Constitutional law

Constitutional law

Overview

Constitutional law is the body of law which defines the relationship of different entities within a state
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...

, namely, the executive
Executive
Executive may refer to:* Executive , branch of government that has sole authority and responsibility for the daily administration of the state bureaucracy* Executive , monthly news magazine established in 1999...

, the legislature
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...

 and the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...

.

Not all nation states have codified constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...

s, though all such states have a jus commune
Jus commune
Jus commune or ius commune is Latin for "common law" in certain jurisdictions. It is often used by civil law jurists to refer to those aspects of the civil law system's invariate legal principles, sometimes called "the law of the land" in English law...

, or law of the land, that may consist of a variety of imperative and consensual rules. These may include customary law, conventions
Convention (norm)
A convention is a set of agreed, stipulated or generally accepted standards, norms, social norms or criteria, often taking the form of a custom....

, statutory law
Statutory law
Statutory law or statute law is written law set down by a legislature or by a legislator .Statutes may originate with national, state legislatures or local municipalities...

, judge-made law or international rules and norms
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...

, and so on.

Constitutional laws may often be considered second order rulemaking or rules about making rules to exercise power.
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Quotations

"A law can be both economic folly and constitutional." ~ Antonin Scalia

"I have three degrees in history and only one in law, but since I came back to specialize in constitutional law where history is so essentially a part and an explanation of much that exists, the two disciplines blended very well." ~ Frank Scott

"One country, one constitution, one destiny." ~ Daniel Webster, Speech, March 15, 1837.

"The Constitution devotes the national domain to union, to justice, to defence, to welfare and to liberty. But there is a higher law than the Constitution." ~ William H. Seward, Speech, March 11, 1850.

"The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution." ~ Byron R. White

"The current constitutional law places the president of the republic in an embarrassing situation." ~ Jose Eduardo Dos Santos Category:Law and government

Encyclopedia

Constitutional law is the body of law which defines the relationship of different entities within a state
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...

, namely, the executive
Executive
Executive may refer to:* Executive , branch of government that has sole authority and responsibility for the daily administration of the state bureaucracy* Executive , monthly news magazine established in 1999...

, the legislature
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...

 and the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...

.

Not all nation states have codified constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...

s, though all such states have a jus commune
Jus commune
Jus commune or ius commune is Latin for "common law" in certain jurisdictions. It is often used by civil law jurists to refer to those aspects of the civil law system's invariate legal principles, sometimes called "the law of the land" in English law...

, or law of the land, that may consist of a variety of imperative and consensual rules. These may include customary law, conventions
Convention (norm)
A convention is a set of agreed, stipulated or generally accepted standards, norms, social norms or criteria, often taking the form of a custom....

, statutory law
Statutory law
Statutory law or statute law is written law set down by a legislature or by a legislator .Statutes may originate with national, state legislatures or local municipalities...

, judge-made law or international rules and norms
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...

, and so on.

State and legal structure


Constitutional laws may often be considered second order rulemaking or rules about making rules to exercise power. It governs the relationships between the judiciary, the legislature and the executive with the bodies under its authority. One of the key tasks of constitutions within this context is to indicate hierarchies and relationships of power. For example, in a unitary state
Unitary state
A unitary state is a state governed as one single unit in which the central government is supreme and any administrative divisions exercise only powers that their central government chooses to delegate...

, the constitution will vest ultimate authority in one central administration and legislature
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...

, and judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...

, though there is often a delegation of power or authority to local or municipal authorities. When a constitution establishes a federal state, it will identify the several levels of government coexisting with exclusive or shared areas of jurisdiction over lawmaking, application and enforcement.

Human rights



Human rights or civil liberties
Civil liberties
Civil liberties are rights and freedoms that provide an individual specific rights such as the freedom from slavery and forced labour, freedom from torture and death, the right to liberty and security, right to a fair trial, the right to defend one's self, the right to own and bear arms, the right...

 form a crucial part of a country's constitution and govern the rights of the individual against the state. Most jurisdictions, like the United States and France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...

, have a codified constitution, with a bill of rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...

. A recent example is the Charter of Fundamental Rights of the European Union
Charter of Fundamental Rights of the European Union
The Charter of Fundamental Rights of the European Union enshrines certain political, social, and economic rights for European Union citizens and residents, into EU law. It was drafted by the European Convention and solemnly proclaimed on 7 December 2000 by the European Parliament, the Council of...

 which was intended to be included in the Treaty establishing a Constitution for Europe
Treaty establishing a Constitution for Europe
The Treaty establishing a Constitution for Europe , , was an unratified international treaty intended to create a consolidated constitution for the European Union...

, that failed to be ratified. Perhaps the most important example is the Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...

 under the UN Charter. These are intended to ensure basic political, social and economic standards that a nation state, or intergovernmental body is obliged to provide to its citizens but many do include its governments.

Some countries like the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...

 have no entrenched document setting out fundamental rights; in those jurisdictions the constitution is composed of statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...

, case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...

 and convention
Constitutional convention (political custom)
A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state. In some states, notably those Commonwealth of Nations states that follow the Westminster system and whose political systems derive from British constitutional law, most...

. A case named Entick v. Carrington is a constitutional principle deriving from the common law. John Entick
John Entick
John Entick was an English schoolmaster and author. He was largely a hack writer, working for Edward Dilly, and he padded his credentials with a bogus M.A. and a portrait in clerical dress; some of his works had a more lasting value...

's house was searched and ransacked by Sherriff Carrington. Carrington argued that a warrant from a Government minister, the Earl of Halifax was valid authority, even though there was no statutory provision or court order for it. The court, led by Lord Camden
Charles Pratt, 1st Earl Camden
Charles Pratt, 1st Earl Camden was an English lawyer, judge and Whig politician who was first to hold the title of Earl of Camden...

 Constitutional Law stated that,

"The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. By the laws of England, every invasion of private property, be it ever so minute, is a trespass... If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment."


Inspired by John Locke
Two Treatises of Government
The Two Treatises of Government is a work of political philosophy published anonymously in 1689 by John Locke...

, the fundamental constitutional principle is that the individual can do anything but that which is forbidden by law, while the state may do nothing but that which is authorized by law.

The commonwealth and the civil law jurisdictions do not share the same constitutional law underpinnings.

Legislative procedure



Another main function of constitutions may be to describe the procedure by which parliaments may legislate. For instance, special majorities may be required to alter the constitution. In bicameral legislatures, there may be a process laid out for second or third readings of bills before a new law can enter into force. Alternatively, there may further be requirements for maximum terms that a government can keep power before holding an election
Election
An election is a formal decision-making process by which a population chooses an individual to hold public office. Elections have been the usual mechanism by which modern representative democracy operates since the 17th century. Elections may fill offices in the legislature, sometimes in the...

.

Study of constitutional law



Constitutional law is a major focus of legal studies and research. For example, most law students in the United States are required to take a class in Constitutional Law during their first year, and several law journals are devoted to the discussion of constitutional issues.

The Rule of Law


The doctrine of the rule of law dictates that government must be conducted according to law.

Dicey identified three essential elements of the British Constitution which were indicative of the rule of law:
  1. Absence of arbitrary power;
  2. Equality before the law;
  3. The Constitution is a result of the ordinary law of the land.

The Separation of Powers


Often regarded as a second limb functioning alongside the Rule of Law to curb the powers of the Government.
In most modern nation states, power is divided and vested into three branches of government: The Executive, the Legislature and the Judiciary. The first and the second are harmonized in traditional Westminster forms of government.

Constitutions by region


See also

  • Constitutionalism
    Constitutionalism
    Constitutionalism has a variety of meanings. 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"....

  • Constitution
    Constitution
    A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...

  • Constitutional economics
    Constitutional economics
    Constitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...

  • Rechtsstaat
    Rechtsstaat
    Rechtsstaat is a concept in continental European legal thinking, originally borrowed from German jurisprudence, which can be translated as "legal state", "state of law", "state of justice", or "state of rights"...

  • Rule of law
    Rule of law
    The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...