BCL Law Notes Constitutional Theory Notes
A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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Entrenchment
Should institutions be allowed to entrench rules against themselves?
Legislature enacts rules but can also enact rules about how particular rules can be changed – fulfilment of voting or other conditions for repeal or variation
Self-imposed entrenchment – institution limiting its own capacity
Forms
Supermajority requirements
Certain consultative processes
Specific acknowledgement of previous policy considerations
Eg
Senate Filibuster rule – greater majority required for repeal of certain rules
Levels of entrenchment
Make it harder to change
Constitutional rules made unchangeable within a constitution – need to start again entirely: eg final article of German Fundamental Law; “We the People” in Indian Constitution
Procedural constraint of declaration of compatibility with HRA
Indian Supreme Court – declaration that Parliament not permitted to entrench, due to separate entrenched requirement in Constitution
M McCubbins and D Rodriguez, ‘Superstatutory Entrenchment: A Positive and Normative Interrogatory’ 120 Yale Law Journal Online
Entrenchment as
Sociopolitical fact – manner & form of legislation entrenches it
Part of dynamic political process – subject matter & political nature of legislation makes democratically and politically more difficult to alter – eg Health Care in US
Surely this is a political analysis & not susceptible to analogy with formal entrenchment
Normative value – nature of certain statutes requires Courts and other institutions to adhere more closely to them – eg social welfare
Overlap between normative questions and formal questions in entrenchment is undesirable
N. Barber, ‘Why Entrench?’ (draft)
Entrenchment most justifiable where connection between reason for entrenchment & manner of entrenchment & area of law entrenched
Taxonomy of entrenchment
Definitions
Broad – Political entrenchment – entrenchment at its broadest – politically difficult to alter, eg NHS
Narrow – strict legal entrenchment – only self-imposed restrictions – eg Canadian Bill of Rights but not manner & form restrictions on Northern Ireland Parliament (imposed by Westminster); or restrictions of written constitutions passed before or when legislature came into existence
Intermediate – legal entrenchment
Body the subject of entrenchment
Generally the legislature
But also the Courts – eg
High Court’s various criteria for revisiting established precedents (self-imposed);
supermajority requirements (imposed by other body) when striking down legislation (5 US States)
argument that Chevron doctrine should take form of voting rule rather than doctrinal deference
Form of legal entrenchment
Formal entrenchment
Requirement of express repeal – UK Constitutional laws (Controversially)
Common law rights & freedoms
South Africa’s equality & discrimination legislation
Requirement for express form of words – eg acknowledgement that law contrary to Human Rights in Canada Bill of Rights
Time requirements
Slowing deliberative process – requirement for consultation or delay between readings – mandates proper deliberation
Requirement for election between proposal & decision – engages electorate
Spanish Constitution – ‘total revision’ of Constitution requires supermajority on both sides of election AND referendum (separate process for simple constitutional amendment)
Voting units
Internal expansion – supermajority requirements –
eg Spain – 3/5 majority in each chamber for simple amendment (or 2/3 majority in Congress and absolute majority in senate)
US Filibuster supermajority requirement – allows large minority to repress any law
Majority of certain groups within the house – eg Northern Ireland – unionist & separatist majorities on certain issues
External expansion – requiring vote of another body
Referendum – eg Aus constitutional amendment but also Flags Act
Involvement of provinces/States – Canada
Manner of legal entrenchment
Imposed by other body
By body establishing constitution – eg US on Japan; Westminster on Northern Ireland; the People through Constitutional Conventions in US & Australia
Imposition of limitations by Courts – eg implied freedom in Australia
Self-imposition
EG Israel’s basic law – supermajority for amendment imposed by government
= government binding its successors
Mechanism for entrenchment
Entrenchment by separate instrument
Self-embracing
EG Bill of Rights – substance of legislation produces entrenchment – but can be removed by simple majority
Very close to political entrenchment of interpretive provision – lack of impact revealed in Momcilovic
EG rules that entrench themselves – filibuster rule can only be removed by similar supermajority
Trigger for entrenchment feature
Subject matter of law – eg amendment to particular law requires supermajority / referendum / etc
Procedure –
eg Northern Ireland – 30 members can produce ‘petition of concern’ triggering requirement for supermajority
US Filibuster – effectively the same as a petition of concern by 2/5 majority requiring supermajority
NB equates to procedural device rather than entrenchment of any particular legislation (unless somehow subject-matter specific – eg if ‘petition of concern’ can be presented only in relation to laws of a certain nature)
See eg EU – national parliaments can compel re-think by Commission if regulation affects subsidiarity
Policy arguments
For – generally
Stability – better at guiding conduct; guarantees minimum standards of legislation
BUT stability says nothing about moral virtue of law – but is virtuous in itself – although a very minimalist & collateral benefit – not much benefit in stabilising bad law – eg gun laws
Also entrenched laws tend to be of vague nature that require interpretation & aren’t great at guiding conduct in any event
NB legal stability can actually create political instability – greater debate about issue – eg...
Buy the full version of these notes or essay plans and more in our Constitutional Theory Notes.
A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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