Introduction to Public Law - constitutions Flashcards
What is a constitution?
The set of principles and fundamental rules that establishes how a country is organised and run
What are the 5 definitions of a constitution?
1) Legal Document
2) Political framework
3) Institutional blueprint
4) Supreme Law
5) Social Contract
What is the legal document definition?
A formal written or unwritten document that outlines the rules governing a political community
What is the political framework definition?
A set of political rules that structures the relationships between the branches of government
What are the 3 branches of government?
Legislative, executive and judicial
What is the institutional blueprint definition?
The design/organisation of government institutions that dictate how they should operate
What is the supreme law definition?
The highest legal authority within a state, to which all other laws must conform
What is the social contract definition?
The agreement/understanding between the government and its citizens about the roles, responsibilities and limits of both
What is meant by the ‘contested nature’ of the constitution?
Different political ideologies, legal scholars and cultural contexts may interpret the meaning and significance of the Constitution differently
What are the 3 different forms that constitutions can take with examples?
- Written (U.S.)
- Unwritten (UK - based on statutes, conventions, judicial decisions and historical documents)
- Hybrid (combination)
What is the normative vs descriptive nature of constitutions?
- Normatively = How thingsshouldoperate according to principles of justice, democracy, or human rights
- Descriptively = How thingsactuallyfunction in practice
What do constitutions do?
They provide the framework for government, guarantee rights and freedom, and ensures the rule of law
What is a ‘constitutional moment’?
Refers to a significant period of political or social change that leads to the drafting, amending, or reinterpreting of a constitution
What is an example of a ‘constitutional moment’?
The American Constitutional Convention of 1787 and the drafting of South Africa’s post-apartheid constitution
What are 5 verbs to describe what constitutions do?
1) Empower
2) Limit
3) Protect
4) Organise
5) Reflect
What are the 5 common functions of constitutions?
1) Establishes government structure
2) Defines the relationship between state and citizens
3) Provides a legal framework
4) Ensures accountability and rule of law
5) Facilitate social and political stability
How do constitutions establish government structure?
Defines the composition, roles and powers of the different government bodies
How do constitutions define the relationship between state and citizen?
Sets out the rights, duties and freedoms of individuals and the limitations on the state’s power over its citizens
How do constitutions provide a legal framework?
Acts as the highest legal authority, guiding the creation, enforcement and interpretation of laws
How do constitutions ensure accountability and rule of law?
Establishes mechanisms that hold public officials accountable and ensure governance according to the law
- elections, judicial review
How do constitutions facilitate social and political stability?
Aim to unify diverse groups within a society by providing a shared legal/political framework
What is constitutionalism?
A compound of ideas, attitudes, and patterns of behaviour elaborating the principle that the authority of government derives from and is limited by a body of fundamental law
- should be limited to protect individual liberties and prevent tyranny
What does Anthony King’s definition of constitutionalism include, what are they?
- Includes three essential pillars
1) Limited government = gov is bound by laws and must operate within constraints set by the constitution
2) Rule of law = every individual and institution (including the gov) is subject to and accountable under the law
3) Protection of fundamental rights = ensures the protection of individual rights and freedoms against the arbitrary power of the state
What are the 4 types of constitutionalism?
- Liberal constitutionalism
- Transformative constitutionalism
- Legal constitutionalism
- Political constitutionalism
What is liberal constitutionalism?
Emphasises individual rights and the separation of powers
What is transformative constitutionalism?
Focuses on using the constitution as a tool to achieve profound social change
What is legal constitutionalism?
Views the constitution primarily as a legal document, emphasising judicial review and the role of courts
What is political constitutionalism?
Argues that the constitution’s primary function is political and political institutions, rather than courts, should be the main enforcer of constitutional norms
