2.3 Is is possible to distinguish between ordinary law and constitutional law? How would you do so?
One can distinguish between the two to some extent. Constitutional law means those laws which define what the state is and what powers it has. Constitutional law further stipulates what separation of powers exist and how different agencies of the state inter-relate. Constitutional law further laws down how the state shall interact with the individual and declares those rights that are sufficient importance as to be regarded as being fundamental.
Ordinary law covers less matters such as about the detail of criminal justice; the law of contract, tort, the rules of litigation and so forth. Of course some of the core principles of constitutional law – such as justice – will inform the minutiae of these subordinate areas of law.
To use a metaphor – constitutional law comprises the pillars that hold up the roof the ordinary law is all that shelters beneath that roof.
2.4 Consider the following issues and explain whether or not these should be classified as constitutional:
a. the right to strike
b. the right to abortion
c. the right to produce and publish pornographic materials.
a. The right to strike, in England and Wales is not constitutional. The right to strike has never been recognised as such but as there is permissive liberty anything that is not specifically forbidden is allowed. Certain types of worker are forbidden by statute from striking such as the police and the armed forces. It is therefore taken as read that those outside these special categories are permitted to withdraw their labour.
Trades unions have been recognised by law in some form since 1834 and the release of the Tolpuddle Martyrs.
There is nothing in the constitution which declares or implies a right to strike.
b. Abortion was banned until the Abortion Act of 1967. This act is an ordinary statute and cannot be said to have constitutional status. Some may argue that the right to terminate a pregnancy falls under the right to personal liberty but this is dubious. Pro-Life campaigners assert that termination goes against the right to life which trumps the 1967 Act.
The Abortion Act has limitations on it as it is – with time limits and the need for the consent of two doctors. Therefore it cannot be said to be by any means and absolute right. No, this right is in no sense constitutional.
c. Pornogrpahy is hard to define. What some may regard as an artistic nude others see as obscence. There are some works that everyone would agree are pornographic. Hardcore pornography became legal by courts refusing to convict people when charged with obscene publications. The police then took the view that if the material in question is not obscene then nothing is. No statute law as such says that pornography is allowed nor does common law.
In arguing for a constitutional right to make and distribute such material one would have to look to a broader right such as the right to exchange information – under the European Convention on Human Rights. Furthermore, English law has long enshrined a right to free expression. This has been around in some form since Magna Carta.
One would have to argue that this is artistic or even lustful expression and therefore is permissible. Yes, one can make an indirect case for saying on has a constitutional right like this. In the US people plead 5th amendment rights to say they are entitled to free speech and this covers the right to disseminate images of sexual activity.