LAW115 Lecture Notes - Lecture 6: Constitutionalism, Constitution Of Australia, Well-Order
18 May 2018
School
Course
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LAW115 LECTURE 1/4/18
WK6; CONSTITUTIONAL DOMOCRACY AND THE RULE OF LAW
CONSTITUTIONALISM
What is Constitutionalism?
It is an attempt to subject all governmental action to the structures, processes, rules,
principles, and values of a constitution.
What is a Constitution?
A higher law that cannot be changed through normal lawmaking procedures in a popularly
elected assembly.
Why a Constitution?
To insulate the form (parliamentary/presidential, federal/unitary), the limits (rights) and
goals (safety, welfare) of government from the majoritarian controls that govern ordinary
legislation.
Essential Elements of a Constitution
The concept of constitution, which we use in both ordinary and technical language, implies
three necessary elements: the protection of constitutional rights, the rule of law, and the
principle of the separation of powers.
DEMOCRACY
1. A Concept of Democracy
The cocept of dēokratía: a coposite of deos people ad kratos power or
kratein (rule).
If denotes the rule of the people: citizens equally free and autonomous.
2. Direct Democracy
Features
- Fairly homogenous social basis (demos)
- Exercise of power through collective decision-making within the social fabric of face-
to-face relationships in small polities.
- No constitutional rights protected the citizens against interferences from the part of
government. The only quasi-constitutional guarantee for citizens was originally
based on their status as members of the (sovereign) assembly.
Problems
- Mass democracies
- Pluralistic society
- Constitutional rights needed even in small groups
3. Representative or Liberal Democracy
- Key feature: it transfers everyday political decision-making from the sovereign self to
the elected representatives and governors and appointed administrators who
operate within a scheme of division of labour demarcating, more or less clearly, the
functions of legislature, executive, and judiciary.
- The people are constitutionally fragmented and its power divided into
competencies, which are then dispersed, pursuant to the logic of either separation
(focusing on demarcation of functions to prevent abuse of power) or checks and
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Document Summary
Wk6; constitutional domocracy and the rule of law. It is an attempt to subject all governmental action to the structures, processes, rules, principles, and values of a constitution. A higher law that cannot be changed through normal lawmaking procedures in a popularly elected assembly. To insulate the form (parliamentary/presidential, federal/unitary), the limits (rights) and goals (safety, welfare) of government from the majoritarian controls that govern ordinary legislation. The concept of constitution, which we use in both ordinary and technical language, implies three necessary elements: the protection of constitutional rights, the rule of law, and the principle of the separation of powers. The co(cid:374)cept of d (cid:373)okrat a: a co(cid:373)posite of de(cid:373)os (cid:894)people(cid:895) a(cid:374)d kratos (cid:894)power(cid:895) or kratein (rule). If denotes the rule of the people: citizens equally free and autonomous: direct democracy. Exercise of power through collective decision-making within the social fabric of face- to-face relationships in small polities.
