Constitutional law can be quite tedious to learn
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Constitutional Law: The Rules of law relating to different aspects of the State.
1. Law and State: different meanings of “State”;
a) Territory – “large” or “small” states, “mountainous”, deserts, etc.
b) Citizens – “friendly’ state, “unilingual’ or “multilingual”
c) Independence – “Only States are members of the UN.”
d) Legal System – “common-law”, “ius civile” or “socialist” states –
relationship between the state and the individual
e) Government Authority – Government bodies (Legislative, executive,
judicial bodies of state) “State raises taxes.”
f) Juristic person – eg. State buys a piece of land.
2. Constitutional law as part of the law: Characteristics of rules of law:
a) Rules of law apply in a particular territory
b) They apply to all persons in that territory – citizens and foreigners
c) They apply to Natural and Juristic persons
- The State is also a juristic person; consists of people;
Interests of people and the state may differ.
Organs on behalf of the state: government bodies.
State is bound by law
d) The law confers capacity to apply law in relationships
- State, more so, can enforce law.
Sum of state power is called “government authority”
It is exercised by government bodies.
“Separation of Powers” : - legislative: Parliament
- executive: President
- Judicial: Courts
Distribution of Powers among levels of government:
- National
- Provincial
- Local
e) Rules of Law can be enforced by the state:
- Distinguishes rules of law from any other rules.
f) Sources of law: custom, legislation and case law
- Legislation is the PRIMARY SOURCE;
In Constitutional law the CONSTITUTION is primary.
g) Purpose of Rules of Law is to regulate relations equitably:
- Effectiveness;
, For peace and order;
Does not regulate everything;
Values;
No pure criteria for what is fair:
Rules of law are never NEUTRAL or VALUE-FAIR;
They reflect the views of the law makers;
We study the rules of law as well as the under-lying values;
How do they develop?
How are they applied?
How effective are they in solving problems?
-SA CONSTITUTION (Section1); preamble; Human dignity, human
rights, non-racialism, non-sexism, constitutional supremacy, democratic
system. The Constitution gives effect to these values.
h) Rules of law are divided into Private and Public law:
- Public law regulates relationships to which the state, as bearer of
government authority, is always a party.
SEPARATION OF POWERS:
Legislative Executive Judicial
Authority: Authority: Authority:
NATIONAL Parliament PRESIDENT & COURTS
(National Assembly CABINET
& NCOP) MINISTERS
PROVINCIAL Provincial PREMIERS, COURTS
Legislatures EXECUTIVE
COUNCILS
LOCAL Municipal Councils MAYORS, COURTS
EXECUTIVE
COMMITTEES
3. The State and the Individual:
The law of every state reflects views on how the relationship between the state and the
individual must be regulated and on values on which they are based.
Determined by composition, powers and functioning of government bodies as well as
by the balance struck between state and individual interests. Fairness of rules of law
implies that the latter must be taken into account.
There are various doctrines developed about this:
,a) Rules of law:
- Rights may not be deprived arbitrarily, only by the courts.
- Nobody is above the law, everyone is subject to the courts.
- Rights are protected by the courts.
- The problem is that the rules of law only concern procedure and not the substantive
balancing of interests.
- Section 1 of the Constitution (the Preamble): Rule of law: one of the founding
values.
b) The Constitutional State:
- The government is subject to the law.
- This concept includes all democratic principles.
- The Interim Constitution contained it.
- All principles are now in the Constitution.
c) Ubuntu: (S v Makwanyane)
- An African view of society which means humaneness (human dignity), the
community
must respect the human dignity of an individual but also emphasizes sharing and co-
responsibility.
d) Bill of Rights:
- Provisions in the Constitution that confer rights and set limits to the limitation of
rights.
- Higher status: Part of the Constitution (Hierarchy of laws)
, CHAPTER 3: Sources of Constitutional law
The sources of constitutional law are:
- Legislation (main source)
- Custom (common-law)
- Customary law
- Case law
1. Legislation
- Most important source.
-
- Generally applicable rules ,made by government bodies in all spheres – laws,
regulations, bye-laws, etc,
- Constitutions:
1. Most important legislative source of Constitution law.
* Contains the most important rules of law on the Constitutional system. It
defines government, confers, regulates and limits it.
* Regulates the relationship between the state and individual
* Norm for everybody’s conduct.
* It expresses the will of the people; reflects values – that we need to work
towards.
* It is the key component of the legal system.
* It is an international norm to have a Constitution.
2. Constitution as a statute or in a wider sense:
* wider sense: Constitutional rules are also found in other laws.
3. Constitutions with a higher status:
* It is a supreme law.
* It is a norm for all conduct and actions.
* Basis of legal order: Lex fundamentalis
* OPPOSITE of parliamentary sovereignty.
* Must be WRITTEN and ENTRENCHED.
* Courts enforce the Constitution.
* Constitutional state: Law prevails and the state is subject to the law.
** The S.A. Constitution is entrenched:**
- Inconsistent law or conduct is invalid.
- Constitution is ENTRENCHED.
- The courts can test the validity of any action, and laws – May declare them
invalid.
- Replaced parliamentary sovereignty.
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