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Chapter I STATE AND CONSTITUTION Contents 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 Society and the state Law and the state Sovereignty and the state Government and the state The Legislature The Executive The Judiciary Definition of the constitution Concept and the Meaning of Constitutional law Pages 2 3 7 11 13 18 21 22 27 29 30 31

Key Terms Assignment Questions Short Questions

Chapter (1) STATE AND CONSTITUTION

1.1

SOCIETY AND THE STATE

A study of any aspect of the state must begin with the definition of society because a state is a society politically organized.

A society may be defined as any association of human beings .

The fundamental units of the association of the members of a community may be considered in general as follows:

(a) (b)

the family professional society

(or)Trade Union etc e.g. club and religious association.

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Modern Political Constitution by C.F Strong ----P.2.

(c) Voluntary

o i ion

On the one hand, associations play an important part in influencing and determine state action, on the other hand many of

them could not continue to exist without the conditions which the agency of the state alone can enforce.

1.2

LAW AND THE STATE

All associations make rules and regulations for their conduct, and when men are associated politically these rules and regulations are called laws, the power to make these being the prerogative of the state.

So, Prof. Maciver defines: "a state is the fundamental association for the maintenance and development of social order, and to this end its central institution is endowed with the united power of the community." -

Prof. Hetherington says: "the state is the institution or set of institutions which in order to secure certain elementary common purposes and conditions of life, unites under a single authority**the inhabitants of a clearly-marked territorial area"

Explanation United power (or) single authority means the power or authority to make law. -

Woodraw Wilson defines: "A state is a people organized for law with in a definite territory."

The objects of the law are the things necessary to which rights are held and duties imposed. According to Westlake, "the duties and rights of the states are the duties and rights of men who compose them."

Westlake

Article I of the Montevideo Convention of 1933 on the Rights and Duties of States enumerates the following characteristics of the state as a person of International law:

(i.)

a permanent population;

(ii.)

a defined territory;

(iii.)

a government;

(iv.)

a capacity to enter into relations with other states.

As indeed, the essence of a state, then, as distinct from all other forms of association, is the obedience of its members to the law. The state being a territorial society divided into government and governed, we may quote a definition of law as "the general body of rules which are addressed by the rulers of a political society to the members of that society which are generally obeyed."

1.3 SOVEREIGNTY AND THE STATE

Etymologically the word "sovereignty" means merely superiority, but when applies to the state it means superiority of a special kind, such superiority, that is to say, as applies law-issuing power .
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In seeking to find in any state where the sovereign power lies:-

(a)

the titular head of the state (e.g. in United Kingdom

the Queen, in France the president of the Republic) -

(b) the legal sovereign-(e.g. in United Kingdom the Queen in parliament) -

Modern Political Consitution, P.5

(c) the political or Constitutional sovereign-(e.g. in the modern constitutional state found in the electorate (or) voting public)

Actually, the state must have to make laws and enforce by all the means of coercion, it cares to employ. This power is called sovereignty.

This is a highly controversial term. We have to define it in double aspect:-

Internal Sovereignty and External Sovereignty

Internally, it means the supremacy of a person or body of persons in the state over the individuals within the area of its jurisdiction.

Externally, it means the absolute independence of one state as a whole with reference to all other states.
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State power is also characterized, by its supremacy (sovereignty) and Universality. The sovereignty of the state is the judicial expression of the independence of state power, its independence from any other power either within the country or beyond its borders. State power is universal, and extends to all members of the given society ( the citizens living on the territory of a given country, stateless persons and foreign nationals, and also citizens of the given country who are abroad.)
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3 4

Modern Political Constitution, P.5 Constitutional law and political Institutions by Veniamin CHIRKIN P. 41

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At the international level, state sovereignty manifests itself in the equal rights of states, regardless of the size of their territory, their population or other factors,

1.4 GOVERNMENT AND THE STATE

In order to make and enforce laws the state must have a supreme authority. Generally, this called the Government. Government is the state's machinery without it the state could not exist.

Government is organized force. Government shall be formed by law (by constitution) Government is, therefore, " that organization in which is vested .the right to exercise sovereign power. " Here,

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Government represents the state. Government, in the broader sense, is something bigger than a special body of minister (cabinet).

Government is charged with the maintenance of the peace and security of the state within and without. It must, therefore have:

(i.) military power,

(ii.)

legislative power,

(iii.)

financial powerand of enforcing the law it makes on the state's behalf,

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Modern Political Constitution. P. 6

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The form of Government and its functions is differed as of different constitutions on the application of different constitutional theories and principles.

Anyhow, a state must have legislative branch to use the legislative power, executive branch to use the executive power, executive branch to use the executive power and judicial branch to use the judicial power which are rooted and flowed from the state power i.e. sovereign power of the state.

1.5 THE LEGISLATURE

The three branches of the state power mentioned above all play their part in the exercise of sovereign power in a modern state. THE

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LEGISLATURES is that concerned with the making of laws, in so far as the law requires statutory force.

In a simple sense, a legislature makes laws, the OXFORD English dictionary defines a legislature as "a body of persons invested with the power of making the law of a country or state." OXFORD

Although legislatures are known primarily as lawmaking bodies, it is important to recognize that these institutions have many other important responsibilities.

LEGISLATURES operate under a system of collective decision making Legislatures adopt policies and make laws through the process of deliberation.

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NELSON POLSBY, a scholar of U.S congress classified the legislature into two basic types: arena legislatures and transformative legislatures:

(i.)Arena legislatures are forms for discussion of ideas and policies;

(ii)Transformative legislatures actively translate ideas into laws.

The British Parliament is a good example of an arena legislature. The U.S Congress is a transformative legislature.

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In the British system, the executive prime minister and the legislative Parliament are linked and are necessarily controlled by the same party.

As a result, there is less need or opportunity for transformative activity in the area of policymaking.

The U.S Congress, on the other hand, is a much more activist legislature, conflict, compromise, and individualism can all be found in the U.S legislature.

The very characteristic of a legislature is its intrinsic link to the citizens of the state-representation. As JOHN STUART MILL wrote in 1862, in a representative democracy the legislature acts as the eyes, ears, and voice of the people.

JOHN STUART

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MILL

In modern constitutional state the legislative power is vested in Hluttaw (Myanmar), Parliament, Congress, Soviet, National Assembly etc. which may be elected by the people.

James Q. WILSON has pointed out the root of the word Parliament i he Fren h word P rler i e o ke, he roo of he

word Congress is formal meeting, to come together or assemble. Simil rly, in Ru i , he word Sovie me n James Q. WILSON oun il
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Congresses

By the way, according to C.F. strong, an authentic author of Con i u ion l L w, he LEGISLATURE i , of greater importance
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The Role of the Legislature in a Democracy by Norman ORNSTEIN, P.3 and 5

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than the EXECUTIVE which administer the law, or the JUDICIARY which punishes its transgressors. C.F. strong

1.6 THE EXECUTIVE

The term Executive is sometimes to designate merely the chief minister (as, for example, the president in the U.S) sometimes to include the whole body of public servants, civil and military.

The word EXECUTIVE i

o me n he head of the government

together with his ministers. In modern practice the executive formulates the bulk of it, and then presents it for approval to the legislature.

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Nowadays, there are three types of Republics. They are: (i) Monarchical Republic,

(ii)

Parliamentary Republic,

(iii) Presidential Republic.

Monarchial system is still living in some parts of the world. As, for example, United Kingdom (U.K), Thailand, Japan, Spain, Republic of middle east.

Form of estate or form of Republic can differ concerning their relationship to the overall political system of which they are a part, for instance, a legislature may be part of either a parliamentary system or a system of separated powers usually known as a presidential system.

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In a parliamentary system (or) parliamentary Republic the executive and the leaders of the administrative bureaucracies are chosen from and are accountable to the majority in parliament. Where separation of powers is the rules as in a presidential system (or) presidential Republic (e.g. United states), the executive and the cabinet are entirely separate from the legislative body.

No one (an exception is the vice-president in the U.S case) can be a member of both the executive and the legislative branch. -

1.7 THE JUDICIARY

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The judiciary is the department concerned with the infliction of penalties upon those who infringe the law which may be either passed in the form of statutes by the legislature or permitted by it to exist.

The judiciary always consists of a body of judges acting individually or in group at the centre, or in outlaying parts, of the state. The powers of judges greatly vary from one state to another. Judicial system is differed in common law family, civil law family, and socialist law family.

1.8

DEFINITION OF THE CONSTITUTION

The modern constitutional state is necessarily nationalist in background and democratic in tendency. In the making of a

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constitutional state the sense of national unity may at first be concerned rather to establish the independence of the group than to achieve the liberty of its individual members, but ultimately it generates the driving power for the attainment of popular rights.

The objects of a constitution are(i.) to limit the arbitrary action of the government;

(ii.)

to guarantee the rights of the governed; and

(iii) to define the operation of the sovereign power.

Then, concerning with the definition of constitution, world constitutionalists expressed and colored the state constitution as follows:
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. Modern Political Constitution P.10

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*Constitution is the pillar of the State.

*Constitution is the mirror of the State.

*Constitution is the basic law of all laws of the land.

Some states in the world named and called their state constitutions as

(i) Basic Law (or)

(ii) Fundamental Law (or)

(iii) State Law

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After staying the above fundamental terms and terminology of Constitutional Law, we should go forward in detail.

Lo d BRYCE defined

on i u ion

fr me of poli i l

society, organized through and by law, that is to say, one in which law established permanent institutions with recognized functions and definite rights.
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Expl n ion

(for permanent institution)

Permanent institutions mean the legislative organ, the executive organ and the judicial organ which are prescribed, mentioned and built in the constitution.

. Ibid , p.9

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According to C.F STRONG, a true constitution, will have the following facts. C F STR G

(i.) how the various agencies are organized;

(ii) what powers is entrusted to those agencies;

(iii) in what manner such power is to be exercised.

Explanation

for

gen ie

Here,

AGENCIES are legislative organ, executive organ and judicial organ of the state which are built in the constitution. Its organs, their functions and powers are definitely arranged.

. Modern political Constitution, P. 10

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According to WADE and PHILLIPS, Constitutional law means the rules which regulate the structure of the principal organs of government and their relationship to each other, and determine their principal functions. These rules consist both of legal rules in the strict sense and usages, commonly called conventions, which without being enacted are accepted as binding by all who are concerned in government.
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WADE

PHILLIPS

1.9 LAW

CONCEPT AND THE MEANING OF CONSTITUTIONAL

CONSTITUTION implies any regular form or system of government. Law implies a binding rule of action to which men are obliged to make their conduct comfortable.

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Constitution Law by E. C. S WADE and G.G Philips. P.2 and 3

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A constitution lays down the general and the fundamental principle on which the power as of a state are to be exercised. In this sense, constitutional law is often described as the fundamental law of the Land. The main object is to define the orbit of the sovereignty.

When we speak of constitutional law, we speak of that law which comprises the collection of rules which establish and regulate or govern the country.

It includes all rules which define the members of the sovereign power, all rules, which regulate the relations of such members to each

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other, or which the sovereign power or the members thereof exercise their authority.

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KEY TERMS societyfundamentalvoluntaryprerogativeetymologicallySuperioritytitularLegislaturedeliberationtransformativearenaauthenticinflictioninfringe-

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Assignment Questions 1. 2. Wh do you me n Independen Sovereign S e overeign

How do you under S e

nd he phr e he independen

3. 4.

Differentiate between Government and State. Write short notes on the following power: (a) Legislature (b) Executive (c) Judiciary

5. 6. 7.

Explain the meaning of Constitutional Law. Define he erm Con i u ion What is Constitution?

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Short Questions 1. How is the relationship between the Law and the State? 2. Explain about Legislature. 3. Describe the nature of Executive. 4. Describe the nature of Judiciary. 5. What do you understand the State and Government. 6. Do you know the constitution is the basic law of all laws of the land? Explain.

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