Constitutional Law Basics

Question 1

Max Weber definition of the state

Answer 1

Monopoly on legitimate use of violence in a given territory

Question 2

Why do we need a state?

Answer 2

Protecting individual rights
Achieving collective aims

Question 3

What could the state do wrong?

Answer 3

• Violations of rights
• Failures in pursuit of collective aims
• Turning public office private

Question 4

Common Law Position on state

Answer 4

• No concept of state

Question 5

What is the government?

Answer 5

• Organisation that directs the state
• the executive branch of the central govt
• Political component of the executive

Question 6

UK Government branches

Answer 6

Legislative; Parliament
Executive; Governments
Judicial; Courts

Question 7

Government hierarchy

Answer 7

UK (and England)
Devolved
Local

Question 8

What is the UK?

Answer 8

England, Wales, Scotland & NI

Question 9

England history

Answer 9

• Unified Kingdom since 9th century
• No legislature or executive of its own

Question 10

Wales history

Answer 10

• Integrated into England by 1542
• Devolved legislature and executive
• Shares England’s common law and courts

Question 11

Scotland history

Answer 11

• Treaty of union in 1707 forming Great Britian
• Devolved legislature and executive
• Has always had its own laws and courts

Question 12

Nothern Ireland

Answer 12

• Forms UK in 1801
• Devolved legislature and executive
• Has its own courts

Question 13

Composition of UK Parliament

Answer 13

• Sovereign (hereditary)
• Lords Spiritual and Temporal (mostly appointed)
• Commons (elected)

Question 14

Sovereign law making authority

Answer 14

• subjec to govt control
• Delegation of legislative power to govt
• Lords can be by passed

Question 15

Common’s role

Answer 15

• Forms and sustains the govt
• Raises taxes and grants supply
• Together with lords, scrutinise govt work

Question 16

UK executive composition

Answer 16

• Ministry (PM, cabinet and others)
• Civil service
• Sovereign

Question 17

UK Exec role

Answer 17

1. Determines policy priorities
2. Legislates
3. Implements legislation
4. Exercises prerogative powers
5. Adjudicates

Question 18

English Judiciary composition

Answer 18

1. UK Supreme courts
2. Court of Appeal for Englands and Wales
3. High court
4. Crown and county courts

Question 19

English judiciary Roles;

Answer 19

• Decides disputes regarding application of law to facts
• Develops the common law
• In rare cases has an advisory role

Question 20

Government size

Answer 20

23 Ministerial departments
120 ministers
30 new laws
3000 intruments every year
Spends £2 out of every £5 from economy

Question 21

Govt Size compared pre-WWI

Answer 21

• Govt spent £1 out of every £10
• 100 new laws every year

Question 22

How do we keep the tabs?

Answer 22

• Elections
• Courts
• Accountability branch
• Civil society

Question 23

Public choice - Hume’s warning

Answer 23

“[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.”

Question 24

Rules governing organisations

Answer 24

• Private organisations
• Governments
• Transnational entities

Question 25

Constitutions define...

Answer 25

1. Components 2. Powers 3. Relationship

Question 26

What empowers a govt?

Answer 26

Institutions and powers

Question 27

Directing govt?

Answer 27

- Values and principles - Accountability

Question 28

Limiting govt?

Answer 28

- Right guarantees - Structural rules

Question 29

Classifying consitutions

Answer 29

Written v Unwritten constitution Codification - rigidity

Question 30

Where do constitution's come from? (Hamilton's dilemma:

Answer 30

“[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”

Question 31

Where do constiutions come from? Dicey's hypothesis;

Answer 31

“[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

Question 32

The Limits of condification;

Answer 32

“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”

Question 33

UK Constitution

Answer 33

- Uncodified - No single texts - Conventions

Question 34

Constitutional sources:

Answer 34

- Statute - Common law - Principles - Constiutional conventions

Question 35

Questions for the future?

Answer 35

Should the const be codified or not? Which institution should develop the cons? (no one- appoint a committee with seniors and juniors from each)

Question 36

Constitutional trade offs

Answer 36

- Adaptability - Democracy - Uncertainty - Excessive change - Abuse of powers