Constitutionalism Flashcards
What is constitutionalism?
It’s used to describe the concept of government that is limited by the constitution
List the 5 characteristics of constitutionalism
1.) Concerned with formal and legal distribution of powers
2.) Enables the creation of institutions of governance - the branches of government
3.) Introduces binding rules of law for regulating a political community
4.) Determines nature and basis of relations between government institutions and those they govern
5.) Limits state power
What is the Rechtsstaat principle?
Defining feature of the German constitutional model
- Establishes the Constitution as a higher law alongside other laws
- Demands that law and state actors must strive to protect freedom, justice and legal certainty
What is the rule of law?
A founding value of the SA Constitution based on the notion that the law is supreme.
- With this concept, everyone is regarded as equal before the law and must be applied to everyone irrespective of their status and subject to the jurisdiction of ordinary courts.
- Public power is conferred by the law and in a non-arbitrary manner
What does the separation of powers entail?
The division of governmental powers across three branches:
- Legislature (Parliament)
- Judiciary (The Courts)
- Executive (President and Cabinet)
What does the separation of powers allow?
Various branches to check their exercise of power of the other branches thus ensuring accountability
What are the three spheres of government?
- National
- Provincial
- Local
What is the argument regarding the judicial review and democracy?
That it is undemocratic that the judiciary (which is not an elected body) has the power to declare legislation enacted by Parliament (an elected body) as invalid
What is direct democracy?
Major political decisions are taken by the people themselves
What is representative democracy?
Citizens of state electing their representatives of their choice who will express the will of the people
What is constitutional democracy?
People’s representatives in both legislatures and municipal councils are not free to make whatever laws they wish but are bound to observe the norms and values embodied in the Constitution:
- Those inconsistent are to be declared invalid
What entails a parliamentary system of government?
Head of state and head of government are two different people: in Westminster system - monarch (head of state), prime minister (head of government - party leader with clear majority in parliament)
