Constitutions

and Rule of Law

 Toronto Mayor Ford sacked for conflict of
interest:
 http://www.cbc.ca/player/News/Canada/Toro
nto/ID/2309849453/
 Robin Hood speaks to King John:
 http://www.youtube.com/watch?v=O_zks9fm
Djc
 “Law in its broader significance reigns everywhere. Where
life exists, there are universal laws of life, and for each form
of life after its kind. Within this great order, life-sustaining
and life-sustained, there are many grades and types of
law…
(There is) the vast region of law which works inflexibly,
inviolably, and regardless of human wills.
Society begets another kind of law, another order reflecting
no less surely, but on that very account liable to change,
development, and transgression.
This social law is expressed in custom, tradition, the
thousand forms of use and wont. Part of this in turn is
reinforced, reaffirmed, and enlarged as the law of the
state”*

*R.M. McIver, The Modern State, Oxford, 1926, p.250

Positive law
 Body of rules enforced by a sovereign state
 Expresses the will of the state
 What kinds of rules? Any rules the ruler wants?
 2 basic approaches*:
Positivist
Naturalist

*See Iain McLean and Alistair McMillan (ed.) Oxford Concise Dictionary of
Politics, 2nd ed., Oxford University Press, 2003, pp.301-303
Legal Positivism
(Jeremy Bentham, John Austin)
 Core principle of modern society
 Dominant view in 20th century legal theory - both Western
and Communist

The law is what the judges say it is

 Laws are simply the commands of a sovereign (person or
institution). If people obey his commands, they are the law
 The commands need not have anything to do with laws of
nature
What’s the difference between a government and a
gangster?
If a gangster makes sure his commands are obeyed in a
given territory, he is the ruler of a state
Legal Naturalism

 Dominant in non-Western non-communist societies, but

also increasingly prominent in the West since late 20th
century (Ronald Dworkin, John Finnis)
 There exists a higher and permanent law which is not
dependent on the will of legislators – “natural law”
 Our reason discovers laws, as it discovers laws of nature
 Religious faith usually serves as the basis of law
(Dostoyevsky: “If there is no God, everything is
permissible”)
 Positive law cannot contradict natural law
 "What’s right is right and what’s wrong is wrong. And isn’t this
believed by everyone ... even among the Persians, and
always? ... What is fine, no doubt, is everywhere legislated as
fine, and what is shameful as shameful; but not the shameful
as fine or the fine as shameful.“
 Plato, Minos
 "There is a true law, right reason, agreeable to nature, known
to all men, constant and eternal, which calls to duty by its
precepts, deters from evil by its prohibition. This law cannot
be departed from without guilt. Nor is there one law at Rome
and another at Athens, one thing now and another afterward;
but the same law, unchanging and eternal, binds all races of
man and all times.“
 Cicero, On the Republic
Positivists:
 Naturalism is irrational

 Too conservative, even reactionary

 Limits human freedom

 Comes into conflict with democracy

 Constrains possibilities of social change

Naturalists:
 Laws without a moral basis are weak or even harmful

 Laws consonant with moral values strengthen society’s

moral fiber
 Naturalism serves as a barrier to arbitrary rule

 It may serve democratic purposes in some cases more

effectively than positivism, if democratic values are derived
from a “higher order” ( see US Declaration of
Independence)
 May save the environment
 The two approaches are often at odds with each other,
adopted by opposing sides in political struggles
 But they need not be mutually exclusive
 Each approach has its flaws and its strong points
 Interactions between positivism and naturalism may
enhance democracy and progressive change
Every state has 2 types of law:
Constitutional
Ordinary
 Constitutional law – governs the state, and the state is
governed by it. Consists of:
Written or unwritten constitution – “basic law”
Accepted interpretations of the constitution
 The main function – to bind the rulers by a set of rules
 Rule of law, law-based state
 Development of constitutionalism has both restrained the
legislators and widened their sphere of action
Restrained:
Bars the state from certain actions vis-à-vis citizens
Widened:
Compels the state to make policies to promote social justice
 Governance, rule of law and democracy
 No good governance without accountability

 No accountability without rule of law

 No rule of law without electoral democracy

 But… Can democracy and rule of law come ito conflict?

 Can there be democracy without rule of law?
 Rule of law and democracy
 Democracy’s dilemma:

 How to enable the state to act in the interests of the

people while protecting the people from the state
 Rule of law helps resolve the dilemma
 Pakistan’s lawyers protest against dictatorship:
 http://www.youtube.com/watch?v=mu6C78hJEWM
 Egypt’s judges oppose Presidential decrees
 http://www.youtube.com/watch?v=xZrvG2OGgXs
 THE JUDICIARY
 The courts and their officers
 Functions of the judiciary:
 Resolves (adjudicates) conflicts:
 within society,
 between society and the state,
 between branches of government;
 Maintains the existing legal system;
 Makes policy by interpreting and even making law
Supreme Court of Canada
US Supreme Court
England, June 15,
1215: King John
confirms Articles
of the Barons,
which were then
proclaimed as
Magna Carta
Libertatum
The scene looks a bit different in this picture…
And even more different here…
King John’s Great Seal
Magna
Carta
Libertatum
(The Great
Charter of
Freedoms)
“Know that before God, for the health of our soul and those
of our ancestors and heirs, to the honour of God, the
exaltation of the holy Church, and the better ordering of our
kingdom, at the advice of our reverend fathers…
First, We have granted to God, and by this our present
Charter have confirmed, for us and our Heirs for ever, That
the Church of England shall be free, and shall have her
whole rights and liberties inviolable. We have granted also,
and given to all the freemen of our realm, for us and our
Heirs for ever, these liberties underwritten, to have and to
hold to them and their Heirs, of us and our Heirs for ever.
 [2] If any of our Earls or Barons, or any other, which
holdeth of Us in chief by Knights service, shall die and at
the time of his death his heir be of full age, and oweth us
Relief, he shall have his inheritance by the old Relief…

 [8] We or our Bailiffs shall not seize any land or rent for
any debt, as long as the present Goods and Chattels of
the debtor do suffice to pay the debt, and the debtor
himself be ready to satisfy therefore.
[12] The city of London shall have all the old liberties and
customs, which it hath been used to have. Moreover we will
and grant, that all other Cities, Boroughs, Towns, and the
Barons of the Five Ports, and all other Ports, shall have all
their liberties and free customs.

 [21] No Sheriff nor Bailiff of ours, or any other, shall take

the Horses or Carts of any man to make carriage, except
he pay the old price limited…

 [25] One measure of Wine shall be through our Realm, and

one measure of Ale, and one measure of Corn, that is to
say, the Quarter of London; and one breadth of dyed Cloth,
Russets, and Haberjects, that is to say, two Yards within
the lists. And it shall be of Weights as it is of Measures.
 26] Nothing from henceforth shall be given for a Writ of
Inquisition, nor taken of him that prayeth Inquisition of Life,
or of Member, but it shall be granted freely, and not denied.


 [28] No Bailiff from henceforth shall put any man to his

open Law, nor to an Oath, upon his own bare saying,
without faithful Witnesses brought in for the same.

 [29] No Freeman shall be taken, or imprisoned, or be

disseised of his Freehold, or Liberties, or free Customs, or
be outlawed, or exiled, or any otherwise destroyed; nor will
we pass upon him, nor condemn him, but by lawful
Judgment of his Peers, or by the Law of the Land. We will
sell to no man, we will not deny or defer to any man either
Justice or Right.
 [30] All Merchants (if they were not openly prohibited
before) shall have their safe and sure Conduct to depart out
of England, to come into England, to tarry in, and go
through England, as well by Land as by Water, to buy and
sell without any manner of evil Tolls, by the old and rightful
Customs, except in Time of War.

 [34] No Man shall be taken or imprisoned upon the Appeal

of a Woman for the Death of any other, than of her
husband.”
 The Canadian Constitution
 http://laws.justice.gc.ca/en/const/index.html
 Canadian Charter of Rights and Freedoms
 http://www.youtube.com/watch?v=MNnKPUygb
oA&feature=related