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Summary - Public Law (M100)
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Public LawPublic law consists of two branches of law:
Constitutional law
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.
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.
We cover Constitutional Law and Administrative Law on this module, but Criminal
Law has been described as a distinct category of Public Law too.
Private Law is concerned with the exercise of private power.
Contract Law, for example, is often about a legal relationship between you and
another private entity (another individual or a corporation).
Tort Law and Land Law are also Private Law subjects.
What is a Constitution?
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
Trades unions
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. humans rights).
How those entrusted with the exercise of power can be held to account (sometimes
in a legal sense; sometimes in a political sense).
Normative
Prescription 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.
Compare:
USA
France
Bolivia
Iran
Germany
USSR
Constitutions will inevitably reflect dominant power structures in society, and will in
turn shape those structures. For example, the US Constitution initially reflected the
interests of white, male property owners.
But they will also reflect compromises that have been reached between those
dominant power structures and the rest of society.
What factors have informed and shaped these different constitutions?
The Legal Constitution and the Political Constitution
Much of what we study in Constitutional Law is not actually law.
Some constitutional rules are legal in nature.
For example, the Fixed- term Parliaments Act provides that elections shall take place
every five years (but note ongoing efforts to repeal it)
But we have to look beyond these legal norms in order to fully understand a
constitution.
Some constitutional rules are political in nature.
For example, the accountability of the government to parliament
The accountability of individual government ministers for wrongdoing or
maladministration.
Different Types of Constitution
Different constitutions have different core properties or characteristics. Here are
some of the most important ones:
Codified vs. uncodified (sometimes referred to as written vs. unwritten)
, Codified: The core constitutional rules are located in a single written document called
The Constitution. For example, the UK Constitution.
Some scholars refer to uncodified constitutions as ‘unwritten’ constitutions, but be
careful: parts of the UK Constitution are in fact written (e.g. the Fixed- term
Parliaments Act). it’s more accurate to define the UK Constitution as ‘party unwritten’
or ‘partly written’. It’s even better to describe it as ‘uncodified’.
Rigid vs. flexible
Rigid: A special procedure has to be followed in order to amend the constitution.
For example, an amendment in Ireland requires a referendum.
Amendment in the USA requires a ⅔ vote in congress and ¾ of states in favour.
Flexible: No special procedure to amend the constitution. It can be amended in the
same way as ordinary legislation.
For example, in the UK the Fixed- term Parliaments Act can be repealed via the
same procedure required to repeat the Dangerous Dogs Act.
Entrenched vs. unentrenched
Entrenched: The constitution and its law are of a higher status than ordinary laws. It
has greater legal authority, therefore judges can usually strike- down incompatible
legislation.
Article 6 of the US Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be made, under
the Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding.
Unentrenched: The constitution and its laws are not of a higher status than ordinary
laws. This usually means that judges cannot strike- down incompatible legislation.
The UK constitution is unentrenched.
Republicam vs. monarchical
Monarchical: The head of state is a King or Queen.
Republican: The head of state is usually an elected president with either ceremonial
(e.g. Germany) or substantive (e.g. the USA) powers.
The UK is often described as a constitutional monarchy. The Queen’s powers must
be exercised in accordance with the constitution. We will see in later lectures that the
monarch’s powers are, in practice, quite limited.
Federal vs. unitary
Unitary: Supreme power is vested in the central government and legislature. The
powers of local and regional governments are subordinate to it.
Federal: Power is constitutionally divided between the centre and the federal
regions/states/provinces. The USA is a prime example of a federal constitution.
The UK is often described as a unitary state. But after devolution to Scotland, Wales
and the six northern counties of Ireland (Northern Ireland), it’s a bit more complicated
than that.
Democracy, Power and Government in the UK
The crown
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