Constitutionalism: The Rule of Law and the Separation of Powers

Abstract

The concepts of the rule of law and the separation of powers are associated with the liberal notion of ‘constitutionalism’. Hunt (1997 at 22) describes the notion of constitutionalism thus: ‘in any democratic system there are certain transcendental values that which enjoy a “constitutional” status, in the sense that they embody fundamental ideas or aspirations which democracy itself presupposes and which therefore cut across the political programmes of particular governments ... the bare minimum that is required of a commitment to constitutionalism is a rejection of the instrumentalist conception of law which sees it as a mere tool to be used by governments in order to achieve their political goals.’ Fuller (1969) identifies features necessarily associated with the idea of law such as openness, clarity and coherence that give a moral quality to a state. The rule of law is therefore a set of moral and political values. They support democracy but are not necessarily connected with democracy, being important whatever the complexion of the government.