Law Sessions With Jennifer Housen’s Podcast

Broad vs. Narrow: Understanding Constitutional Frameworks

Subscriber Episode • • Jennifer Housen • Season 1 • Episode 1

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We explore the fascinating world of constitutional law, examining what constitutions really are and how they function in different contexts. The session unpacks the distinctions between broad and narrow meanings of constitutions while challenging the common misconception that the UK lacks a constitution.

• Constitutions in their broad meaning represent bodies of rules regulating how institutions operate internally and externally
• Public law encompasses both constitutional and administrative law components
• Hillya Barnett's Constitutional Administrative Law is recommended as an excellent resource for students
• Constitutions serve to establish and define the executive, legislature, and judiciary
• The narrow meaning refers to a single codified document, typically the highest source of law
• Codified constitutions often emerge after radical political changes including wars, revolutions, and independence
• Commonwealth countries typically developed codified constitutions after gaining independence
• Constitutional codification is considered essential for good governance and protecting citizens' rights
• Scotland's potential independence could lead to the creation of a new codified constitution


💡⚖️ Let’s learn the law together—one session at a time!

Speaker 1:

Music. Welcome to Law Sessions. I am Jennifer Halson. In this Law Session, we will be considering the, the constitution, or rather the idea of a constitution, and we will, in that regard, consider both the characteristics and the sources of a constitution. Now, before we start considering the whole idea of a constitution, I want you to consider first of all, what is public law about? Now, the main thrust of what we will be looking at generally is considering how the legal framework of society occurs Now. How does it happen? What happens, how do the people who govern, what are the mandates? What is the protocol? So we're basically looking at governments, we're looking at the courts, we're looking at citizens. So the whole legal framework of society is what public law encapsulates. Work of society is what public law encapsulates.

Speaker 1:

Now, generally, there's the idea that you have constitutional law as a separate head from administrative law, but when you look at public law as a topic or as a program, really it considers some aspects of constitutional law and, indeed, some aspects of administrative law. Now, one of the most comprehensive and, in fact, in my view, one of the best books that you can have on constitutional and administrative law is Constitutional Administrative Law by Hillya Barnett, because it sets it out in a comprehensive manner, but it is the kind of book that a law student will read. It is the kind of book that I read because it is simple, straightforward. It looks a bit heavy, but it is not of the type of heavy books that I am not a big fan of. So, for example, I've never been a fan of Smith Ogun Criminal Law. I just find it a really heavy read for criminal law. But albeit that this book is somewhat big, it still comes across in simple fashion. So when you approach public law, the idea is that you will be considering constitutional law and also administrative law.

Speaker 1:

Now let's start off with this Suppose. In your exam you get a question and the question says the United Kingdom does not have a constitution Discuss. Where would you start? Well, straight away you should have some kind of red flags going off in your head as it relates to what types of uh notes you should be making. The united kingdom does not have a constitution discuss. Well, based on the back of that question, let's try and approach constitutional law.

Speaker 1:

First of all. What is a constitution? Well, it is not as simple and as straightforward as one might think, because what is a constitution can have one of two meanings it can have a broad meaning and it can have a narrow meaning. Now, if we start off with looking what, broadly and generally, is meant by a constitution, well, the broad meaning is that a constitution is a body of rules which regulate the way that the institutions within an organization operates. So it looks at it internally as well as the way in which it relates to external entities. Now, that is it in the context of an organization.

Speaker 1:

Now, if we consider broadly what it is in relation to a state, a constitution will organize, distribute and regulate state power, exercise, distribute and regulate state power. So a broad definition of a constitution, as it relates a state, is that it sets out the structure of the state, it sets out the major state institutions, it sets out the principles which govern the state's relations with each of the state agencies and institutions, as well as the relationship between the state and its citizens. What is the purpose that it is there for? Well, the purpose of a constitution, whether it is of a state or indeed of an organization, it tends to establish the traditional organs of the state. Now, in the context of again remaining on the broad definition in the context of a state, you look at the establishment of the traditional organs of the state, which is, of course, the executive, the legislature and the judiciary. And the judiciary? Now, what it does? It allows some detail to be set out in respect of the allocation of the powers between these three branches of the state the executive, the legislature and the judiciary. Now it provides for the resolution of disputes, again on the interpretation of the Constitution, insofar as how these particular organs will work either with each other or indeed with the citizen, and the idea is that it allows for the possibility of making amendments where appropriate, while, of course, outlining procedures for change. So, whatever the constitution is, it is some way there for the ability to change and certainly expand if possible, or indeed contract, if that's the case.

Speaker 1:

Now, to explain the relationship between the state and its citizenry is also what a constitution will do broadly. So that is the broad basis. A constitution, when we look at it, is what regulates the framework. But what if we look at it as a narrow meaning, which, even though I was talking about that in a broad sense, I'm sure some of you went to the narrow meaning immediately? Now, the narrow meaning is that a constitution will typically be contained in a single document, usually called constitution, which provides a basic framework for a state system of governance governance and what it does is that it defines the relationship between the state and its citizens and between the institutions of the states themselves.

Speaker 1:

Now, the vast majority of times, this narrow meaning will of rest on the premise that the Constitution, where it's in a single document, is generally the highest source of law in a particular state. Now, it wasn't until the 18th century, when the US and the French written constitutions were developed, that the concept of the Constitution came to have this kind of alternative and more narrow meaning. Now, when you see countries which have this narrow meaning, meaning a codified constitution in a single document, it tends to be countries that have gone through some type of radical political change and therefore it results in a written constitution or some sort of identifiable document which establishes the traditional organs of the state, such as the executive, the legislature and the, the judiciary, and detail the allocation of power between those branches. As well as providing for the resolution of disputes on the interpretation of the constitution, it will also generally provide for the possibility of amending, and it will also provide as well the outline for change and explain the relationship between the state and its citizenry. Now, that is going back to what the broad meaning is, but what we have is a document which takes on board the broad meaning, so it sets it out in a codified format. Now, what I want you to take on board, of course, is that don't believe that, just because you have a single document, that is a constitution for all intents and purposes, because precisely what that codified document provides for, when you look in a, for example, a state which does not have a single codified document, the same framework will be there, but not necessarily in a single codified document.

Speaker 1:

Now, as I say, the general rule, of course, when you look at these narrow constitutions, is that they've undergone some type of radical change. Now, the examples of radical events that have, in fact, influenced the drafting of governing rules in a lasting, permanent form have been, for example, wars. So, whether they are interstate or civil wars. So, for example, when we look at the USA and bearing in mind its own history, and when we look at its constitution, we see that this came about after some radical change. Equally, there may be a situation where a revolution has been fought and, as such, what you get is a fundamental change in the power structures.

Speaker 1:

Now, the granting of independence or where there is unification leading to the creation of a new state or a renewed state, may also give rise to a brand new constitution. So what you tend to find by and large is that when you look at the vast majority of Commonwealth countries who, for example, had the UK or had England or any other European country like France or the Netherlands as their mother country, as it were, you tend to find that after there has been a period of independence, you tend to find that you get these nations and these states having a constitution. So when you look at countries like Nigeria or South Africa or Jamaica, you see that these countries will tend to have a constitution in the narrow definition sense, which has come about by radical change, that radical change being independence. Now it is interesting and will be interesting to see what the effect of scotland seeking to, for example, have a referendum to break away from the UK and certainly it must be that as a new state it will possibly have a codified constitution, but that awaits to be seen. But what we do know is generally, after you go through radical change, you get this codified constitution Now the codification of citizens' rights and powers of the political system is viewed generally as an essential step towards good governance.

Speaker 1:

You want it codified so that at least the citizen will know where they stand. As it relates to state power. What you don't want is a state being able to barge in your house for any given reason or, in fact, no reason at all. So, generally, you have a constitution which will set out in it exactly what the limitation on the right a state has in order to, for example, affect a citizen's rights. Now, when you consider the narrow meaning of a constitution and indeed if we were to, for example, consider certain states and their constitution, we can see exactly what the constitution says it does. So what I want us to do for a moment is to reflect on actual constitutions of certain countries and see what exactly the constitution says it is and how exactly that constitution works. Now I will take a short break and as we come back, we will begin immediately by looking at how, within a narrow meaning constitution, meaning a codified document how the document itself lays out what exactly it does. We will pick up after a short break.