Introduction to the Study of the Law of the Constitution

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Enhances representative democracy by allowing citizens to participate meaningfully in law-making in various ways. It is when a constitution seeks to move a society towards a better version of itself instead of maintaining a status quo. The effect of section 2 is commonly referred to as constitutional supremacy, meaning that no rule or conduct can be inconsistent with a constitutional rule. If such an inconsistency arises, it is resolved by declaring the offending rule invalid to the extent that it contradicts a constitutional rule. Conversely stated, to be valid, all law and conduct must conform to the prescripts of the constitution. In this sense, the constitution is the ultimate authority for law-making and lawful conduct. The rule of law is often understood with reference to the theory of the British jurist, AV Dicey. Dicey explained in his Introduction To The Study Of Law Of The Constitution (1885), that the rule of law has three characteristics. First, because the law is supreme all public power must be exercised in terms of an empowering provision in a law. Second, everyone is equal before the law. Third, the courts are responsible for enforcing the laws of a country [9]. If all three conditions are met then the rule of law is established within a state.

There are various principles and ideas invoked throughout this book and in most texts on constitutional law. These are: constitutional supremacy, separation of powers, the rule of law, democracy and transformative constitutionalism. Each of these is explained and discussed below. This 8th edition, published in 1915, was the last edition written by Dicey. The 9th edition (1931) and 10th edition (1959) have an introduction and appendix by E.C.S. Wade

A purely representative notion of democracy is incompatible with constitutional supremacy. Constitutional supremacy means that every so often the will of the majority will be constrained by a constitutional rule. However, as Chaskalson P held in Makwanyane, there are other notions of democracy that are compatible with limiting the power of a legislature by a constitution that is then interpreted by another arm of state (normally the judiciary). Democracy can entail safeguards for minority voters and does not have to entail parliamentary sovereignty [4]. Democracy does not have to entail a majority decision on every aspect of a state. The majority can decide to delegate decision-making on certain matters to a smaller group of people (for example, judges who are experts in constitutional law). In any event, whatever impact a constitution has on majority rule can also be mitigated by the fact that the majority decided to create that constitution (as it arguably did in South Africa). Swee Leng H and Alexia S, The Rule of Law in Parliament (Bingham Centre For The Rule Of Law, London 2017) For fuller accounts, see De Vos and Freedman op cit n 2 at 3; and Stu Woolman and Jonathan Swanepoel ‘Constitutional History’ in S Woolman & M Bishop (eds) Constitutional Law of South Africa 2 ed (2003) (service 6). Doctors for Life International v Speaker of the National Assembly and Others [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) Section 1 of the Constitution provides that South Africa is a republic founded on the value of constitutional supremacy. Section 2 of the Constitution provides that the Constitution is ‘supreme law in the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled’. The rules in the Constitution thus trump all other rules contained in statutes, common law and custom. Any rule inconsistent with a constitutional rule is an invalid rule. Any conduct that contradicts the constitution, including failing to fulfil an obligation imposed by the Constitution, is similarly invalid.

Democratic Alliance v President of South Africa and Others [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) (5 October 2012) (Democratic Alliance) at para 37. See most recently National Energy Regulator of South Africa and Another v PG Group (Pty) Limited and Others [2019] ZACC 28 (NERSA) para 49. Tun Arifin Z, Syarahan Perdana: “Rule of Law and Judicial System” (Institute Integrity Malaysia, Kuala Lumpur 2012)

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As explained at the start of this chapter, constitutional law is roughly divided into two parts: separation of powers and the Bill of Rights. The book reflects this division. Weill, Rivka (2003). "Dicey Was Not Diceyan". The Cambridge Law Journal. 62 (2): 474–493. doi: 10.1017/S000819730300638X. James G, ‘The law of rule in Malaysia’ http://www.newmandala.org/law-rule-malaysia/ accessed 12 July 2017 Holmes O, ‘Thai junta criticised as army given sweeping powers of arrest’ https://www.theguardian.com/world/2016/apr/05/thailand-junta-gives-army-sweeping-powers-of-arrest accessed 12 July 2017

Dicey was born on 4 February 1835. His father was Thomas Edward Dicey, senior wrangler in 1811 and proprietor of the Northampton Mercury and Chairman of the Midland Railway. His mother was Annie Marie Stephen, daughter of James Stephen, Master in Chancery. He owed everything - the expression is his own - to the wisdom and firmness of his mother. [5] His elder brother was Edward James Stephen Dicey. [6] He was also a cousin of Leslie Stephen and Sir James Fitzjames Stephen. a b Chisholm, Hugh, ed. (1911). "Dicey, Edward s.v. Albert Venn Dicey". Encyclopædia Britannica. Vol.8 (11thed.). Cambridge University Press. p.178. Phoenix, Eamon & Parkinson, Alan (2010), Conflicts in the North of Ireland, 1900-2000, Four Courts Press, Dublin, Pg 33. ISBN 978 1 84682 189 9Meanwhile, the question that does the United Kingdom still upholds the doctrine of rule of law is never ended being debated. The rule of law regulated that laws must not be retrospective. In other words, if a person’s conduct was not an offence when he committed it, he could not be tried for that particular offence. However, this requirement of restricting retrospective effect in the rule of law is being played down as legislation such as War Crimes Act 1991 has retrospective effect. Dicey, A. V. (1959). Introduction to the Study of the Law of the Constitution (10ed.). London: Macmillan. Fletcher, Ian Christopher (17 March 2008). " 'This Zeal for Lawlessness': A. V. Dicey, The Law of the Constitution, and the Challenge of Popular Politics, 1885–1915". Parliamentary History. 16 (3): 309–329. doi: 10.1111/j.1750-0206.1997.tb00579.x. Dicey was educated at King's College School in London and Balliol College, Oxford, graduating with Firsts in classical moderations in 1856 and in literae humaniores in 1858. In 1860 he won a fellowship at Trinity College, Oxford, which he forfeited upon his marriage in 1872.

Follett, R. (2000). Evangelicalism, Penal Theory and the Politics of Criminal Law: Reform in England, 1808–30. Springer. p.7. Before 1910, South Africa did not exist as a single state, but was a collection of independent states. After 1910, it was a Union. Then in 1961 it became a Republic that was independent of British rule.

Ogg, Frederic A. (June 1940). "Review of Introduction to the Study of the Law of the Constitution and Constitutional Law". American Political Science Review. 34 (3): 579–582. doi: 10.2307/1949373. ISSN 0003-0554. Various provisions relating to the National Assembly, such as proportional representation (section 57). Dicey, A. V. (1885). Lectures Introductory to the Study of the Law of the Constitution (1ed.). London: Macmillan . Retrieved 5 April 2018– via Internet Archive. ; Dicey, A. V. (1915). Introduction to the Study of the Law of the Constitution (8ed.). London: Macmillan . Retrieved 5 April 2018– via Internet Archive. The 8th edition, 1915, is the last by Dicey himself. The final revised edition was the 10th, 1959, edited by E. C. S. Wade: Oliver B, ‘Thailand: return country to democracy and the rule of law’ https://www.icj.org/thailand-return-country-to-democracy-and-the-rule-of-law/ accessed 12 July 2017