European Community Law
European Community laws (ECL) are regulations and directives which are above the national laws. Their main objective is to continually bring together its members’ economic and political systems in order to form a single market. The market is characterized by the free movement of people, goods, and services. They achieve these rules, by determining how these communities work. These rules are formed as a result of recommendations and opinions of community members. The adoption of ECL by a given community is authorized by the Treaty on the Functioning of the European Union.
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European Community (EC) is a union of three communities; the European Coal and Steel Community and the European Economic Community and the European Atomic Energy Committee. It was formed in 1993 with signing of treaty with the European Union. It was composed of three pillars.
The institutions involved in ECL are the European Commission, The Council of the European Union, The European Parliament and the Court of Justice of the European Communities and the Court of First Instance. In addition, the consultative committees include the Economic and Social Committee and the Committee of the Region. Their role is to give advisory roles. Examples of EU are Belgium, France, Germany, Italy Denmark United Kingdom, Greece, Portugal, Finland and Sweden.
Constitutionalism is a term used to refer to a situation where the government is legally constrained in its powers. The concept is usually associated with John Locke a political theorist. It is also equated to the idea of rule of law. American constitutionalism can be referred to as ideas and attitudes that form patterns or behaviors of government as created by people. It is also controlled by laws. An organization can be said to be constitutional if it can be limited in terms of power and with an aim of protecting the interests of people (Don, 1989).
Thomas Pain refers to a constitution as a nongovernment act. It involves people constituting a government. In other words, people make the government which in turn creates the constitutions. Pain in this case was referring to the written constitution of America or France. Constitution, therefore, refers to a situation in which people can speak with freedom, the existence of laws and institutions made by the people for the good of all. The government in this case is operated on basis of such a constitution.
In modern America, the constitution in political discourse means a code of super laws. These laws are used to bind government officials not to do whatever they want with the powers they have.
A written constitution is advantageous to oral because it is used over a period of time. In addition, it is not prone alteration or misstatement. Oral constitution is subject to fraud and errors as a result of retelling.
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Constitutionalism can either be descriptive or prescriptive. Descriptive usage is in relation to historical implementation of the constitution. Prescriptive usage is when the important features of government are incorporated in the constitution. United states is an example a country that uses constitutionalism. In this case the state constitution and federal constitution operate as different structures. This is as a result of popular sovereignty. United Kingdom has a no codified constitution. Since the 17th century, the UK had power divided among the king and the parliament.
Rule of Law
Rule of law does not have a particular definition. Its meaning varies according to nations and legal systems. However, the term is used to refer to a type of legal political regime. Its main function is to control the government. It does so by putting in place policies that determines how a country is governed. In other words, it ensures that the rights of citizens are not violated by the country’s authority. Rule of law is objective and is fairly applicable to all people. It has therefore become popular in the modern society.
Rule of law is characterized by certain elements. Among these elements are laws that are used to govern the country. They laws are above everything else in the country and should be observed by all citizens of that country. These laws ought to be published and should be prospective in nature. Since they apply to all citizens they should be clear to avoid ambiguity. In addition, they should not be changed so often but should be revised especially when key institutions change (Francis, 1993).
Rule of law is however criticized for bringing about a class of elites in the society. This class is said to manipulate the laws in favor of them. The law does not constraint the government from abusing the power. This is because law is not the source of legal issues in a society but the power structures. Moreover, the law enhances the legal and the power structures already put in place by the elites. Since the rules are not determined easily, people can never be fully protected. This therefore leads to a conclusion that the rule of law cannot be said to achieve justice.
All human beings are entitled to human rights. This is despite different nationality, gender, religion or ethnic origin. No one should be discriminated against human rights. Human rights are interrelated and operate as a whole. In addition, they are universal. Everyone is entitled to them because they are basic and are provided by the law. They are either provided as treaties or customary law. Every government is required the international human rights to promote and protect human rights for the good of their citizens (Feldman, 1993).
International human rights law emphasizes the universality of human rights. It has been the emphasis since 1948 universal declaration on human rights. Moreover, the Vienna world conference of 1993 on the same emphasized that every country should see to it that human rights are provided regardless of different systems in terms of political and economic as well as the cultural systems. For this reason, all nations have signed at least one treaty in relation to the human rights. Legal institutions also get involved in promoting the same. Some human rights according to their importance are made fundamental to every state by the international human rights law and in this case are promoted and protected by the international law. Human rights are therefore rights and obligations. Apart from promoting and protecting, the state is expected to respect human rights. Though the human rights are entitled to all, they may be denied to persons found guilty by judiciary in a given country (Fenwick and Gavin, 2003).
The African Union is the body responsible of human rights in Africa. It was started in 2001. It aims at promoting human rights democracy in Africa. Other bodies include African Charter on Human and People’s Rights and African Commission on Human and People’s Rights. They are responsible for promoting human rights in Africa. In both north and South America, human rights are promoted through international organization of American States. It was established towards the end of Cold War in order to achieve its goals. It works together with other organizations such as Inter-America Commission on Human Rights, Inter-American Courts of Human Rights. However United States of America is one of the countries accused to violet these rights.
Should We Codify Conventions of The British Constitution
Constitutional conventions as defined by A.V. Dicey are habits and practices that control the supreme authority in a society (Dicey, 1898). They are not laws but are recognized by the judiciary system. In other words, they can be termed as constitutional morality. Sir Ivor Jennings adds that constitutional conventions enhance the way legal systems works (Jennings, 1959). A clear definition is given by Fenwick, H. He states it as non legal but accepted rules that control government. British constitution composed of legal and non legal rules. The legal rules as stated in case law governs the whole society. The non legal on the other hand are acceptable within the society but are not the laws of the society.
Constitutional conventions in British constitutions have over the years enhanced the governing. Their existence is highly influenced by political situation. Since these conventions are acceptable there are many customs and practices that are acceptable. Moreover, one cannot be penalized for not abiding in them.
In British constitutions, conventions vary; some are ranked high than others. They arose as a result a certain need and their existence depended on the political influence.
British constitutional conventions are characterized by the collective ministerial responsibility. In this case the ministers in government take responsibility for the actions of the government and its decisions even if they are not for them. The government officials are expected to have one voice and to portray the unity of purpose. In addition, all ministers are bound to the duty of confidentiality. Everything discussed in the house should not be discussed outside.
The issue of conventional rules being codified is debatable. There have been the cases in which constitutional conventions have acted like the laws. In Canada for example the House of Lords that were between 1908 and 1910 gave constitutional conventions legal status. This is clear evidence that constitutional conventions are binding. The question that arises therefore is why they should not be codified.
In conclusion, it is possible to codify the constitutional conventions and listing them on statutory. This will be an added advantage because they are flexible. On the other hand, if they are codified the will pause imbalance between authority of the government and the judiciary. This would translate to separation of powers. In addition, if they are legalized they will no longer be flexible. For this reason, they will not change the situation in any way.
The UK constitution gives quite exceptional powers to the executive, particularly the Prime Minister
The UK constitution outlines that the executive power is vested in the queen. In addition, the queen has the power to appoint the Prime Minister. In this case the Prime Minister is the queen’s choice. The legal requirements are not limiting. For example the prime minister should not be necessarily a member of parliament. Since the executive powers in UK are exercised by the sovereign Queen through her government. The government then reaches the citizens via Scottish, Welsh and Northern Ireland government (Gordon, 1999).
The executive power is fully exercised by the Prime Minister and the Cabinet. The Prime Minister is the head of the government. In this government the prime minister is made a leader of a major party. He also preside the cabinet and thus involved in policy making. He appoints ministers in the cabinet. The powers of the prime minister are determined by the cabinet and influential ministers in the government.
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Exceptional powers to the executive, particularly the Prime Minister in UK should not be overemphasized. Since he/she has power of patronage and to control key government activities, abuse of power can arise in case they are overemphasized.
In conclusion, it is important for the UK to limit the exceptional powers especially those of the prime minister. They can be limited through the cabinet and the media. This will ensure that there is no abuse of power by the executive.
Dicey, A.V. (1898) Introduction to the Study of the Law of the Constitution. 10thed. London, Macmillan.
Don, E. (1989) Constitutions and Constitutionalism in the Slaveholding South. University of Georgia Press.
Feldman, D. (1993) Civil liberties and human rights in England and Wales. Oxford, Clarendon Press.
Fenwick, H and Gavin, P. (2003) Text, Cases & Materials on Public Law & Human Rights. 2nd ed. Oxon, Cavendish Publishing Ltd.
Francis, J. (1993) Is the Rule of Law Possible in a Postmodern World? 68 Wash.
Gordon, S. (1999) Controlling the State: Constitutionalism from Ancient Athens to Today. Harvard University Press.
Jennings, I. (1959) Cabinet Government. 3rd ed. Cambridge, Cambridge University Press.