Foundations of Modern Constitutionalism

Question 1

Difference between private and public law

Answer 1

Private law are used to regulate and govern actions and behaviour between private individuals within a society

Public law are rules governing relations between government with citizens

Question 2

How did constitutional law arise?

Answer 2

Rules were created to regulate the King’s appointed delegates

Question 3

When did the constitutional framework begin its creation and what happened?

Answer 3

in 1215 when English Barons made a list of demands under Magna Carta that King John was forced to sign.

Question 4

What were some of the key freedoms and rights contained in the Magna Carta

Answer 4

• Common pleas hearings in fixed place
• King John appoint justices and sheriffs who have knowledge of law
• no delay or denial of justice

Question 5

What parliament and when is a precursor of the modern parliament?

Answer 5

The Model Parliament in 1295 that was summoned by King Edward I is a precusor of the modern parliament including representatives of commoners, nobles, knights from each shire.

However, it had a role as an advisory body until 1414 during King Henry V whereby the Crown recognised **agreement by Commons was needed before a statue could be formed **

Question 6

How does the modern British Parliament resemble the model parliament?

Answer 6

Is a bicameral parliament with two houses (upper and lower chambers)

The upper house is the House of Lords which is primarily an appointed chamber, historically made up of hereditary nobles and bishops, (‘Lords spiriual’ ) , men and women ‘Life Peers’ .

The lower house is the House of Commons which has always contained elected local representatives.

Question 7

What proposals were there made for House of Lords?

Answer 7

Detailed proposals for a reformed and elected House of Lords under House of Lords Reform Bill and White Paper in which outlined how the House would appear

Question 8

What was the enduring significance of Henry VIII’s ‘use’ of the parliament during his reign?

Answer 8

Since the Pope would not allow Henry VII 1509-47) divorce his first wife, Henry separated the Roman Cathola Church to create Church of England in which he gained support from the the people to allow this decision to take place

Question 9

Describe tussle for ultimate law-making power and authority independent of a King or monarch during the English Civil War

Answer 9

James I, the First of the stuart Kings believed the theory of ‘divine rights of kings’ and in 1607 wanted to be control court cases before common law courts althugh judges were reluctant as law required extensive legal knowledge.

Through various cases between 1607-1611, courts and parliaments In Case of Proclamations (1611), King could not create new crimes or change the common law by royal proclamation

Question 10

what was the outcome of Dr Bohman’s Case

Answer 10

Common Law courts established that courts are arbiters over statues and can revoke it if it was ‘**against common right or reason’ **

Which is the case in High Court of Australia today

Question 11

Who is King Charles I and what happened to him?

Answer 11

King Charles I was James son and without parliamentary sanction, raised taxes. The judges allowed such action and ruled in support however it has been critiqued, some feared opposing the Crown.

the Parliament in 1642 went in civil war against Charles I with Oliver Cromwell leading the parliamentary forces. With the defeat of the royalists, Charles 1 in 1649 trialled guilty of treason and beheaded.

Question 12

What was the outcome of Charles I’s beheading in 1646?

Answer 12

Monarchy and house of lords joined under ‘Commonwealth’ . Cromwell gave himself the name of ‘Lord Protector’. In 1653, he dismissed house of commons.

Cromwell’s death in 1660, Charles II the son of Charles I took the throne.

Question 13

Describe the significance of the Glorious Revolution

Answer 13

This was second royal depose in 1**688 of James II (1685-1688) (brother of Charlies II) **when he strived to pass to suspend the statute that excluded Roman Catholics from a public office seat in the era when England was Protestant.

Question 14

Describe the importance of Bill of Rights 1689

Answer 14

following James II depose, William of Dutch House of Orange and his Wife who were proestants, they had to agree to terms in the statute Bill of Rights 1689 before being offered the throne.

Question 15

Describe the terms in Bill of Rights 1689

Answer 15

The statute Bill of Rights 1689 reinforced

• the Crown has no right to debar law activity
• requirement of parliamentary sanction for taxation levies
• Crown needs to regularly summon parliarments
• Monarch could not question parliamentary debates

Question 16

Describe the refinement of the constitutional settlement

Answer 16

the Bill of Rights 1689 was refined in 1701 with Act of Settlement. The hallmark of this act was judges now had security of tenure . Judges could now make their decisions without being swayed by King’s interest and job loss. eg. *Case of Ship Money *

Only with address (request) can judge be removed.

Question 17

How is security of tenure from Act of Settlement relevant in the Australian legal context?

Answer 17

Australian judges have security of tenure therefore encouraging objectivity and indepence without being swayed by legislature or executive

Question 18

What are two important constitutional princples that underly the new government structures?

Answer 18

1. Rule of Law
2. Separation of powers

Question 19

Rule of Law:

How does United Kingdown compare with other countries in terms of their constitution?

Answer 19

UK does not have a written constitution that outlines the government’s law making powers such as the US.

Magna Carter 1215 would be best example of a written document that marked a milestone for rule of law. These terms included

Question 20

What are principles rule of laws UK follows?

Answer 20

The Magna Carta 1215 highlighted terms including

1. Power should be wielded between government and citizens rather than arbitrary fiat
2. Person punished for breaching law but for no other reason
3. executive government (ministers of department) has no authority to impose taxation, interfere with private property, or issue punishments without a law permitting them to conduct this action
4. Courts have duty of protection to individuals by adhering to rule of law principles
5. Legality - Government’s must have lawful authority such as from common law or legislation for every action they partake if not, government cannot proceed in their action

Question 21

Rule of Law

How does legality influence public law?

Answer 21

Legality requires the government to have lawful authority prior taking action.

Administrative law a part of public law, stems from this priciple with the **relation between state and citizens being governed by law **

Question 22

Separation of Powers:

Explain theory of separation of powers

Answer 22

Separation of powers prevents public power abuse if it were held by single individual or institution in which had caused constituional struggles in the past.

separate institutions are established for each branch of government with independent personnel within each. This allows specialisation of tasks

Question 23

Separation of Powers

What are the distinctive branches of power division within government?

Answer 23

Government power that exists in UK and Australia oday

1. The parliament who enact laws and supreme political authority
2. Public Officials consituting administrative or executive branch applied Parliament laws and administered legislative programs,

3. Courts - abjudicate on disputes for any meaning or application of laws, free from political constraints

Question 24

Separation of Powers

What are limitations imposed on branches of government?

Answer 24

1. Parliament enacts but does not enforce laws
2. Executive cannot create new laws
3. Courts oversee but do not enforce limitations

Question 25

Describe origin of separtion of powers princple

Answer 25

Developed by Political philosphers such as Baron de Montesquieu whose treaties ‘in 18th century such as ‘The Spirit of Laws’ introduced the concept of separation of powers

Since them, has become foundation of **democratic governments **