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Definition of constitutional law watch

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    I can't find a good definition
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    Hey guys,

    Try Dicey and Locke.

    Thanks

    Laura and the team.
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    (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?
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    (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.
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    (Original post by GeneralStudent95)
    x
    For the sake of clarity, I'm going to nitpick some things.

    Constitutions, in a general sense, are a collection of the most fundamental laws within a particular state.
    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.

    They are usually - but not always - anterior to and above the state which they constitute or create.
    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.

    Constitutional law is generally viewed as that branch of law which is concerned with the allocation and regulation of governmental power
    This isn't a necessary condition of constitutional law. You could have a rights constitution, not a structural constitution. Of course, drawing any hard line between rights questions and structural questions is almost impossible.

    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.
    Not all constitutions are concerned with individual rights. Some constitutions only regulate structure.
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    (Original post by NYU2012)
    For the sake of clarity, I'm going to nitpick some things.


    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.


    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.


    This isn't a necessary condition of constitutional law. You could have a rights constitution, not a structural constitution. Of course, drawing any hard line between rights questions and structural questions is almost impossible.

    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.


    Not all constitutions are concerned with individual rights. Some constitutions only regulate structure.
    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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    (Original post by GeneralStudent95)
    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.
    This is not what you said. Look here how you said 'Constitutions are generally concerned...'. This does not have the same syntactic meaning as 'Constitutions, in a general sense,...'.

    You may have intended the former, but you said the latter. The latter does not have the same meaning as the former. The latter means something closer to 'Constitutions, in a broad sense,...' Rather than saying that 'Constitutions are usually are concerned with the fundamental aspects...', you said 'Constitutions, in a comprehensive or wide or inclusive or broad way, are concerned with the fundamental aspects...'.

    If you intend to say 'Constitutions generally...' then say that. When you use more elaborative words than necessary, you risk changing the meaning of the sentence.

    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.
    You've made the same mistake here that you made in the previous post. I'm presuming that you meant to say that most Constitutions do concern fundamental laws. However, what you've actually said is 'Constitutions, in broad terms, do [deal with fundamental aspects...].'

    While it is true that most constitutions deal with 'fundamental law', it is not true that [all] constitutions deal with fundamental aspects in broad terms.

    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.
    This is false, and the US example isn't helping you. Firstly, in relation to the US, the State existed as a State prior to adoption of the Constitution. There was a Congress with legal powers under the Articles of Confederation. The drafters of the modern US Constitution were supposed to draft revisions to the Articles of Confederation, though they instead drafted a brand new Constitution.

    South Africa is another example - South Africa was a State long before the adoption of its current modern Constitution.

    In fact, constitution making happens very regularly; the average lifespan of a constitution is only 20 years. I doubt that you're going to claim that most modern States with new constitutions were not States prior to their modern constitutions.

    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.
    It's nice that you don't accept this - but you're, simply put, wrong. You can check this with any number of legal philosophers.

    Just because something regulates something else, doesn't mean it's not part of that thing; just because something constitutes something else, doesn't mean it's not part of that thing. You've created a false dichotomy, one that isn't accepted in the actual legal philosophy literature.

    A constitution is law, law is part of the State. You cannot have law prior to the existence of the State. They are mutually dependent and come into existence simultaneously.

    The rule of recognition is above the State, the constitution qua constitution is not. The constitution, since it is law and law it part of the State, it also part of the State.

    A rule of recognition does preceded the existence of the State, as it determines what gets to count as law and what doesn't. It determines the content of the constitution, though sometimes the constitution will also enshrine some or all aspects of the rule of recognition.

    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
    The Articles of Confederation was a Constitution with no concern for individual rights. The modern US Constitution prior to acceptance of the first 10 Amendments was a structural Constitution. There are other more recent examples, but I do not currently remember what they are.
 
 
 
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