Introduction to the Study of the Law of the Constitution

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In SARFU, the Constitutional Court developed the principle of legality. Legality implied that the holder of public power must act in good faith and not misconstrue his or her powers [11]. In Pharmaceuticals, this was taken even further − the principle of legality required all public power to be exercised rationally [12]. In Albutt, the Constitutional Court explained that rationality also had a procedural element [13]. As the court then clarified in Democratic Alliance, the means chosen to achieve a legitimate government purpose included the process leading up to the decision [14]. So, for example, if a hearing is required for the rationality of a decision, and a hearing is not given, then that decision is irrational.

Constitutional supremacy has various implications for a state, state actors, and persons within a state’s jurisdiction, primarily that the rules in a constitution both establish and constrain the exercise of state power [2]. A state can only act in terms of its constitution. If it exceeds the bounds of the constitution its conduct is legally invalid. Introduction to the Study of the Law of the Constitution (8th Edition with new Introduction) (1915)In Brief, ‘The Rule of Law in the UK’ http://www.inbrief.co.uk/legal-system/the-rule-of-law/ accessed 12 July 2017 It is when a constitution seeks to move a society towards a better version of itself instead of maintaining a status quo.

As explained above, constitutions generally establish arms of state and assign powers and duties to those arms of state. A constitution may prescribe the state powers and duties in numerous ways. The distribution of powers and duties by a constitution between established arms of state is known as the separation of powers. Jayson B, ‘Lawlessness: Malaysian and Its Law of Rules’ https://www.carnegiecouncil.org/publications/articles_papers_reports/0235 accessed 12 July 2017 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] Dicey, A. V. (1885). Lectures Introductory to the Study of the Law of the Constitution (1ed.). London: Macmillan . Retrieved 5 April 2018– via Internet Archive. ; Dicey, A. V. (1915). Introduction to the Study of the Law of the Constitution (8ed.). London: Macmillan . Retrieved 5 April 2018– via Internet Archive. The 8th edition, 1915, is the last by Dicey himself. The final revised edition was the 10th, 1959, edited by E. C. S. Wade:Below, we tabulate a summary of different models of democracy. A detailed analysis of democratic models is beyond the scope of this book. However, it is important to have a general understanding of democratic models. Section 1 of the Constitution establishes South Africa as a democratic state. Various democratic models heavily inform the separation of powers between the arms of state, especially parliament’s powers and duties. As will become apparent, the different advantages and disadvantages of various democratic models feature significantly in cases concerning the separation of powers, for example Doctors for Life [15]. Conceptions of democracy also underpin judgments concerning political rights, especially the right to vote [16]. Summary of the different models of democracy. Democratic model Sub-rule 2: Questions of legal right and liability should generally be decided by application of the law and not the exercise of the discretion. In the United Kingdom, the rule of law, at least historically, has been closely related to A.V. Dicey. Dicey’s perception of the rule of law was introduced in his book Introduction to the Study of the Law of the Constitution. According to Dicey, in line with the concept of Parliamentary Sovereignty, the rule of law is one of the twin pillars of the British Constitution. There are 3 conceptions of the rule of law which had been highlighted by Dicey. The first aspect indicates that no man is punishable or can be lawfully made to suffer in body or deprived of their goods unless they had violated the law which has been established in an ordinary way and applied by an ordinary court. There is also an absolute supremacy or predominance of regular law over arbitrary power and the state could not act in an arbitrary manner which was unlawful. 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.

The effect of section 2 is commonly referred to as constitutional supremacy, meaning that no rule or conduct can be inconsistent with a constitutional rule. If such an inconsistency arises, it is resolved by declaring the offending rule invalid to the extent that it contradicts a constitutional rule. Conversely stated, to be valid, all law and conduct must conform to the prescripts of the constitution. In this sense, the constitution is the ultimate authority for law-making and lawful conduct. He later left Oxford and went on to become one of the first Professors of Law at the then-new London School of Economics. There he published in 1896 his Conflict of Laws. [9] Upon his death on 7 April 1922, Harold Laski memorialised him as "the most considerable figure in English jurisprudence since Maitland." [10] Political views [ edit ] An undated photograph of Dicey from the Harvard Law School Library's Legal Portrait Collection Firstly, the courts must play the vital and active role to uphold the doctrine of rule of law. When the control of the Parliament on the administration is reducing, the judicial power and control should be adequately raised. Thus, in the countries which having a written and supreme constitution, the judiciary or the courts are given the responsibility and right to review executive and legislative actions if any unconstitutionality is spotted. Besides, the judges should do their best in correcting the loopholes in the law. Sugarman, David (1983). "Review: The Legal Boundaries of Liberty: Dicey, Liberalism and Legal Science". The Modern Law Review. 46 (1): 102–111.James G, ‘The law of rule in Malaysia’ http://www.newmandala.org/law-rule-malaysia/ accessed 12 July 2017 Introduction to the Study of the Law of the Constitution is a book by A. V. Dicey about the constitution of the United Kingdom. It was first published in 1885. Sub-rule 8: The state must comply with the obligations of international law which whether deriving from treaty or international custom and practice governs the conduct of nations. The Practice and Threats of the Rule of Law in the United Kingdom