individuals/theorists/critics

Question 1

Hobbes - on the fun ction of a state

Answer 1

to maintain defence from external enemies

2. to preserve internal peace
3. to enable the citizen to acquire wealth, so far as that is consistent with public security
4. to promote the full enjoyment of the citizen’s liberty (with areas the state doesn’t intefere with)

Question 2

• Rousseau, The Social Contract [1762]

Answer 2

• ‘Man was born free, and he is everywhere in chains’

Question 3

Thomas Hobbes

Answer 3

trying to justify a authoritative political order and says in order to escape disorder we need peace and a stable gov

• Without government In which ‘the life of man [is] solitary, poor, nasty, brutish and short’
• through this moral tale he is trying to say we should extinguish any rights we have and subject ourselves to a sovereign by creating this ‘covenant’ to create one (artificial) person who has the right to make rules for us to obey

Question 4

John Locke

Answer 4

also like hobbs a natural rights theorists
• He believes are implanted with the ability to do good and avoid wrong by god so its a innate characteristic.
- • Unlike hobbs saying there is no property but Locke says we acquire property by mixing our own labour with what’s available to us

• why do we need to leave this state then?
• so that we can establish an authoritative system of law because in the state of nature we only have natural law whose definition we don’t understand
  so we need someone who can clearly tell us and enforce the laws
• we don’t extinguish all our natural rights to establish this system of government but we pour some of our rights in this governing body

that the terms of trust have been forfeited so the power goes back to the people and the gov is violating the contract
So the people have a right of rebellion

Question 5

Paine , rights of man

Answer 5

A constitution he argued must possess 4 key features:

1) It must be a thing, not just a virtual existence it must be a document
2) Made by the people
3) Comprehensive – it must fully specify the powers And duties of government
4) Must have the status of fundamental law. So must be the highest form of law

Question 6

Dicey

Answer 6

a legal positivist ( (idea that law involves subjecting human conduct to rule) (idea that constiution can be understood through scientific methods of observation)
- came up with two types of rules (formal rules of law and informal practices known as conventions)

Question 7

Dicey - 3 principles to understanding british constiutional law

Answer 7

1. Legislative sovereignty of parliament - absolute authority of crown in parliament to make law
2. Universal rule throughout the constitution of the ordinary law ( the rule of law) - this is the common law mentality - (no matter status it binds everyone the same)
3. Importance of conventions in ordering the constitution

Question 8

dicey - rule of law meanings

Answer 8

1. that law is a set of rules they’re not simply commands and rules have specific qualities
2. equality before the law - the social standing is irrelevant the duty of the judge needs to adjudicate in the principle of law no matter the person
3. ‘The law of the constitution is not the source but the consequence of the rights of individuals’.
   - . But dicey is saying that the English are freeborn and they have intrinsically rights and we appeal to our tradition of rights to protect us from the law.
   - rule of law being embedded in common law - so that its harder to take away from us

Question 9

Locke - separation of powers

Answer 9

• There can be but one supreme power, which is the legislative, to which all the rest are subordinate
  
  • He recognises that there are 2 basic functions of government executive and legislative power
• • Legislative has supremacy with respect of making the laws but the government (the executive ) has supreme authority in judging what is necessary in terms of implementing and governing and executing in accordance with those laws
• • Note he only notice 2 doesn’t include the judiciary
    
    • During those times judiciary was part of the executive part of the governing. There function was to give effect to the laws of legislature

Question 10

Montesquieu - on separation of powers

Answer 10

He lands on this idea that the best way to recognise the tension between order and liberty is through the doctrine of separation doctrine.

• Ø He says the key to this political liberty lies in the separation of legislative executive and judicial power
• Ø these three powers check and balance one another and ensure that we would move forward by reconciling different interests

Question 11

Blackstone - on balanced constitution

Answer 11

• in legislature nobility check the people (HL) and people check on nobility and the executive (whose head is king) checks the parliament by calling government to account and punishing bad conduct . (convention of ministerial responsibility)

Question 12

Walter Bagehot - 2 ways of looking at the british constitution

Answer 12

▪ There’s the dignified version of rituals and ceremony and the efficient version of the constitution which is how the political power is actually exercised
- ▪ His thesis: there are 2 doctrines in constitutional thoughts : mixed/balance government and the separation of powers
- ▪ The Cabinet is ‘a hyphen that joins, a buckle which fastens, the legislative … to the executive part of the State.
▪ So essentially he’s saying that this stuff of separation of powers and balance of government is not the key thing that works the British system the key thing is the tight connection between legislative and executive authority

Question 13

Locke - on prerogative powers

Answer 13

‘power to act according to discretion for the public good, without the prescription of law and sometimes even against it’.
- generic, ill - defined power to act to maintain the stability of the state for the public good when there its unclear that there is any precise law allowing the sovereign to act this way

Question 14

Dicey

Answer 14

‘the residuary of discretionary power left at any moment in the hands of the Crown …( residue meaning executive power that is left over as in theory AOP can be controlled, regulated or abolished but just haven’t been)

Question 15

Blackstone on prerogative

Answer 15

it can only be applied to those rights and capacities which the king enjoys alone … and not to those which he enjoys in common with any of his subjects”

Question 16

political constitutionalism

Answer 16

political constitutionalism is the label given to a set of ideas and practises that values highly the role of politicians in the British constitution this viewpoint says, that’s politicians are and should be top dogs
- - essentially do not like idea of codified consitituition because It limits them and undermines parliamentary supremacy

Question 17

legal constitutionalism

Answer 17

• favour a prominent role for law, legal processes, and judges in regulating the constitutional system
• • acts of parliament are made by here today gone tomorrow politicians
• suggest alternative be that courts are democracies referees
• advocates for legal constitutionalism are concerned that majority of MPs could pass legislation restricting rights like freedom of speech in which the ideas of democracy rests

Question 18

Michael Oakeshott – scientific VS practical knowledge

Answer 18

• Highlights the superiority of the English approach
• The error of rationalism – practical knowledge is being discounted in favour of scientific knowledge
• Codified countries take scientific approach of writing all the rules down while Britain take practical approach and can modify and evolve through experience

Question 19

Tocqueville

Answer 19

is saying if you don’t have a modern type of constitution. (construction, text, fundamental law) then you don’t have a constitution

Question 20

bagehot on consitituition

Answer 20

There is a great difficulty in the way of a writer who attempts to sketch a living Constitution … “The difficulty is that the object is in constant change.

• He dismissed the two theories of the division of powers (between
  legislature, executive and judiciary) and of ‘checks and balances’ (between the monarchical,
  aristocratic and democratic elements of the constitution) as ‘erroneous’ (kevin theakson in academia)

Question 21

Grimm

Answer 21

“every political unit is constituted but not every one of them has a constitution”

Question 22

dicey on constituitions unpublished lecture

Answer 22

argued that the British constitution was ‘historic’ not only in the sense that its old but that it was a product of historical development rather than deliberate design

Question 23

British Railways Board v Pickin - lord simon

Answer 23

“The courts in this country have no power to declare enacted law to be invalid”

Question 24

J Goldsworth

Answer 24

it would be wrong for courts to alter parliamentary supremacy because they could impose all kinds of limit on parliament authority without any Democratic input

Question 25

E barendt -

Answer 25

“Parliament could declare by an act of parliament that is legally sovereign
• but such a statute not add anything to its legislative capacity

Question 26

Sir Ivor Jennings

Answer 26

• if parliament chooses to enact outrageous laws they need to be prepared for political sanctions. And political criticism – so in that sense parliament is not supreme
• Dicey understood sovereignty incorrectly

Question 27

Lord Neuberger on ps

Answer 27

parliamentary supremacy is absolute & percieved legitmacy is of the essence in a country like UK who has no codified constitution

Question 28

lord steyn about dicey ps

Answer 28

“out of place in the modern United Kingdom”

Question 29

N.W Barber

Answer 29

some believe ps is absolute power other s
second, some have reinterpreted sovereignty as a discrete area of law making power, with Parliament enjoying sovereign authority in one area, even if limited in other respects.”

Question 30

Ivor Jennings - critisizes rol by dicey

Answer 30

Dicey’s saw the ‘ constitution with his own spectacles ‘

• In relation to the second definition of Dicey’s ROL - equality before the law - only writing about the position in tort law not public law because he chose to ignore the public law position of officials- for example Malone

He could not understand the Dicey’s proposition that the rule of law meant that the constitution ‘is the results of the ordinary law of the land

Question 31

Loughlin on ROL

Answer 31

the rule of law cannot be conceived as to amount into a fundamental concept in public law and it must be made more precise and more specific
- Laws require men to act rules cannot act by itself with no man enacting it

Question 32

TRS Allan – on the relationship between p and ROL

Answer 32

Argues that limitations on parliament do no imply a conflict between the rule of law and the democratic principle . In fact since both flow from a basic moral commitment to democracy they are actually necessary and support each other.

arguably too optimistic ?

Question 33

content free version of ROL - Proffessor Raz

Answer 33

this view does not prescribe any particular content for legal rules it just says there needs to be procedures
o Problematic because it would be possible to see legal systems to be considered legitimate and respectful even if content may be undemocratic or racially discriminating but would still have to be abided by which is unfair

Question 34

content rich ROL - Prof Dworkins

Answer 34

challenges the idea of a content free rule of law and puts forward an alternative ‘rights’ conception
he comes up with two different conceptions of the rule of law
1) Rule book conceptions - his conception is very narrow because it insists that whatever rules are in the rule book must be followed until it’s changed
2) Double check the other conception
Rights towards one another

Question 35

a bit of content free and rich = Lord Bingham’s 8 sub rules

Answer 35

here needs to be an adherence to various formal and procedural aspects but then his subrules 5 and eights require laws to comply with the human rights which is making it not content free (so content rich) ?because human rights include requirements about the substance of law

Question 36

Locke on SOP

Answer 36

There can be but one supreme power, which is the legislative, to which all the rest are subordinate

He recognises that there are 2 basic functions of government executive and legislative power.

• Note he only notice 2 does not include the judiciary
• During those times judiciary was part of the executive part of the governing

Question 37

Montesquieu on SOP

Answer 37

the best way to recognise the tension between order and liberty is through the doctrine of separation doctrine.
The English constitution was the only constitution in Europe that has the preservation of freedom at its heart .
• He says the key to this political liberty lies in the separation of legislative executive and judicial power
• these three powers check and balance one another and ensure that we would move forward by reconciling different interests

Question 38

blackstones theory on SOP

Answer 38

Theory of balances and checks in the constituitions is crown, lords and commons checking each other notably no mention of judiciary but it has nothing to do with these checks.

Question 39

walter bagehot on sop - dignified and efficient

Answer 39

the British constiutions works because the leading members in the parliament become the key ministers in the government . (the cabinet basically where the main ministers of the crown sit collectively and determine Government and policy “
The efficient secret of the English Constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers”
‘a hyphen that joins, a buckle which fastens, the legislative … to the executive part of the State.