Constitutionalism Coups And Judicial Review Notes

Constitutionalism, Coups and Judicial Review

Page 5-9

Power and Norm:

• The grant of power is accompanied with explicit limitations on power. Power can only be exercised by the institutions to which power is given.

• The theories of legal positivism (19^th century) have influenced Australian Constitutional law. The validity of any legal rule depends solely on questions about power. That is whether the institution issuing the rule, had the legal power to do so.

• Hans Kelsen (1881-1973) portrayed the legal order as a pyramid of norms derived from norm creating powers conferred by the Constitution. If the council cuts down a tree in the neighbourhood you ask if they had the power to issue such an order. You then scrutinise the government Act that allowed them to do this. You then ask if the government was allowed to put the Act in place under the Constitution. However you assume the Constitution is binding, it is a basic norm. The content of each norm can be derived from the content of a higher norm.

Hans Kelsen- Pure theory of Law (1967):

• A legal norm is valid because its content logically comes from a presupposed basic norm. It is created in a certain way determined by the presupposed basic norm and is therefore valid.

• Norms must be elements of a positive order, created by a specific process.

• For example, a person who murders someone else can be executed. This is legal because it comes from a prescribed legal norm presented in a judicial decision. If we ask why this is valid, it is because the criminal law was created by legislature and the legislature is authorised by the Constitution.

• If we keep tracing the origin of the Constitution we will come to an historical constitution that was not justified by a positive norm but perhaps by revolution and a breach of a former Constitution. Yet the validity of the Constitution must be pre-supposed if we want norms to be validated by another norm. Norms need to form a hierarchical structure of super and subordinate norms.

• The basic norm was created by custom or statute. The basic norm is not the product of invention. It was pre-supposed that one ought to behave according to this specific Constitution.

• The Pure Theory of Law makes conscious a normative legal order without making a superior legal authority enact the law.

• The law regulates its own creation. There can be a norm determining the procedure by which another norm is to be created. The other norm becomes the reason the new norm is valid. This norm that regulates its creation is higher. A regression is created that eventually leads to the basic norm or highest norm, which creates conformity with all the norms in the hierarchical structure.

Michael Foucault, Politics and the Study of Discourse (1978):

• He describes his approach to the exploration of history which he calls archaeology. He later comes to call it genealogy (the archaeological metaphor of finding structure that were already there).

• His approach is categorised by flux, inconsistency, discontinuity and change and a rejection of analysis that believes to uncover objective structures.

• This is very different to Kelsen. They have different ideas about what intellectual discourse is.

• Kelsen tries to construct a pure theory of law characterised by hierarchy and unity. His approach is a-historical and a-political. He acknowledges the need to trace legal validity to the historically first Constitution. He approaches the system as if it is real even though it is abstracted from the material world. The purity of pure theory of law is to him a defence against political turmoil.

• Foucault insists that discourse is always inconsistent and ruptured, and that only in this way can ideas originate.

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Separation of Powers:

• The idea of a differentiation between the three different functions of government: legislative, judicial and executive.

Baron de Montesquieu, The Spirit of the Laws (1949):

• Political liberty can be found only when there is no abuse of power.

• Yet experience shows that every person vested with power is apt to abuse it. Virtue itself needs limits.

• It is necessary that power be a check to power.

• When the legislative and executive powers are united in the same person, there can be no liberty because tyrannical laws can be enacted and executed in a tyrannical manner.

• If the judiciary were joined to the legislature, the life and liberty of a subject would be exposed to arbitrary control. If it were joined to the executive, then the judge might behave with violence and oppression.

Owen Hood Phillips and Paul Jackson, Constitutional and Administrative Law (1987):

• The legislative function is the making of new law and altering and repealing existing law. (Parliament makes the law. They are elected representatives.)

• The executive or administrative function is the general and detailed carrying on of the government according to law. They frame policy and choose the manner in which the law will be made to render policy possible. It is very wide now to include the provision of social services and the supervision of defence, order and justice and the finance required. (They are the Cabinet and Prime Minister who are members of Parliament and the Governor General. They are elected).

• The judicature function consists of the interpretation of the law and its application by rule or discretion to the facts of particular cases (They are appointed by the executive and are protected by the Attorney General. They can be sacked by a joint seating in Parliament or they can retire at age 70- Chapter III s. 72).

• This distinction can be seen as procedural or as organic or formal.

Gerard Carney, Separation of Powers in the West-minister System (1994):

• There is a complete separation in regards to powers, institutions and personnel. However no Constitutional system adopts the complete separation of powers. The strict doctrine is only a theory and it has to give way to the realities of government overlapping.

• In the US they have a Congress as the...

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