8.1.1.1 Sources of Constitutional Law
Constitution In most states, the most important of these constitutional rules have
been laid down in a central written document. This document is typically called a
constitution, but it may also carry different names, such asbasic law,charter,or
regulation of state.
For example, Article 12(3) of the Irish Constitution provides that the President of Ireland is
elected for a term of seven years; Article 12(6) no. 1 stipulates that the President may not be
a member of parliament at the same time.
Some states even do without an official written constitution! They do, however,
always have a constitution, but the constitutional norms are then exclusively found
in ordinary laws, customs, and case laws. The best example is the United Kingdom.
Its constitutional norms may be changed by ordinary laws and can therefore be
qualified as a “flexible” constitutional model.
However, constitutionally relevant rules are often also found in ordinary laws, in
case laws, or in customs.
Ordinary laws that tend to have constitutional significance are, for example, election laws,
rules of procedure of parliaments, laws on the organization of the court system, or laws
stipulating the establishment and powers of regional or local governments.Case Law Case law may be constitutionally relevant where courts lay down rules
with a “constitutional” focus, such as the UK doctrine of parliamentary sovereignty
or the US doctrine of judicial review, or when courts are called upon to interpret the
meaning of the constitution or establish fundamental rules and principles with
constitutional significance in practical cases.
A court might, for example, rule whether a certain authority is legally competent to act in a
certain way, or whether a certain law violates human rights. Thus, the US Supreme Court
pronounced itself on the question whether the US Congress may pass laws to establish
gun-free zones in and around schools, or to restrict the ownership of guns altogether. In the
first case, it may be argued that the Constitution does not allow Congress to regulate such
issues for the whole country and that they should be resolved by the individual states,
meaning that the rules in California are different to those in Arizona. In the second case, it
may be argued that a ban on guns violates the individual’s right to bear arms as is laid down
in the Constitution.Customs Customs often play a role in the internal proceedings of parliaments,
such as the composition of parliamentary committees or the panel of parliamentary
chairmen. They may also play a role in the process of government formation.
In some constitutional monarchies, such as the United Kingdom, the Netherlands or
Denmark, the King or Queen will appoint as Prime Minister the person who leads a
majority in Parliament, and will not appoint anyone against Parliament’s will.
Of course, customary rules differ significantly between states; what is a custom
in one state is explicitly regulated in another and may simply not exist in a third.
158 A.W. Heringa