Introduction to the Study of the Law of the Constitution

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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. All state arms are bound by a supreme constitution. This includes the state legislature, the arm of government assigned with law-making powers. In a democratic state, this can give rise to what is commonly referred to as the counter-majoritarian dilemma; if a constitution limits the powers of a majority in parliament, then the will of the majority may be thwarted by a pre-existing constitutional rule. This runs counter to a basic premise of democracy that the majority of the people must determine the rules of a state. At the other extreme, if a majority of people can constantly overrule constitutional rules, then the constitution is hardly supreme. If the rules of the constitution could routinely be overridden by Acts of Parliament passed with a majority, the constitution would effectively be rendered meaningless. This could have implications for minority groups that are not represented by the majority in Parliament but whom a constitution seeks to protect.

The Statesmanship of Wordsworth: An Essay. Oxford: Clarendon Press. 1917 . Retrieved 7 April 2018– via Internet Archive. There are various principles and ideas invoked throughout this book and in most texts on constitutional law. These are: constitutional supremacy, separation of powers, the rule of law, democracy and transformative constitutionalism. Each of these is explained and discussed below.

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Wikipedia articles incorporating a citation from the 1911 Encyclopaedia Britannica with Wikisource reference Dicey, Albert V.; Rait, Robert S. (1920). Thoughts on the Union between England and Scotland. London: Macmillan – via Internet Archive. First edition published in 1885 under title: Lectures introductory to the study of the law of the constitution Meanwhile, the question that does the United Kingdom still upholds the doctrine of rule of law is never ended being debated. The rule of law regulated that laws must not be retrospective. In other words, if a person’s conduct was not an offence when he committed it, he could not be tried for that particular offence. However, this requirement of restricting retrospective effect in the rule of law is being played down as legislation such as War Crimes Act 1991 has retrospective effect.

A digest of the law of England with reference to the conflict of laws (1st ed. 1896, 2nd ed. 1908);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. Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the Republic of South Africa and Others [2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241 (Pharmaceuticals) para 80. James G, ‘The law of rule in Malaysia’ http://www.newmandala.org/law-rule-malaysia/ accessed 12 July 2017