4) Set/to place

5) override

6) apply

7) interpret

8) Settle

9) obtain

10) remove

A) laws

B) the exercise of power/governmental powers

C) individual liberties

D) legislation

E) ideas/prejudices/laws

F) rights

G) limits

H) provisions

I) disputes

J) protection

TASK III Say whether the meanings of the words in the following pairs are:

a) similar; b) opposite; c) complementing one another.

Outlawed or exiled Deny or defer

Public and open (procedure) Justice or right

All or any (combination) Elected and appointed (officials)

Structural and procedural (restraints) Central and local (powers)

Diluted and unsystematic (way)

TASK IV Discuss the following text in terms of constitutionalism

The importance of Magna Carta

The achievement of the Magna Charta is found not only in the original meaning understood by Englanders of the thirteenth century, but also in the subsequent application of the document’s principles. The Magna Charta began as a peace treaty between the baronial class and the king, but later symbolized a written contract between the governed and the government, a contract that included the right of rebellion when the government grew despotic or ruled without popular consent.

The Magna Charta also came to represent the notion of government bound by the law, sometimes referred to as the rule of law. The distinction between government according to law and government according to the will of the sovereign has been drawn by legal and political philosophers for thousands of years. This distinction was also made during the reign of King John. For example, Peter Fitz Herbert, an important landowner, complained that his father had been “disseised” of land “by the will of the king” despite evidence that the land belonged to his family as a matter of “right.”

In another case, jurors returned a verdict against the Crown because the king had acted “by his will and without judgment” (Holt 1965, 91). For subsequent generations, in both England and the United States, the Magna Charta signified the contrast between tyrannical government unfettered by anything but the personal whims of its political leadership, and representative government limited by the letter and spirit of the law. The Magna Charta implied that no government official, not even an autocratic monarch asserting absolute power, is above the law.

Finally, the Magna Charta has come to symbolize equality under the law. Although the baronial leadership of 1215 represented a privileged class of male landowners, many provisions of the Magna Charta safeguarded the interests of women as well. For example, the Magna Charta granted women the right to refuse marriage and the option to remarry. It also protected a widow’s interest in one-third of her husband’s property.

Some provisions of the Magna Charta applied more broadly to all “free” individuals (ch. 39), whereas other provisions seemingly applied to every person in the realm, free or not.

Chapter 16, for example, stated that “no one” shall be compelled to perform service for a knight’s fee, and chapter 42 guaranteed a safe return to “anyone” who left the realm.

The most telling provision in this regard was chapter 40, which provided that “justice” will be sold to “no one.” This provision embodies more than the idea that justice is cheapened when bought and sold. It also underscores the principle that all persons, rich and poor, must be treated the same under the law. An extension of this principle was captured by the equal protection clause of the Fourteenth Amendment to the U.S. Constitution, which, as interpreted by the Supreme Court, invalidates laws that discriminate on the basis of, among other things, race, gender, national origin, and illegitimacy.

TASK V Agree or disagree with the following quotation:

That the king can do no wrong, is a necessary and fundamental principle of the English constitution.

(William Blackstone, Commentaries on the Law of England, 1765).

*TEXT 5 THE SEPARATION OF POWERS

The ancient theory of the separation of powers tries to combat tyranny by dividing the functions of government between groups with different interests so that no power centre can act without the co-operation of others.

There are different kinds of separation of powers. For example, the classical doctrine favoured by Aristotle would divide power according to the class interests of monarchy, aristocracy and democracy. This version of the separation of powers is reflected in the British institutions of monarchy, House of Lords and House of Commons. However, the most influential version of the separation of powers is that proposed by Montesquieu (De LEsprit de Lois, 1748) who, broadly following Aristotle, argued that government powers are of three kinds: (i) the legislative power of enacting general laws; (ii) the executive power concerned with policy-making, foreign affairs and law enforcement; (iii) the judicial power concerned with the settlement of disputes arising out of the application of the law. If any two of these fall into the same hands there is a risk of tyranny.

Applied strictly, this version of the separation of powers would lead to weak and cumbersome government and in all countries there is some form of pragmatic compromise. Montesquieu believed that the British constitution of his time embodied the separation of powers but possibly did not take into account the extent to which conventions were beginning to blur the distinction between legislature and executive. The US constitution has been particularly influenced by Montesquieu. The president who forms the executive, and Congress the legislature, are elected separately and the same persons cannot be members of both. The US constitution is designed to encourage conflict between the two branches and regards weak government as desirable, whereas the UK system is more interested in ensuring that the will of the executive is carried out. The UK constitution is sometimes called a 'harmonious constitution' in that its efficient working depends not on checks and balances between contending forces as in the USA but requires the enlistment of different interests to form an all powerful government.

A related version of the separation of powers is that of “checks and balances”. Each branch of government is subject to some degree of control by another branch but without that other branch being able to dominate completely. Thus the exercise of power requires the co-operation of at least two branches of government and each branch is kept within its proper sphere of action. For example, independent courts interpret legislation, and executive decisions can be challenged in the courts on the ground that the government has exceeded or abused its powers. The checks and balances principle features strongly in the USA. For example the President can veto legislation but can in turn be overridden by a special procedure and the Supreme Court can declare legislation unconstitutional.

When the courts refer to the separation of powers they may therefore use the concept in different senses. For example in W.H.Smith Do It All Ltd v Peterborough [1991], Mustill L.J remarked that “according to the doctrine of the separation of powers as understood in the United Kingdom, the legislative acts of the Queen in Parliament are impregnable”. On the other hand, in X v. Morgan Grampian [1990] Lord Bridge seemed to have had the notion of checks and balances in mind when he referred to the “dual sovereignty” of Parliament and the courts, the one in making the law, the other in interpreting and applying the law.

LANGUAGE PRACTICE AND COMPREHENSION CHECK:

TASK I a) Complete the following table:

Noun adjective verb

Tyranny ____________________ _________________

Power ____________________ _________________

Function ____________________ _________________

Government ____________________ _________________

Centre ____________________ _________________

Separation ____________________ __________________

___________________ different __________________

__________________ ____________________ divide

__________________ ____________________ reflect

__________________ influential __________________

__________________ general __________________

risk ____________________ ___________________

_________________ weak ___________________

extent ____________________ ___________________

distinction ____________________ ___________________

harmonious ____________________

__________________ ____________________ contend

__________________ ____________________ dominate

1. Make up word combinations and sentences with the words from the table to discuss the separation of powers.

TASK II a) Add nouns from the text to the following adjectives: influential, classical, ancient, powerful, different, pragmatic, proper, foreign, efficient, weak;

2. Use the above adjectives in the following sentences; translate the sentences:

1. For good or ill, self-regulation in government and politics – even where it is underpinned, as in Westminster, by … law and practice –may no longer be acceptable to the general public.

2. The media will become more … power players.

3. Royal prerogatives fall into two groups: the common law prerogatives requiring no Parliamentary procedure and nowadays at the disposal of the Prime Minister and his colleagues (for example, the powers to conclude treaties, wage war, conduct … relations, issue passports); and the so-called personal/direct prerogatives or reserved powers of the sovereign (for example, the appointment of the Prime Minister, agreement to dissolve Parliament – dissolution – prior to a general election, and assent to legislation).

4. With the official opposition in a … position in the House of Commons, new sites of resistance grew up both in the Lords and on the government backbenches.

5. Both Blackstone and Austin, two “…” exponents of the modern doctrine of sovereignty, were also able to accept the existence of a higher law by which human law should be evaluated: Blackstone called it natural law, and Austin, divine law.

6. Should the Liberal Democrats find themselves in a more … bargaining position within the House of Commons, they would almost undoubtedly press for procedural reforms within that institution.

7. The changes since 1999 have come about not only through greater confidence amongst existing members, but also through the constant addition of new members who enter the chamber with … attitudes and expectations.

8. Devolution ‘does not break with tradition but simply recognises the “less than perfect” integration within the state in a new and … way’.

9. Where necessary for the … execution of its own powers, Congress may delegate some measure of legislative power to other departments.

10. Judges as well as politicians speak of the need for a “… balance” between rights and responsibilities.

TASK III a) Add nouns from the text to the following verbs:

to combat, to propose, to divide, to veto, to settle, to override, to enforce, to interpret, to enact, to apply

b) Use the above verbs in proper forms in the following sentences; translate the sentences:

1. The draft bill addresses the civil service in a relatively narrow, ‘constitutional’ sense. It does not do much to … major questions about, for example, the nature and scope of ministerial responsibility.

2. Just as equity could sometimes … the common law, in the interests of justice, so 'reasons of state' could sometimes override particular laws, in the interests of public safety and the survival of law as a whole.

3. Inertia and hard political calculation will be significant factors working to sustain the devolved arrangement, even if Northern Ireland remains a deeply … society.

4. Legal constitutionalism is a theory of limited government which constrains the supremacy of Parliament, subjecting it to a range of legal checks and balances and relocating the final authority to … and … fundamental law in the judiciary.

5. Disclosure of information is now regulated by the Freedom of Information Act and … by the Information Commissioner.

6. Whenever devolution within the United Kingdom has been proposed, the ‘English Question’ has always emerged as its inevitable corollary; if there is greater home rule for the rest of the United Kingdom, so the argument goes, should a similar ‘solution’ not also … to, or within, England?

7. The full impact of the devolution … in 1998 has still not been felt, or indeed properly understood – especially at UK level.

8. Nearly 70 countries have introduced Freedom of Information (FOI) laws, 55 in the last 10 years alone, some laws aim to strengthen democracy, while for others FOI is primarily a device to … corruption.

9. The best-known sixteenth century parliamentarian theorist Richard Hooker sometimes spoke of the King as supreme, because he could … … laws and was not subject to human judgment.

10. Other reforms … , such as providing more time for select committee reports to be debated and giving committees more formal power, would also boost the ‘cross-party’ mode of operation which has traditionally been weak at Westminster.

TASK IV a) Consult a law dictionary or GLOSSARY to define the following notions:

democracy, tyranny, convention, checks and balances, separation of powers

b) Use the above words and word combinations in the following sentences; translate the sentences:

1. The dispersal of power has another dimension, in the shift from representative to direct and deliberative … , with more petitions and citizens’ juries; referendums on constitutional issues such as Lords reform and the British bill of rights; and the use of constitutional … or citizens’ assemblies to draft a bill of rights or written constitution.

2. There is a greater … , and the judiciary constrains legislative and executive freedom by means of interpreting the statutes.

3. In the space of ten years the Westminster Model, formerly held up as the ideal type of unfettered majoritarian government, has seen the introduction of a whole series of new … to reduce the power and discretion of the executive.

4. Westminster Model represents the ‘old’ constitution as it was 10 or 20 years ago, with a highly centralised system of government, little or no devolution and very few … on the unfettered executive.

5. Members and supporters of governments, who naturally feared rebellion more than … , claimed that Parliament's authority was legally unlimited, while their opponents, who were more fearful of … , denied that claim in order to emphasize Parliament's subjection to higher principles.

6. Like inquiries or royal commissions, watchdogs do not fit neatly within a traditional executive-legislative-judicial “ … ” model, though they have complex operational and institutional relationships with, and across, these three branches.

7. It would be impossible to construct a workable system of “ … ” in which every institution was subject to limits that were fully enforceable by some other institution.

8. Not only was local government virtually ignored in the national press, but there was virtually no coverage of the debates in Scotland which led to the Constitutional … of the late 1980s.

9. Good books have argued that the post-war role of the civil service was a fluke – a particular, temporary, British way to combine oligarchy with … by delegating the powers of elected governments to unelected groups of elites.

10. The horrors of the Civil War seemed to confirm the sixteenth century teaching that … was preferable to anarchy.

11. Representative … is now under pressure from direct … , at the same time as the conventional broadcast and print media are being challenged by the internet and other forms of new media.

12. There is no agreement on when a referendum should be held. Britain has only had one nationwide referendum, in 1975, on whether to remain in the then European Community, but, just as with subsequent pledges to hold one, the decision was determined by political circumstance and expediency, not by clear-cut principles or a constitutional ….

13. The distinction between legality and constitutionality was perpetuated by Austin and Dicey, and survives today in the language of constitutional “ … ”.

14. Greater constitutionalism is evidenced in greater … and in the growing transfer of functions from elected politicians to unelected bodies.

15. Greater … is clearly visible in the much sharper separation of the judiciary from the other branches of government, through creation of the new Supreme Court, and replacement of the Lord Chancellor by the Lord Chief Justice as head of the judiciary.

16. It would be surprising if a bill in the Governance of Britain package did not adopt the basic formula of trying to restore faith in … by promoting independent regulators and transparency.

17. According to Franklin, those who defended a right of popular rebellion against … almost always meant a collective right of the community as a whole, exercisable only by its representative institutions.

18. In Britain, senior legal officials have long denied that the judges have authority to enforce the moral principles and constitutional … that are thought to bind Parliament.

19. The ‘‘nonjusticiability of a political question is primarily a function of the … .

TASK V Use the text to explain what the following phrases mean:

1. …. If any two of these fall into the same hands there is a risk of tyranny.

2. … conventions were beginning to blur the distinction between legislature and executive.

3. …executive decisions can be challenged in the courts on the ground that the government has exceeded or abused its powers.

4. The checks and balances principle features strongly in the USA.

TASK VI Explain the separation of powers principle as it was understood by:

1. Aristotle;

2. Montesquieu;

3. The authors of the US Constitution.

TASK VII a) Describe how the system of “checks and balances” operates in:

1. the USA

2. the UK

3. your country

TEXT 6 THE SEPARATION OF POWERS IN THE UNITED KINGDOM.

The separation of powers has influenced the development of the UK constitution in a pragmatic, unsystematic way, although its high watermark may have been the eighteenth century when Blackstone wrote:

“herein indeed consists the true excellence of the English government that all the parts of it form a mutual check upon each other. In the legislature the people are a check on the nobility and the nobility a check upon the people ... while the king is a check upon both which preserves the executive power from encroachments. And this very executive power is again checked and kept within due bounds by the two Houses ... For the two Houses naturally drawing in two directions of opposite interest, and the prerogative in another still different from them both, they mutually keep each other from exceeding their proper limits ... like three distinct powers in mechanics, they jointly compel the machine of government in a direction different from what either acting by itself would have done ... a direction which constitutes the true line of the liberty and happiness of the country.”

Blackstone considered that Parliament was legally unlimited but believed that the common law as representing principles of reason restrained Parliament in practice. In the eighteenth century this seemed plausible since Parliament and the legal profession found common ground in the support of property rights.

Even in the eighteenth century the ideal was diluted by the realities of politics. There was considerably less tension between the Lords and the Commons than Blackstone suggested. The ethos of both was aristocratic. A different balance was produced by the extension of the franchise during the nineteenth century. This led to the collapse of the monarchy as a political force, the weakening of the House of Lords and the emergence of a governmental system based on a powerful party political executive supported by the machinery of a professional civil service. Some modern commentators have therefore concluded that the separation of powers has little meaning today because the legislature is dominated by the executive.

Dicey did not deal specifically with the separation of powers but implicit in his notion of the rule of law is the concept of an independent judiciary as a safeguard against both Parliament and the executive. Dicey regarded the strict separation of powers as applied in France, where government action is reviewed by a special administrative court rather than by the ordinary courts, as contrary to the rule of law. However the rule of law does not require any particular kind of court. The French Conseil detat has been widely admired as a check on government and has been copied in many countries.

LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I Translate the text, paying special attention to the underlined parts.

TASK II Choose the right answer:

1). The … Constitution does not embody a strict separation of powers.

a) US; b) UK; c) French

2). Parliament is supposed to control the … .

a) Crown; b) courts; c) the executive

3). Majority support for the executive allows the executive to control … rather than vice versa.

a) the Government; b) Parliament; c) the Crown

4). It is said that there is a fusion between … and executive in the UK.

a) Judiciary; b) Legislature; c) legislation

5). The House of Lords … party politics.

a) is involved in; b) depends on; c) is removed from

6). One of the main purposes of a constitution is … the exercise of political power.

a) to restrain; b) to encourage; c) to prohibit

7).Governmental power should be limited by … .

a) Parliament; b) law; c) the Crown

TASK III Find each, other, another, the other, either, neither, others etc. in the text. Use them in the following sentences:

1. The functions of government are divided between groups with different interests so that no power centre can act without the cooperation of … .

2. … branch of government is subject to some degree of control by … branch.

3. … branch is kept within its proper sphere of action.

4. Lord Bridge referred to the “dual sovereignty” of Parliament and courts, the one in making the law, … in interpreting and applying the law.

5. The doctrine of the separation of powers states that three branches of power should be separated from … … .

6. Ministers who in practice constitute the executive are also members of … House.

7. The separation of powers doctrine requires governmental institutions to respect … … as equals within acknowledged separate spheres of activity.

8. A treaty is an agreement made between the executive and … state.

9. In a federal state such as the USA, the constitution divides power between a central federal government and separate state units in such a way that … is independent within its own sphere and … can override … .

TASK IV a) Read the text.

b) Find the key expressions in each paragraph, use them in your answer to the question: Why are treaties relevant to the separation of powers doctrine?

Treaties and the Separation of Powers.

Treaties raise important separation of powers issues between judiciary and executive. A treaty is an agreement made between the executive and another state. A treaty can neither create nor take away legal rights because of the principle that the executive cannot change the law by itself. Treaties are also non-justiciable in the sense that a court cannot review the validity of a treaty as such, although if there are statutory requirements before a treaty takes effect, the courts can ensure that these are obeyed.

The courts take the provisions of a treaty into account when interpreting legislation although the scope of this is unclear. The narrowest view is that the courts will take a treaty into account only where the legislation was introduced to give effect to the treaty and then only where its meaning is unclear. A wider view is that the courts will always take account of the treaty in the case of implementing legislation. A still wider view is that even in the case of non-implementing legislation the courts will take account of a treaty but only where the legislation is ambiguous. This is probably the consensus modern view. The widest view, supported by ambivalent dicta is that the courts will interpret all legislation enacted after the relevant treaty in the light of the treaty on the assumption that Parliament would not have intended to contradict treaty obligations. All four views rest on the premise that Parliament has recognised the treaty, thus giving the court the key to enter.

TASK IV a) Read the text to discuss how Parliament and its Houses are affected by constitutional reforms.

Protection of the Constitution

The British constitution – “the collection of rules which establish and regulate or govern the government” – has shown itself over centuries to be extraordinarily dynamic and flexible, with the capacity to evolve in the light of changes in circumstances and in society. There are many who would argue that it is this very flexibility which has allowed the United Kingdom to avoid the kind of upheavals which have forced other countries to return to the constitutional drawing board.

It is both a strength and a potential weakness of the British constitution that, almost uniquely for an advanced democracy, it is not all set down in writing. There can be little question that the raft of constitutional legislation including the Devolution Acts, the incorporation of the European Convention on Human Rights into British law and the registration of political parties would have been impossible under the laborious systems required to amend the written constitutions of many other countries. The risk, however, is that a Government with a secure majority in the House of Commons, even if based on the votes of a minority of the electorate, could in principle bring about controversial and ill-considered changes to the constitution without the need to secure consensus support for them. It could force them through the second chamber by use of Parliament Act procedures if necessary. Similar concerns could arise in respect of legislation that might represent a breach of human or civil rights. As Professor Sir William Wade succinctly put it, “One safeguard conspicuous by its absence from the constitution is the entrenchment of fundamental rights”.

The open nature of the unwritten constitution relies on those in positions of authority operating within a web of understandings and conventions as to what is and is not permissible. As Gladstone wrote over a century ago, the British constitution “presumes, more boldly than any other, the good faith of those who work it”.

Given those circumstances, one of the most important functions of the reformed second chamber should be to act as a ‘constitutional long-stop’, ensuring that changes are not made to the constitution without full and open debate and an awareness of the consequences. This is one of the classic functions of a second chamber and one the House of Lords has on occasion played in the past.

TEXT 7 THE RULE OF LAW

The concepts of the rule of law and the separation of powers are associated with the liberal notion of “constitutionalism”. Hunt describes the notion of constitutionalism thus:

“In any democratic system there are certain transcendental values that which enjoy a “constitutional” status, in the sense that they embody fundamental ideas or aspirations which democracy itself presupposes and which therefore cut across the political programmes of particular governments ... the bare minimum that is required of a commitment to constitutionalism is a rejection of the instrumentalist conception of law which sees it as a mere tool to be used by governments in order to achieve their political goals.”

Fuller identifies features necessarily associated with the idea of law such as openness, clarity and coherence that give a moral quality to a state. The rule of law is therefore a set of moral and political values. They support democracy but are not necessarily connected with democracy, being important whatever the complexion of the government.

The ideas of the rule of law and the separation of powers are deeply embedded in European political culture. Aristotle (384-322 BC) pronounced that it is better for the law to rule than for any of the citizens to rule. The rule of law was described by the thirteenth century jurist Bracton in terms that “the King should be under no man but under God and the Law because the Law makes him King”, and has been said to comprise “the government of laws and not of men”. Art. 16 of the Declaration of the Rights of Man (1789) states that “a society where rights are not secured or the separation of powers established has no constitution”. In X Ltd v. Morgan Grampian Publishers Ltd [1990], Lord Bridge said “the maintenance of the rule of law is in every way as important in a free society as the democratic franchise”.

The mythology of the rule of law is basic to English political culture. It goes back to the Anglo-Saxon notion of a compact between the ruler and the ruled under which obedience to the king was conditional upon the king respecting the law. Magna Carta (1215) although no longer in force symbolises this, notably in the principle of due process in independent courts and, in the subject's right to refuse financial support to a king who violates the law. The ideals of Magna Carta have been widely exported. In particular they form a strong element of the US constitution from whence they permeate back into UK law.

The eighteenth-century constitution was dominated by the mythology of the rule of law and the separation of powers. The theory of the “balanced” or “harmonious” constitution divided power between the three elements of monarchy, aristocracy (House of Lords) and democracy (to a limited extent, the House of Commons). The constitution was regarded as a delicately balanced machine held in place by the rule of law; as George III (1738-1820) put it, “the most beautiful balance ever framed”. For example, the monarch could make law only with the consent of both Houses but could appoint and dismiss the government and dissolve Parliament. The Crown however needed parliamentary support since financial power depended on the Commons. The rule of law also protected individual rights imagined as being grounded in ancient common law tradition. Unlike the case in France, there was no doctrine that State necessity could override the ordinary law.

LANGUAGE PRACTICE AND COMPREHENSION CHECK:

TASK I a) Form nouns from the following verbs:

to describe, to require, to reject, to achieve, to identify, to clarify, to pronounce, to declare, to state, to maintain, to obey, to refuse, to violate, to export, to regard, to appoint, to imagine

b) Which of them are used in the text? Use the rest in your own sentences to explain the importance of the rule of law.

TASK II Use the following verbs, suggest some other to discuss the views expressed in the text,

• Hunt describes…

• Fuller identifies…

• Aristotle pronounced…

• Bracton …

• Lord Bridge said…

• As George III put it…

TASK III a) Compare the following definitions of the rule of law:

A). BLACK’S LAW DICTIONARY:

A legal principle, of general application, sanctioned by the recognition of authorities, and usually expressed in the form of a maxim or logical proposition. Called a “rule”, because in doubtful or unforeseen cases it is a guide or norm for their decision. The rule of law, sometimes called “the supremacy of law”, provides that decisions should be made by the application of known principles or laws without the intervention of discretion in their application.

B). JOWELL “THE RULE OF LAW TODAY”:

First, it is a principle of institutional morality. As such it guides all forms of law-making and law-enforcement. In particular, it suggests that legal certainty and procedural protections are fundamental requirements of good governance. These requirements are not unqualified. But they are qualified only by the fact that they may be overridden in the interest of other administrative virtues (such as responsive decision-making).

Secondly, the rule of law requires the provision of a system for identifying rights and liabilities and for redressing grievances, and thus helps to dissuade people from resorting to self-help.

C). The rule of law is developed from the writings of the nineteenth-century writer Dicey.

According to Dicey, the rule of law had three elements. Had three elements. First, that there should be no sanction without breach, meaning that nobody should be punished by the state unless they had broken a law. Secondly, that one law should govern everyone, including both ordinary citizens and state officials. Thirdly, that the rights of the individual were not secured by a written constitution, but by the decisions of judges in ordinary law.

b) Do they emphasise the same elements?

TASK IV Use the verbs in brackets in their PRESENT, PAST PARTICIPLE or GERUND forms:

The rule of law is both a political and moral idea, since it affects the way the law is (develop) and (apply). It concerns ideas of regularity, access to the courts, fair procedure and (honour) expectations. For example, a governmental practice of constantly (change) the law could be (analyse) in “rule of law” terms as (induce) instability.

Governmental decisions, and decisions made by courts, are subject the so-(call) “principles of natural justice”. There are elementary principles of fair procedure (involve) a right to fair hearing before an unbiased tribunal. The courts have also (develop) various presumptions which they use when (interpret) statutes. For example, powers which attempt to prevent government decisions from (be challenge) in the courts are (construe) strictly with a view to (uphold) the principle of equality before the law although in the last resort the courts will give way to a clear expression of government policy (contain) in a statute.

TASK V PRE-READING DISCUSSION:

1. Explain the connection between such concepts as the rule of law and disobedience to the law.

2. Read the text and say whether you and the author think alike.

The rule of law also means that a person has a moral duty to obey even a bad law and that legal rights cannot be overridden even for the public good. In X Ltd. v. Morgan-Grampian Ltd, Lord Bridge said that “to contend that the individual litigant ... has a right of "conscientious objection" which entitles him to set himself above the law is a doctrine which directly undermines the rule of law and is wholly unacceptable in a democratic society”. The Hobbesian view that any government is better than chaos supports this, since we cannot pick and choose which laws we should obey without destroying the very idea of law.

On the other hand it could be argued that a liberal concept of law should have room for the notion that a strongly held individual moral belief is a defence at least in cases where evil intention is a requirement of guilt. Indeed it could be argued that law which is so evil as to violate the basic values of the community is not a law at all, being contrary to the rule of law in its strong sense. This argument raises philosophical issues that were used by UK judges against Hitler Nazi Laws in the Nuremburg War Crimes Tribunal which followed the Second World War. The Nuremburg trials were based upon the assumption that some of the laws of Nazi Germany were not valid laws as they were repugnant to the basic standards of morality accepted by all civilised nations. On a more everyday level conscientious objection might influence a jury to acquit someone who breaks a law for a good reason. A jury can acquit an accused without giving reasons and cannot be punished for its verdict.

TASK VI |Use negative prefixes to form the words with the opposite meanings: moral, legal, accepted, directly, to value, to use, valid, democratic, personal

TASK VII Make up pairs with the opposite meanings for the following words and expressions:

Rights and …

Public or …

Followed or …

Chaos or …

Contrary to or…

Crime and …

Better or …

Guilt or …

To acquit or …

Wholly or …

War and …

To break a law or to…

TASK VIII a) Read the text.

b) Comment on, agree or disagree with major arguments expressed.

c) Find examples to illustrate some of the arguments and statements.

d) Does the rule of law have the same meanings in your legal system?

Meanings of the rule of law

The rule of law is an ambiguous term that can mean different things in different contexts. In one context the term means rule according to law. No individual can be ordered by the government to pay civil damages or suffer criminal punishment except in strict accordance with well-established and clearly defined laws and procedures. In a second context the term means rule under law. No branch of government is above the law, and no public official may act arbitrarily or unilaterally outside the law. In a third context the term means rule according to a higher law. No written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice that transcend human legal systems.

Rule According to Law

The rule of law requires the government to exercise its power in accordance with well-established and clearly written rules, regulations, and legal principles. A distinction is sometimes drawn between power, will, and force, on the one hand, and law, on the other. When a government official acts pursuant to an express provision of a written law, he acts within the rule of law. But when a government official acts without the imprimatur of any law, he or she does so by the sheer force of personal will and power.

Under the rule of law, no person may be prosecuted for an act that is not punishable by law. When the government seeks to punish someone for an offense that was not deemed criminal at the time it was committed, the rule of law is violated because the government exceeds its legal authority to punish. The rule of law requires that government impose liability only insofar as the law will allow. Government exceeds its authority when a person is held to answer for an act that was legally permissible at the outset but was retroactively made illegal.

This principle is reflected by the prohibition against ex post facto laws in the U.S. Constitution.

For similar reasons, the rule of law is abridged when the government attempts to punish someone for violating a vague or poorly worded law. Ill-defined laws confer too much discretion upon government officials who are charged with the responsibility of prosecuting individuals for criminal wrongdoing. The more prosecutorial decisions are based on the personal discretion of a government official, the less they are based on law.

Well-established and clearly defined laws allow individuals, businesses, and other entities to govern their behavior accordingly. Before the government may impose civil or criminal liability, a law must be written with sufficient precision and clarity that a person of ordinary intelligence will know that certain conduct is forbidden. When a court is asked to shut down a paint factory that is emitting pollutants at an illegal rate, for example, the rule of law requires the government to demonstrate that the factory owner failed to operate the business in accordance with publicly known environmental standards.

Rule under Law

The rule of law also requires the government to exercise its authority under the law. This requirement is sometimes explained with the phrase “no one is above the law.” During the seventeenth century, however, the English monarch was vested with absolute sovereignty, including the prerogative to disregard laws passed by the House of Commons and ignore rulings made by the House of Lords. In the eighteenth century, absolute sovereignty was transferred from the British monarchy to Parliament, an event that was not lost on the colonists who precipitated the American Revolution and created the U.S. Constitution.

Under the Constitution, no single branch of government in the United States is given unlimited power. The authority granted to one branch of government is limited by the authority granted to the coordinate branches and by the Bill of Rights, federal statutory provisions, and historical practice. The power of any single branch of government is similarly restrained at the state level.

Members of judiciary face a slightly different problem when it comes to the rule of law. Each day judges are asked to interpret and apply legal principles that defy clear exposition. Terms like “due process,” “reasonable care,” and “undue influence” are not self-defining. Nor do judges always agree about how these terms should be defined, interpreted, or applied. When judges issue controversial decisions, they are often accused of deciding cases in accordance with their own personal beliefs, be they political, religious, or philosophical, rather than in accordance with the law.

Scholars have spent centuries examining this issue. Some believe that because the law is written in such indefinite and ambiguous terms, all judicial decisions will inevitably reflect the personal predilections of the presiding judge. Other scholars assert that most laws can be interpreted in a neutral, objective, and apolitical fashion even though all judges may not agree on the appropriate interpretation. In either case the rule of law is better served when judges keep an open mind to alternative readings of constitutional, statutory, and common-law principles. Otherwise, courts run the risk of prejudging certain cases in light of their own personal philosophy.

Rule According to Higher Law

A conundrum is presented when the government acts in strict accordance with well-established and clearly defined legal rules and still produces a result that many observers consider unfair or unjust. Before the Civil War, for example, African Americans were systematically deprived of their freedom by carefully written codes that prescribed the rules and regulations between master and slave. Even though these slave codes were often detailed, unambiguous, and made known to the public, government enforcement of them produced negative results. Do such repugnant laws comport with the rule of law? The answer to this question depends on when and where it is asked. In some countries the political leaders assert that the rule of law has no substantive content. These leaders argue that a government may deprive its citizens of fundamental liberties so long as it does so pursuant to a duly enacted law. At the Nuremberg Trials, some of the political, military, and industrial leaders of Nazi Germany unsuccessfully advanced this argument as a defense to Allied charges that they had committed abominable crimes against European Jews and other minorities during World War II.

In other countries the political leaders assert that all written laws must conform with universal principles of morality, fairness, and justice. These leaders argue that as a necessary corollary to the axiom that “no one is above the law,” the rule of law requires that the government treat all persons equally under the law. Yet the right to equal treatment is eviscerated when the government categorically denies a minimal level of respect, dignity, and autonomy to a single class of individuals. These unwritten principles of equality, autonomy, dignity, and respect are said to transcend ordinary written laws that are enacted by government. Sometimes known as Natural law or higher law theory, such unwritten and universal principles were invoked by the Allied powers during the Nuremberg trials to overcome the defense asserted by the Nazi leaders.

The rule of law is a concept explained in classical time. In Greece Aristotel wrote that “law should be the final sovereign; and personal rule, whether it be exercised by a single person or a body of persons, should be sovereign in only those matters which law is unable, owing to the difficulty of framing general rules for all contingencies.”

In ancient Rome the Corpus Juris Civilis established a complex body of procedural and substantive rules, reflecting a strong commitment to the belief that law, not the arbitrary will of an emperor, is the appropriate vehicle for dispute resolution. In 1215 Magna Charta reined in the corrupt and whimsical rule of King John by declaring that government should not proceed except in accordance with the law of the land.

During the thirteenth century, Thomas Aquinas argued that the rule of law represents the natural order of God as ascertained through divine inspiration and human reason. In the seventeenth century, the English jurist Sir Edward Coke asserted that the “king ought to be under no man, but under God and the law.”

With regard to the legislative power in England, Coke said that “when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the Common law will control it, and adjudge such act to be void.” In the United States, Alexander Hamilton applied the rule of law to the judiciary when he argued in The Federalist, no. 78, that judges “have neither Force nor Will, but merely judgment.”

Despite its ancient history, the rule of law was not celebrated in all quarters. The nineteenth- century English philosopher Jeremy Bentham described the rule of law as “nonsense on stilts.” The twentieth century saw its share of political leaders who oppressed persons or groups without warning or reason, governing as if no such thing as the rule of law existed. For many people around the world, the rule of law is essential to freedom.

*TEXT 8 FEDERAL AND UNITARY CONSTITUTIONS

In a federal state such as the USA, the constitution divides power between a central federal government and separate state units in such a way that each is independent within its own sphere and neither can override the other. Federalism is therefore a way of giving effect to communitarian values by allowing diverse units to retain their distinctive identity while at the same time providing for unity where there is a common interest. Federalism also serves to reduce the risk of tyranny. A unitary state such as the UK has an overriding supreme lawmaker which can devolve power to subordinate units but is free to take the power back and to interfere with the smaller units.

Federalism is practicable where the component units have sufficient in common economically and culturally, for example a shared history or language to enable them to co-operate, while at the same time each unit is sufficiently distinctive to constitute a community in its own right. Thus a delicate balance must be struck. The United States and Australia are relatively successful federations whereas Canada, with its split between English-speaking and French-speaking regions, is less stable. Yugoslavia, with its many ethnic tensions, has been unsuccessful. It cannot be seriously suggested that federalism is the best way of achieving efficient government but efficiency cannot be the overriding purpose of a liberal society. Federalism is a mechanism for giving political rights to a wider range of group interests than is possible in a unitary system and therefore a means of resolving conflicting loyalties.

The relationship between a federal government and the state governments within it, is not, in law, one of superior and inferior, but of partnership. Each has its own sphere of activity and its own constitution and courts and it may be unlawful for one to trespass upon the other. There is a single federal citizenship and free movement within the federation. The central government typically represents the country on the international level and exercises defined functions - typically, defence and foreign affairs, currency, postal services and important commercial activities - while leaving the residual power with the states. Some versions allocate particular matters to the states leaving the federal level as the residuary power.

Where responsibilities overlap, doctrines such as “pre-emption” or the supremacy clause of the United States Constitution provide resolving mechanisms usually policed by the courts. Representatives of the states may sit in the federal legislature. In the USA the states are equally represented in the Senate, the upper House of the legislature, so as not to disadvantage the smaller states. The lower House is elected in proportion to the population of the states. In the European Union the more powerful states have greater voting power in relation to certain issues. As with any constitution, the actual disposition of power reality depends on political and economic as well as legal factors. Thus the real balance between centre and state may not be apparent from reading the constitution.

As with many political ideas, it is probably best to regard terms such as “federal” or “unitary” not as precise definitions, but as convenient points upon a political spectrum ranging from loose associations of countries for particular purposes to simple one – government states. On this spectrum the UK Constitution is close to the latter extreme and is therefore called a “unitary” constitution. The whole country is subject to the overriding power of the central government and to parliamentary supremacy. Within the UK certain powers have very recently and in varying degrees been devolved to elected assemblies in Scotland and Wales but without in any way limiting the powers of Parliament. Northern Ireland has enjoyed devolved powers in the past and legislation is in force to enable it to do so again. There are also local authorities within the UK based upon cities, counties and units within the county. Although elected and having certain tax-raising power, local authorities obtain their powers exclusively from statute, are closely regulated by central government and depend upon the central government for most of their funding.

Dicey strongly opposed federalism in the United Kingdom. This was influenced by his belief in a single centre of power. He thought that “federal government means weak government” although he qualified this by recognising that federalism might make it possible to unite communities that otherwise could not be united at all. He also thought that federalism tends to conservatism, creates divided loyalties and that it elevates legalism to a primary value, making the courts the pivot on which the constitution turns and perhaps threatening their independence.

During the late nineteenth century there were some advocates of federal UK as a way of avoiding home rule for Ireland and also proposals for a federation of the UK and some of its overseas territories. However, on the whole, federalism has not been a serious element of UK politics. The Kilbrandon Report (1973) argued against a federal constitution for the UK on the following grounds. Firstly the units are widely different in economic terms, with England being the dominant member. Any federation is therefore likely to be unbalanced. Secondly a federal regime would be contrary to the British constitutional traditions in that it would elevate the courts over political machinery. Thirdly the UK was thought to require central and flexible economic management since its resources are unevenly distributed geographically. Fourthly, apart from Northern Ireland, regional issues were not high on the agenda of the main parties, which suggested that there was little public desire for federalism.

NOTES TO THE TEXT

The Kilbrandon Report is a remarkable document. It was remarkable in its time and it still reads as a clear, fresh and enlightened document more than fifty years later. In May 1961, John Maclay, then Secretary of State for Scotland and later Lord Muirshiel, appointed a committee "to consider the provisions of the law of Scotland relating to the treatment of juvenile delinquents and juveniles in need of care or protection or beyond parental control". It was chaired by a distinguished lawyer and judge, James Shaw, Lord Kilbrandon. It contained in its membership two sheriffs, a professor of law, a solicitor, a headmaster, a chief constable, justices of the peace and a child psychiatrist.

LANGUAGE PRACTICE AND COMPREHENSION CHECK

TASK I Look up the meanings of “government”

• The government is but an agency of the state, distinguished as it must be in accurate thought from its scheme and the machinery of government.

• The system of poliсy in a state; that form of fundamental rules and principles by which a nation or state is governed, or by which individual members of a body politic are to regulate their social actions.

• The sovereign or supreme power in a state or nation;

• The machinery by which the sovereign power in a state expresses its will and exercises its functions.

• The framework of political institutions, departments and offices, by means of which the executive, judicial, legislative and administrative business of the state is carried on.

• The whole class or body of officeholders or functionaries considered in the aggregate, upon whom devolves the executive, judicial, legislative, and administrative business of the state.

• The regulation, restraint, supervision, or control which is exercised upon the individual members of an organized jural society by those invested with authority.

• The act of exercising supreme political power or control. (BLACK’S LAW DICTIONARY)

b) Determine its meaning in the following word combinations:

a) forms of government, e) local government

b) system of government, f) republican government,

c) federal government, g) the sitting government,

d) the government of the day

TASK II Find the following adjectives in the text: smaller, inferior, lower, the latter;

b) Add nouns to them; provide the words with the opposite meanings; make up sentences with them to compare the UK and US constitutions.

TASK III a). Add a) federal and/or b) unitary to the following nouns as they appear in the text:

1) system; 2) state; 3) regime; 4) government; 5) constitution; 6) legislature; 7) UK; 8)citizenship; 9) level.

b) Use federal or unitary in the following sentences, translate the sentences:

1. Freedom of choice also means the parents' opportunity to select a school for their child in a …, integrated school system that is devoid of de jure segregation.

2. … tax is a tax of income earned locally by a business that transacts business through an affiliated company outside the state or the country.

3. … business is a business that has subsidiaries in other states or countries and that calculates its state income tax by determining what portion of a subsidiary's income is attributable to activities within the state, and paying taxes on that percentage.

4. The tax, it was found, did not impair … uniformity nor prevent the … Government from speaking with one voice in international trade.

5. The Supremacy Clause of the Constitution provides: if a state measure conflicts with a … requirement, the state provision must give way. The basic question involved in these cases, however, is never one of interpretation of the … Constitution but inevitably one of comparing two statutes.’’

6. Until roughly the New Deal, the Supreme Court applied a doctrine of ‘‘dual federalism,’’ under which the … Government and the States were separate sovereigns, each preeminent in its own fields but lacking authority in the other’s.

7. ‘‘The relative importance to the State of its own law is not material when there is a conflict with a valid … law, for the Framers of our Constitution provided that the … law must prevail.’’

8. In the … court system there were … courts having jurisdiction in both law and equity, but distinct law and equity procedures, including the use or nonuse of the jury.

9. Crampton v. Ohio raised the question whether due process was violated when both the issue of guilt or innocence and the issue of whether to impose the death penalty were determined in a … proceeding.

10. School boards then operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a … system in which racial discrimination would be eliminated root and branch.’’

11. Because each system was a dual one in 1954, it was subject to an ‘‘affirmative duty to take whatever steps might be necessary to convert to a … system in which racial discrimination would be eliminated root and branch.’’

12. A state …-tax scheme that used a worldwide-combined reporting formula was upheld as applied to the taxing of the income of a domestic-based corporate group with extensive foreign operations.

13. Iowa imposed an income tax on a … business operating throughout the United States and in several foreign countries. It included in the tax base of corporations the dividends the companies received from subsidiaries operating in foreign countries, but it allowed exclusions from the base of dividends received from domestic subsidiaries.

TASK IV Find in the text and translate the sentences with the following word combinations:

To divide power between, to devolve power to, to take the power back, to leave the residual power with, to leave the federal level as the residuary power, to have greater voting power, the actual disposition of power, to limit the powers of Parliament, the overriding power of the central government, to enjoy devolved powers, tax-raising power, to obtain power.

TASK V a) Study the meaning of residual/residuary power (prove that residuary is an unnecessary variant in the text).

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. (10^th Amend., US Const.)

b) Translate the following sentences:

1. There will be virtually no centripetal forces vis-`a-vis Northern Ireland to pull it in a centralising direction. A unionist stance on the region, which did have a significant residual presence in the Conservative party in the not too distant past, in figures like Airey Neave and Ian Gow, has not had a purchase at Westminster for many years – as evidenced by the sea of empty green benches in the Commons during Northern Ireland debates.

2. The Bosnia-Hercegovina constitution, contained in a Dayton annex, divided the country into two entities, the Federation of Bosnia and Hercegovina populated mainly by Muslims and Croats – in which power was further devolved into ten cantons – and Republika Srpska. It named ‘Bosniacs’ (implicitly Muslims), Croats and Serbs as ‘constituent peoples’, along with – though clearly residually – ‘others’ and ‘citizens of Bosnia and Herzegovina’.

3. House of Lords reform will focus attention on any statutory appointments body, as even a fully elected House would likely involve some residual appointment aspects.

4. ‘‘Were it once established that the powers of war and treaty are in their nature executive; that so far as they are not by strict construction transferred to the legislature, they actually belong to the executive; that of course all powers not less executive in their nature than those powers, if not granted to the legislature, may be claimed by the executive; if granted, are to be taken strictly, with a residuary right in the executive; or . . . perhaps claimed as a concurrent right by the executive; and no citizen could any longer guess at the character of the government under which he lives; the most penetrating jurist would be unable to scan the extent of constructive prerogative.’’

5. The Court relied on the ‘‘structural Constitution’’ to demonstrate that the Constitution of 1787 had not taken from the States ‘‘a residuary and inviolable sovereignty,’’ that it had, in fact and theory, retained a system of ‘‘dual sovereignty’’ reflected in many things but most notably in the constitutional conferral ‘‘upon Congress of not all governmental powers, but only discrete, enumerated ones,’’ which was expressed in the Tenth Amendment.

6. Justice Scalia suggested that there should be a ‘‘sliding scale’’ taking into account the definition of obscenity: ‘‘[t]he more narrow the understanding of what is ‘obscene,’ and hence the more pornographic what is embraced within the residual category of ‘indecency,’ the more reasonable it becomes to insist upon greater assurance of insulation from minors.’’

7. Upon her death, dispute arose as to whether the property passed pursuant to the terms of the power of appointment or in accordance with the residuary clause of the will.

TASK VI a) Add nouns to the following adjectives from the text, translate them: communitarian, powerful, delicate, diverse, efficient, distinctive, overriding, common, ethnic, supreme, precise, dominant, flexible, subordinate, particular, regional

b) What other nouns can be used with them? Give your examples.

TASK VII Translate the following sentences, pay special attention to the adjectives used:

1. Thus, a delicate balance must be struck.

2. It cannot be seriously suggested that federalism is the best way of achieving efficient government but efficiency cannot be the overriding purpose of a liberal society.

3. In the European Union the more powerful states have greater voting power in relation to certain issues.

4. Thus the real balance between centre and state may not be apparent from reading the constitution.

5. Within the UK certain powers have very recently and in varying degrees been devolved to elected assemblies in Scotland and Wales but without in any way limiting the powers of Parliament.

6. He also thought that federalism tends to conservatism, creates divided loyalties and that it elevates legalism to a primary value, making the courts the pivot on which the constitution turns and perhaps threatening their independence.

7. Apart from Northern Ireland, regional issues were not high on the agenda of the main parties, which suggested that there was little public desire for federalism.

8. Drawing primarily upon the insights of Aristotle and Hegel, some political philosophers disputed John Rawls' assumption that the principal task of government is to secure and distribute fairly the liberties and economic resources individuals need to lead freely chosen lives; the critics of liberal theory never did identify themselves with the communitarian movement (the communitarian label was pinned on them by others, usually critics),  much less offer a grand communitarian theory as a systematic alternative to liberalism.

9. Although spread very unevenly, the ethnic minority population constitutes 8 per cent of the total and is itself composed of very different elements.

10. As McEwen points out, the welfare state was a common British enterprise that helped cement loyalty to the Union at a popular level.

11. The social class and ethnic composition of the United Kingdom is vastly different from 1952 when Elizabeth II succeeded.

12. Asians have ‘little doubt that a society with communitarian values where the interests of society take precedence over that of the individual suits them better than the individualism of America’.

13. The growing power of the judiciary is a result of the HRA and the new Supreme Court, and the continuing effects of the EU.

14. As the example of Quebec illustrates, the issues of symbolic politics and recognition as a distinctive nationality have long been at the fore of Canadian constitutional politics, the more so if other issues move off the agenda.

15. Ethnic and religious tensions are threatening to eat into the fragile political consensus that underpinned the UK’s policy of multiculturalism for much of the late 1990s and early 2000s.

16. Gordon Brown qualified national distinctiveness by a vision of Britishness as ‘a community of citizens with common needs, mutual interests, shared objectives, related goals and most of all linked destinies’.

17. The new Supreme Court carries on much as the old Appellate Committee of the House of Lords.

18. As Thorne explains, statutory provisions were 'merely suggestions of policy to be treated with an easy unconcern as to their precise content'; judges freely extended and restricted statutes as a routine part of their duty to administer justice between litigants.

19. Parliamentary sovereignty is the dominant principle.

20. Parliament under a coalition government could be as subordinate as under single-party majority government, or even more so if the government includes the Liberal Democrats, and neuters their opposition in the Lords.

21. A London super-regional growth strategy will continue to be driven by very significant, discretionary public investments in infrastructure, megaprojects (principally the Olympic Games) and new house-building, in particular.

22. According to royalist theorists, The King's authority was admittedly subordinate to divine law, but no human agency was authorized to enforce that law against him.

23. Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.’’

24. The Liberal Democrats have introduced stricter pre-screening of members to try and ensure reliable attendance and voting – as a result of the delicately balanced arithmetic in the Lords, and the newly enhanced opportunities there for changing policy.

25. In fact, London is the most abnormal – hugely wealthier, more educated, more employed in the private sector, but also more ethnically diverse and more unemployed.

26. The term media oversimplifies a very diverse, and highly competitive, group of newspapers and broadcasters.

TASK VIII Analyse Dicey’s views on federalism. Agree or disagree with them.

TASK IX Comment on the following QUOTATIONS:

Power tends to corrupt and absolute power corrupts absolutely.

Lord Acton (1834-1902)

Unlimited power is apt to corrupt the minds of those who possess it.

William Pitt, Earl of Chatham (1708-1778)

The following issues will help you to answer the exam question UK CONSTITUTION: STRUCTURE AND PRINCIPLES and to write your essay:

1. The UK constitution differs from all other constitutions.

2. The main principles and institutions of the UK constitution.

3. The advantages and disadvantages of unwritten constitutions.