IDEOLOGIES
&
CONCEPTS AND TERMS
Constitutional Law
Doctrines
Doctrine of Separation of Power Doctrine of Necessity
Doctrine of Checks and Doctrine of Eclipse
Balances
Doctrine of Political Questions
Doctrine of Severability Originalist and Living
Doctrine of Basic Structure Constitutionalist
Doctrine of Efficacy Textualist, Intentionalist and
Doctrine of Revolutionary Pragmatist
Legality
Doctrine of Separation of Power
“Separation of powers is a doctrine of constitutional law under
which the three branches of government (executive, legislative,
and judicial) are kept separate. This is also known as the system
of checks and balances, because each branch is given certain
powers so as to check and balance the other branches.
Each branch has separate powers, and generally each branch is
not allowed to exercise the powers of the other branches. ”
[Link]
Doctrine of Separation of Power
Montesquieu (1748; The Spirit of Laws)
“The first modern formulation of the doctrine was that of the French
political philosopher Montesquieu in De l’esprit des lois (1748; The
Spirit of Laws), although the English philosopher John Locke had
earlier argued that legislative power should be divided between
king and Parliament.”
“His work was widely influential, most notably in America, where it
profoundly influenced the framing of the U.S. Constitution.”
[Link]
Doctrine of Checks and Balances
“Checks and balances, principle of government under which separate
branches are empowered to prevent actions by other branches and
are induced to share power.
Checks and balances are applied primarily
in constitutional governments.
They are of fundamental importance in tripartite governments, such as
that of the United States, which separate powers among
legislative, executive, and judicial branches.”
[Link]
Doctrine of Checks and Balances
Aristotle’s Mixed government
Aristotle first pointed out the idea of a "mixed government" or hybrid
government in his work Politics,
In the Roman Republic, the Roman Senate, Consuls and
the Assemblies showed an example of a mixed
government according to Polybius (Histories, Book 6, 11–13).
Note:
Politics is a work of political philosophy by Aristotle, this work is divided
into eight books.
Polybius ( 200 – c. 118 BC) was a Greek historian, well-known for his
work The Histories, which covered the period of 264–146 BC in detail.
Doctrine of Severability
“This doctrine of severability is also known as the doctrine of
separability.
The word “to the extent of the inconsistency or contravention”
makes it clear that when some of the provision of a statue when
some of the provisions of a statute becomes unconstitutional on
account of inconsistency with fundamental rights, only to the
repugnant provision of the law in question shall be treated by the
courts as void, and not the whole statute.”
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Doctrine of Severability
“The doctrine of severability means that when some particular
provision of a statute offends or is against a constitutional limitation,
but that provision is severable from the rest of the statute, only that
offending provision will be declared void by the Court and not the
entire statute.”
[Link]
Doctrine of Basic Structure
Doctrine of Basic Structure: Pillars of the Constitution
Anwar Hossain Chowdhury & Ors. vs. Bangladesh
41 DLR (AD)1989_ Pp.165-314
Article 7B / 15th Amendment (2011)
What is actually the basic feature
doctrine?
Kawser Ahmed
“Anwar Hossain Chowdhury & Others v Bangladesh (1989) BLD (SPL) 1
[Link]
(hereinafter '8th Amendment Case') marks the beginning of
judicial review of constitutional amendment in Bangladesh.
The 8th Amendment Case set forth the famous basic feature doctrine
which laid down a test for determining substantive compatibility of any
constitutional amendment vis-à-vis the Constitution
(see Kawser Ahmed, 'Review of a constitutional amendment: What
does legally matter?', The Daily Star, 29 May 2018, p.14).
The majority of judges in this case, although, avowedly relied on the basic
feature doctrine to gauge validity of the amendment to article 100 of the
Constitution, they did not seem inclined to provide any detailed theoretical
exposition thereof. Perhaps, this is also the reason why the basic feature doctrine
remains the most misunderstood legal doctrine in Bangladesh..”
What is actually the basic feature
doctrine?
Kawser Ahmed
“In the 8th Amendment Case makes it clear that the judges rather
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chose to provide an analogical account of their ideation of the basic
feature doctrine.
For example, Justice Shahabuddin Ahmed compared the basic
features of the Constitution to the pillars of a building,
while Justice Badrul Haider Chowdhury referred to the same as
unalterable fabric of the Constitution.
In other words, the majority of judges in the 8th Amendment
Case viewed basic features as the core ideological notions of the
Constitution.”
What is actually the basic feature
doctrine?
Kawser Ahmed
“In concrete terms, the judges relied on two propositions to draw up their
[Link]
ideation of the basic feature doctrine.
First, the basic features of the Constitution cannot be amended in exercise of
the amending power of the legislature.
The second one is any amendment to the Constitution is subject to retention of
its basic features and can be declared void if adjudged inconsistent therewith.
The judges sought to resolve the dichotomy between the above propositions by
introducing the concept of valid constitutional amendment – which means of
the Constitution.” amendments to the Constitution are permissible so far as they
do not impinge on the basic features
[Impinge (verb) = have an effect, especially a negative one.]
Doctrine of Efficacy
Doctrine of Revolutionary Legality
Martial law and military intervention: role of the judiciary by Barrister
Md. Abdul Halim
[Link]
“This doctrine is also called the doctrine of revolutionary
legality which is based on the positivist theory of the efficacy of the
change or revolution (coup d'etat) expounded by Hans
Kelsen.
In his book "General Theory of Law and State" Kelsen, under
the heading of "the Principles of Legitimacy", has given a
logical explanation on the elements and effects of a
revolution. ”
Doctrine of Efficacy
Doctrine of Revolutionary Legality
Martial law and military intervention: role of the judiciary
Barrister Md. Abdul Halim
[Link]
According to Kelsen, a revolution means a successful revolution and a
successful revolution must have the following two elements:
(i) The overthrow of existing order and its replacement by a new order;
(ii) The new order begins to be efficacious because the individuals whose
behaviour the new order regulates actually behave, by and large, in
conformity with the new order.
If these two facts are associated with the new order, then the order is
considered as valid order and a law creating factor. So the success of a
revolution or, in other words, the efficacy of the change would establish
its legality.
Martial law and military intervention: role of
the judiciary
by Barrister Md. Abdul Halim
“ This Kelsen's theory of efficacy was first applied in State v. Dosso
[Link]
case by the Pakistan Supreme Court.
In Asma Jilani v. The Government of Punjab the same Supreme
Court of Pakistan overruled the decision of Dosso's case and held that
the martial law proclaimed by Yahya Khan was illegal
and
that his assumption of power on 25th March, 1969 was wholly
unconstitutional and could not be recognised as valid. As to the
doctrine of efficacy the court said : ‘The principle laid down in Dosso's
case is wholly unsustainable and cannot be treated as good law either
on the principle of stare decisis or even otherwise.’ .. .. ”
Doctrine of Necessity
Doctrine of necessity:
Lord Mansfield, in R v Stratton (1779),
“An act which would otherwise be illegal becomes legal, if it is done
bona fide under the stress of necessity”.
Hamoodur Rahman, CJ, expanded it by calling it ‘doctrine of
condonation’.
Doctrine of Eclipse
This doctrine states that fundamental rights (FR) be prospective.
Pre-constitutional law, inconsistent with FR is not void ab initio, but
only remains unenforceable, i.e., remains in dormant (=inactive,
sleeping, abeyant[=inactive but capable of being active]).
Those laws are applicable to non-citizen, i.e., to whom some FR is
non applicable
Therefore the impugned law remains hidden behind the
fundamental rights and can become operative again if and when
the FR it is inconsistent with is amended.
Doctrine of Political Questions
Mahmudul Islam’s arguments
The doctrine of Political question originated in the American
Jurisprudence.
This cannot be imported to dissuade the court from performing its
duty
[Note: Dissuade = discourage, deter, prevent]
Originalist and
Living Constitutionalist
[Link]
constitution/white-papers/on-originalism-in-
constitutional-interpretation
Originalism is a theory of the interpretation of legal texts, including the
text of the Constitution. Originalists believe that the constitutional text
ought to be given the original public meaning that it would have had
at the time that it became law.
Living constitutionalists believe that the meaning of the constitutional
text changes over time, as social attitudes change, even without the
adoption of a formal constitutional amendment
Textualist, Intentionalist and
Pragmatist
Textualist:
An originalist who gives primary weight to the text and structure of the
Constitution. Textualists often are skeptical of the ability of judges to
determine collective intent
Intentionalist:
An originalist who gives primary weight to the intentions of framers,
members of proposing bodies, and ratifiers.
Pragmatist:
A non-originalist who gives substantial weight to judicial precedent or
the consequences of alternative interpretations, so as to sometimes favor
a decision "wrong" on originalist term s because it promotes stability or in
some other way promotes the public good.
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American Judges
Examples of Originalist Judges
Justice Hugo Black
Justice Antonin Scalia
Justice Clarence Thomas
Judge Robert Bork
Examples of Non-Originalist Judges
Justice Harry Blackmun
Justice William Brennan
Justice William O. Douglas
Judge Richard Posner
Additional Reading
Overcoming Law by Richard A. Posner
[Link]
Posner/dp/0674649265
• Legal theory must become more
factual and empirical and less
conceptual and polemical, Richard
Posner argues in this wide-ranging
new book.
• The topics covered include the
structure and behavior of the legal
profession; constitutional theory;
gender, sex, and race theories;
interdisciplinary approaches to law;
the nature of legal reasoning; and
legal pragmatism.
Overcoming Law by Richard A. Posner
[Link]
Posner/dp/0674649265
Posner analyzes in witty and passionate prose, schools of thought as
different as social constructionism and institutional economics, and
scholars and judges as different as Bruce Ackerman, Robert Bork,
Ronald Dworkin, Catharine MacKinnon, Richard Rorty, and Patricia
Williams.
He also engages challenging issues in legal theory that range from
the motivations and behavior of judges and the role of rhetoric and
analogy in law to the rationale for privacy and blackmail law and
the regulation of employment contracts.
Throughout, the book is unified by Posner's distinctive stance, which is
pragmatist in philosophy, economic in methodology, and liberal (in the
sense of John Stuart Mill's liberalism) in politics.
Brilliantly written, eschewing jargon and technicalities, it will make a