Constitutional relationship between law politics state administration

About - Law and Politics

constitutional relationship between law politics state administration

Administrative law is to a large extent complemented by constitutional law, and the of administration (e.g., relations between the government and its officials. Introduce students to Norwegian Constitutional law, its foundations, the between the Faculty of Social Sciences, department of Comparative Politics and on the Norwegian constitution, and the relationship between rule of law and the state, including the parliament, the central administrative apparatus and the courts. Political Science Association for the best book on law and courts in Ginsburg Columbia. He is the author of The Struggle for Constitutional Power: Law, Poli- . relationship between law and social movements, and the judicialization of . legitimacy, (3) strengthen administrative compliance within the state's own.

First, it could mean legal authority in a narrow sense, whereby the government must be able to point to some statute or prerogative power enabling it to act.

Constitutional law - Wikipedia

It would also have to be made clear whether there should be any review for error of fact. It is not a mantra the mere incantation of which will magically resolve the proper limits of judicial review. This is problematic for Tomkins, who, in reality, is caught between a rock and a hard place of his own making. It is not difficult to divine why. His strident attacks on legal constitutionalism are premised on the courts going too far, developing principles of legality that have no certain foundation, and engaging in balancing exercises that should best be left to the political arm of government.

He argues, at the same time, that the courts should stridently enforce the limits of governmental authority to act, including, in this respect, a very strong presumption in favor of fundamental rights.

However, Tomkins provides no explanation as to why testing governmental action against fundamental rights is justified, while the judicial creation of other principles of legality or good governance is not. If it is normatively legitimate for the courts to determine the scope of the government's legal authority to act against the backdrop of fundamental rights, then he must also explain why it is not similarly warranted in doing so for other judicially created principles of administrative law, such as rationality, proportionality, legitimate expectations, access to justice, and equality.

This, then, is the rock and the hard place, adverted to above. Tomkins must either furnish some convincing justification for this differential treatment, which, thus far, he has never even attempted. If he does not provide such a justification, or if he acknowledges the sound normative foundations for these other principles of legality or good governance, then he thereby undermines his own attack on legal constitutionalism, since, in reality, his preferred ambit of judicial review would be little different from the legal constitutionalism he attacks with such vigor.

The difficulties of sustaining any such distinction are readily apparent. Thus it is, for example, untenable to argue that the distinction is normatively warranted because there is less judicial creativity or less balancing in relation to rights by way of contrast with other principles of good governance.

This will not withstand examination, given that the range of rights that should be thus protected and the interpretation accorded to them will perforce involve contentious issues of choice and value.

It is these controls that must be used to police the limits of discretionary power and to ensure thereby that the executive does not exceed the limits of its authority to act. This view is however problematic for the following reasons.

This is apparent by reflecting on the classic example from the Wednesbury case, 36 the dismissal of a teacher for the color of her hair. This could only be so if the issue was posed in relatively broad terms, namely, that physical characteristics could be relevant in hiring or dismissing a teacher.

constitutional relationship between law politics state administration

If, however, the issue was framed in more specific terms, to the effect that the natural color of a person's hair could never be a relevant consideration in hiring or firing a teacher, then the case would have been resolved without recourse to rationality review. Take the decision in Corner House, 37 which will be considered more fully below.

This case was decided by considering whether the executive's action was in accord with the purpose for which the discretionary power was given; Tomkins believes that the House of Lords was insufficiently rigorous in its review.

The salient point, for present purposes, is that the case might equally have been pleaded and decided on grounds of rationality, the decision remaining the same. The decision as to allowable purpose and the determination of relevant considerations will frequently require judicial assessment of values and the application of background principles. The final point to note in this respect is that Tomkins's approach is somewhat paradoxical for a political constitutionalist. The preceding points can be exemplified by considering the Bancoult case.

constitutional relationship between law politics state administration

Suffice it to say, for the present, that the Chagos islanders argued that their removal from the islands pursuant to an exercise of prerogative power was unlawful. Their arguments concerned the scope of the prerogative power, the way in which it was made, rationality, and legitimate expectations.

The House of Lords decided 3—2 for the government. I, like many commentators, prefer the views of the dissent. The case starkly exemplifies the value choices that are often inherent in making determinations as to the scope of power, whether statutory or, as in this instance, prerogative power. The views of the minority are to be preferred on the issue as to whether the prerogative power could be construed so as to cover exclusion of people from their home, since those views cohere better with history and principle.

Law in Politics, Politics in Law

It is, nonetheless, incontrovertible that the majority and minority both drew on history and normative principle in deciding this issue. They received considerable attention in all the judgments. Rationality review, however, would be excluded on Tomkins's schema. The fate of legitimate expectations is not entirely clear, but it, too, would seem to be off limits because it suffers from the infirmities of judicial creativity and balancing that he regards as illegitimate when constructing his model of judicial review.

One aspect of the investigation concerned a valuable arms contract between the United Kingdom and Saudi Arabia, for which the company was the main contractor. During the investigation, the company represented to the SFO that disclosure of information required by a statutory notice served on it would adversely affect relations between the U.

Following communications and meetings, the director took the view that he had a duty to investigate crime and that the investigation should continue, which it did. In the autumn ofthe SFO intended to investigate bank accounts in Switzerland to ascertain whether payments had been made to an agent or public official of Saudi Arabia.

  • Constitution and Politics
  • Constitutional law
  • Administrative law

That provoked an explicit threat by the Saudi authorities that if the investigation continued Saudi Arabia would withdraw from the existing bilateral counterterrorism cooperation arrangements with the United Kingdom, withdraw cooperation from the United Kingdom in relation to its strategic objectives in the Middle East, and end the negotiations for the procurement of Typhoon aircraft.

Following further discussion, the director in December decided that the investigation should be discontinued. The claimants sought judicial review of his decision, contending that it had been unlawful for him to permit a threat to influence it.

The Divisional Court quashed the decision. It decided that in yielding to the threat the director had ceased to exercise his powers under the statute independently and without surrendering them to a third party; that there had not been sufficient appreciation of the damage to the rule of law caused by submitting to a threat directed at the administration of justice; and that submitting to a threat was lawful only when it was demonstrated to a court that there was no alternative course open to the decision maker.

The House of Lords disagreed and reversed the decision. This was a classic case of review of discretionary power. The director of the SFO clearly had legal authority, in the narrow sense, to make the decision as to whether a prosecution should continue, since this was demanded of him by the empowering legislation. It was how he exercised this discretionary power that was in issue. There were, in effect, two issues involved in the case: Was it legitimate for the SFO to take account of the threat by the Saudis at all; and, if it was, did the SFO give undue weight to that threat and, thereby, abdicate responsibility?

The answer to the first question was affirmative. There was no basis in the empowering statute or in normative principle to say that the SFO should never be able to take any account of such threats. So the issue was the weight to be accorded to that threat in the light of the other values to be served by the prosecution of fraud cases. Tomkins's criticized the House of Lords for being insufficiently searching in its review. The case thus throws into sharp relief the difficulties with this aspect of Tomkins's thesis.

He provides no explanation as to why the views of the reviewing court, on the issue of the weight of the relevant considerations and the balancing involved therein, should be substituted for that of the SFO.

The House of Lords held that it was legitimate to take account of such a threat in deciding whether to pursue a prosecution, the SFO was in a good position to assess its weight, the SFO did not abdicate its discretionary power, and made its own considered judgment in the light of the evidence before it. Tomkins is right to emphasize the importance of proper judicial review of the evidential basis of contested decisions.

This is not controversial, but neither does it resolve the tension addressed in the preceding analysis. The nub of this difficulty is that while Tomkins argues stridently that rights-based protection should be limited to absolute rights and process rights, to the exclusion of qualified rights, he argues, equally stridently that when construing the ambit of the government's legal authority to act there should be a strong presumption of noninterference with all rights.

Thus, Tomkins believes that direct judicial review of qualified rights should be off-limits because the meaning of freedom of speech, assembly, family life, and the like is inherently political and should be left to the political branch of government, especially when coupled with the fact that the proportionality review required in such cases entails too much judicial balancing.

Yet he also believes that these difficulties are not present insofar as the courts should read governmental authority to act against a strong presumption of noninterference with individual liberty, including qualified rights. This distinction is not tenable for two related reasons. Direct review and indirect review: A distinction without a difference Insofar as Tomkins believes that courts should not be engaged in direct judicial review of qualified rights, his advocacy of taking such rights into account indirectly in determining the limits of governmental power is not coherent.

constitutional relationship between law politics state administration

The difficult issues of the interpretation of rights arise in the latter case, just as much as the former. This can be exemplified by Gillan, 43 a case that Tomkins criticizes for the failure to pay sufficient regard to the strong presumption in favor of individual liberty when considering the scope of governmental power.

The claimant had been stopped and searched when he came to London to protest against an arms fair. The claimant argued, inter alia, that this should be interpreted as permitting an authorization to be given only if the decision maker had reasonable grounds for considering that the powers were necessary and suitable for the prevention of terrorism.

He also argued that a person stopped and searched was deprived of his liberty, in breach of article 5 ECHR, and that the power to stop and search infringed the rights to private life, freedom of expression, and freedom of assembly under articles 8, 10, and 11 ECHR. The House of Lords rejected the claim. It held also that the power to stop and search did not involve a deprivation of liberty under article 5, since the procedure would ordinarily be relatively brief, the person stopped would not be arrested, and would only be detained in the sense of kept waiting rather than being confined.

If, to the contrary, the stop and search did constitute a deprivation of liberty, it was, in any event, justified within the terms of article 5 ECHR.

The claim based on article 8 ECHR was rejected on the ground that an ordinary superficial search could not be said to show a lack of respect for private life, and that if there was a prima facie breach of article 8 1the stop and search would be justified, nonetheless, within the terms of article 8 2 because of the dangers from terrorism.

The House of Lords concluded that it was hard to conceive of circumstances in which the power to stop and search, properly exercised, could give rise to an infringement of articles 10 or 11 ECHR, dealing with freedom of speech and assembly, and that there would be, in any case, justification within articles 10 2 and 11 2.

The ruling in Gillan demonstrates that Tomkins's approach of denying direct judicial review of qualified rights while arguing that the courts should concentrate on limits to the public body's authority read against a strong presumption in favor of individual liberty is a distinction without a difference. The very same issues arise in both instances. This is so irrespective of whether one agrees with the ruling or not. This latter inquiry required the House of Lords to evaluate the ambit of these rights, and the applicability of defenses.

These are just the sort of inquiries that Tomkins regards as off-limits in relation to direct rights-based judicial review, yet the very same inquiries will necessarily arise in deciding the limit to a public body's authority when that limit is read subject to a strong presumption in favor of individual liberty. Historically, the struggle for constitutional power was between the King and the parliament, where the latter in the end prevailed. An ongoing constitutional discussion is related to juridification and judicialization and issues of accountability.

Contentious political issues regularly end up in court as constitutional challenges, in Norway, and even more in other countries. The course discusses different perspectives on the constitution as a tool for social change and an arena for politics. This has partly a national component where courts are setting aside parliamentary decisions due to constitutional norms, but the forefront of this discussion is the influx of international norms, like the European Convention of Human Rights and the Agreement on the European Economic Area which affiliates Norway to the EU.

Another constitutional development relates to the growth of different forms of accountability mechanism, like the different ombudsmen and the strengthened position of the Office of the Auditor General. Norway added a new National Institution for Human Rights in One aim of the course is to give an introduction of the "living constitution", which not only consists of formal constitutional law, but also includes the role of political parties, the central government apparatus, the corporative arrangements and the principle of local self-government.

The course will discuss constitutional politics focusing on reforms and changes in the relationships between the executive, the legislative and the judicial branches of government.

Constitution and Politics | Universitetet i Bergen

As previously stated, the Norwegian constitution will be put in perspective by using examples from other jurisdictions when appropriate, and the literature covers different models of constitution-making.

The course also provides opportunities to meet practitioners engaged in bringing the constitution to bear on politics and practice: Alternatively, there may further be requirements for maximum terms that a government can keep power before holding an election.

Study of constitutional law[ edit ] The examples and perspective in this article may not represent a worldwide view of the subject. You may improve this articlediscuss the issue on the talk pageor create a new articleas appropriate. December Learn how and when to remove this template message Constitutional law is a major focus of legal studies and research. For example, most law students in the United States are required to take a class in Constitutional Law during their first year, and several law journals are devoted to the discussion of constitutional issues.

The rule of law[ edit ] The doctrine of the rule of law dictates that government must be conducted according to law. This was first established by British legal theorist A.

Dicey identified three essential elements of the British Constitution which were indicative of the rule of law: Absolute supremacy of regular law as opposed to the influence of arbitrary power ; [13] Equality before the law ; The Constitution is a result of the ordinary law of the land.

The first is that the regular law is supreme over arbitrary and discretionary powers. In many modern nation states, power is divided and vested into three branches of government: The Legislaturethe Executive and the Judiciary. The first and the second are harmonised in traditional Westminster forms of government.