Q What do you understand by the term constitutional law? Discuss various sources of British constitutional law. 2015 Q1.
Q discuss in detail the main sources of English constitutional law.
Q what is meant by constitutional law? Discuss in datails the sources of british constitutional law?
Q difference between constitution and constitutionalism?
CONSTITUTIONAL LAW:
Constitutional law is concerned with the role and powers of the institutions within the state and with the relationship between the citizen and the state. The constitution is a living, dynamic organism which at any point in time will reflect the moral and political values of the people it governs and accordingly the law of the constitution must be appreciated within the socio-political context in which it operates. Constitutional law in the United Kingdom involves far more than a learning of legal rules. Indeed, it may be said, without exaggeration, that the non-legal rules and practices within the constitution are at least as important –if not more important on many occasion – as the legal rules. Under the constitution of UK, the principles on which the government operates today are precisely those which govern the relationship between the government and the people under a written constitution. The idea of social contract makes it possible to understand the complex relationship between sovereign power and the power of the people to determine who holds that sovereign power and the manner in which it – may not – be exercised.
CONSTITUTIONALISM:
Constitutionalism has a variety of meaning most generally, it is a complex of ideas, attitudes and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law. Constitutionalism is the doctorine which governs the legitimacy of government action. By constitutionalism is meant- in relation to constitutions written and unwritten –conformity with the broad philosophical values within a state. Power to the limiatation of higher law , constitutionalism proclaims the desirability of their rule of law as opposed to rule by the arbitrary judgement or mere fiat of public officials . In other words it means that political society and governemtn officials are not free to do anything they please in any manner they choose, they are bound to observe both the limitations on power and precedures which are set out in the supreme, constitutional law of the community.
“ it may therefore be said that the touchstone of constitutionalism is the concept of limited government under a higher law”
The doctorine of constitutionalism suggest the following :
- The concept of intra vires
- Reinforcement of individual rights
- Separation of powers
- The doctorine of responsibility
- Accountable government
It is against these conceptual and practical requirements that the constitution of the united kingdom must be studies and evaluated.
Sources of constitution:
A constitution is a body of fundamental principles or established precedent according to which a state or other organization is acknowledged to be governed. The English Constitution is different from other constitutions it is not found in one document i.e. it is uncodified. It consists of different elements which are scattered. It came into existence with the passage of time. It can only be understood by reference to long series of acts, traditions and judicial decisions.
There are two kinds of sources in britian:
-legal sources
-Non-Legal sources
Legal Sources:
In order to understand constitution content and scope it is necessary to study the various legal sources which make up the constitution
Following are the legal sources of U.K constitution:
- Statues (act of parliament)
- The powers of the crown (the royal prerogative)
- Law and customs of the parliament / convention
- Judicial decisions.
- Charter
- Opinion of jurists
- Common law
Statues:
There are, in the first place historic documents embodying, solemn agreements arrived at between the King and his subjects at time of political stress and crisis.
The magna carta:
The magna carta occurred in 1215 and represented formal settlement between crown and the barrons. It required King John of England to proclaim certain liberties to his subjects. It says,
No freeman shall be taken or imprisoned or be disseised of his freehold or liberties or free customs or be outlawed or exhiled or any other wise destroyed; nor will we pass upon him, nor condemn him, but by law judgement of his peers, or by the law of ht eland. We will sell to no man, we will not deny or defer to any man either justice or right.
The petition of rights 1628:
Ocassion of the petitioner case arose after the Darnell’s case (The Five Knights’ case 1627) where the defendant had been convicted for refusing to pay a loan improvised by King Charles. The petition forbade such loans, taxes and other monatory demands without the consent of parliament.
The bill of right 1689:
Objecting to the policies of King James II of England, a group of English parliamentarians invited the Dutch stadtholder William III also known as William of orange to enter into a negotiation with a view to their seizing the throne. In 1688 james dissolved parliament. William of orange invaded England with a dutch fleat and army and james II fled the country. In December 1688, William took over the provisional government by appointment of the press of the realm and summoned an assembly of certain members of parliament. This assembly called for an English convection. Parliament to be declared which converted on 27th jan 1689.
The declaration of right was enacted in an act of parliament, the bill of right 1689 which received the royal assent in decens 1689. The act over led “ certain ancient right and liberties” by declaring that;
1. The pretended power of suspending or executing laws by the crown without parliamentary consent is illegal.
2. Elections of members of parliament ought to be free.
3. Excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The treaty of union 1706:
The treaty of union also has enduring constitutional effect. The treaty united England and Scotland under a single parliament of great britian. Prior to the treaty, each country enjoyed independent sovereign status. The most imprtanat provisios are as follows:
Article1 – that th ekingdom of England and Scotland shall be united in one kingdom by the name of great britian.
Article 2- that sussession to the united throne be according to the act of settlement 1700.
Article 3- that there be a single parliament.
The act of parliament (act of settlement) 1701:
The act of settlement 1701 clarified the line of succession to the throne. In relation to succession to the throne, the act tied the succession to protestant heirs, thus prohibiting accession to the throne by persons who are Roman catholics, or who marry a roman catholic. It also provided for security of tenure of judges “during good behavior” thus ended the power of crown to dismiss judges at will.
The European communities act
