Constitutional law is a body of law which defines the role, powers, and structure of different entities within a
state
State may refer to:
Arts, entertainment, and media Literature
* ''State Magazine'', a monthly magazine published by the U.S. Department of State
* ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States
* ''Our S ...
, namely, the
executive
Executive ( exe., exec., execu.) may refer to:
Role or title
* Executive, a senior management role in an organization
** Chief executive officer (CEO), one of the highest-ranking corporate officers (executives) or administrators
** Executive dire ...
, the
parliament
In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
or
legislature
A legislature is an assembly with the authority to make law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its p ...
, and the
judiciary
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
; as well as the basic rights of citizens and, in federal countries
such as the United States and
Canada
Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
, the relationship between the central government and state, provincial, or territorial governments.
Not all
nation state
A nation state is a political unit where the state and nation are congruent. It is a more precise concept than "country", since a country does not need to have a predominant ethnic group.
A nation, in the sense of a common ethnicity, may inc ...
s have codified
constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed.
When ...
s, though all such states have a ''
jus commune
''Jus commune'' or ''ius commune'' is Latin for "common law" in certain jurisdictions. It is often used by Civil law (legal system), civil law jurists to refer to those aspects of the civil law system's invariant legal principles, sometimes calle ...
'', or law of the land, that may consist of a variety of imperative and consensual rules. These may include
customary law
A legal custom is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law".
Customary law (also, consuetudina ...
,
conventions
Convention may refer to:
* Convention (norm), a custom or tradition, a standard of presentation or conduct
** Treaty, an agreement in international law
* Convention (meeting), meeting of a (usually large) group of individuals and/or companies in a ...
,
statutory law
Statutory law or statute law is written law passed by a body of legislature. This is opposed to oral or customary law; or regulatory law promulgated by the executive or common law of the judiciary. Statutes may originate with national, state legi ...
,
judge-made law
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
, or
international rules and norms. Constitutional law deals with the fundamental principles by which the government exercises its authority. In some instances, these principles grant specific powers to the government, such as the power to tax and spend for the welfare of the population. Other times, constitutional principles act to place limits on what the government can do, such as prohibiting the arrest of an individual without sufficient cause.
In most nations, such as the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
,
India
India, officially the Republic of India (Hindi: ), is a country in South Asia. It is the seventh-largest country by area, the second-most populous country, and the most populous democracy in the world. Bounded by the Indian Ocean on the so ...
, and
Singapore
Singapore (), officially the Republic of Singapore, is a sovereign island country and city-state in maritime Southeast Asia. It lies about one degree of latitude () north of the equator, off the southern tip of the Malay Peninsula, borde ...
, constitutional law is based on the text of a document ratified at the time the nation came into being. Other constitutions, notably
that of the United Kingdom,
rely heavily on uncodified rules, as several legislative statutes and
constitutional conventions, their status within constitutional law varies, and the terms of conventions are in some cases strongly contested.
State and legal structure
Constitutional laws can be considered second order rule making or rules about making rules to exercise power. It governs the relationships between the judiciary, the legislature and the executive with the bodies under its authority. One of the key tasks of constitutions within this context is to indicate hierarchies and relationships of power. For example, in a
unitary state
A unitary state is a sovereign state governed as a single entity in which the central government is the supreme authority. The central government may create (or abolish) administrative divisions (sub-national units). Such units exercise only th ...
, the constitution will vest ultimate authority in one central administration and
legislature
A legislature is an assembly with the authority to make law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its p ...
, and
judiciary
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
, though there is often a delegation of power or authority to local or municipal authorities. When a constitution establishes a
federal state
A federation (also known as a federal state) is a political entity characterized by a union of partially self-governing provinces, states, or other regions under a central federal government ( federalism). In a federation, the self-governi ...
, it will identify the several levels of government coexisting with exclusive or shared areas of jurisdiction over lawmaking, application and enforcement. Some federal states, most notably the United States, have separate and parallel federal and state judiciaries, with each having its own hierarchy of courts with a supreme court for each state.
India
India, officially the Republic of India (Hindi: ), is a country in South Asia. It is the seventh-largest country by area, the second-most populous country, and the most populous democracy in the world. Bounded by the Indian Ocean on the so ...
, on the other hand, has one judiciary divided into district courts, high courts, and the
Supreme Court of India
The Supreme Court of India ( IAST: ) is the supreme judicial authority of India and is the highest court of the Republic of India under the constitution. It is the most senior constitutional court, has the final decision in all legal matters ...
.
Human rights
Human rights or
civil liberties
Civil liberties are guarantees and freedoms that governments commit not to abridge, either by constitution, legislation, or judicial interpretation, without due process. Though the scope of the term differs between countries, civil liberties may ...
form a crucial part of a country's constitution and uphold the rights of the individual against the state. Most jurisdictions, like the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
and
France
France (), officially the French Republic ( ), is a country primarily located in Western Europe. It also comprises of Overseas France, overseas regions and territories in the Americas and the Atlantic Ocean, Atlantic, Pacific Ocean, Pac ...
, have a codified constitution, with a
bill of rights
A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pri ...
. A recent example is the
Charter of Fundamental Rights of the European Union
The Charter of Fundamental Rights of the European Union (CFR) enshrines certain political, social, and economic rights for European Union (EU) citizens and residents into EU law. It was drafted by the European Convention and solemnly proclaim ...
which was intended to be included in the
Treaty establishing a Constitution for Europe
The Treaty establishing a Constitution for Europe (TCE; commonly referred to as the European Constitution or as the Constitutional Treaty) was an unratified international treaty intended to create a consolidated constitution for the European U ...
, that failed to be ratified. Perhaps the most important example is the
Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the Human rights, rights and freedoms of all human beings. Drafted by a UN Drafting of the Universal De ...
under the
UN Charter
The Charter of the United Nations (UN) is the foundational treaty of the UN, an intergovernmental organization. It establishes the purposes, governing structure, and overall framework of the UN system, including its six principal organs: the ...
. These are intended to ensure basic political, social and economic standards that a nation state, or intergovernmental body is obliged to provide to its citizens but many do include its governments.
Canada
Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
is another instance where a codified constitution. with the
Canadian Charter of Rights and Freedoms
The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...
, protects human rights for people under the nation's jurisdiction.
Some countries like the
United Kingdom
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and North ...
have no entrenched document setting out fundamental rights; in those jurisdictions the constitution is composed of
statute
A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
,
case law
Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of a l ...
and
convention. A case named ''
Entick v. Carrington'' is a constitutional principle deriving from the common law.
John Entick
John Entick (c.1703 – May 1773) was an English schoolmaster and author. He was largely a hack writer, working for Edward Dilly, and he padded his credentials with a bogus M.A. and a portrait in clerical dress; some of his works had a more la ...
's house was searched and ransacked by Sherriff Carrington. Carrington argued that a warrant from a Government minister, the
Earl of Halifax
Earl of Halifax is a title that has been created four times in British history—once in the Peerage of England, twice in the Peerage of Great Britain, and once in the Peerage of the United Kingdom. The name of the peerage refers to Halifax, We ...
was valid authority, even though there was no statutory provision or court order for it. The court, led by
Lord Camden
Marquess Camden is a title in the Peerage of the United Kingdom. It was created in 1812 for the politician John Pratt, 2nd Earl Camden. The Pratt family descends from Sir John Pratt, Lord Chief Justice from 1718 to 1725. His third son from his ...
stated that,
"The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. By the laws of England, every invasion of private property, be it ever so minute, is a trespass... If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment."
The
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
and the
civil law jurisdictions do not share the same constitutional law underpinnings.
Common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
nations, such as those in the Commonwealth as well as the United States, derive their legal systems from that of the United Kingdom, and as such place emphasis on judicial precedent,
whereby consequential court rulings (especially those by higher courts) are a
source of law
Sources of law are the origins of laws, the binding rules that enable any state to govern its territory.
The term "source of law" may sometimes refer to the sovereign or to the seat of power from which the law derives its validity.
Jurispruden ...
. Civil law jurisdictions, on the other hand, place less emphasis on judicial review and only the parliament or legislature has the power to effect law. As a result, the structure of the judiciary differs significantly between the two, with common law judiciaries being
adversarial and civil law judiciaries being
inquisitorial
An inquisitorial system is a legal system in which the court, or a part of the court, is actively involved in investigating the facts of the case. This is distinct from an adversarial system, in which the role of the court is primarily that of an ...
. Common law judicatures consequently separate the judiciary from the prosecution,
thereby establishing the courts as completely independent from both the legislature and law enforcement. Human rights law in these countries is as a result, largely built on legal precedent in the courts' interpretation of constitutional law, whereas that of civil law countries is almost exclusively composed of codified law, constitutional or otherwise.
Legislative procedure
Another main function of constitutions may be to describe the procedure by which parliaments may legislate. For instance, special majorities may be required to alter the constitution. In bicameral legislatures, there may be a process laid out for second or third readings of bills before a new law can enter into force. Alternatively, there may further be requirements for maximum terms that a government can keep power before holding an
election
An election is a formal group decision-making process by which a population chooses an individual or multiple individuals to hold public office.
Elections have been the usual mechanism by which modern representative democracy has opera ...
.
Study of constitutional law
Constitutional law is a major focus of legal studies and research. For example, most law students in the United States are required to take a class in Constitutional Law during their first year, and several
law journals
A law review or law journal is a scholarly journal or publication that focuses on legal issues. A law review is a type of legal periodical. Law reviews are a source of research, imbedded with analyzed and referenced legal topics; they also pr ...
are devoted to the discussion of constitutional issues.
The rule of law
The doctrine of the
rule of law
The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannica ...
dictates that government must be conducted according to law. This was first established by British legal theorist
A. V. Dicey
Albert Venn Dicey, (4 February 1835 – 7 April 1922), usually cited as A. V. Dicey, was a British Whiggism, Whig jurist and constitutional law, constitutional theorist. He is most widely known as the author of ''Introduction to the Study o ...
.
Dicey identified three essential elements of the British Constitution which were indicative of the rule of law:
#Absolute supremacy of regular law as opposed to the influence of
arbitrary power
Autocracy is a system of government in which absolute power over a state is concentrated in the hands of one person, whose decisions are subject neither to external legal restraints nor to regularized mechanisms of popular control (except perh ...
;
#
Equality before the law
Equality before the law, also known as equality under the law, equality in the eyes of the law, legal equality, or legal egalitarianism, is the principle that all people must be equally protected by the law. The principle requires a systematic ru ...
;
#The Constitution is a result of the ordinary law of the land.
Dicey's rule of law formula consists of three classic tenets. The first is that the regular law is supreme over arbitrary and discretionary powers. "
man is punishable ... except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts of the land."
The second is that all men are to stand equal in the eyes of the law. "...no man is above the law...every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals"
The third is that the general ideas and principles that the constitution supports arise directly from the judgements and precedents issued by the judiciary. "We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution... are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts"
The separation of powers
Separation of powers
Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...
is often regarded as a second limb functioning alongside the rule of law to curb the powers of the government. In many modern nation states, power is divided and vested into three branches of government: The
legislature
A legislature is an assembly with the authority to make law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its p ...
, the
executive
Executive ( exe., exec., execu.) may refer to:
Role or title
* Executive, a senior management role in an organization
** Chief executive officer (CEO), one of the highest-ranking corporate officers (executives) or administrators
** Executive dire ...
, and the
judiciary
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
are known as the horizontal separation of powers. The first and the second are harmonised in traditional
Westminster system.
[W B Gwyn, The Meaning of the Separation of Powers: An Analysis of the Doctrine From Its Origin to the Adoption of the United States Constitution, Tulane University (1965).] Vertical separation of powers is decentralisation.
Election Law
Election law
Election law is a branch of public law that relates to the democratic processes, election of representatives and office holders, and referendums, through the regulation of the electoral system, voting rights, ballot access, election management b ...
is a subfield of constitutional law. It includes the rules governing the process of elections. These rules enable the translation of the will of the people into functioning
democracies
Democracy (From grc, δημοκρατία, dēmokratía, ''dēmos'' 'people' and ''kratos'' 'rule') is a form of government in which the people have the authority to deliberate and decide legislation (" direct democracy"), or to choose gov ...
. Election law addresses issues who is entitled to
vote
Voting is a method by which a group, such as a meeting or an electorate, can engage for the purpose of making a collective decision or expressing an opinion usually following discussions, debates or election campaigns. Democracies elect holde ...
,
voter registration
In electoral systems, voter registration (or enrollment) is the requirement that a person otherwise eligible to vote must register (or enroll) on an electoral roll, which is usually a prerequisite for being entitled or permitted to vote.
The ru ...
,
ballot access
Elections in the United States refers to the rules and procedures regulating the conditions under which a candidate, political party, or ballot measure is entitled to appear on voters' ballots. As the nation's election process is decentralized b ...
,
campaign finance
Campaign finance, also known as election finance or political donations, refers to the funds raised to promote candidates, political parties, or policy initiatives and referendums. Political parties, charitable organizations, and political ac ...
and
party funding
Political Party Funding (PPF) is a method used by a political party to raise money for Campaign advertising, campaigns and routine activities. The funding of political parties is an aspect of campaign finance.
Political parties are funded by cont ...
,
redistricting
Redistribution (re-districting in the United States and in the Philippines) is the process by which electoral districts are added, removed, or otherwise changed. Redistribution is a form of boundary delimitation that changes electoral dist ...
,
apportionment
The legal term apportionment (french: apportionement; Mediaeval Latin: , derived from la, portio, share), also called delimitation, is in general the distribution or allotment of proper shares, though may have different meanings in different c ...
,
electronic voting
Electronic voting (also known as e-voting) is voting that uses electronic means to either aid or take care of casting and counting ballots.
Depending on the particular implementation, e-voting may use standalone ''electronic voting machines'' ( ...
and
voting machine
A voting machine is a machine used to record votes in an election without paper. The first voting machines were mechanical but it is increasingly more common to use ''electronic voting machines''. Traditionally, a voting machine has been defin ...
s,
accessibility
Accessibility is the design of products, devices, services, vehicles, or environments so as to be usable by people with disabilities. The concept of accessible design and practice of accessible development ensures both "direct access" (i. ...
of elections,
election systems
An electoral system or voting system is a set of rules that determine how elections and referendums are conducted and how their results are determined. Electoral systems are used in politics to elect governments, while non-political elections ma ...
and formulas,
vote counting
Vote counting is the process of counting votes in an election. It can be done manually or by machines. In the United States, the compilation of election returns and validation of the outcome that forms the basis of the official results is call ...
, election disputes,
referendum
A referendum (plural: referendums or less commonly referenda) is a direct vote by the electorate on a proposal, law, or political issue. This is in contrast to an issue being voted on by a representative. This may result in the adoption of a ...
s, and issues such as
electoral fraud
Electoral fraud, sometimes referred to as election manipulation, voter fraud or vote rigging, involves illegal interference with the process of an election, either by increasing the vote share of a favored candidate, depressing the vote share of ...
and
electoral silence.
See also
*
Constitutionalism
Constitutionalism is "a compound of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law".
Political organizations are constitutional ...
*
Constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed.
When ...
*
Constitutional economics
Constitutional economics is a research program in economics and constitutionalism that has been described as explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the choices and activities of economi ...
*
Constitutional rights
A constitutional right can be a prerogative or a duty, a power or a restraint of power, recognized and established by a sovereign state or union of states. Constitutional rights may be expressly stipulated in a national constitution, or they may ...
*
Philosophy of law
Philosophy of law is a branch of philosophy that examines the nature of law and law's relationship to other systems of norms, especially ethics and political philosophy. It asks questions like "What is law?", "What are the criteria for legal vali ...
*
Public law
Public law is the part of law that governs relations between legal persons and a government, between different institutions within a state, between different branches of governments, as well as relationships between persons that are of direct ...
*
Rechtsstaat
''Rechtsstaat'' (lit. "state of law"; "legal state") is a doctrine in continental European legal thinking, originating in Dutch and German jurisprudence. It can be translated into English as "rule of law", alternatively "legal state", state of ...
*
Rule of law
The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannica ...
References
External links
*
{{DEFAULTSORT:Constitutional Law