Constitutional law: Difference between revisions

Human rights or [[civil liberties]] form a crucial part of a country's constitution and uphold the rights of the individual against the state. Most jurisdictions, like the [[United States]] and [[France]], have a codified constitution, with a [[bill of rights]]. [[Canada]] is an example where the constitution is not codified, but includes the [[Canadian Charter of Rights and Freedoms]] to protect human rights for Canadian citizens and residents.<ref>{{Cite web |date=2017-10-23|title=Guide to the Canadian Charter of Rights and Freedoms|url=https://www.canada.ca/en/canadian-heritage/services/how-rights-protected/guide-canadian-charter-rights-freedoms.html|access-date=2022-01-20|website=Canadian Heritage }}</ref>

Some countries like the [[United Kingdom]] have no entrenched document setting out fundamental rights; in those jurisdictions the constitution is composed of [[statute]], [[case law]] and [[Constitutional convention (political custom)|convention]]. A case named ''[[Entick v. Carrington]]''<ref>''[[Entick v. Carrington]]'' (1765) 19 Howell's State Trials 1030</ref> is a constitutional principle deriving from the common law. [[John Entick]]'s house was searched and ransacked by Sheriff Carrington. Carrington argued that a warrant from a Government minister, the [[George Montagu-Dunk, 2nd Earl of Halifax|Earl of Halifax]] was valid authority, even though there was no statutory provision or court order for it. The court, led by [[Charles Pratt, 1st Earl Camden|Lord Camden]] stated that,

The [[common law]] and the [[Civil law (legal system)|civil law]] jurisdictions do not share the same constitutional law underpinnings. [[Common law]] nations, such as those in the Commonwealth as well as the United States, derive their legal systems from that of the United Kingdom, and as such place emphasis on judicial precedent,<ref name="GarnerUsageDef0">{{cite book | title = A Dictionary of Modern Legal Usage | url = https://archive.org/details/dictionaryofmode00garn_0 | url-access = registration | last = Garner | first= Bryan A. | year = 2001 | publisher = [[Oxford University Press]] | location = New York | edition = 2nd, revised |page=[https://archive.org/details/dictionaryofmode00garn_0/page/177 177]| isbn = 978-0-19-507769-8 |quote = In modern usage, ''common law'' is contrasted with a number of other terms. First, in denoting the body of judge-made law based on that developed in England... [P]erhaps most commonly within Anglo-American jurisdictions, ''common law'' is contrasted with ''statutory law'' ... }}</ref><ref name="Blacks10thDef1">{{cite book|title=Black's Law Dictionary - Common law|date=2014|edition=10th|page=334 | quote=1. The body of law derived from judicial decisions, rather than from statutes or constitutions; CASE LAW [contrast to] STATUTORY LAW.}}</ref><ref>{{cite book |last1=Macpherson |first1=Heidi S. |last2=Kaufman |first2=Will |title=Britain and the Americas: Culture, Politics, and History |date=2005 |publisher=Ezekial Books, LLC |location=Manchester, NH |isbn=9791851094317 |page=259}}</ref> whereby consequential court rulings (especially those by higher courts) are a [[stare decesis|source of law]]. Civil law jurisdictions, on the other hand, place less emphasis on judicial review and only the parliament or legislature has the power to effect law. As a result, the structure of the judiciary differs significantly between the two, with common law judiciaries being [[adversarial system|adversarial]] and civil law judiciaries being [[inquisitorial system|inquisitorial]]. Common law judicatures consequently separate the judiciary from the prosecution,<ref name="Hale">{{cite book|last=Hale|first=Sandra Beatriz|title= The Discourse of Court Interpreting: Discourse Practices of the Law, the Witness and the Interpreter |publisher=John Benjamins|date=July 2004|page=31|isbn=978-1-58811-517-1|url=https://books.google.com/books?id=HVwg_sQ5a5UC&q=%22adversarial+system%22&pg=PA31}}</ref><ref name="Richards">{{cite book|last=Richards|first=Edward P. |author2=Katharine C. Rathbun|title=Medical Care Law|publisher=Jones & Bartlett|date=1999-08-15|page=6|isbn=978-0-8342-1603-7|url=https://books.google.com/books?id=6FvwvJ-sJiAC&q=%22adversarial+system%22&pg=PA6}}</ref><ref name="Care">{{cite book|last=Care|first=Jennifer Corrin |title=Civil Procedure and Courts in the South Pacific|publisher=Routledge Cavendish|date=2004-01-12|page=3|isbn=978-1-85941-719-5|url=https://books.google.com/books?id=fbuuXuZjceMC&q=%22adversarial+system%22&pg=RA1-PA8}}</ref> thereby establishing the courts as completely independent from both the legislature and law enforcement. Human rights law in these countries is as a result, largely built on legal precedent in the courts' [[Judicial interpretation|interpretation]] of constitutional law, whereas that of civil law countries is almost exclusively composed of codified law, constitutional or otherwise.

There are also international enactments to protect human rights. One example is the [[Charter of Fundamental Rights of the European Union]] which was intended included in the [[Treaty of Lisbon]]. Perhaps the most important international example is the [[Universal Declaration of Human Rights]] under the [[UN Charter]]. These are intended to ensure basic political, social and economic standards that a nation state, or intergovernmental body is obliged to provide to its citizens but many do include its governments.