INTRODUCTION TO CONSTITUTIONAL LAW
Constitution
— Enacted by "We the People"
— Authorizes creation of statute
Statutes
— Enacted by Legislature
— Cannot violate constitution
— May authorize creation of regulation
Regulations
— Enacted by Executive Agencies
— Cannot violate constitution or enabling
statute
Common Law Traditions
— Enacted by court decisions
— Cannot violate constitution, statute, court rule, or
regulation
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INTRODUCTION TO CONSTITUTIONAL LAW
I. WHAT IS A CONSTITUTION OF A STATE?
‘’The Oxford English Dictionary defines a constitution as “the system or body of
fundamental principles according to which a nation, state, or body politic is
constituted and governed.’’
The Law That Governs the Government
The Law for Making Laws
The Plan for Deciding Who Decides
•A constitution contains those sets of laws that establish a state; an array of laws
that constitutes the state, in the sense that the state is established, exists, and
operates within the parameters of those rules. It is called THE FUNDAMENTAL
LAW
•The fundamental rules constituting the state are those rules regulating the
primary powers and duties of the state; the rules establishing arms and organs of
the state; and the basic rules prescribing how a state interacts with persons
in its jurisdiction through those arms and organs.
• The laws relating to a state’s constitution may be contained in statute, common
law, or even custom. In some countries, like religious states, constitutional law
might even extend to theological texts.
II. CONSTITUTIONAL LAW
The ambit of constitutional law ultimately turns on what one considers to be
rules that relate to the fundamental existence and functioning of a state.
III. BASIC PRINCIPLES OF CONSTITUTIONAL LAW
These are: constitutional supremacy, separation of powers, the rule of law,
democracy and transformative constitutionalism.
1. Constitutional Supremacy
The Constitution is ‘supreme law in the Republic; law or conduct
inconsistent with it is invalid, and the obligations imposed by it must be
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fulfilled’. The rules in the Constitution thus trump all other rules contained in
statutes, common law and custom.
All law and conduct must conform to the prescripts of the constitution.
2. Separation of powers
The are 3 main powers in a state: executive- legislative- judiciary
•the executive power is handled by the government composed of president,
prime minister and ministers
•the legislative power is handled by the parliament and senate composed of
deputies and senators
•the judiciary power is handled the courts, supreme courts, composed of lawyers
and magistrates
We can add a 4th power which is the power of the press
In a democratic state the separation of the powers is respected
3. Rule of law
The rule of law means no one , including government is above the law. Law
protects fundamental rights, and justice is accessible to all
4. Democracy
Democracy entails that citizens of a state decide on issues concerning
themselves and their state. But how this plays out in practice can depend on a
model of democracy. Should all citizens vote on every issue? Should
representatives be elected to vote on behalf of citizens? If so, how should
those representatives be elected and how should they be held to account to
citizens? Models of democracy can differ on the answers to these questions.
We can quote the following
•Constitutional monarchy like in Morrocco
•Parliamentary regime like in UK, Germany
•Presidential regime like in USA ,Ghana, Nigeria
•Semi- parliamentary/ semi presidential regime like in France
•Absolute monarchy like in Saudi Arabia,
III. Why Study Constitutional Law?
In most law schools, Constitutional Law is a required course. It is important to
study for at least two different reasons, one relating to the content of the
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material and another to the development of legal skills.
• All lawyers need at least a basic familiarity with constitutional law, no matter what
their area of practice. Some lawyers have governmental entities as clients; those
clients need to know how to work within the Constitution. All of the other lawyers
will have clients who interact with the government; those clients need to know
whether the government has violated the Constitution in its interactions with
them. Even if your day-to-day practice does not involve regular work with
constitutional law, full service to your private clients requires the ability to identify
the most common constitutional problems when they arise.
In addition, knowledge of constitutional law is an important facet of informed
citizenship.
• Constitutional law is important for all law students because it emphasizes legal
skills
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