This is a comprehensive and detailed summary on Griffith; The Political Constitution summary for constitutional law
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To your success in academics!!
Main idea: The constitution is an expression of political activities, and is subject to the
changing political circumstances. Power to legislate should be left to the government as it is
an inherently political activity, and politicians are more accountable/can be removed more
easily than judges.
constitution = state in equilibrium?
Societies are by nature authoritarian – we are both social and lone animals, this
causes internal conflict
Liberal democracy understood as a strong parliamentary way of governing,
paternalistic relationship between govt and citizens; faith in authority
Lord Hailsham
o Theory of centralized democracy/elective dictatorship
Simple majority elected to a one-chamber assembly, has the authority
to exert its will over all citizens
“curbed and subservient judiciary”
Characterized by conformity, uniformity of the nation to promote
equality & social justice
Mix of utilitarianism & legal positivism
possible when a government is formed having won by a small
majority in elections; so it only technically represents the
majority of the people
o Theory of limited government/freedom under law
Diversity, justice
Not opposed to popular rule, but sets out limits for Parliament and
government & how these limits can be enforced
Diffuses political power instead of concentrating it
o Big legislative changes should only be introduced if that is the will of the
nation; he proposes that political institutions should be altered so that will of
the majority prevails over what the executive wants
o 3 safeguards:
Legal – limits beyond which you would need proportional votes or a
referendum
No branch would be able to dominate the other two
Examination of voting processes
o Also proposed a Bill of Rights, devolution, elected second chamber (on the
basis of proportional representation)
Dworkin
o If judges can’t act find the appropriate rule of law to use in a case, they look
for the principles applied in similar cases
Never have to act as legislators, guided by policy – they are only
guided by principle
o Community morality = political morality that informs all law and institutions
Griffith thinks the issue is not as simple – people disagree about major issues and
that cannot be helped
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