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Summary Public Law
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Summary of 14 pages for the course Public Law at LJMU (Public Law Notes)
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IntroductionWhat is Public Law?
Consists of two branches of law:
1. Constitutional Law
2. Administrative Law
Both are about the study of power= specifically state power.
Constitutional Law
According to the Cambridge dictionary, to constitute something is to ‘form or make
something’.
Constitutional Law is about ‘how a state is constituted and functions’ (Elliot &
Thomas, Public Law)
We are concerned with how state power is apportioned, how that power is limited,
and how it interacts with individuals.
Administrative Law
According to the Cambridge dictionary. To administer something is to ‘manage or
control the operation of something’.
Administrative Law is about ‘the composition, procedures, powers, duties, rights and
liabilities of the various organs of government that are engaged in administering
public policies.’ (Bradley, Ewing & Knight, Constitutional and Administrative Law).
In other words, it's about oversight of government decision- making and control of
government power.
Constitutional Law
Public Law vs Private Law
Public Law is concerned with the exercise of public power: how it is allocated, how it
is limited and controlled, how it interacts with individuals, etc.
Private Law is concerned with the exercise of private power.
What is a Constitution?
Remember that to ‘constitute’ something is to form or make something’.
A constitution is therefore about how something is constituted. How it is made up.
In loose terms, it's a set of ground- rules for how a state functions/ should function.
We are concerned with the constitutions of states, but many organisations, bodies,
and clubs have one.
Sports clubs
Charities
Companies
Political parties
Trade unions
Narrow Definition: ‘...a document having a special legal ; status which sets out the
framework and principal functions of the organs of government and declares the
principles or rules by which those organs must operate.’ (Bradley, Ewing & Knight)
States with constitutions of this variety usually have Constitutional Courts that
assess whether a piece of legislation conflicts with the constitution.
, That's because the constitution has a ‘special legal status’ making it superior to
ordinary legislation.
Broad definition: ‘...a system of laws, customs and conventions which define the
composition and powers of organs of the state and regulate the relations of the
various organs to one another and to the private citizen.’ (Jackson and Leopold)
Notice the key difference: no need for a document of ‘special legal status’.,
instead, it's a broad system made up of law, custom and convention. This ‘broad
system’ does similar things to the special legal document under the narrow definition.
Overlap between definitions
We have to be careful. Even states with a constitution in the narrow sense will have
other laws, customs and conventions of a constitutional nature. The entirety of a
constitution’s rules are never found in one single document. The US constitution
does not explicitly provide that the US Supreme Court can strike- down
unconstitutional legislation. The authority comes from the case of Marbury v
Madison. So a Constitutional Law course in the USA will consider other ‘laws,
customs and conventions’ alongside the text of its ‘document having a special legal
status’
They might fill some of the gaps left by the ‘document having a special legal status’.
What is Constitution?
Constitutional Law is sometimes described as ‘the law about law’
Take Criminal Law, for example:
The creation of the offences against the person Act was a matter of Constitutional
Law. It had to go through a legislative process in Parliament prescribed by
Constitutional Law before it became a valid piece of legislation.
The power of the courts to interpret it- and the limits of that role- is established by
Constitutional Law. If there is a concern that aspects of it violate human rights then
that’s a constitutional issue too: it implicates the Human Rights Act.
Functions of Constitutions
Descriptive:
Map of Power within the state.
Who/what has the power to do what (make the law, enforce the law, etc.)?
How that power is exercised and how it is limited.
Regulate relations between different organs within the state: parliament,
government, courts, devolved institutions, local government, etc.
How state power interacts with us as individuals (e.g. human rights).
How those entrusted with the exercise of power can be held account (sometimes in a
legal sense; sometimes in a political sense).
Normative:
Prescriptions of the desired way of operating.
Instills values like democracy, open and transparent government, the welfare of
citizens, etc.
Relevance of ideology, history, culture, etc.
Constitutions are products of different cultures, circumstances, and historical
moments. Quite naturally, they vary quite widely from state- to - state.
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