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Definition of constitutional law

I can't find a good definition
Hey guys,

Try Dicey and Locke.

Thanks

Laura and the team.
Original post by LauraYeates
Hey guys,

Try Dicey and Locke.

Thanks

Laura and the team.


unlike many i've seen here you're really very intelligent. thank you for contributing! did you do edexcel politics? I created a thread which focuses on the edexcel politics exams. Do check it out and help us as we learn and study together. what other subjects did you do at A levels and with which boards?
Original post by p3ssimist
I can't find a good definition


Constitutions, in a general sense, are a collection of the most fundamental laws within a particular state. They are usually - but not always - anterior to and above the state which they constitute or create. They are concerned with governmental power, the delineation of such power and the exercise of such power within the polity.

Constitutional law is generally viewed as that branch of law which is concerned with the allocation and regulation of governmental power.

In one sense, it is concerned with the organisation of the state and the distribution, delineation and regulation of power between different branches of the state, and within the state itself. Here the concepts of Separation of Powers, Devolution and Federalism for example are important.

In another sense, Constitutional law is concerned with the regulation of governmental power vis-a-vis individuals. In this sense, the Constitution regulates governmental power generally in order to restrain the power which the state has over individuals. Here, concepts of the Rule of Law, Human Rights and judicial review are important.
I appreciate the additions, but I do have something to say about the reply.

Be careful with this wording. Most fundamental implies a hierarchical level and ordering of law. There is no obligation that constitutional law be positioned within a hierarchy of laws.


I did say that constitutions are generally concerned with the most fundamental aspects of law within a given state. That is a statement which I would stand by. In the US, it is certainly the case that the Constitution contains the fundamental laws of the Union. In Germany, for example, the Constitution outlines some of the fundamental, unalterable principles of the state.

Even in the UK where your argument would have more force given that the traditional way of looking at Constitutional law is the Dicean view that there is no sharp distinction between normal and constitutional law, it is still the case that the fundamentals are contained in a body which we refer to as constitutional law. Parliamentary Sovereignty is the obvious example; it is the fundamental basis of the relationship between Parliament and the courts.

So, while Constitutions sometimes concern matters which are not fundamental, it is certainly true to say that in general terms they do - the vast majority of Constitutional Law is fundamental in nature. In terms of hierarchy, it is normally, but not invariably, the case that Constitutional law is more fundamental in a hierarchy of laws within a given state. Again, not always, but I didn't claim always.

This seems to have confused a rule of recognition for a constitution. A rule of recognition is a pre-legal, meta-legal rule from which all law follows. Sometimes the constitution simply just is this rule of recognition; sometimes only parts of the constitution constitute all of or some of the rule of recognition; and sometimes the constitution will have nothing to do with the rule of recognition.

The constitution isn't 'above' the State. It is part of the State. A structural constitution will organize how the State is structured and how power is allocated, for example.


I am aware of the difference between a Constitution and a Rule of Recognition. Again, I did prefix my remarks with the statement that it was generally, but not always the case that the Constitution is anterior to and above the state.

Firstly, the Constitution is normally anterior to the state. The Constitution generally constitutes the state and puts it into being so to speak - I am not arguing that it is anterior to communities, nations, countries or anything, but it is anterior to the legal idea of the state because the Constitution will generally outline a conception of the state. The conception comes before the actual state. In the US, the Constitution was anterior to the state as we know it today - it came before the state, and through it's adoption it constituted it.

Again, I don't accept the view that the Constitution isn't above the state. It cannot be the state, because it constitutes the state and regulates it. This feeds into most of what i said above.

I agree about the definition of structural constitutions - nothing I said would suggest otherwise. I argue in my definition for quite a structuralist conception of constitutions.

Not all constitutions are concerned with individual rights. Some constitutions only regulate structure.


I am sure you are technically correct here because it is probably possible to point me to a Constitution which does not concern individual rights. I would very much appreciate if you could because it would be an interesting model to view. My definition was more of a, in general sense as opposed to a fixed notion that all Constitutions must do this to be a Constitution. The vast, vast, vast majority of Constitutions in the modern day are concerned in some way with regulating governmental power for the protection of citizens through either individual rights concepts, judicial review or the Rule of Law.

Interesting discussion nonetheless...

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