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1、Unit 1,Text II Law as a Normative Order and The Prolem of Legal Certainty,Contextual Introduction,Frank and Classical Legal Formalism Frank Vs. Formalists Decision or Rule?,Comprehension of the text,Origination of the problem Fact skeptics Psychological factors Discretionary power Justification: adj
2、ective; substantive,Exercises,Unit 2,Historical Development of Constitutional Law,Clarification of some terms,Brief Introduction Constitution Constitutionalism constitutionality,The system of fundamental laws and principles that prescribes the nature, functions, and limits of a government or another
3、 institution. Government (or system) in which power is distributed and limited by a system of laws that must be obeyed by the rulers. Accordance with the provisions or principles of a constitution,Basic Theory,Nature Elements functions Constitutionlism and rule of law etc,Text 1 The Historical Devel
4、opment of the British Constitution,1st reading for comprehension Exercises,British Constitutional documents,Magna Carta,The Petition of Right The English Bill of Rights The Act of Settlement The Reform Act,More Exercises,Text II United Stated v. Nixon,First reading exercises Reading comprehension ex
5、ercises,Amendment XX, Section 3.,IF, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice-President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the Presid
6、ent elect shall have failed to qualify, then the Vice-President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice-President shall have qualified, declaring who shall then act as President
7、, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice-President shall have qualified.,Unit 3 Doctrines of the constitution,The elemental spirits of the constitutional government: freedom, restriction of the political rights and
8、rule by law,Text I Doctrines of the British Constitution,General introduction: Unwritten constitution Government and its life 3 doctrines,Separation of powers,Content Its feature in GB In the U.S.,The Rule of Law,The rule of law is preferable to the rule of any individual. -Aristotle Concept How to
9、ensure?,Supermacy of Parliament,Typical of GB style Content & nature Parliament Acts 1911 and 1949 The Crown,Exercises,Text II Hamilton v. Al fayed,Case Trial Verdict Appeal Decision Parties involved Court judges,Exercises,Unit 4 Division of Powers,British Constitutional Framework Sources: Acts of P
10、arliament Treaties EU law Common Law Conventions Royal Prerogative,Text I The Constitutional Framework of the U.K.,Framework of the Br. Constitution Features of the Br. Constitutional structure Precedent:1 An act or instance that may be used as an example in dealing with subsequent similar instances
11、. 2 A judicial decision that may be used as a standard in subsequent similar cases,Text I The Constitutional Framework of the U.K.,Appraisal of the system: advantages and disadvantages, reforms etc. Model under the division of powers: constitutional monarch Separation? Roles of the monarch Restricti
12、ons on the monarch,Acts of Parliament,Acts of Parliament are laws (statutes) that have received the approval of Parliament - that is, the Sovereign, the House of Lords and the House of Commons. On rare occasions, the House of Commons uses the “Parliament Acts“ (the Parliament Act 1911 and the Parlia
13、ment Act 1949) to pass legislation without the approval of the House of Lords. It is unheard of in modern times for the Sovereign to refuse to assent to a bill, though the possibility was reportedly contemplated in relation to the fiercely controversial Irish Home Rule Act 1914,Treaties,Treaties do
14、not, on ratification, automatically become incorporated into UK law. Important treaties have been incorporated into domestic law by means of Acts of Parliament. The European Convention on Human Rights has, for example, to a considerable extent been incorporated into domestic law through the Human Ri
15、ghts Act 1998.,EU law,On one analysis, EU law is simply a subcategory of international law that depends for its effect on a series of international treaties (notably the Treaty of Rome and the Maastricht Treaty). It therefore has effect in the UK only to the extent that Parliament permits it to have
16、 effect, by means of statutes such as the European Communities Act 1972, and Parliament could, as a matter of British law, unilaterally bar the application of EU law in the UK simply by legislating to that effect. In any event, British membership of the EU has had a very considerable impact on the c
17、onstitution and governance of the country. In the Factortame litigation, for example, the House of Lords took the unprecedented step of granting an injunction to “disapply“ an Act of Parliament (the Merchant Shipping Act 1988). While this step can in principle be argued to be consistent with traditi
18、onal ideas of Parliamentary supremacy, it does illustrate the profound impact that EU membership has had. The merits of continued British involvement in the EU continue to be hotly debated within the UK.,Common Law,The United Kingdom uses the common law legal system (except in Scotland where some ci
19、vil law is incorporated, see Scots law) and court judgments also commonly form a source of the constitution: generally speaking, judgments of the higher courts form precedents or case law that binds lower courts and judges. Historically important court judgments include those in the , the Ship money
20、 Case and Entick v. Carrington, all of which imposed limits on the power of the executive. A constitutional precedent applicable to British colonies is Campbell v. Hall, which effectively extended those same constitutional limitations to any territory which has been granted a representative assembly
21、.,Some important conventions,Relating to monarchy The Sovereign shall grant the Royal Assent to all Bills passed by Parliament (the Royal Assent was last refused by Queen Anne in 1708, for the Scottish Militia Bill 1708, on the advice of her ministers).13 The monarch will not dissolve Parliament wit
22、hout the advice of the Prime Minister. The monarch will ask the leader of the dominant party in the House of Commons to form a government, and if there is no dominant party, the leader most likely to be able to form a coalition government. The monarch will ask a member of the House of Commons (rathe
23、r than the House of Lords or someone outside Parliament) to form a government. It remains possible, however, for a caretaker Prime Minister to be drawn from the House of Lords. All ministers are to be drawn from the House of Commons or the House of Lords. The House of Lords will accept any legislati
24、on that was in the Governments manifesto (the Salisbury Convention) in recent years this convention has been broken by the Lords, though the composition of the Lords (which was the justification for the convention) has radically changed since the convention was introduced.,Royal Prerogative,The roya
25、l prerogative is the collective name for a collection of powers belonging to the Sovereign which have no statutory basis. In practice, by convention, most of the prerogatives are now directly exercised by ministers, or at any rate on the advice of ministers. The precise extent of the royal prerogati
26、ve has never formally been delineated, but it includes the following powers: The power to make war and peace The power to summon, prorogue and dissolve Parliament The power to regulate the Civil Service The power to ratify treaties The power to issue passports The most important prerogative still pe
27、rsonally exercised by the Sovereign is considered to be the appointment and dismissal of Prime Ministers. The last time this reserve prerogative was exercised by the monarch without reference to the Cabinet was with the appointment of Harold Wilson as Prime Minister in February 1974, despite his par
28、ty not having a majority in the House of Commons. Queen Elizabeth II exercised her prerogative after extensive consultation with the Privy Council. The Royal Prerogative is not unlimited; this was established in the Case of Proclamations (1611), which confirmed that no new prerogative can be created
29、 and that Parliament can abolish individual prerogatives.,Recent constitutional reform,The Labour government under past-Prime Minister Tony Blair instituted sweeping constitutional reforms in the late 1990s and early-to-mid 2000s. The effective incorporation of the European Convention on Human Right
30、s into UK law through the Human Rights Act 1998 has granted citizens specific positive rights and given the judiciary some power to enforce them. The courts can put pressure on Parliament to amend primary legislation that conflicts with the Act by means of “Declarations of Incompatibility“ - however
31、 only of an advisory capacity as Parliament is not bound to amend the law nor can the judiciary avoid any statute - and can refuse to enforce, or “strike down“, any incompatible secondary legislation. Any actions of government authorities that violate Convention rights are illegal except if mandated
32、 by an Act of Parliament.,Recent constitutional reform,Recent reforms have also decentralised the UK by setting up a devolved parliament in Scotland and assemblies in Wales and Northern Ireland. These reforms have undermined the concept of Parliamentary sovereignty somewhat, even though Parliament c
33、ould still abolish the devolved assemblies and repeal the Human Rights Act. In reality such action is unlikely so these restrictions on the legislative power of Parliament are likely to remain on the statute book for the time being. The passage of the Freedom of Information Act has challenged the tr
34、aditional British notion that governments should not disclose too many details of their operations.,Recent constitutional reform,Recent changes also include the Constitutional Reform Act 2005 which alters the structure of the House of Lords to separate its judicial and legislative functions. For exa
35、mple the legislative, judicial and executive functions of the Lord Chancellor are now shared between the Lord Chancellor (executive), Lord Chief Justice (judicial) and the newly created post of Lord Speaker (legislative). The presence of Law Lords (members of the judiciary) in the House of Lords, wi
36、ll be removed by moving the Lords to the new Supreme Court of the United Kingdom by 2009.,Text I The Constitutional Framework of the U.K.,Exercises,Text II How Sensitive Were the “Pentagon Papers”,New York Times V. United States New York Times Co. v. United States, 403 U.S. 713 (1971), was a United
37、States Supreme Court per curiam decision. The ruling made it possible for the New York Times and Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censure. The U.S. President Richard Nixon had claimed executive authority to force the Times to suspen
38、d publication of classified information in its possession. The question before the court was whether the constitutional freedom of the press under the First Amendment was subordinate to a claimed Executive need to maintain the secrecy of information. The Supreme Court ruled that First Amendment did
39、protect the New York Times right to print said materials.,New York Times V. United States,6-3 The decision finally stated that the Supreme Court agreed with the two lower courts which had originally decided that the Government had not met that burden, so the prior restraint was not justified. This f
40、inal decision was not signed by any particular justice. The Per Curiam opinion itself in this case was very brief because all the Court wanted to state was that it had concurred with the decisions of the two lower courts to reject the Governments request for an injunction. The Justices opinions incl
41、uded different degrees of support for the clear superiority of the First Amendment and no Justice fully supported the Governments case. Because of these factors, no clear and exclusive law appears to have come out of this case. Nevertheless, the significance of the case and the wording of the Justic
42、es opinions have added important statements to the history of precedents for exceptions to the First Amendment, which have been cited in numerous Supreme Court cases since.,New York Times V. United States,Chief Justice Warren E. Burger, dissenting, argued that “the imperative of a free and unfettere
43、d press comes into collision with another imperative, the effective functioning of a complex modern government,“ that there should be a detailed study on the effects of these actions. He argued that in the haste of the proceedings, and given the size of the documents, the Court was unable to gather
44、enough information to make a decision. He also argued that the Times should have discussed the possible societal repercussions with the Government prior to publication of the material. The Chief Justice did not argue that the Government had met the aforementioned standard, but rather that the decisi
45、on should not have been made so hastily.,New York Times V. United States,Justice Hugo Black wrote an opinion that elaborated on his absolutist view of the First Amendment. He was against any interference with freedom of expression and largely found the content of the documents to be immaterial. Just
46、ice William O. Douglas (1898-1980) largely concurred with Black, citing the need for a free press as a check on government.,I - Freedom of Speech, Press, Religion and Petition,Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging t
47、he freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.,Exercises,Unit 5 Individual Rights and Liberties,Individual rights refer to the rights of individuals, in contrast with group rights. Rights are entitl
48、ements or permissions, usually of a legal or moral nature. Rights are of vital importance in the fields of law and ethics, especially theories of justice and deontology.,Natural and legal rights,Natural rights (also called moral rights or inalienable rights) are rights which are not contingent upon
49、the laws, customs, or beliefs of a particular society or polity. In contrast, legal rights (sometimes also called civil rights or statutory rights) are rights conveyed by a particular polity, codified into legal statutes by some form of legislature, and as such are contingent upon local laws, customs, or beliefs. Natural rights are thus necessarily universal, whereas legal rights are culturally and politically relative. Blurring the lines between natural and legal rights, U.S. statesman James Madison believed that some rights, such as trial by jury, are social rig