← Chapter 13- Constitutions 16/12/2012 18:27:00
1. Importance of law
• Rule of Law: is a Western and primarily Anglo- American term. Its
varied dimension include consistent application of the law; one law
for all; and due process (respect for an individual’s legal rights)
2. Types of law: In western democracies there are two main fundamental
• Common law: found in England and many of its former colonies,
consists of judicial rulings on matters not explicitly treated in legislation.
Common law is based on precedents created by decisions in specific
Civil law: judges reach decisions by applying extensive written codes
rather than by comparing cases. Civil law derives from Roman law, it is
unconnected with a “civil case”, a term used to indicate a non-criminal
• Administrative law: sets out the principles government decision-making
by public bodies and the remedies for breaching such rules. For ex)
America’s administrative procedure act (1946) requires courts to hold
unlawful any agency action that is ‘arbitrary, capricious, an abuse of
discretion or otherwise not in accordance with law’.
Constitutions: sets out the formal structure of the state, specifying the
powers and institutions of central government, and its relationship with
other levels. In addition, constitutions express the rights of citizens and in so
doing create limits on government.
Codified constitution is set out in a single document; an uncodified
constitution is spread among a range of documents and is influenced by
tradition and practice.
Flexible constitutions can be amended in the same way that ordinary
legislation is passed; Britain is the major example.
Rigid constitutions are entrenched, ring-fenced by a more demanding
amendment procedure such as a qualified or concurrent majority. Under administrative law: the separatist approach to administrative
justice (as in France) is to establish special courts and laws to review the
interaction between citizen and state.
Integrationist approach: (as traditionally favoured in the United Kingdom)
seeks to control bureaucracy by reviewing disputes in ordinary courts,
relying in large part on the ordinary law of the land.
• Regime change: for example, the collapse of communist rule
• Reconstruction after defeat in war: for example, Japan after 1945;
• The achievement of independence: for example, much of Africa in
the 1950s and 1960s.
← Judicial Review:
← The “power to evaluate the constitutionality of government actions and
to strike down those found to be unconstitutional” (CP, 205)
← …”Empowers ordinary or special courts to nullify both legislation and
executive acts that contravene the constitution.” (H&H, 253)
• Abstract review: practised by constitutional courts only, is an
advisory but binding opinion on a proposed law.
• Concrete review: practised by both constitutional and supreme
courts, arises in the context of a specific case.
• Canadian reference procedure
← Modes of Judgment
• Judicial activism: refers to the willingness of judges to venture
beyond narrow legal reasoning so as to influence public policy.
• Judicial restraint: a more conservative philosophy, maintains that
judges should simply apply the letter of the law, leaving politics to
← Types of Court
← Supreme Courts: concrete view ← Constitutional Courts: Judicial review (abstract and concrete) and
constitutional courts. Courts as interpreters of the constitution. Using
ordinary courts or special constitutional courts. Judicial decisions not self-
implementing. The American ‘Supreme’ Court vs. the German ‘Constitutional’
Court. The European Court of Justice.
Parameters of Judicial Power