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Summary LAWS10090 Constitutional Law Week 7 Seminar 8 Constitutionalism
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LAWS10090 Constitutional Law Week 7 Seminar 8 Constitutionalism
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Week 7 Seminar 7Constitutionalism
Griffith is somewhat the starting point about constitutionalism and mainly in relation to legal v
political constitutionalism.
Political constitutionalism had been a topic of work for Richard Bellamy and Tomkins.
Political constitutionalism is set against legal constitutionalism. At the heart of the debate is the
proper state of parliamentary sovereignty. Legal constitutionalists tends to be against the notion of
parliamentary sovereignty, but political constitutionalists are proponents of parliamentary
sovereignty.
Para 5- non UK account to show that the debate of constitutionalism i.e. political v legal is not
confined to the UK or common law. It sets out the difference between the two as well.
Political limits should dominate in political constitutionalism. In legal constitutionalism, the court and
the law itself is seen as limiting governmental power.
Political constitutionalism occupy no single clear possibility, but a spectrum of possibilities. Waldren
(para 7 reference- Law and disagreement 1999.) is a political constitutionalist and is proponent of
the argument of arbitrariness for showing political constitutionalism as a preference. In that he
states that the courts should not be in any position to cater for social principles and values, this
should be tasked with the legislature. It is important to note that why this is the case is that judges
are not accountable and thus making sweeping changes by exercising their power could be
dangerous. Judges are party politically neutral, however, they hold their own political ideologies i.e.
views on certain policy matters and laws, and the latter bit of this is the danger as to show that
judges or the legal constitutionalism can lead to arbitrary limits on governmental power.
Is it fair to have judges deciding on political issues under a legal constitutionalism methods (see para
7 last sentence of the handout)
Legal positivism there is no necessary relationship between the law and morality. When ascertaining
what the law is, we should not account for any moral considerations. Para 1 of the handout shows
Griffith as a legal positivist. In the second sub para he claims law is a power relationship- i.e. the
relationship between the majority and minority in the HC. Law arises from no principle, whereas a
natural lawyer could argue that the law arises from some higher order principles.
Dworkin’s assault on positivism- para 9. Due to historical factors, we can no longer see as law making
institutions as the sole body responsible for the creation of laws. Due to the historical account,
before making any law the societal views must be accounted for in order to ensure we do not repeat
history.
Waldron- para 10- Parliament does not do what political constitutionalists want, due to the various
process government has. Thus the political mechanisms should protect individual rights do not
operate effectively thus we need the judiciary to protect these. And Waldron is suggesting that if
the parliamentary system is broken then the answer is not to turn to the judiciary to ensure that
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