Kara Sears
Constitutional law is a body of law that defines the role, powers, and structure of different entities within a state, such as the executive, the parliament or legislature, and the judiciary. It also outlines the basic rights of citizens and their relationship with their governments. The scope of constitutional law varies depending on the country and its form of government. For example, in a unitary state, the constitution typically vests ultimate authority in a central administration, legislature, and judiciary, while in a federal state, there may be multiple levels of government with shared or exclusive areas of jurisdiction. Constitutional law can be written or unwritten and is influenced by the sociopolitical atmosphere in which it operates. It serves as the fundamental law of the state, shaping the basic framework for governmental powers, civil rights, and civil liberties.
| Characteristics | Values |
|---|---|
| Defines the role, powers, and structure of different entities within a state | Executive, parliament or legislature, judiciary |
| Determines the basic rights of citizens | Freedom of speech, right to privacy, freedom to move, right to vote, right to a fair trial, freedom of religion, freedom of press, freedom of assembly, freedom from certain types of discrimination |
| Establishes the relationship between citizens and the state | Paying tax, serving in the military, observing the law and social ethics, safeguarding the country's unity, security, honour, and interests |
| Establishes the relationship between the federal and state governments | Hierarchy of powers, relationship between central government and state, provincial, or territorial governments |
| Provides the guidelines by which laws are created | Basic framework for governmental powers, civil rights, and civil liberties |
| Determines the fundamental principles by which the government exercises its authority | Power to tax and spend for the welfare of the population |
| Acts as the supreme law of the land | Superior to all laws in force in a country at any point in time |
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What You'll Learn
The scope of constitutional law in federal countries
In federal countries, constitutional law plays a pivotal role in outlining the fundamental principles, administrative structures, and procedures that govern the nation. It establishes the framework for the relationship between the central government and various state, provincial, or territorial governments, each with their own exclusive or shared areas of jurisdiction over lawmaking, application, and enforcement.
For instance, in the United States, the federal Constitution, drafted in 1787, and its subsequent Bill of Rights (ratified in 1791), delineate the distribution of governmental functions among distinct state agencies and safeguard the rights of individuals. The US Constitution is comprised of a preamble, seven articles, and 27 amendments, with the First Amendment enshrining freedoms of speech, religion, press, petition, and assembly. The US Constitution also establishes the structure of the federal government, including the roles of the Senate and the House of Representatives in lawmaking.
Constitutional law in federal countries also defines the basic rights and civil liberties of citizens, such as the right to privacy, freedom of movement, and the right to vote. These rights are deeply rooted in Western political philosophy, with philosophers like John Locke advocating for "inalienable rights" that governments cannot take away. The rights outlined in constitutional law serve as a check on governmental power, ensuring that legislative and executive powers are limited and that citizens' rights are protected.
In addition to the US, other federal countries like Canada and India have their own constitutional frameworks. For example, India's constitution establishes a single judiciary consisting of district courts, high courts, and the Supreme Court of India, while Canada's constitution, though uncodified, includes the Constitution Act, 1982, which outlines fundamental rights and freedoms.
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The scope of constitutional law in unitary states
Constitutional law is a body of law that defines the role, powers, and structure of different entities within a state, including the executive, the parliament or legislature, and the judiciary. It also outlines the basic rights of citizens and their relationship with their governments. In federal countries like the United States and Canada, constitutional law also governs the relationship between the central government and state, provincial, or territorial governments.
In the context of unitary states, a unitary system is characterised by a single level of government, with the central government being the supreme authority. The central government may create or abolish administrative divisions and delegate powers to local or municipal authorities. However, the powers of local governments are not accorded constitutional status, and they can be overridden or abolished by the central government. Examples of unitary states include France, which traditionally kept its local authorities under strict central control, and the United Kingdom, which has no entrenched document setting out fundamental rights. Instead, the UK constitution is composed of statutes, case law, and conventions.
While unitary states have a single level of government, it is important to note that there is a spectrum between unitary and federal systems. Some countries fall somewhere in between, with semi-federal or hybrid systems. These systems have an intermediate level of government that may have limited legislative and administrative powers but does not have the same protected sovereignty as in a federal system.
In summary, the scope of constitutional law in unitary states involves defining the powers and structure of the central government, outlining the relationships between different branches of government, and protecting the rights of citizens. The central government in a unitary state holds supreme authority and can delegate powers to local governments, but those powers can be revoked or altered at the central government's discretion.
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The scope of constitutional law in common law nations
Constitutional law in common law nations is a body of law that defines the role, powers, and structure of different entities within a state, including the executive, the parliament or legislature, and the judiciary. It also outlines the basic rights of citizens and their relationship with their governments. For example, in a unitary state, the constitution vests ultimate authority in one central administration, legislature, and judiciary, with power or authority often delegated to local or municipal authorities.
In federal countries like the United States and Canada, constitutional law also defines the relationship between the central government and state, provincial, or territorial governments. These countries have separate federal and state judiciaries, each with its own hierarchy of courts and a supreme court. The constitution establishes multiple levels of government, with exclusive or shared areas of jurisdiction over lawmaking, application, and enforcement.
Constitutional law in common law nations 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 key task of constitutions in this context is to indicate hierarchies and relationships of power.
Human rights or civil liberties form a crucial part of a country's constitution in common law nations, upholding the rights of individuals against the state. These rights include freedom of speech, the right to a fair trial, and freedom from certain types of discrimination. The constitution may also delimit the powers of the state to secure the fundamental rights of persons or groups, reflecting the principles of natural law and inalienable rights.
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The scope of constitutional law in civil law jurisdictions
The civil law system takes its primary inspiration from classical Roman law, particularly the Justinian Code, which provided a model for contracts, rules of procedure, family law, wills, and constitutional monarchy. Civil law jurisdictions, unlike common law systems, place less emphasis on judicial review, with only the parliament or legislature having the power to effect law. This means that civil law judiciaries are inquisitorial, with the judiciary separate from the prosecution, and the courts are independent from the legislature and law enforcement.
Civil law codes are constantly changed as court precedent is not binding, and courts lack the authority to act without a statute. Civil law jurisdictions produce a large number of legal opinions, but these are uncontrolled as there is no statutory requirement to report cases, except for the highest courts, whose publication of opinions is unofficial or commercial. There is little scope for judge-made law in civil law courts, although judges tend to follow previous decisions. Constitutional and administrative courts can nullify laws and their decisions are binding for all.
In civil law jurisdictions, there is less freedom of contract, with many provisions implied into a contract by law, and parties cannot contract out of certain provisions. For example, in France, the principle of 'fait du prince' grants relief to an operator whose profits have been adversely affected by the unforeseeable actions of a contracting authority, as long as those actions are beyond the scope of the contract.
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The scope of constitutional law in the context of human rights
The Universal Declaration of Human Rights (UDHR), adopted by the UN General Assembly in 1948, was the first legal document to outline the fundamental human rights that should be universally protected. The UDHR's 30 articles provide the principles and building blocks of current and future human rights conventions, treaties, and other legal instruments. The UDHR, along with the two covenants—the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights—make up the International Bill of Rights.
The inherent universality of human rights, as rights that all humans possess simply by virtue of being human, is a cornerstone of international human rights law. This principle, first emphasised in the UDHR, is repeated in many international human rights conventions, declarations, and resolutions. All human rights are indivisible and interdependent, meaning that one set of rights cannot be fully enjoyed without the other. For example, civil and political rights facilitate the exercise of economic, social, and cultural rights, and vice versa.
Despite the existence of a strong legal framework, the history of human rights in the United States has not been one of steady progress. Following each expansion of constitutional and legal rights to protect more people, reactionary forces have turned the laws and the Constitution against human rights. For instance, courts and elected leaders once embraced the Constitution as a force for slavery. Today, the US Supreme Court and multiple state governments often undermine fundamental rights through discriminatory laws, policies, and court rulings.
In response, human rights advocates must unite to mount a strategic defence that reclaims the Constitution as a human rights document. This involves continuing to invoke the Constitution in federal and state courts, enacting stronger local, state, and federal legislation, and exercising the right to free expression and assembly to participate in governmental decisions.
In conclusion, while there is a significant interface between the constitutional law of the United States and the political morality of human rights, the precise legal status of human rights in relation to constitutional law remains a subject of debate.
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Frequently asked questions
Constitutional law is a body of law that defines the role, powers, and structure of different entities within a state, such as the executive, the parliament or legislature, and the judiciary. It also outlines the basic rights of citizens and their relationship with their governments.
Common law nations, such as those in the Commonwealth and the United States, derive their legal systems from that of the United Kingdom. They place emphasis on judicial precedent, with consequential court rulings acting as a source of law. Civil law jurisdictions, on the other hand, give less importance to judicial review and only the parliament or legislature has the power to create laws.
A constitution may define the authorities endowed with powers and may also delimit those powers to secure the fundamental rights of persons or groups. It establishes a framework for governmental powers and civil liberties, and acts as the supreme law of the land, with all other laws and regulations conforming to it.
The First Amendment to the U.S. Constitution, which establishes freedom of speech, religion, press, petition, and assembly, is a well-known example of constitutional law. The right to a fair trial, freedom of movement, and protection from certain types of discrimination are also rights outlined in the U.S. Constitution.
