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Principles Of Constitutional Law Notes

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Principles of Constitutional Law _______________________________________________________

Basic theories of democratic society-Rousseau: o "Man is born free, but he is everywhere in chains" o Physical freedom relinquished for civil freedom - the 'sovereign' as the collective with single, general will that aims for common good o The sovereign is legislative, the executive needed to administer - these two are in constant friction o Political legitimacy comes from social contracts o The sovereign should practice direct democracy through general assemblies Locke: o Democracy as a contract. o No divine right of Kings. o The State of Nature was complete liberty - though pre-political it was not pre-moral (natural law - everyone is equal) o Men sought civil government for the protection of property. In making the social contract, they have consented to be ruled by the will of the majority. They gain laws, judges & the executive to enforce laws, and can no longer take justice into their own hands. o Tyranny is a ruler reverting to the State of Nature & collapses the compact (separated powers) meaning self-defence is permissible again Hobbes: submission to an absolute authority to escape the horror of the State of Nature

Strengthening democratic rule:
? Mueinik: "bridge away from a culture of a culture of justification"
? Jennings: Parliamentary sovereignty is fettered by the political reality that they must serve the public if they wish for re-election?Bill of Rights 1686: reorganised the constitutional balance in favour of democratic Parliament and took it away from the "pretended power" of the executive Crown (NB: now largely repealed) Parliament Acts 1911 & 1949: stripped Lords' right to veto House of Lords Act 1999: removed majority of hereditary Peers

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