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Introduction to the Study of the Law of the Constitution

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This 8th edition, published in 1915, was the last edition written by Dicey. The 9th edition (1931) and 10th edition (1959) have an introduction and appendix by E.C.S. Wade

Walters, Mark D. (2012). "Dicey on Writing the "Law of the Constitution" ". Oxford Journal of Legal Studies. 32 (1): 21–49. doi: 10.1093/ojls/gqr031. First edition published in 1885 under title: Lectures introductory to the study of the law of the constitution Follett, R. (2000). Evangelicalism, Penal Theory and the Politics of Criminal Law: Reform in England, 1808–30. Springer. p.7.

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Weill, Rivka (2003). "Dicey Was Not Diceyan". The Cambridge Law Journal. 62 (2): 474–493. doi: 10.1017/S000819730300638X. Finally, it is worth noting that constitutional supremacy does not mean that Parliament can never amend the Constitution. As discussed later in the book, the Constitution prescribes various requirements for amending different sections of the Constitution [7]. Constitutional supremacy only means that all law-making and conduct must be consistent with the Constitution, including amending the Constitution. • Separation of powers Firstly, the courts must play the vital and active role to uphold the doctrine of rule of law. When the control of the Parliament on the administration is reducing, the judicial power and control should be adequately raised. Thus, in the countries which having a written and supreme constitution, the judiciary or the courts are given the responsibility and right to review executive and legislative actions if any unconstitutionality is spotted. Besides, the judges should do their best in correcting the loopholes in the law. Holmes O, ‘Thai junta criticised as army given sweeping powers of arrest’ https://www.theguardian.com/world/2016/apr/05/thailand-junta-gives-army-sweeping-powers-of-arrest accessed 12 July 2017

Tun Arifin Z, Syarahan Perdana: “Rule of Law and Judicial System” (Institute Integrity Malaysia, Kuala Lumpur 2012) Democratic Alliance v President of South Africa and Others [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) (5 October 2012) (Democratic Alliance) at para 37. See most recently National Energy Regulator of South Africa and Another v PG Group (Pty) Limited and Others [2019] ZACC 28 (NERSA) para 49. Chapter 10 introduces the Bill of Rights. The chapter begins with an introduction to the Bill of Rights and some general principles pertaining to the Bill of Rights. The six chapters after that deal with specific rights or groups of rights in the Bill of Rights. • QUESTIONS Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others [1998] ZACC 17; 1999 (1) SA 374; 1998 (12) BCLR 1458 para 56.

Charlotte T, ‘Does Britain still uphold the rule of law?’ https://www.opendemocracy.net/openjustice/charlotte-threipland/does-britain-still-uphold-rule-of-law accessed 12 July 2017 Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the Republic of South Africa and Others [2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241 (Pharmaceuticals) para 80. Below, we tabulate a summary of different models of democracy. A detailed analysis of democratic models is beyond the scope of this book. However, it is important to have a general understanding of democratic models. Section 1 of the Constitution establishes South Africa as a democratic state. Various democratic models heavily inform the separation of powers between the arms of state, especially parliament’s powers and duties. As will become apparent, the different advantages and disadvantages of various democratic models feature significantly in cases concerning the separation of powers, for example Doctors for Life [15]. Conceptions of democracy also underpin judgments concerning political rights, especially the right to vote [16]. Summary of the different models of democracy. Democratic model

In Brief, ‘The Rule of Law in the UK’ http://www.inbrief.co.uk/legal-system/the-rule-of-law/ accessed 12 July 2017A purely representative notion of democracy is incompatible with constitutional supremacy. Constitutional supremacy means that every so often the will of the majority will be constrained by a constitutional rule. However, as Chaskalson P held in Makwanyane, there are other notions of democracy that are compatible with limiting the power of a legislature by a constitution that is then interpreted by another arm of state (normally the judiciary). Democracy can entail safeguards for minority voters and does not have to entail parliamentary sovereignty [4]. Democracy does not have to entail a majority decision on every aspect of a state. The majority can decide to delegate decision-making on certain matters to a smaller group of people (for example, judges who are experts in constitutional law). In any event, whatever impact a constitution has on majority rule can also be mitigated by the fact that the majority decided to create that constitution (as it arguably did in South Africa). It is clear that there is no written codified constitution in the United Kingdom. The United Kingdom is a constitutional monarchy in which the reigning monarch, either the King or Queen who is the head of the state and the sovereign, does not make any open political decisions. The responsibility of making political decisions is left to the government and the Parliament. The Parliament plays a vital role in upholding the rule of law in the United Kingdom’s constitutional system. Both House of Lords and House of Commons are important to ensure that the government is abiding by the rule of law and the proposed legislation is not in the breach of the rule of law. However, to what extent the United Kingdom upholds the rule of law should be discussed.

The rule of law is often understood with reference to the theory of the British jurist, AV Dicey. Dicey explained in his Introduction To The Study Of Law Of The Constitution (1885), that the rule of law has three characteristics. First, because the law is supreme all public power must be exercised in terms of an empowering provision in a law. Second, everyone is equal before the law. Third, the courts are responsible for enforcing the laws of a country [9]. If all three conditions are met then the rule of law is established within a state. Dicey, Albert Venn (1887). "Speech of Professor Dicey, at the Liberal Unionists' meeting, in the Music Hall, Birkenhead, December 10, 1887". "Daily Post" and "Echo" Offices. JSTOR 60243925.Stapleton, Julia (2001). Political Intellectuals and Public Identities in Britain Since 1850. Manchester University Press. p.27. Section 1 of the Constitution provides that South Africa is a republic founded on the value of constitutional supremacy. Section 2 of the Constitution provides that the Constitution is ‘supreme law in the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled’. The rules in the Constitution thus trump all other rules contained in statutes, common law and custom. Any rule inconsistent with a constitutional rule is an invalid rule. Any conduct that contradicts the constitution, including failing to fulfil an obligation imposed by the Constitution, is similarly invalid. Dicey, A. V. (1959). Introduction to the Study of the Law of the Constitution (10ed.). London: Macmillan.

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