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Constitutions, Law and

Judges
Chapter 15 of Heywood’s Politics, 4th edition

Sunday, November 27, 2016


Imagine playing a game
without rules...

Sunday, November 27, 2016


Imagine playing a game
without rules...
We need rules to play games,

Sunday, November 27, 2016


Imagine playing a game
without rules...
We need rules to play games,
just as we need a constitution to play

Sunday, November 27, 2016


Imagine playing a game
without rules...
We need rules to play games,
just as we need a constitution to play
the game of politics.

Sunday, November 27, 2016


RULES

Sunday, November 27, 2016


RULES

• written (formal; legal; enshrined in laws)

Sunday, November 27, 2016


RULES

• written (formal; legal; enshrined in laws)


• unwritten (informal; customary or
conventional; embodied in customs or
traditions)

Sunday, November 27, 2016


What is constitution? Broadly...

Sunday, November 27, 2016


What is constitution? Broadly...

• a set of rules (written or unwritten)

Sunday, November 27, 2016


What is constitution? Broadly...

• a set of rules (written or unwritten)


• power map (duties, powers and functions of
institutions)

Sunday, November 27, 2016


What is constitution? Broadly...

• a set of rules (written or unwritten)


• power map (duties, powers and functions of
institutions)
• regulator

Sunday, November 27, 2016


What is constitution? Broadly...

• a set of rules (written or unwritten)


• power map (duties, powers and functions of
institutions)
• regulator
• defines the relationship between the state
and the individual

Sunday, November 27, 2016


Narrowly,

• a single authoritative document that


contains the highest law in the land

Sunday, November 27, 2016


Types of Constitutions
• form (written or unwritten; codified or
uncodified)
• the ease with which the constitution can be
changed (rigid or flexible)
• is it observed in practice? (effective, nominal, or
facade constitution)
• content of the constitution(monarchical,
republican, federal or unitary, presidential or
parliamentary)

Sunday, November 27, 2016


Functions of a constitution

• empowers states and gives them formal jurisdiction (for international


recognition; hence, accompanies the creation of new states)
• establishes unifying values and goals (what does this mean?)
• provides government stability (through its institutional blueprints or
power map)
• protects freedom (constrains government in order to protect
individuals... from what?)
• legitimizes regimes (to exact compliance among the domestic
population)
• provides political stability, limits government and guarantees rights
and freedoms (p. 340)

Sunday, November 27, 2016


Law

Sunday, November 27, 2016


Law
• relationship between law and morality

Sunday, November 27, 2016


Law
• relationship between law and morality
• role of law?

Sunday, November 27, 2016


Law
• relationship between law and morality
• role of law?
• rule of law?

Sunday, November 27, 2016


Law
• relationship between law and morality
• role of law?
• rule of law?
✓law should rule

Sunday, November 27, 2016


Law
• relationship between law and morality
• role of law?
• rule of law?
✓law should rule
✓law applies to all

Sunday, November 27, 2016


Law
• relationship between law and morality
• role of law?
• rule of law?
✓law should rule
✓law applies to all
• law has a neutral character, and therefore, is
above politics

Sunday, November 27, 2016


Why are courts needed? What is
the political significance of courts?

• constitutional provisions are not self-


executory, hence, we need institutions
(Executive, Legislature and Judiciary)
• Judges adjudicate on the meaning of the
law. Their central function is to interpret
the law.
• Judges, therefore, must have what qualities?
Sunday, November 27, 2016
Are judges political
too?
• Theoretically, judges are supposed to be
neutral and impartial, but in reality, they are
not.
• External bias
• Internal bias

Sunday, November 27, 2016


Do judges make policy?
• Of the three branches, the judiciary is the most
passive--it applies clear laws and interprets vague
ones.
• Judicial activism- “The willingness of judges to
arbitrate in political disputes, as opposed to merely
saying what the law means.”(Heywood, p. 349)
• “As judges impose meaning on the law, they cannot
be involved in the policy process.”(Heywood, p.
350)

Sunday, November 27, 2016