An Introduction to the Study of the Law of the Constitution

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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. "[N]o man is punishable ... except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts of the land." [14] Dicey, A. V. (1959). Introduction to the Study of the Law of the Constitution (10ed.). London: Macmillan.

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 are devoted to the discussion of constitutional issues. Dicey was born on 4 February 1835. His father was Thomas Edward Dicey, senior wrangler in 1811 and proprietor of the Northampton Mercury and Chairman of the Midland Railway. His mother was Annie Marie Stephen, daughter of James Stephen, Master in Chancery. He owed everything - the expression is his own - to the wisdom and firmness of his mother. [5] His elder brother was Edward James Stephen Dicey. [6] He was also a cousin of Leslie Stephen and Sir James Fitzjames Stephen. Review of Introduction to the Study of the Law of the Constitution". American Political Science Review. 9 (2): 385–389. May 1915. doi: 10.2307/1944633. ISSN 0003-0554. The fundamental rules constituting the state are those rules regulating the primary powers and duties of the state; the rules establishing arms and organs of the state; and the basic rules prescribing how a state interacts with persons in its jurisdiction through those arms and organs. So, constitutional law may not be limited to all the rules in a codified constitution. The laws relating to a state’s constitution may be contained in statute, common law, or even custom. In some countries, like religious states, constitutional law might even extend to theological texts. The ambit of constitutional law ultimately turns on what one considers to be rules that relate to the fundamental existence and functioning of a state.The rule of law is often understood with reference to the theory of the British jurist, AV Dicey. Dicey explained in his Introduction To The Study Of Law Of The Constitution (1885), that the rule of law has three characteristics. First, because the law is supreme all public power must be exercised in terms of an empowering provision in a law. Second, everyone is equal before the law. Third, the courts are responsible for enforcing the laws of a country [9]. If all three conditions are met then the rule of law is established within a state. Section 1 of the Constitution provides that South Africa is a republic founded on the value of constitutional supremacy. Section 2 of the Constitution provides that the Constitution is ‘supreme law in the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled’. The rules in the Constitution thus trump all other rules contained in statutes, common law and custom. Any rule inconsistent with a constitutional rule is an invalid rule. Any conduct that contradicts the constitution, including failing to fulfil an obligation imposed by the Constitution, is similarly invalid. For example, the case of Doctors for Life concerned the constitutionality of the Choice on Termination of Pregnancy Amendment Act 38 of 2004 [1]. The Act gave women the right to abort a pregnancy. The Constitutional Court declared the Act to be unconstitutional, not because legalising abortion violated the right to life in the Bill of Rights, but because Parliament, in passing the law, had not fulfilled its constitutional duty to take reasonable steps to ensure public participation in the legislative process. The act was unconstitutional not for a rights-related reason, but for failing to perform its constitutional duty. Richards, Edward P.; Katharine C. Rathbun (1999-08-15). Medical Care Law. Jones & Bartlett. p.6. ISBN 978-0-8342-1603-7.

It is when a constitution seeks to move a society towards a better version of itself instead of maintaining a status quo. Saunders, Robert (2016). Democracy and the Vote in British Politics, 1848–1867: The Making of the Second Reform Act. Routledge. p.161. Ogg, Frederic A. (June 1940). "Review of Introduction to the Study of the Law of the Constitution and Constitutional Law". American Political Science Review. 34 (3): 579–582. doi: 10.2307/1949373. ISSN 0003-0554. Various provisions relating to the National Assembly, such as proportional representation (section 57).Introduction identifies basic principles of English constitutional law including parliamentary sovereignty and the rule of law. [12] [11] According to Dicey, the rule of law, in turn, relies on judicial independence. [13] Written constitutions: These constitutions are documented in a single, codified legal text, outlining the fundamental principles and structures of government. Written constitutions are generally rigid, with amendments requiring special procedures, such as a supermajority vote or a referendum. Examples of written constitutions include those of the United States and France.

Garner, Bryan A. (2001). A Dictionary of Modern Legal Usage (2nd, reviseded.). New York: Oxford University Press. p. 177. ISBN 978-0-19-507769-8. In modern usage, common law is contrasted with a number of other terms. First, in denoting the body of judge-made law based on that developed in England... [P]erhaps most commonly within Anglo-American jurisdictions, common law is contrasted with statutory law ... 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). Markwell, Donald (2016). Constitutional Conventions and the Headship of State: Australian Experience. Connor Court. ISBN 9781925501155. Democratic Alliance v President of South Africa and Others [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) (5 October 2012) (Democratic Alliance) at para 37. See most recently National Energy Regulator of South Africa and Another v PG Group (Pty) Limited and Others [2019] ZACC 28 (NERSA) para 49. Democracy entails that citizens of a state decide on issues concerning themselves and their state. But how this plays out in practice can depend on a model of democracy. Should all citizens vote on every issue? Should representatives be elected to vote on behalf of citizens? If so, how should those representatives be elected and how should they be held to account to citizens? Models of democracy can differ on the answers to these questions.The Law of the Constitution elucidates the guiding principles of the modern constitution of England: the legislative sovereignty of Parliament, the rule of law, and the binding force of unwritten conventions. 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" [16] The separation of powers [ edit ] The Statesmanship of Wordsworth: An Essay. Oxford: Clarendon Press. 1917 . Retrieved 7 April 2018– via Internet Archive. A Leap in the Dark, or Our New Constitution (an examination of the leading principles of the Home Rule Bill of 1893) (1893)

The doctrine of the rule of law dictates that government must be conducted according to law. This was first established by British legal theorist A. V. Dicey. See for example My Vote Counts NPC v Minister of Justice and Correctional Services and Another [2018] ZACC 17. Enhances representative democracy by allowing citizens to participate meaningfully in law-making in various ways.As explained at the start of this chapter, constitutional law is roughly divided into two parts: separation of powers and the Bill of Rights. The book reflects this division. Chapter 6 concerns special institutions established by Chapter 9 of the Constitution. These institutions, like the Public Protector, occupy an interesting zone in the separation of powers. Chapter 9 institutions are not part of any arm of state and perform specialised functions. Simultaneously, they are held to account by the executive, legislature, and judiciary. Review of Introduction to the Study of the Law of the Constitution". Columbia Law Review. 15 (7): 644–647. November 1915. doi: 10.2307/1110463. Foley, Michael (1989). The Silence of Constitutions: Gaps, "Abeyances," and Political Temperament in the Maintenance of Government. Routledge. ISBN 0-415-03068-4. OCLC 19126066.