Public

102/213c PUBLIC LAW

Lecture No. 1: CONSTITUTIONS – NATURE, PRINCIPLES AND FEATURES

What is a Constitution?

‘the act of people constituting a government’ per T. Paine Rights of Man (1791-92)

‘a body of rules’

‘the identity of a state’

• What is the purpose of a constitution?

• What are the main characteristics of a constitution?

1. What is the Function of a Constitution

(a) THE NEED FOR ORDER AND SECURITY • Hobbes, Leviathan (1651) • Locke, Two Treatises of Government (1690) • Marx, The Communist Manifesto (1848)

(b) THE HOMOGENEITY OF SOCIETY • Rousseau, The Social Contract (1762)

(c) CITIZENSHIP: THE INCLUSION AND ACCEPTANCE OF INDIVIDUALS: the issue of inclusion and exclusion
(d) LEGITIMATION: Who can do what and why

3. Designing a Constitution
(a) ALLOCATING POWER WITHIN A STATE
(b) CONFERRING LEGITIMACY ON STATE INSTITUTIONS
(c) IRREVERSIBILITY
(d) RESPONSIBLE GOVERNMENT
(e) CHECKS AND BALANCES
(f) EFFICIENCY
(g) EXPERIMENTATION

4. The Legal Nature of a Constitution
Distinguish between ‘ordinary law’ and ‘fundamental law(power point)
BRB v Pickin [1974] AC 765
Congreve v Home Office [1976] QB 629

Consider H. Kelsen, The Pure Theory of Law (1960) • the basic norm or ‘grundnorm’

(a) DO CONSTITUTIONAL RULES HAVE A SPECIAL STATUS?
(b) DO CONSTITUTIONS CONFER VALIDITY ON THE LEGAL SYSTEM?

5. Constitutions and the Relationship between Law and Politics
(a) THE THEORY OF CONSTITUTIONALISM
(b) GOVERNMENTALITY and the work of Michel Foucault
(c) GOVERNANCE

6. Forms of Constitutions
(a) WRITTEN AND UNWRITTEN (or Codified and Uncodified)
(b) UNITARY AND FEDERAL
(c) MONARCHICAL AND REPUBLICAN
(d) PRESIDENTIAL AND PARLIAMENTARY
(e) DEMOCRATIC AND DICTATORIAL
(f) BILLS OF RIGHTS
7. Features of the British Constitution • . To what extent does the definition of a constitution, its purpose and characteristics determine the ultimate content of a constitution? • An uncodified constitution • The Rule of Law • The Supremacy of Parliament • The role and nature of Executive Power • An independent Judiciary

8. Reform Bill of Rights Written Constitution

9. The Theory of Constitutionalism
The exercise of power is within the limits defined by Parliament Those who exercise power are accountable to law The exercise of power must entail a respect for the individual and all the rights that citizens will possess Powers conferred on the institutions of the state must be sufficiently dispersed so as to avoid the abuse of power Government, in formulating policy, and Parliament, in passing legislation, are accountable to the electorate on whose trust power is held

• What you think is mean by the term ‘constitutionalism’?

• Does the term ‘constitutionalism’ represent a valid description of the constitutional arrangements of the UK? Explain and justify your answer.

• . Briefly explain the basics of the following theorists and their relevance to the study of constitutional law:

Hobbes-Rousseau-Locke-Kelsen-Foucault

• Have you been able to identify facets of these theorists within the film viewed in the lecture in week 2?

Explain and justify your answer.

• Do the constitutional arrangements of the UK accord with any of the theorists that you have examined as preparation for this seminar? Explain and justify your answer.

Primary Sources

BRB v Pickin [1974] 1 AC 765
Congreve v Home Office [1976] QB 629
A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68
Secondary Sources
All of the following extracts are available on the VLE.
T. HobbesThe Leviathan, Chapter XIV, XVII and XVIII J. Rousseau The Social Contract, Book I Chapter VI, VII, VIII and Book II
J. LockeTwo Treatises of Government, Second Treatise, Chapter II
H. Kelsen General Theory of Law and State, pp 115-118 and 124-128 or Freeman, Lloyds Introduction to Jurisprudence, pp 316–318
P. Rabinow (ed.) The Foucault Reader, pp 14-23