Definition and scope of Constitutional law

The starting- point for studying constitutional law should ideally be the same starting-point as for studying political philosophy, or the role of law and government in society. How is individual freedom to be reconciled with the claims of social justice? Is society founded upon a reciprocal network of rights and duties, or is the individual merely a pawn in the hands of state power?

These fundamental questions are often not pursued explicitly in the study of constitutional law. Constitutional law concerns the relationship between the individual and the state. As a historian has stated, law is not merely a matter of the rules which govern relations between private individuals (for example between husband and wife, or between landlord and tenant). Law also concerns the structure and powers of the state. The constitutional lawyer is always likely to insist that the relations between the individual and the state should be founded upon the governed by law.

But law does not exist in a social and political vacuum. Within a given society, the legal rules that concern relations between husband and wife will reflect that society’s attitude to marriage. So too the rules of constitutional law, that govern political relations, will within a given society reflect a particular distribution of political power. In a stable society, constitutional law expresses what may be a very high degree of consensus about the organs and procedures by which political decisions are taken.

Within a stable democracy, constitutional law reflects the value that people attach to orderly human relations, to individual freedom under the law and to institutions such as parliament, political parties, free elections and free press. Laws are the product of human decisions. As Lord Acton said, “Powers tends to corrupt and absolute power tends to corrupt absolutely”. But the weaknesses and imperfections of human nature are not a reason for discarding law as a means of regulating political conduct. The laws of football are often broken. But if we shoot the referee and tear up the rules, football as an organized activity ceases to exist.

Total disbelief in the value of the individual or in the possibility of public good is therefore a bad starting-point for studying constitutional law. But there is no need to go to the other extreme that in Great Britain we have a matchless constitution. Constitutional law is one branch of human learning and experience that helps to make life in today’s world more tolerable and less brutish than it might otherwise be.

 

Vocabulary notes

be reconciled with быть согласованным с

reciprocal network взаимная связь

pawn in the hands of state power залог в руках государственной власти

be pursued explicitly проводиться ясно

merely просто, только

attach to orderly human relations распространяться на

упорядоченные человеческие отношения

weaknesses and imperfections of human слабости и недостатки человеческой nature натуры

reason for discarding law основание для отступления от закона

tear up the rules нарушать правила

cease to exist прекратить существование

matchless constitution неподходящая конституция

make life more tolerable and less brutish сделать жизнь более терпимой и менее

жестокой

 

Task 2. Match the words

1. требования социальной справедливости a. rules of constitutional law

2. структура и полномочия государства b. claims of social justice

3. принять политические решения c. attitude to marriage

4. нормы конституционного права d. structure and powers of the state

5. отношение к браку e. take political decisions

Task 3. Agree or disagree

1. Law is a matter of rules which govern relations between private individuals.

2. Law exists in a social and political vacuum.

3. The laws of football are rarely broken.

4. Constitutional law is one branch of human learning.

5. Constitutional law reflects the value that people attach to orderly human relations.