Constitutional Doctrine
Constitutional doctrine refers to the principles and interpretations that guide the application of a country's constitution. It encompasses the legal framework for understanding and implementing constitutional provisions, including the separation of powers, federalism, and individual rights. Constitutional doctrine plays a crucial role in shaping the legal and political landscape of a nation.
6 Key excerpts on "Constitutional Doctrine"
eBook - ePub- James V. Calvi, Susan Coleman(Authors)
- 2016(Publication Date)
- Routledge(Publisher)
...Although there is an acknowledged common law right to privacy, there is no explicit constitutional reference to privacy. Defenders of the non-interpretivist approach point out that many Constitutional Doctrines, including executive privilege, federalism, separation of powers, and even judicial review itself, are not specifically mentioned in the Constitution. However, no one would deny that these doctrines are woven into the very fabric of the Constitution. MAJOR Constitutional DoctrineS The field of constitutional law is so immense that it is virtually impossible to cover it in a single textbook, much less in one chapter of an introductory text. Consequently, we have chosen to focus on five major doctrines of constitutional law––federalism, separation of powers, due process of law, equal protection, and civil liberties––that we believe will increase your understanding of constitutional law. Each doctrine will be presented separately with an attempt to identify some of the problems it poses and some of the approaches the Supreme Court has adopted in resolving the issues raised by it. Federalism It may come as a surprise to some people that the word “federalism” never appears in the Constitution. That is because the Framers did not deliberately set out to create a federal form of government. The 13 states that comprised the United States each had a viable state government in the summer of 1787. Most of the delegates who met in Philadelphia had one major concern: to strengthen the ineffective national government without unnecessarily weakening the existing state governments. To achieve this goal, they devised a plan that divided governmental powers between the national government and the states...
eBook - ePubThe Constitution of the United Kingdom
A Contextual Analysis
- Peter Leyland(Author)
- 2021(Publication Date)
- Hart Publishing(Publisher)
...The second point is to recognise what these rules are likely to concern. For example, in virtually every case these rules will specify the institutional framework for passing valid legislation, and a distinction will often be drawn between what can be the permissible content of ordinary legislation as opposed to law relating to the constitution itself. Further, the higher order rules contained in the constitution will outline the method for the formation of the government, and the rules may place limits on the action taken by the executive organs of the state, including the civil service and the police, in the implementation of law. Finally, the constitution may provide that a court (often a constitutional court) has the capacity to invalidate legislation or executive action which fails to comply with the law of the constitution. Constitutionalism is defined in terms of adherence to the rules and to the spirit of the rules. As Professor De Smith has observed: ‘[this] becomes a living reality to the extent that these rules curb arbitrariness of discretion and are in fact observed by the wielders of political power.’ 7 A genuine constitution for reformers in the eighteenth century, such as Tom Paine, restrained and regulated the exercise of absolute power. Apart from its positive aspects, namely dealing with the generation and organisation of power, a constitution may be taken to comprise a series of devices designed to curb discretionary or unlimited power. It seeks to establish different forms of accountability 8 not simply through a system of freely elected government, but by placing restrictions on the power of the majority...
eBook - ePub- Joanne Sellick(Author)
- 2013(Publication Date)
- Routledge(Publisher)
...3 Fundamental Constitutional Concepts 3.1 The Rule of Law 1. The rule of law is capable of many definitions, based on both philosophical and political theories, and hence it is a difficult doctrine to explain definitively. 2. In basic terms, the rule of law is the supremacy of law over man. As Aristotle explained in the 4th century BC, ‘the rule of law is to be preferred to that of any individual’. 3. Carroll defines the rule of law as ‘neither a rule nor a law. It is now generally understood as a doctrine of political morality which concentrates on the role of law in securing the correct balance of rights and powers between individuals and the state in free and civilised societies’. 4. The rule of law can be interpreted as: an overarching, universal law that applies to everyone, including the executive and legislature; and that man-made laws should conform to a ‘higher’ law, the rule of law. 5. The rule of law is consequently often recognised as a means of ensuring the protection of individual rights against governmental power. 3.1.1 Dicey and the Rule of Law In the United Kingdom, the general concept of the rule of law has become identified with Dicey’s explanation of the doctrine in his 1885 text, The Law of the Constitution. According to Dicey, the rule of law was a distinct feature of the UK constitution, with three main concepts: 1. No person is punishable in body or goods except for a distinct breach of the law (Entick v Carrington (1765)). This concept attempts to ensure that law is not secret, arbitrary or retrospective, thereby limiting the discretionary power of government. To comply with the rule of law, laws should be clear, precise, transparent and accessible. 2. Every person, irrespective of rank, is subject to the ordinary law of the land and the jurisdiction of the courts...
- Helen Fenwick, Gavin Phillipson, Alexander Williams(Authors)
- 2020(Publication Date)
- Routledge(Publisher)
...The politicians’ and the theorists’ concepts and language have not always been identical, but they have nevertheless had much the same ideas in mind. America’s Founding Fathers set out in 1787 to ordain a constitutional form of government. Germany’s founding fathers did the same in 1948 when they drafted the post-war German Constitution, that country’s so-called Basic Law. Constitutionalism as a normative political doctrine rests on three pillars. The first, the most explicitly normative, is that one of the principal purposes of any country’s constitution should be to ensure that individuals and organizations are protected against arbitrary and intrusive action by the state. A properly written constitution should provide for the rule of law. It should make it impossible for a country’s rulers to abuse their power—to act wilfully, corruptly and in their own interests rather than those of the nation as a whole. Ideally, it should also minimize the chances that incompetent individuals, if they come to power, will be able to inflict the consequences of their incompetence on their fellow citizens. A proper constitution is one that seeks to protect the freedom and autonomy of both individuals and organizations. The watchwords of a properly constituted state are—or should be—caution, moderation, restraint and a decent respect for individual citizens and for the citizenry as a whole. Constitutionalism’s second pillar is concerned specifically with the organization of the state. If the chances of the state’s acting arbitrarily, incompetently or in violation of the rule of law are to be minimized, then there is everything to be said for creating a variety of separate state organs and for dispersing power and authority among them. To concentrate power is to increase the chances that it will be misused. The most efficacious means of preventing such misuse is to ensure that power is not concentrated...
eBook - ePub- Ursula Smartt(Author)
- 2016(Publication Date)
- Routledge(Publisher)
...that Government must obey the law (political constitutionalism, such as Judicial Review) and those who believe in legal constitutionalism (see: Dworkin, R., 1986, Law’s Empire). As we have seen in Chapter 1, if the main focus of a state’s constitutionalism is ‘political’ it will focus on Judicial Review of rights. For example, a citizen who is unhappy with a decision of an administrative authority (a public body) can ask for the decision to be reviewed by an Administrative Court (see Chapter 9). Dicey’s concept of the Rule of Law The Rule of Law, according to Albert Venn Dicey (1835–1922) – also referred to as ‘the Rule of Law and the Protection of the Individual’ – is a fundamental principle of the English Constitution. Dicey’s concept of the Rule of Law proposes that Government should be restrained and not have discretionary powers; that there should be legal checks and balances by way of the Judiciary over the Executive (of Government), and no one – including the most senior persons of Government – should be above the law. If these principles are successfully obtained and inherent in a society, this will then result in a true democratic and stable state, resulting in the security of all citizens. Failing to follow the principles of the Rule of Law can result in tyranny. Although the idea of the Rule of Law was not pioneered by Dicey, he is usually credited for popularising it...
eBook - ePub- Joanne Coles(Author)
- 2013(Publication Date)
- Routledge(Publisher)
...This had to be interpreted in respect of strike action aimed at third parties. The separation of powers underpins the constitution in that the judiciary only has the authority to interpret the law, as made by Parliament. Lord Diplock ‘It cannot be too strongly emphasised that the British constitution … is firmly based upon the separation of powers; Parliament makes the laws, the judiciary interpret them.’ While there are numerous examples of fusion within the British constitution, this case provides recognition of adherence to the doctrine in the context of the legislature and judiciary. In R v HM Treasury, ex parte Smedley [1985] 1 All ER 589 Sir John Donaldson MR echoed the comments of Lord Diplock when he stated that ‘it is a constitutional convention of the highest importance that the legislature and the judicature are separate and independent of one another’. HL M v Home Office [1994] 1 AC 377 See above. Nolan LJ ‘The proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the courts as to what its lawful province is.’ It is essential that the executive and judiciary are separate and that the latter has independence. This ensures that the rule of law can operate to check executive action, the relationship described above. Gouriet v Union of Post Office Workers [1978] AC 435...
