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The document outlines the basic concepts of constitutional law, focusing on the nature of democracy, the role of the Constitution, and various models of constitutionalism. It discusses the principles of the rule of law, separation of powers, and judicial review, as well as the characteristics and features of constitutionalism in different contexts, including South Africa. Key elements such as constitutional supremacy, the Bill of Rights, and cooperative federalism are emphasized as foundational to modern South African constitutionalism.

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18 views23 pages

Lecture+1+Topic+1+2024

The document outlines the basic concepts of constitutional law, focusing on the nature of democracy, the role of the Constitution, and various models of constitutionalism. It discusses the principles of the rule of law, separation of powers, and judicial review, as well as the characteristics and features of constitutionalism in different contexts, including South Africa. Key elements such as constitutional supremacy, the Bill of Rights, and cooperative federalism are emphasized as foundational to modern South African constitutionalism.

Uploaded by

suckmybighairyballz
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Basic Concepts of

Constitutional Law
WEEK 1 (WORKSHEET 1)
MISS MAILULA
VOICE OVER CREDIT: PROF MARIUS PIETERSE
Intended outcomes for this section

Analyse the nature of


Explain the role of the Describe different
democracy and
Constitution and the models of
constitutional
state. constitutionalism.
democracy.

Explain the concept of Explain and critique Analyse the role of


the rule of law and the the concept of federalism and
principle of legality. separation of powers. decentralisation.

Explain and critique


the role of judicial
review.
What is Constitutional Law?

Constitutional law = the branch of public law concerned with the State, society, law and
public power, as well as the relationship between them. It describes the composition,
powers, duties and interactions of the principle organs of state.
South African Constitutional law is found in the Constitution

Where from? Written constitution and/or legislation and/or unwritten common law rules
and/or constitutional law judgments.
What is
constitutionalism
• A political community in which elected politicians, government
officials and judicial officers must act in accordance with the law.
• Power and legitimacy is drawn from the Constitution
• Constitutionalism: 2 issues
• 1. establishing a government with sufficient power to realise the
political community’s shared purposes & implement programmes
• 2. structure the government and control the exercise of power by
institutions and structures of government.

• This is to prevent the abuse of power and oppression.


In summary: = a body of theoretical prescriptions, which
determines what a Constitution and/or constitutional law
should do within a particular State (i.e. the organising
principles that underlie constitutional law in a state)
- It defines and limits the powers of the state (substance)
and indicates how the power should be exercised (process)
- Its’ characteristics and features differ across systems,
depending on context
•
Characteristics of Constitutionalism

1. Identify and establish the 2. Constitutionalism is


institutions and structures of concerned with the formal and 3. Plays an NB role in
governance: 3 spheres of legal distribution of public determining the nature and
government include legislature, power among the different basis of relations between
executive and judiciary. 3 levels institutions and structures of institutions and structures of
of government include National, governance and procedures governance and those they
Provincial and Local that must be followed when govern.
government. they exercise these powers

4. Envisions the enactment of Authorises AND imposes limits


binding rules for the regulation on the exercise of public power, In summary, Constitutionalism
of the political community, its exercise of power takes place = constitution structuring and
institutions & structures of within the parameters set by limiting state power.
governance the Constitution.
Descriptively: reduces constitutional law to
an explanation of a structural and
operational design e.g = Constitution
existed before the advent of democracy
where there was unequal citizenship for
black and white people/ men and women.
Descriptive v
Prescriptive
understanding Prescriptive: offers an ideological
understanding based on liberal political
philosophy. This includes the demand of
separation of powers, the rule of law,
democratic self- government, protection of
human rights and the existence of an
independent judiciary.
The State: The authority that manages
the public affairs of the community
•The Government: Legislature The Executive The Judiciary
•Legislature
•Executive National
•+ administration
•Judiciary Provincial
Local

Other Organs of State:


• The police
• The prosecuting authority
• Advisory council
• SOEs (Eskom; Post Office; SAA; SASSA)
• Auditor General
• Human Rights Commission
• Public Protector
• Commission of Inquiry
Models and
features of
Constitutionalism
• UK CONSTITUTIONALISM
• No written constitution
• Distinction: Head of state v
head of executive
• Parliamentary sovereignty
• (procedural but not
substantive checks)
• Rule of law*
• Externally imposed
substantive limits (e.g.
international human rights
law)
Rule of law: ‘Nobody is above the law!’
(Dicey’s discomfort with parliamentary
sovereignty)

Power must be exercised through law, not arbitrarily

There should be equality before the law

Laws must be:

• Clear
• Pre-announced
• General in their application
• Impartially enforced
• Enforced fairly in terms of consistent procedures

Courts can test laws for adherence to rule of law


United States
Constitutionalism

• Written, entrenched
Constitution
• Constitutional
supremacy*
• (Procedural and
substantive) judicial
review*
• Bill of Rights
• Separation of powers*
• Federalism*
Separation of powers

Adapted from French constitutionalism

3 main branches of government: Legislature, Executive, Judiciary

3-way separation of powers and functions: (legislative = make law,


executive=enforce & implement law, judicial = adjudicate/solve disputes)

Checks and balances

Judicial independence, courts as arbiter of where the lines are drawn


Federalism

• = “Vertical” division of
power between “levels” of
government
• US Federalism =
• Central/national
(“federal”)
government
• 52 state governments
• Counties &
municipalities
Constitutional Supremacy & Judicial
Review
• When law/executive conduct is inconsistent with the
Constitution, it is unconstitutional and invalid
• Courts decide whether law/executive conduct is
constitutional = JUDICIAL REVIEW (Marbury v Madison)
• Judicial review = procedural (was correct process
followed) + substantive (does the law or conduct
comply with the BILL OF RIGHTS)
• “Counter-majoritarian dilemma”?
GERMAN
CONSTITUTIONALISM
Federalism but with strong central
government + separation of powers

Rights + substantive judicial review


+ specialist Constitutional Court

Substantive rule of law (“Rechtstaat


principle” = classic rule of law +
openness, accountability; respect
for core values, respect for rights)

“Social state principle”


Features of modern
South African
constitutionalism

• Constitutional Supremacy
• Substantive Rule of Law
• Bill of Rights
• Separation of Powers
• Democracy
• Co-operative Federalism
• Transformative Constitutionalism
Constitutional
Supremacy
Substantive
Rule of Law
Bill of Right
and Strong
Substantive
Judicial
Review
Separation of Powers

Four principles of separation of powers:

1. Trias politica: divides government power across three branches

2. Seperation of functions: distinctive areas of responsibility and


authority to be placed on each of the three branches of government.
3. Seperation of personnel: each branch of government has specific
persons assigned to it who are responsible for execution of the branch’s
mandate.
4. Checks and balances: Each branch must be held accountable by another branch to check the exercise of power.

In Summary: Implicit & dynamic


Constitution vests legislative, executive and judicial authority in distinct bodies (nationally = Parliament, the President; the courts)
(but no real separation in local sphere)
Various checks and balances
Strong substantive judicial review shifts boundaries
Courts decide where the boundaries lie
Separation of powers

Executive
Function: make policy
Legislature: and implement and
Function- enact law and administer the law +
hold executive make crucial
accountable appointments
Personnel- members of Personnel- president,
parliament deputy president,
ministers and their
department

Judiciary
Function- interpret and adjudicate
legal disputes +declare invalid law or
acts contravening the constitution
Personall: judhes and magistrates
Co-Operative
Federalism
Democracy
• Representative democracy (universal
suffrage+ common voters toll, regular
elections – legislatures directly
elected, executives indirectly)
• Some elements of direct democracy
(eg. referendums)
• Participatory democracy (participation
in legislative processes at all levels,
requirement for extensive community
participation in local government
sphere)
In summary:

SOUTH AFRICAN
CONSTITUTIONALISM

• Written Constitution Dear Law student,


please don’t ignore
• Constitutional supremacy these slides bro.
• Procedural and (strong)
substantive judicial review
• Bill of Rights
• Specialist Constitutional
Court
• Substantive rule of law
(legality, accountability,
openness, values, rights)
• Separation of powers,
checks and balances
• Representative and
participatory democracy
• Cooperative federalism

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