Constitutions and Courts: Understanding Their Roles

Posted on Jan 14, 2025 in Law & Jurisprudence

Constitutions: Key Features and Roles

Features

  • Preamble: Outlines aspirations, principles, and purpose.
  • Organizational Section: Defines powers and structure of institutions.
  • Bill of Rights: Protects individual and group rights.
  • Amendment Procedure: Describes how to revise the constitution.

Character

  • Codified: A single, self-contained document.
    • Example: The USA has one document written all at once as a result of gaining independence.
  • Uncodified: Spread among several documents.
    • Example: Great Britain uses a combination of statutes, common law, customs, and traditions.

Role of the Constitution

  • Limits power over citizens:
    • Protects individual rights and upholds the rule of law.
    • Ranges from traditional rights to social rights.
  • Outlines a power map:
    • Defines the structure of government and procedures of lawmaking.

Reasons for a New Constitution

  1. Regime change (e.g., the breakup of the Soviet Union).
  2. Wholesale political change (e.g., South America).
  3. Post-war reconstruction (e.g., Japan).
  4. Independence (e.g., the USA).

The Courts: Roles and Systems

Role of the Courts

Courts support and interpret constitutions.

  • Judicial Review: The power to strike down unconstitutional laws and practices.
    • Protects citizens from government actions contrary to the constitution.

Methods of Judicial Review

  • Traditional:
    • Examples: USA, Latin America.
    • The Highest Court (Supreme) has the final say on all constitutional and legal matters.
  • Constitutional:
    • Example: Europe.
    • A special constitutional court exists outside the ordinary judicial system.

Supreme Courts

The final court of appeal.

  • Decisions cannot be appealed.
  • They may choose to listen to appeals from lower courts.

Constitutional Courts

Special courts outside the normal court system.

Abstract Review: Judges assess constitutional validity without limiting themselves to a particular case.

Powers:

  1. Judicial Review.
  2. Resolving disputes between states and the federal government.
  3. Protection of individual rights.
  4. Protection of constitutional order.

From Restraint to Activism

Judicial Activism: Interpreting the constitution to advocate current values.

Reasons:

  1. Increased government regulations (rather than laws) that are challenged.
  2. Use of international conventions, which are political statements.
  3. People trust the judiciary more than other institutions.

Systems of Law

Common Law

Judicial (Law): Rulings that form a legal framework separate from legislative statutes.

  • Precedent: Rulings used to settle future cases.
  • Judge-made law.
  • Examples: Britain and its former colonies.

Statute law: Enacted by the legislature.

  • Refined through judicial interpretation.

Civil Law

Based on written codes rather than cases.

  • Provides a framework for the conduct of public affairs.

Judges decide the facts of a case and direct the investigation.

  • They apply the relevant section of the code to settle the case.
  • More of an administrative position.

Religious Law

  • Distinct bodies of law.
  • Helps regulate society.

Constitutions and Courts in Authoritarian States

Functions

  1. Operating manual: Describes how the government works.
  2. Billboard: Signals the intentions of rulers.
  3. Blueprint: Describes things as they might be, to motivate.
  4. Window-dressing: Covers up actual practices.

Authoritarians: Limiting the Power of Courts

Strategies:

  • Influence judges indirectly through recruitment, training, promotion, and discipline.
  • Bypass the judicial process by declaring a state of emergency to make laws exempt from judicial review.

Authoritarian Government and the Rule of Law

  • Courts are used to aid the regime.
  • Courts take a back seat to political authority.
  • Human rights violations are common.