CHAPTER 13 – CONSTITUTIONS, LAW AND JUDGES
- Since the 1970s – the centre of political stage
- Law is widely seen as vital guarantee of public order
CONSTITUTIONS
Constitutions: their nature and origins
- Associated with two key purposes – BUT NOT TRUE
o 1. Believed to provide description of government itself m
o 2. Linchpin of liberal democracy
- Neither is correct → even communist regimes had constitutions
- Purpose of constitution is to bring about stability, predictability, and order to the
actions of the government
o Providing guidance, idea of higher moral power
- Constitution → a set of rules, written or unwritten, that seek to establish the duties,
powers and functions of the various institutions of government
- Relatively recent development – late 18th century
o US Constitution in 1787
o French Declaration of the Rights of Man and the Citizens in 1789
- Constitutions are means of establishing a new political order following the rejection,
collapse or failure of an old other
o Reapportionment of both power and political authority
- Convention → a formal political meeting or agreement reach through debate and
negotiation
Classifying institutions
- Many different ways
o 1. Form of the constitution and status of its rules (written/unwritten,
codified/uncodified)
o 2. The ease with which the constitution can be changed (flexibility)
o 3. The degree to which the constitution is observed in practice (effective,
nominal or façade)
o 4. The content of the institution and the structure
Written and unwritten constitutions
- Written constitutions are enshrined in laws – created
o Most countries
- Unwritten constitutions are embodied in custom and tradition – organic entities
o Only 3 liberal democracies → Israel, New Zealand, UK
o Non-democratic states → Bhutan, Saudi Arabia and Oman
- No constitution is entirely written or unwritten
o More written – France or Germany
o Less written – the IS
- Worldwide trend towards written constitutions
, - Codified constitution → key constitutional provisions are collected together in a
single legal document popularly known as ‘written constitution’ or ‘the constitution’
o based on the existence of a single authoritative document
o highest of the laws
o difficult to amend or abolish
o must be justiciable – all political bodies must be subject to the authority of
courts (constitutional court)
- statute law → law thar is enacted by the legislature
- uncodified constitution → is made up of rules drawn from a variety of sources, in the
absence of a single authoritative document
o UK
o Legislature enjoys sovereign or unchallengeable authority
- Common law → law based on custom and precedent, law that is supposedly
common to all
- Codified constitution → strengths
o Major principles and key constitutional provisions are entrenched
o Power of the legislature is constrained – cutting the sovereignty
o Non-political judged are able to police the constitution to ensure that its
provisions are upheld by other public bodies
o Individual liberty is more securely protected
o Educational values – highlights central values
- Codified constitution → drawbacks
o More rigid
o Government power could be better constrained by regular elections
o Provisions endorsed by history may be more widely respected
o Constitutional documents are inevitably biased
- Popular sovereignty → the principle that there is no higher authority than the will of
the people, directly expressed
- Parliamentary sovereignty → absolute and unlimited authority of a parliament or
legislature (central in UK constitution)
o Absence of codified constitution
o Supremacy of statue law over other forms of law
o Absence of rival legislatures
o The convention that no parliament can bind its successors
Rigid and flexible constitutions
- What procedures exist for amending a constitution? How easily does the constitution
adapt to changing circumstances?
- Uncodified constitution appears to be more flexible → but not true
- There is no simple relationship between written constitutions and rigidity or
unwritten ones and flexibility
- Constitutionalism → the practice of limited government ensured by the existence of
a constitution
- Since the 1970s – the centre of political stage
- Law is widely seen as vital guarantee of public order
CONSTITUTIONS
Constitutions: their nature and origins
- Associated with two key purposes – BUT NOT TRUE
o 1. Believed to provide description of government itself m
o 2. Linchpin of liberal democracy
- Neither is correct → even communist regimes had constitutions
- Purpose of constitution is to bring about stability, predictability, and order to the
actions of the government
o Providing guidance, idea of higher moral power
- Constitution → a set of rules, written or unwritten, that seek to establish the duties,
powers and functions of the various institutions of government
- Relatively recent development – late 18th century
o US Constitution in 1787
o French Declaration of the Rights of Man and the Citizens in 1789
- Constitutions are means of establishing a new political order following the rejection,
collapse or failure of an old other
o Reapportionment of both power and political authority
- Convention → a formal political meeting or agreement reach through debate and
negotiation
Classifying institutions
- Many different ways
o 1. Form of the constitution and status of its rules (written/unwritten,
codified/uncodified)
o 2. The ease with which the constitution can be changed (flexibility)
o 3. The degree to which the constitution is observed in practice (effective,
nominal or façade)
o 4. The content of the institution and the structure
Written and unwritten constitutions
- Written constitutions are enshrined in laws – created
o Most countries
- Unwritten constitutions are embodied in custom and tradition – organic entities
o Only 3 liberal democracies → Israel, New Zealand, UK
o Non-democratic states → Bhutan, Saudi Arabia and Oman
- No constitution is entirely written or unwritten
o More written – France or Germany
o Less written – the IS
- Worldwide trend towards written constitutions
, - Codified constitution → key constitutional provisions are collected together in a
single legal document popularly known as ‘written constitution’ or ‘the constitution’
o based on the existence of a single authoritative document
o highest of the laws
o difficult to amend or abolish
o must be justiciable – all political bodies must be subject to the authority of
courts (constitutional court)
- statute law → law thar is enacted by the legislature
- uncodified constitution → is made up of rules drawn from a variety of sources, in the
absence of a single authoritative document
o UK
o Legislature enjoys sovereign or unchallengeable authority
- Common law → law based on custom and precedent, law that is supposedly
common to all
- Codified constitution → strengths
o Major principles and key constitutional provisions are entrenched
o Power of the legislature is constrained – cutting the sovereignty
o Non-political judged are able to police the constitution to ensure that its
provisions are upheld by other public bodies
o Individual liberty is more securely protected
o Educational values – highlights central values
- Codified constitution → drawbacks
o More rigid
o Government power could be better constrained by regular elections
o Provisions endorsed by history may be more widely respected
o Constitutional documents are inevitably biased
- Popular sovereignty → the principle that there is no higher authority than the will of
the people, directly expressed
- Parliamentary sovereignty → absolute and unlimited authority of a parliament or
legislature (central in UK constitution)
o Absence of codified constitution
o Supremacy of statue law over other forms of law
o Absence of rival legislatures
o The convention that no parliament can bind its successors
Rigid and flexible constitutions
- What procedures exist for amending a constitution? How easily does the constitution
adapt to changing circumstances?
- Uncodified constitution appears to be more flexible → but not true
- There is no simple relationship between written constitutions and rigidity or
unwritten ones and flexibility
- Constitutionalism → the practice of limited government ensured by the existence of
a constitution
