Constitutional Law

Peace, Order, Good Governance

Many efforts to prevent war ( a sustained organized violence between states, when politics and diplomacy has failed) have been tried:

United Nations, the International Monetary Fund to control exchange rates among some 130 states, the European Common Market, FTA, NAFTA to eliminate barriers to trade and capital. The world isn’t a simple place: multinational corporations have budgets and revenues larger than some states, cannot be controlled by any one state and can wreck havock on the state. 
International Private Law power politics and economic power force states to behave in a particular way.

Compliance to international law is an issue but keeping people talking about conflicts keeps the potential for a resolution without bloodshed alive.

Beyond greed and scarcity of resources as triggers for war, self-defence  escalates conflict to seek a resolution to abuses. Defending universal principles have also inspired civil wars. Constitutions are developed to become the arbitor of dispute.

Three types of constitutions:

  • rigidly written down,
  • flexible unwritten customs, practices, and conventions
  • half-written provision for change, not easily changable with a flexible stability

Constitutions are the basic law structure of the state, the framework of how the government is organized in a collection of fundamental principles, laws and conventions that govern a society (one person – one vote, election every five years, convention to have a Prime Minister).

A constitution describes types of decisions and process. Law, order and justice are made on rules and principles about what the state can and cannot do and how power is to be redistributed. It provides legitimacy for those who rule, to rule with authority. It outlines the rights and responsibilites of its cotizens, how conflicts are to be resolves and what the limits are. Amendments are possible but difficult. The constitution endures over a long time with symbolic importance. It embodies the ideas of the people of the state.

Constitutionalism

Politics must be conducted according to the rules laid down, adhering strictly to what the courts say. There are limits to what the government can do.

Writing a Constitution

People basically govern themselves. Strike a balance between liberty and freedom and authority. To establish authority one must make effective rules legitimately. Provide freedom and order. What to do in natural disaster and war – a provision to abolish freedom because of crisis. Out formulates the Emergencies Act. Charter of Rights and Freedoms are based on natural law that humans are rational, each enjoy inherent rights of life, liberty, free speech, freedom of religion, and private property. This is considered unchangable and universally valid – natural rights.

Due Process

There are guaranteed rights in British rule of law to use due process of law. No one can interfere with legal rights. All are equal before the law.  Courts are used to dietermine whether limited freedom is correct. The Charter of freedoms took away the power of the parliamentarians. The Charter is entrenched in the constitution, a compromise with the notwithstanding clause – pass resolution (loophole) where the courts decide what is reasonable discrimination.

  1. fundamental freedoms
  2. right to vote, to seek office
  3. mobility rights to go between provinces
  4. legal rights – life, liberty, security of the person, legal counsel, trial, protection
  5. equality rights
  6. minority language rights

Patriation of the Constitution was delayed because politicians couldn’t agree on details. Courts affect the constitution.

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