Suchergebnisse

This study has largely explored the various forms of government in practice all over the world in general and Nigeria in particular. The aim of the study has been to measure how far Nigeria has come as a nation in her practice of the two most practiced forms of government in the world over. Included in this is the study of how government all over the world has evolved from being in the control of an individual, as was witnessed under a monarchy, to the government of a few, as was the case in an aristocracy or an oligarchy and finally to the government of many which was practiced in Athens, the cradle of representative governance.

With three decades of jurisprudence to Canada's account, the authors consider the common law doctrine of stare decisis in Charter litigation. They ask whether, notwithstanding prior higher court authority on the issue, a trial court that is satisfied that there has been a significant and material change in social and legislative facts should conduct Charter analysis anew on the record before it, in light of the role played by such facts in section 1 analysis in particular. They conclude that the constitutional imperative imposed by section 52 of the Constitution Act, 1982 obliges a trial court satisfied of such a change to distinguish a prior Charter decision and subject the law to a section 1 analysis unencumbered by precedent to determine whether the law in question remains constitutional. The authors offer the view that doctrinal, institutional and remedial considerations all support an approach whereby the trial court would conduct a full section 1 analysis, leaving the appellate courts to fulfil their traditional function of reviewing both the trial court's finding that there has been a significant and material change in legislative and social facts, and its section 1 analysis.

Positive law is two-dimensional: it has a justice (or ideal) dimension (and requisite) and a factual (or real) dimension (and requisite). Both are essential. Hence positive law lapses when either of the two is absent. In terms of the factual requisite, law remains in place as actual norms of law (unlike mere norm-formulations), provided that a minimum degree of effectiveness is maintained; that is to say, only as long as the subjects of the law consistently and voluntarily act in accordance with such norm/s, and provided further that deviant conduct is remedied by effective coercive measures. "Norm/s" that lose the factual dimension lapse into mere norm-formulations and no longer qualify as positive law. Thus viewed, a realistic grasp of the content of law is co-dependent on actual conduct, regardless of what the norm-formulations purport positive law to entail, because the norm-formulations may have lost track of the actual state of the law. Grasping the actual content of law, including constitutional law, therefore requires not only analysing the norm-formulations of the formally recognised sources of the law, but more specifically social and political observation which may reveal the following: (1) actual behaviour that closely corresponds with a legal norm-formulation, in which case the formulations reliably happen to reflect (and by implication to describe) the actual state of law; or (2) conduct that regularly deviates from the norm-formulations (usus) by the deviators who deem themselves legally bound to act as they are acting (opinio iuris), in which case new (substituting) law has in fact come into being, without such substituting law being reflected in a new (amended) norm-formulation; or (3) large-scale but inconsistent and irregular deviant conduct where the deviators do not consider themselves legally bound to act in the various deviant ways, combined with haphazard enforcement, thus allowing deviators to get away with their transgressions. Unlike the first scenario, the purported norm (law) as reflected in the norm-formulations is in part unsettled but unlike as in the second scenario, no new norm (law) has come into being. A legal lacuna opens up - that is, an area not regulated by existing legal norms. Viewed from the perspective of the factual dimension, law, including constitutional law, is much more susceptible to the volatility of unpredictable changes and instability than what the doctrine of the rule of law and constitutional supremacy purport it to be. The doctrine holds law (and the constitution) to be formulation driven, and therefore formal-static in nature, in that the law remains essentially static until the norm-formulations (the text) are amended in terms of the prescribed amendment procedures prescribed by the constitution. Consequently, the prevalent doctrine of the rule of law and constitutional supremacy fail to account for the factual dimension which causes it (the doctrine) to obscure the inner workings of the factual dimension of law, and therefore acts as a hindrance to understanding the nature and content of (positive) law, including the constitution.

Positive law is two-dimensional: it has a justice (or ideal) dimension (and requisite) and a factual (or real) dimension (and requisite). Both are essential. Hence positive law lapses when either of the two is absent. In terms of the factual requisite, law remains in place as actual norms of law (unlike mere norm-formulations), provided that a minimum degree of effectiveness is maintained; that is to say, only as long as the subjects of the law consistently and voluntarily act in accordance with such norm/s, and provided further that deviant conduct is remedied by effective coercive measures. "Norm/s" that lose the factual dimension lapse into mere norm-formulations and no longer qualify as positive law. Thus viewed, a realistic grasp of the content of law is co-dependent on actual conduct, regardless of what the norm-formulations purport positive law to entail, because the norm-formulations may have lost track of the actual state of the law. Grasping the actual content of law, including constitutional law, therefore requires not only analysing the norm-formulations of the formally recognised sources of the law, but more specifically social and political observation which may reveal the following: (1) actual behaviour that closely corresponds with a legal norm-formulation, in which case the formulations reliably happen to reflect (and by implication to describe) the actual state of law; or (2) conduct that regularly deviates from the norm-formulations (usus) by the deviators who deem themselves legally bound to act as they are acting(opinio iuris), in which case new (substituting) law has in fact come into being, without such substituting law being reflected in a new (amended) norm-formulation; or (3) large-scale but inconsistent and irregular deviant conduct where the deviators do not consider themselves legally bound to act in the various deviant ways, combined with haphazard enforcement, thus allowing deviators to get away with their transgressions. Unlike the first scenario, the purported norm (law) as reflected in the norm-formulations is in part unsettled but unlike as in the second scenario, no new norm (law) has come into being. A legal lacuna opens up - that is, an area not regulated by existing legal norms. Viewed from the perspective of the factual dimension, law, including constitutional law, is much more susceptible to the volatility of unpredictable changes and instability than what the doctrine of the rule of law and constitutional supremacy purport it to be. The doctrine holds law (and the constitution) to be formulation driven, and therefore formal-static in nature, in that the law remains essentially static until the norm-formulations (the text) are amended in terms of the prescribed amendment procedures prescribed by the constitution. Consequently, the prevalent doctrine of the rule of law and constitutional supremacy fail to account for the factual dimension which causes it (the doctrine) to obscure the inner workings of the factual dimension of law, and therefore acts as a hindrance to understanding the nature and content of (positive) law, including the constitution.

In the Political Constitutions of the Republic of 1833 and 1925, it is evident how the principle of Constitutional Supremacy is installed within our legal system with greater clarity than in any other period of our history. This principle alludes to endowing the constitutional norm with greater normative value than any other internal norm. The present work deals with the process of establishing the Constitution as a guide in the work of the different State organs in relation to the conflicts that arise, from a perspective of the constitutional doctrine, and the solutions that, under the Political Constitutions of 1833 and 1925, had our legal system for much of the 19th century and the 20th century, until September 1973, the date on which the Political Constitution of 1925 ceased to be in force, in the face of regulations that seek to contravene it. ; En las Constituciones Políticas de la República de 1833 y de 1925 se evidencia la forma como el principio de Supremacía Constitucional se instala dentro de nuestro ordenamiento jurídico con mayor claridad que en ningún otro período de nuestra historia. Este principio hace alusión a dotar de mayor valor normativo a la norma constitucional respecto de cualquier otra norma interna. El presente trabajo aborda el proceso de establecimiento de la Constitución como orientadora en las labores de los distintos órganos del Estado en relación a los conflictos que surgen, desde una perspectiva de la doctrina constitucional, y se analizarán las soluciones que, bajo las Constituciones Políticas de 1833 y de 1925, tenía nuestro ordenamiento jurídico durante gran parte del siglo XK y del siglo XX, hasta septiembre de 1973, fecha en que dejó de estar vigente la Constitución Política de 1925, ante normas que pretendan contravenirla.