Constitutional Law Basics Flashcards
Max Weber definition of the state
Monopoly on legitimate use of violence in a given territory
Why do we need a state?
Protecting individual rights
Achieving collective aims
What could the state do wrong?
- Violations of rights
- Failures in pursuit of collective aims
- Turning public office private
Common Law Position on state
- No concept of state
What is the government?
- Organisation that directs the state
- the executive branch of the central govt
- Political component of the executive
UK Government branches
Legislative; Parliament
Executive; Governments
Judicial; Courts
Government hierarchy
UK (and England)
Devolved
Local
What is the UK?
England, Wales, Scotland & NI
England history
- Unified Kingdom since 9th century
- No legislature or executive of its own
Wales history
- Integrated into England by 1542
- Devolved legislature and executive
- Shares England’s common law and courts
Scotland history
- Treaty of union in 1707 forming Great Britian
- Devolved legislature and executive
- Has always had its own laws and courts
Nothern Ireland
- Forms UK in 1801
- Devolved legislature and executive
- Has its own courts
Composition of UK Parliament
- Sovereign (hereditary)
- Lords Spiritual and Temporal (mostly appointed)
- Commons (elected)
Sovereign law making authority
- subjec to govt control
- Delegation of legislative power to govt
- Lords can be by passed
Common’s role
- Forms and sustains the govt
- Raises taxes and grants supply
- Together with lords, scrutinise govt work
UK executive composition
- Ministry (PM, cabinet and others)
- Civil service
- Sovereign
UK Exec role
- Determines policy priorities
- Legislates
- Implements legislation
- Exercises prerogative powers
- Adjudicates
English Judiciary composition
- UK Supreme courts
- Court of Appeal for Englands and Wales
- High court
- Crown and county courts
English judiciary Roles;
- Decides disputes regarding application of law to facts
- Develops the common law
- In rare cases has an advisory role
Government size
23 Ministerial departments
120 ministers
30 new laws
3000 intruments every year
Spends £2 out of every £5 from economy
Govt Size compared pre-WWI
- Govt spent £1 out of every £10
- 100 new laws every year
How do we keep the tabs?
- Elections
- Courts
- Accountability branch
- Civil society
Public choice - Hume’s warning
“[I]n contriving any system of government, and fixing the several checks and controuls of the constitution, every man ought to be supposed a knave, and to have no other end, in all his actions, than private interest. By this interest we must govern him, and, by means of it, make him, notwithstanding his insatiable avarice and ambition, co-operate to public good. Without this … we shall in vain boast of the advantages of any constitution, and shall find, in the end, that we have no security for our liberties or possessions, except the good-will of our rulers; that is, we shall have no security at all.”
Rules governing organisations
- Private organisations
- Governments
- Transnational entities
Constitutions define…
- Components
- Powers
- Relationship
What empowers a govt?
Institutions and powers
Directing govt?
- Values and principles
- Accountability
Limiting govt?
- Right guarantees
- Structural rules
Classifying consitutions
Written v Unwritten constitution
Codification - rigidity
Where do constitution’s come from? (Hamilton’s dilemma:
“[I]t seems to have been reserved to the people of [the United States], by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”
- Alexander Hamilton, “The Federalist No. 1”
Where do constiutions come from? Dicey’s hypothesis;
“[N]either representative government … nor indeed most of the important constitutional changes which the world has witnessed, can be strictly described as an invention or a discovery. When they did not result from imitation they have generally grown rather than been made; each was the production of men who were not aiming at giving effect to any novel political ideal, but were trying to meet in practice the difficulties and wants of their time.”
- A.V. Dicey, Introduction to the Study of the Law of the Constitution
The Limits of condification;
“All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. … [N]o language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas.”
James Madison, “The Federalist No. 37”
UK Constitution
- Uncodified
- No single texts
- Conventions
Constitutional sources:
- Statute
- Common law
- Principles
- Constiutional conventions
Questions for the future?
Should the const be codified or not?
Which institution should develop the cons? (no one- appoint a committee with seniors and juniors from each)
Constitutional trade offs
- Adaptability
- Democracy
- Uncertainty
- Excessive change
- Abuse of powers
