Constitutional Law Chapter (1)1

7/28/2019 Constitutional Law Chapter (1)1

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Chapter I

STATE AND CONSTITUTION

Contents Pages

1.1 Society and the state 21.2 Law and the state 31.3 Sovereignty and the state 71.4 Government and the state 111.5 The Legislature 13

1.6 The Executive 18

1.7 The Judiciary 21

1.8 Definition of the constitution 22

1.9 Concept and the Meaning of Constitutional law 27

Key Terms 29

Assignment Questions 30

Short Questions 31


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Chapter (1)STATE AND CONSTITUTION

1.1 SOCIETY AND THE STATE

A study of any aspect of the state must begin with the definition of

society because a state is a society politically organized.

A society may be defined as any association of human beings1.

The fundamental units of the association of the members of a

community may be considered in general as follows:

(a) the family (b) professional society

(or)Trade Union etc

e.g. club and religious association.

1Modern Political Constitution by C.F Strong ----P.2.


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(c) Voluntary oiion

On the one hand, associations play an important part in

influencing and determine state action, on the other hand many of

them could not continue to exist without the conditions which the

agency of the state alone can enforce.

1.2 LAW AND THE STATE

All associations make rules and regulations for their conduct, and

when men are associated politically these rules and regulations are

called laws, the power to make these being the prerogative of the state.


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So, Prof. Maciver defines: "a state is the fundamental association

for the maintenance and development of social order, and to this end its

central institution is endowed with the united power of the community."

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Prof. Hetherington says: "the state is the institution or set of

institutions which in order to secure certain elementary common

purposes and conditions of life, unites under a single authority**the

inhabitants of a clearly-marked territorial area"

Explanation

United power (or) single authority means the power or authority

to make law.

-


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Woodraw Wilson defines: "A state is a people organized for law

with in a definite territory."

The objects of the law are the things necessary to which rights are

held and duties imposed. According to Westlake, "the duties and rights

of the states are the duties and rights of men who compose them."

Westlake

Article I of the Montevideo Convention of 1933 on the Rights and

Duties of States enumerates the following characteristics of the state as

a person of International law:

(i.) a permanent population;


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(ii.) a defined territory;

(iii.) a government;

(iv.) a capacity to enter into relations with other states.

As indeed, the essence of a state, then, as distinct from all other

forms of association, is the obedience of its members to the law. The

state being a territorial society divided into government and governed,

we may quote a definition of law as "the general body of rules which

are addressed by the rulers of a political society to the members of that

society which are generally obeyed."


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1.3 SOVEREIGNTY AND THE STATE

Etymologically the word "sovereignty" means merely superiority,

but when applies to the state it means superiority of a special kind, such

superiority, that is to say, as applies law-issuing power2.

In seeking to find in any state where the sovereign power lies:-

(a) the titular head of the state (e.g. in United Kingdom

the Queen, in France the president of the Republic)

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(b) the legal sovereign-(e.g. in United Kingdom the Queen

in parliament)

-

2Modern Political Consitution, P.5


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(c) the political or Constitutional sovereign-(e.g. in the

modern constitutional state found in the electorate (or)

voting public)

Actually, the state must have to make laws and enforce by all the

means of coercion, it cares to employ. This power is called sovereignty.

This is a highly controversial term. We have to define it in double

aspect:-

-

Internal Sovereignty and External Sovereignty

Internally, it means the supremacy of a person or body of persons

in the state over the individuals within the area of its jurisdiction.


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Externally, it means the absolute independence of one state as a whole

with reference to all other states.3

State power is also characterized, by its supremacy (sovereignty)

and Universality. The sovereignty of the state is the judicial expression

of the independence of state power, its independence from any other

power either within the country or beyond its borders. State power is

universal, and extends to all members of the given society ( the citizens

living on the territory of a given country, stateless persons and foreign

nationals, and also citizens of the given country who are abroad.)4

3Modern Political Constitution, P.5

4Constitutional law and political Institutions by Veniamin CHIRKIN P. 41


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At the international level, state sovereignty manifests itself in the

equal rights of states, regardless of the size of their territory, their

population or other factors,

1.4 GOVERNMENT AND THE STATE

In order to make and enforce laws the state must have a supreme

authority. Generally, this called the Government. Government is the

state's machinery without it the state could not exist.

Government is organized force. Government shall be formed by

law (by constitution) Government is, therefore, " that organization in

which is vested .the right to exercise sovereign power. " Here,


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Government represents the state. Government, in the broader sense, is

something bigger than a special body of minister (cabinet).

Government is charged with the maintenance of the peace and

security of the state within and without. It must, therefore have:

-(i.) military power,

(ii.) legislative power,

(iii.) financial powerand of enforcingthe law it makes on the state's behalf,

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5Modern Political Constitution. P. 6


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The form of Government and its functions is differed as of

different constitutions on the application of different constitutional

theories and principles.

Anyhow, a state must have legislative branch to use the legislative

power, executive branch to use the executive power, executive branch

to use the executive power and judicial branch to use the judicial power

which are rooted and flowed from the state power i.e. sovereign power

of the state.

1.5 THE LEGISLATURE

The three branches of the state power mentioned above all play

their part in the exercise of sovereign power in a modern state. THE


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LEGISLATURES is that concerned with the making of laws, in so far

as the law requires statutory force.

In a simple sense, a legislature makes laws, the OXFORD English

dictionary defines a legislature as "a body of persons invested with the

power of making the law of a country or state."

OXFORD

Although legislatures are known primarily as lawmaking bodies, it

is important to recognize that these institutions have many other

important responsibilities.

LEGISLATURES operate under a system of collective decision

making Legislatures adopt policies and make laws through the process

of deliberation.


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NELSON POLSBY, a scholar of U.S congress classified the

legislature into two basic types: arena legislatures and transformative

legislatures:

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(i.)Arena legislatures are forms for discussion of ideas and

policies;

(ii)Transformative legislatures actively translate ideas into laws.

The British Parliament is a good example of an arena legislature.

The U.S Congress is a transformative legislature.


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In the British system, the executive prime minister and the

legislative Parliament are linked and are necessarily controlled by the

same party.

As a result, there is less need or opportunity for transformative

activity in the area of policymaking.

The U.S Congress, on the other hand, is a much more activist

legislature, conflict, compromise, and individualism can all be found in

the U.S legislature.

The very characteristic of a legislature is its intrinsic link to the

citizens of the state-representation. As JOHN STUART MILL wrote in

1862, in a representative democracy the legislature acts as the eyes,

ears, and voice of the people.

JOHN STUART


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MILL

In modern constitutional state the legislative power is vested in

Hluttaw (Myanmar), Parliament, Congress, Soviet, National Assembly

etc. which may be elected by the people.

James Q. WILSON has pointed out the root of the word

Parliament i he Frenh word Prler ie o ke, he roo of heword Congress is formal meeting, to come together or assemble.

Similrly, in Rui, he word Sovie men ounil6

James Q. WILSON

Congresses

By the way, according to C.F. strong, an authentic author of

Coniuionl Lw, he LEGISLATURE i, of greater importance

6The Role of the Legislature in a Democracy by Norman ORNSTEIN, P.3 and 5


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than the EXECUTIVE which administer the law, or the JUDICIARY

which punishes its transgressors.

C.F. strong

1.6 THE EXECUTIVEThe term Executive is sometimes to designate merely the chief

minister (as, for example, the president in the U.S) sometimes to include

the whole body of public servants, civil and military.

-

The word EXECUTIVE i o men he head of the government

together with his ministers. In modern practice the executive formulates

the bulk of it, and then presents it for approval to the legislature.


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Nowadays, there are three types of Republics. They are:

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(i) Monarchical Republic,

(ii) Parliamentary Republic,

(iii) Presidential Republic.

Monarchial system is still living in some parts of the world. As,

for example, United Kingdom (U.K), Thailand, Japan, Spain, Republic

of middle east.

Form of estate or form of Republic can differ concerning their

relationship to the overall political system of which they are a part, for

instance, a legislature may be part of either a parliamentary system or a

system of separated powers usually known as a presidential system.


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In a parliamentary system (or) parliamentary Republic the

executive and the leaders of the administrative bureaucracies are chosen

from and are accountable to the majority in parliament. Where

separation of powers is the rules as in a presidential system (or)

presidential Republic (e.g. United states), the executive and the cabinet

are entirely separate from the legislative body.

No one (an exception is the vice-president in the U.S case) can be

a member of both the executive and the legislative branch.

-

1.7 THE JUDICIARY


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The judiciary is the department concerned with the infliction of

penalties upon those who infringe the law which may be either passed

in the form of statutes by the legislature or permitted by it to exist.

The judiciary always consists of a body of judges acting

individually or in group at the centre, or in outlaying parts, of the state.

The powers of judges greatly vary from one state to another. Judicial

system is differed in common law family, civil law family, and socialist

law family.

1.8 DEFINITION OF THE CONSTITUTION The modern constitutional state is necessarily nationalist in

background and democratic in tendency. In the making of a


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constitutional state the sense of national unity may at first be concerned

rather to establish the independence of the group than to achieve the

liberty of its individual members, but ultimately it generates the driving

power for the attainment of popular rights.

The objects of a constitution are-

-(i.) to limit the arbitrary action of the government;

(ii.) to guarantee the rights of the governed; and

(iii) to define the operation of the sovereign power.7

Then, concerning with the definition of constitution, world

constitutionalists expressed and colored the state constitution as

follows:

7. Modern Political Constitution P.10


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*Constitution is the pillar of the State.

*Constitution is the mirror of the State.

*Constitution is the basic law of all laws of the land.

Some states in the world named and called their state constitutions

as

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(i) Basic Law (or)

(ii) Fundamental Law (or)

(iii) State Law


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After staying the above fundamental terms and terminology of

Constitutional Law, we should go forward in detail.

Lod BRYCE defined oniuion frme of poliil

society, organized through and by law, that is to say, one in which law

established permanent institutions with recognized functions and

definite rights.8

Explnion (for permanent institution)

Permanent institutions mean the legislative organ, the executive

organ and the judicial organ which are prescribed, mentioned and built

in the constitution.

8. Ibid , p.9


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According to C.F STRONG, a true constitution, will have the

following facts.

CF STRG

-

(i.) how the various agencies are organized;

(ii) what powers is entrusted to those agencies;

(iii) in what manner such power is to be exercised.9

Explanation for genie Here,

AGENCIES are legislative organ, executive organ and judicial organ of

the state which are built in the constitution. Its organs, their functions

and powers are definitely arranged.

9. Modern political Constitution, P. 10


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According to WADE and PHILLIPS, Constitutional law means

the rules which regulate the structure of the principal organs of

government and their relationship to each other, and determine their

principal functions. These rules consist both of legal rules in the strict

sense and usages, commonly called conventions, which without being

enacted are accepted as binding by all who are concerned in

government.10

WADE PHILLIPS

1.9 CONCEPT AND THE MEANING OF CONSTITUTIONALLAW

CONSTITUTION implies any regular form or system of

government. Law implies a binding rule of action to which men are

obliged to make their conduct comfortable.

10Constitution Law by E. C. S WADE and G.G Philips. P.2 and 3


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A constitution lays down the general and the fundamental

principle on which the power as of a state are to be exercised. In this

sense, constitutional law is often described as the fundamental law of

the Land. The main object is to define the orbit of the sovereignty.

When we speak of constitutional law, we speak of that law which

comprises the collection of rules which establish and regulate or govern

the country.

It includes all rules which define the members of the sovereign

power, all rules, which regulate the relations of such members to each


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other, or which the sovereign power or the members thereof exercise

their authority.


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KEY TERMS

society-

fundamental-

voluntary-

prerogative-

etymologically-

Superiority-

titular-

Legislature-

deliberation-

transformative-

arena-authentic-

infliction-

infringe-


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Assignment Questions

1. Wh do you men Independen Sovereign Se2. How do you undernd he phre he independen overeign

Se

3. Differentiate between Government and State.4. Write short notes on the following power:

(a)Legislature(b)Executive(c) Judiciary

5. Explain the meaning of Constitutional Law.6. Define he erm Coniuion7.

What is Constitution?


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Short Questions1. How is the relationship between the Law and the State?2. Explain about Legislature.3. Describe the nature of Executive.4. Describe the nature of Judiciary.5. What do you understand the State and Government.6. Do you know the constitution is the basic law of all laws of the

land? Explain.


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