Constitutions and Judicial Activism

Flashcards covering key vocabulary and concepts related to constitutions, their classification, and judicial review.

Constitution

A set of rules, written and unwritten, that seek to establish the duties, powers and functions of the various institutions of government; regulate the relationships between them; and define the relationship between the state and the individual.

Written Constitution

A single, authoritative document (a ‘written’ constitution), the aim of which is to codify major constitutional provisions; it constitutes the highest law in the land.

Purposes of constitutions

Empowering states, establishing values and goals, providing government stability, protecting freedom, and legitimizing regimes.

Codified constitution

A constitution in which key constitutional provisions are collected together in a single legal document.

Uncodified constitution

A constitution that is made up of rules drawn from a variety of sources, in the absence of a single authoritative document.

Rigid Constitution

A constitution whose provisions are harder to amend in relation to the ordinary law.

Flexible Constitution

A constitution which is relatively easy to amend.

Effective constitution

Practical affairs of government correspond to the provisions of constitution and the constitution has the capacity to limit the government behaviour.

Nominal constitution

Constitution rules are violated regularly and significantly either their text do not accurately describe the governmental behaviour or fail to limit the behaviour.

Judiciary

The branch of government that is empowered to decide legal disputes.

Central function of judges

To adjudicate on the meaning of law: to interpret or ‘construct’ the law.

Judicial Review

A third-party mechanism to assess the constitutional legality of all other legal norms and laws.

Judicial Review - American Model

All judges possess the power to review, and void a statute on the grounds that it violates the constitution (decentralized). Courts as resolving legal disputes à Concrete Review.

Judicial Review - European Model

Special courts possess the power to review, usually the Constitutional Courts (centralized). Usually only Abstract Review as resolving legal disputes à Concrete Review.