rules, and is thus not value-free, but this
is evident from Section 1.
d. The foundational values do not create any enforceable rights.
i. Numerous Constitutional sections give effect to the values
ii. These sections must be applied first
iii. Where no specific section of the Constitution may be directly
invoked for a dispute, then a value may be relied upon
iv. Otherwise, foundational values are used mainly for the
interpretation of the BoR, but they cannot be used to replace the
language with something different – New Nation Movement NPC
v President of RSA 2020 (CC).
STATE AND THE INDIVIDUAL
The law of every state reflects views on how the relationship between state and
the individual must be regulated, as well as the values on which these views are
based.
• Founding values = individuals cannot be viewed as insignificant
• The state exists to serve
• Thus: an enforceable BoR protects individual freedom of action
o And the state may not interfere unless it complies with Constitutional
requirements of limitations of rights
• However, conflicts of interest between state and the individual still arises
o As the state and individuals are separate entities
o Legal rules must thus prevent and resolve such conflicts
Reflections on the ideal relationship between state and individual concern the
composition, powers, and functioning of state organs, as well as the balance
that should be created between common interests and individual interest.
• Structures and procedures
o Composition, powers and functioning of government bodies
o Effective and efficient management
o Also: contribution to an equitable relationship between state and its
inhabitants
3
, • Fairness concerns more than composition: looks at the substantive balancing
of state and individual interests by a particular legal rule
o Eg, limits imposed on individual interests to protect public interest
• A Bill of Rights = constitutional provisions on the protection and limitation of
human rights
o Primary instrument which transforms principles of the state-individual
relationship into positive law
RULE OF LAW
Dicey's No arbitrary deprivation of rights
Rule of
Law No one is above the law
Rights of the individual are guaranteed
by the courts
• Note: Dicey’s Rule of Law rules were based on a parliamentary supremacy and
thus concern mostly procedure.
• No focus on how to
substantively maintain balance
when the state limits individual Founding
value of the
rights for the protection of Republic
community interests, even
when the correct procedure is
being followed
Rule of Law in the Constitution
• Constitutional court:
4
, o Right not to be deprived of personal freedom arbitrarily and without just
cause
o Not to be detained without trial
o Independence of the judiciary
o Principle against self-help
Substantive
Formal legality
legality
When a government authority is
exercised i.t.o. an existing rule,
the contents of the action must
comply w/ certain requirements
Legislature/executive may not
exercise power/functions
beyond those conferred upon Rational relationship test
them by the law • Must serve a legitimate
purpose
• Must be capable of
contributing something
towards achieving the purpose
• Issue: ConCourt applying the rule of law as a value in section 1 directly
o Unnecessary as the issues concerned were covered by other
constitutional provisions
o Detracts from the integrity and legitimacy of these other provisions
CONSTITUTIONAL STATE
5
,Constitutional
state Separation of powers
Supremacy of the constitution
Principle of legality
Legal certainty
Access to independent courts
Multi-party democracy
UBUNTU
Social justice and Rehabilitation of
Humanness
fairnes offenders
Opposite of
Maintenance of law victimisation, heinous
and order crimes and cruel and
inhuman treatment
BILL OF RIGHTS
• Consists of provisions that define rights and set limits to the limitation of rights
• Affects all aspects of law
• We have a justiciable bill of rights
6
, SOURCES OF CONSTITUTIONAL LAW
All provisions of the entrenched Constitution may now be enforced by the courts.
The courts determine authoritatively the meaning of Constitutional provisions:
therefore, these provisions must be read in conjunction with case law to understand
their meaning and application.
Legislation
Common
law
Sources
Customary
law
Case law
LEGISLATION
• Legislation is the most important source of Constitutional Law
o Legislation = generally applicable rules o flaw made by government
authorities
o Constitutional law mainly emanates from parliament
CONSTITUTION
Constitution as a statutory source of constitutional law
• The constitution is the most important statutory source of constitutional law
• What is a constitution?
7
, A law that contains the
most important rules of Confers government Regulates and limits Guarantees the rights
law re the authority on governmental exercise and freedoms of the
constitutional system institutions of power individual via BoR
of a country
Expression of the will of Reflects the values of
Symbol of statehood
the people the people
The constitution as a statute or the constitution in a wider sense
As a statute
•Constitution as a law containing
the main provisions re the state, In a wider sense
government institutions and their
power, and the relationship •All the rules which regulate
between the state and inhabitants constitutional matters, provisions
contained in the single constitution and
in other statutes, common law and
customary law
Constitution with higher status than other laws
• Supreme law of the country
o Contrasts with a sovereign parliament
o Key element of constitutional state and constitutionalism
• S 2 of the Constitution provides herefore
o Justiciability and entrenchment
o Laws may be declared invalid if in conflict
o Respect for supremacy principle
• Entrenchment + justiciability = instruments to secure supremacy
8
, oCourts are able to
enforce the
constitution
Justicia
bility
Entrenchme
nt
oConstitution is
written and
entrenched to
prevent
legislatures from
amending/abolishi
ng the constitution
like a normal legal
rule
• In addition: special procedures for the adoption of constitutions -> affords higher
status
Adoption of constitutions
• Special procedures
o Ensures the support of the people for the constitution
o Strengthens its legitimacy
▪ Consensus is required
Assembly instituted Normal legislative Preceded by a
of ratification
Adoption by popular or other forms
Special constituent assembly
/ other legislative institution
Adoption by the existing parlriament
w/ sole purpose of process is followed parliamentary or
adopting the Interim Constitution special constitutional
constitution was adopted this way process
Representative of Approval by
citizens institutions or
Preferably, directly persons outside
elected parliament
Eg, voters in a
mandatory
referendum, or by the
courts
9
CONSTITUTIONAL
LAW 500
, TOPIC 1: FUNDAMENTAL CONCEPTS, HISTORY OF THE
CONSTITUTION, AND SOURCES OF CONSTITUTIONAL LAW
LAW, STATE AND THE INDIVIDUAL
LAW AND STATE
Law
•Rules that prescribe the way
in which people/institutions
should conduct themselves
•Law is enforced by the state
Constitutional Law
•Legal rules that relate to the
characteristics of the 'state''
‘State’ is a very broad term and may refer to a variety of things:
Geographical People living in
territory of a state that territory
Independence of Legal system of
states states
Governmental State as juristic
authority person
1
,CONSTITUTIONAL LAW AS PART OF OUR LAW
1. Legal rules of a state that apply to the territory of the state.
a. Legal rules determine the extent of the territory of a state
b. These legal rules form part of constitutional law
2. Legal rules apply to all persons present in a state.
a. Subject to certain exceptions
b. Constitutional legal rules regulate the acquisition and loss of citizenship
3. Rules of law apply to natural and juristic persons.
a. Juristic person: group of natural persons regarded as a single entity to
which the law applies
b. State may be regarded as a juristic person
c. Constitutional law dictates the institution, functioning and powers of
government bodies, which exercise government authority on behazlf of
the state
d. Executive executes legal rules, legislative creates legal rules, juristic
interprets legal rules to settle disputes.
e. Government authority is also distributed among levels of government,
and particulars are determined by the constitution.
4. Rules of law are created by custom, legislative actions and the court.
a. Custom: customary law, common law; legislative actions: legislation or
statutory law; courts: court decisions.
b. Legislation is however the primary source of legal rules, enacted by a
state with legislative authority (aka parliament)
c. The constitution looks at the legal rules which determine the extent of
governmental executive power and the way this power is exercised
5. Rules of law/legal systems are never value-free, and are based on certain
convictions.
a. Legal rules are created by people, and thus reflect the convictions of the
creators and/or interpreters.
b. These convictions are the
foundational values, and they
reflect the content of the law
and how the law is applied.
2
, c. The constitution contains legal rules, and is thus not value-free, but this
is evident from Section 1.
d. The foundational values do not create any enforceable rights.
i. Numerous Constitutional sections give effect to the values
ii. These sections must be applied first
iii. Where no specific section of the Constitution may be directly
invoked for a dispute, then a value may be relied upon
iv. Otherwise, foundational values are used mainly for the
interpretation of the BoR, but they cannot be used to replace the
language with something different – New Nation Movement NPC
v President of RSA 2020 (CC).
STATE AND THE INDIVIDUAL
The law of every state reflects views on how the relationship between state and
the individual must be regulated, as well as the values on which these views are
based.
• Founding values = individuals cannot be viewed as insignificant
• The state exists to serve
• Thus: an enforceable BoR protects individual freedom of action
o And the state may not interfere unless it complies with Constitutional
requirements of limitations of rights
• However, conflicts of interest between state and the individual still arises
o As the state and individuals are separate entities
o Legal rules must thus prevent and resolve such conflicts
Reflections on the ideal relationship between state and individual concern the
composition, powers, and functioning of state organs, as well as the balance
that should be created between common interests and individual interest.
• Structures and procedures
o Composition, powers and functioning of government bodies
o Effective and efficient management
o Also: contribution to an equitable relationship between state and its
inhabitants
3
, • Fairness concerns more than composition: looks at the substantive balancing
of state and individual interests by a particular legal rule
o Eg, limits imposed on individual interests to protect public interest
• A Bill of Rights = constitutional provisions on the protection and limitation of
human rights
o Primary instrument which transforms principles of the state-individual
relationship into positive law
RULE OF LAW
Dicey's No arbitrary deprivation of rights
Rule of
Law No one is above the law
Rights of the individual are guaranteed
by the courts
• Note: Dicey’s Rule of Law rules were based on a parliamentary supremacy and
thus concern mostly procedure.
• No focus on how to
substantively maintain balance
when the state limits individual Founding
value of the
rights for the protection of Republic
community interests, even
when the correct procedure is
being followed
Rule of Law in the Constitution
• Constitutional court:
4
, o Right not to be deprived of personal freedom arbitrarily and without just
cause
o Not to be detained without trial
o Independence of the judiciary
o Principle against self-help
Substantive
Formal legality
legality
When a government authority is
exercised i.t.o. an existing rule,
the contents of the action must
comply w/ certain requirements
Legislature/executive may not
exercise power/functions
beyond those conferred upon Rational relationship test
them by the law • Must serve a legitimate
purpose
• Must be capable of
contributing something
towards achieving the purpose
• Issue: ConCourt applying the rule of law as a value in section 1 directly
o Unnecessary as the issues concerned were covered by other
constitutional provisions
o Detracts from the integrity and legitimacy of these other provisions
CONSTITUTIONAL STATE
5
,Constitutional
state Separation of powers
Supremacy of the constitution
Principle of legality
Legal certainty
Access to independent courts
Multi-party democracy
UBUNTU
Social justice and Rehabilitation of
Humanness
fairnes offenders
Opposite of
Maintenance of law victimisation, heinous
and order crimes and cruel and
inhuman treatment
BILL OF RIGHTS
• Consists of provisions that define rights and set limits to the limitation of rights
• Affects all aspects of law
• We have a justiciable bill of rights
6
, SOURCES OF CONSTITUTIONAL LAW
All provisions of the entrenched Constitution may now be enforced by the courts.
The courts determine authoritatively the meaning of Constitutional provisions:
therefore, these provisions must be read in conjunction with case law to understand
their meaning and application.
Legislation
Common
law
Sources
Customary
law
Case law
LEGISLATION
• Legislation is the most important source of Constitutional Law
o Legislation = generally applicable rules o flaw made by government
authorities
o Constitutional law mainly emanates from parliament
CONSTITUTION
Constitution as a statutory source of constitutional law
• The constitution is the most important statutory source of constitutional law
• What is a constitution?
7
, A law that contains the
most important rules of Confers government Regulates and limits Guarantees the rights
law re the authority on governmental exercise and freedoms of the
constitutional system institutions of power individual via BoR
of a country
Expression of the will of Reflects the values of
Symbol of statehood
the people the people
The constitution as a statute or the constitution in a wider sense
As a statute
•Constitution as a law containing
the main provisions re the state, In a wider sense
government institutions and their
power, and the relationship •All the rules which regulate
between the state and inhabitants constitutional matters, provisions
contained in the single constitution and
in other statutes, common law and
customary law
Constitution with higher status than other laws
• Supreme law of the country
o Contrasts with a sovereign parliament
o Key element of constitutional state and constitutionalism
• S 2 of the Constitution provides herefore
o Justiciability and entrenchment
o Laws may be declared invalid if in conflict
o Respect for supremacy principle
• Entrenchment + justiciability = instruments to secure supremacy
8
, oCourts are able to
enforce the
constitution
Justicia
bility
Entrenchme
nt
oConstitution is
written and
entrenched to
prevent
legislatures from
amending/abolishi
ng the constitution
like a normal legal
rule
• In addition: special procedures for the adoption of constitutions -> affords higher
status
Adoption of constitutions
• Special procedures
o Ensures the support of the people for the constitution
o Strengthens its legitimacy
▪ Consensus is required
Assembly instituted Normal legislative Preceded by a
of ratification
Adoption by popular or other forms
Special constituent assembly
/ other legislative institution
Adoption by the existing parlriament
w/ sole purpose of process is followed parliamentary or
adopting the Interim Constitution special constitutional
constitution was adopted this way process
Representative of Approval by
citizens institutions or
Preferably, directly persons outside
elected parliament
Eg, voters in a
mandatory
referendum, or by the
courts
9
