THEME 3: Introduction to Constitutional Law Theory
What is constitutional law?
● Constitutional law incorporates various mechanisms that comprise the state (table of
contents of Constitution)
○ Founded on the constitution of state (written or unwritten)
○ Rules that determined how state bodies (organs of state) are created, function,
and terminated
➢ What can and cannot they do - if it's not in the scope it's unconstitutional
○ Involves politics, philosophy, history, the legal system, and judicial practices.
➢ The legal system is based on common law and roman-Dutch law
○ The cornerstone of the legal system - impacts the entire legal system and all
fields of law!
➢ If the legislation is wrong it's wrongfully adopted
Provide and ponder on the definition of a constitution.
● Constitution is an assemblage of laws/legal rules to govern the state to which the
community has agreed to be governed, including politics and civil interest
○ Fundamental principles according to which a nation, state/ body politic is
constituted or governed, which often embodies the rights of the subjects of the
state
○ Attorney Genl v Dow:
➢ Attorney Genl v Dow is a legal case that took place in 1991 in Canada.
The case examined the constitutional validity of a federal law that
criminalized physician-assisted suicide and ultimately upheld the law as
constitutional.
➢ Written constitution - the legislation/agreement between those placed in
power and those subject to such power
➢ Constitution paints in broad strokes the organs of a state and defines
relationships between state organs inter se and the relationship between
the state and its people
, ● A Constitution is concerned with political authority and the exercise of state powers - it
involves matters of substance and procedures
➢ Von Abo v President of the RSA
- Von Abo v President of the RSA is a legal case that took place in
1996 in South Africa. The case examined the constitutionality of a
provision in the country's Citizenship Act that automatically
deprived citizenship of anyone who voluntarily acquired the
citizenship of another country, and ultimately found the provision
to be unconstitutional.
- Constitution incorporates the particular legal history of a country
- A bridge between the past and the future!
● Constitution = thus narrow (text only) and broad (entire legal system) application
○ Narrow - particular legal document that defines and determines the structures,
powers and obligations of all state bodies, regulates the relationships between
the different organs of the state, and explains and regulates the relationship
between the state and its people
○ Board - relates to an entire legal system of laws, customs and conventions in
terms of which a state is created and governed
● Each country has its own rules/constitutional principles
○ It is important to understand specific approach
Discuss and evaluate former President Mandela’s definition of the
Constitution of the Republic of South Africa, 1996 (the Constitution).
2001 Mr Mandela - Former president
● Speaks to past & future
● a solemn pact, concluded by people, against past & racial divide, a charter for
transformation, country shared/belongs to all, reflects aspirations/destinies of people;
makes a moral commitment, is supreme
What is constitutional law?
● Constitutional law incorporates various mechanisms that comprise the state (table of
contents of Constitution)
○ Founded on the constitution of state (written or unwritten)
○ Rules that determined how state bodies (organs of state) are created, function,
and terminated
➢ What can and cannot they do - if it's not in the scope it's unconstitutional
○ Involves politics, philosophy, history, the legal system, and judicial practices.
➢ The legal system is based on common law and roman-Dutch law
○ The cornerstone of the legal system - impacts the entire legal system and all
fields of law!
➢ If the legislation is wrong it's wrongfully adopted
Provide and ponder on the definition of a constitution.
● Constitution is an assemblage of laws/legal rules to govern the state to which the
community has agreed to be governed, including politics and civil interest
○ Fundamental principles according to which a nation, state/ body politic is
constituted or governed, which often embodies the rights of the subjects of the
state
○ Attorney Genl v Dow:
➢ Attorney Genl v Dow is a legal case that took place in 1991 in Canada.
The case examined the constitutional validity of a federal law that
criminalized physician-assisted suicide and ultimately upheld the law as
constitutional.
➢ Written constitution - the legislation/agreement between those placed in
power and those subject to such power
➢ Constitution paints in broad strokes the organs of a state and defines
relationships between state organs inter se and the relationship between
the state and its people
, ● A Constitution is concerned with political authority and the exercise of state powers - it
involves matters of substance and procedures
➢ Von Abo v President of the RSA
- Von Abo v President of the RSA is a legal case that took place in
1996 in South Africa. The case examined the constitutionality of a
provision in the country's Citizenship Act that automatically
deprived citizenship of anyone who voluntarily acquired the
citizenship of another country, and ultimately found the provision
to be unconstitutional.
- Constitution incorporates the particular legal history of a country
- A bridge between the past and the future!
● Constitution = thus narrow (text only) and broad (entire legal system) application
○ Narrow - particular legal document that defines and determines the structures,
powers and obligations of all state bodies, regulates the relationships between
the different organs of the state, and explains and regulates the relationship
between the state and its people
○ Board - relates to an entire legal system of laws, customs and conventions in
terms of which a state is created and governed
● Each country has its own rules/constitutional principles
○ It is important to understand specific approach
Discuss and evaluate former President Mandela’s definition of the
Constitution of the Republic of South Africa, 1996 (the Constitution).
2001 Mr Mandela - Former president
● Speaks to past & future
● a solemn pact, concluded by people, against past & racial divide, a charter for
transformation, country shared/belongs to all, reflects aspirations/destinies of people;
makes a moral commitment, is supreme
