Their Unconstitutional And Illegitimate Actions And Laws example essay topic

Salus populi suprema lex (The welfare of the people is the supreme law). Although the intention behind this term is the good of the people, it has been time and again used by the perpetrators of power for justifying their unconstitutional and illegitimate actions and laws. The concept of constitutionalism is the doctrine which governs the legitimacy of government action. A power may be exercised on legal authority; however that fact is not necessarily determinative of whether or not the action was constitutional. [1] Constitutionalism suggests the limitation of power, the separation of power and the doctrine of responsible accountable government. Before discussing how an action or law can be legal yet unconstitutional, let us first understand their meaning.

According to the Black's Legal Dictionary, the word 'legal' may be defined as '1. Conforming to the law; 2. Created by the law' and 'unconstitutional' means 'conflicting with a provision of the constitution or fundamental law of the state'. For example, according to an Egyptian law, a married woman convicted of adultery can be sentenced to up to two years in prison, while the maximum sentence for a man is six months.

In addition, the man has to be discovered in 'flagrant e delicto' inside the family home while a woman can be charged for the practice anywhere. Finally, a married man found with a prostitute is not breaking any laws, but rather a material witness in the case against the prostitute herself. It is argued that this law is unconstitutional because it metes out different penalties for men and women convicted of the same crime. This is a violation of Article 40 of the Egyptian constitution, which states: 'All citizens are equal before the law.

They have equal public rights and duties without discrimination due to sex, ethnic origin, language, religion or creed. ' [3] Thus the legal activists consider this adultery law to be ultra vires, defined by the Stroud's Judicial Dictionary as 'a thing is done by a public authority, a company, or a fiduciary person, ultra vires, when it is not within the scope of the powers entrusted to such authority, company, or person. ' [4] Secondly, laws and actions can be legal yet illegitimate. Some experts may argue that the use of the term 'illegitimate' in this context is not completely right, given the ordinary application of the word to 'children born out of lawful wedlock'.

However, a second definition of the word as being's ome thing which is contrary to law' and the opinion that legitimacy of a law is based upon its application, that legitimacy is given by the people and they chose what is legitimate and otherwise, allows us to further examine this proposition. For example, if the British Parliament was to enact a law, prohibiting pre-martial casual sex and copulation between unmarried partners, it would provoke an unprecedented anger and protest from all segments of the British society. Although, the law would be legal in being passed by the present law making authority, it would be illegitimate in that its application is against the popular will of the people and the custom of the land. In the increasingly global world, especially in the case of the European Union, the concept of constitutionalism may further include the rule of 'Jus Cogens' in International Law.

According to this concept, no state can make a law which is contrary to or derogatory to the fundamental principles of natural law as recognized by the civilized states. For instance no state shall make a law, or conclude a treaty with another state, which allows genocide, slavery or piracy. [5] It is for the Judicature of the state to declare void all such unconstitutional and illegitimate laws which are brought to its notice. Thus the separation of powers among the organs of the state which establishes a free, fair and independent judiciary is essential to check any excesses of the other organs of state.