Constitutional Law (wk 2)

These flashcards cover key concepts in constitutional law, including definitions of legal systems, principles of governance, and the structure of fundamental rights.

Constitutional Law

The body of law that structures a state's governance and regulates relationships between the executive, legislative, and judiciary branches.

Monist System

A legal system where international treaties have automatic influence once ratified.

Dualist System

A legal system where international treaties must be transformed into national provisions to take effect.

Criteria to be a State

1. Defined territory, 2. Permanent residents, 3. Effective and independent authority.

Unitary State

A state where the central government is supreme and subnational units exercise only delegated powers.

Federation

A union of partially self-governing states or regions under a central government.

Confederation

A governmental entity created by independent sovereign states that unite for common action.

Rule of Law

The principle that the law applies to everyone, ensuring accountability and legality in government actions. (4 Pillars; separation of powers, legality, fundamental rights and judicial review)

Separation of Powers

The division of government responsibilities into distinct branches to prevent any one branch from exerting the core functions of another.

Fundamental Rights

Rights that protect individuals from state interference and impose obligations on the state to protect social welfare.

Classical Fundamental Rights

Rights that protect citizens from government interference and are enforceable in court.

Social Fundamental Rights

Rights that require state intervention to ensure welfare but are typically not enforceable in court.

Judicial Review

The power of courts to review administrative decisions and ensure compliance with the law.

Checks and Balances

Mechanisms that allow each branch of government to limit the powers of the other branches.

International Law

Legal norms established by treaties or conventions that can supersede conflicting national law.

Bicameral System

A legislative body composed of two chambers or houses - in the Netherlands this is the two houses (First and Second chamber)

Parliamentary Democracy

A system of government in which the executive derives its legitimacy from the legislature (Parliament) and is accountable to it.

Horizontal Effect of Fundamental Rights

The application of fundamental rights not only in state actions but also in private relations between individuals.

How does one gain a legal basis in law?

Attribution (creating a new power that originates from the legislator) and Delegation (transferring an existing power from one authority to another inferior authority)

What is a GBR?

Generally binding Rule : 1. Written, 2. Indefinite number of people 3. Indefinite number of cases 4. binding (no deviations allowed)

Is the separation of powers in the NL absolute?

NO:
Legislative vs Executive overlap: the executive is formed from the majority in the legislative (parliament) and the government cannot spend money without Parliament’s approval of the budget → accountability of the executive is with the parliament 

Judiciary: Judges appointed by government and parliament could override judicial interpretation

What is the Trias Politica and how does it relate to the dutch legal system?

separates the state in three branches to prevent tyranny (absolute/abuse of power)

1. Legislative = Makes the laws (The States General (Parliament) = House of Rep + Senate and the King share legislative power (Art 81))

2. Executive = enforces the laws (Ministers and King art 97 C and 131C)

3. Judicial Power - interpret and apply the law (art 122-113)

Explain Legality and its consequences

Def: Every government action must have a legal basis (no one is above the law)

Negative activities: Require a party to REFRAIN from interfering 

Positive activities: Require a party to INTERFERE or PROVIDE a service

Fluoridian case

Hierarchy of GBRs

1⃣ International Treaties (e.g., EU law, ECHR)

2⃣  Charter of the Kingdom of the Netherlands 

3⃣  Constitution

4⃣  Acts of Parliament 

5⃣  Royal Decrees / Orders in Council       

6⃣  Ministerial Regulations 

7⃣  Provincial By-laws

8⃣  Municipal By-laws 

9⃣  Water Board By-laws 

Difference between a Presidential system and a Parliamentary system

Pres: Head of executive is elected with a mandate of his own - not accountable to congress - no “vote of confidence”

Parl: Head of executive is not directly elected - stays in power with tolerance of parliament/is accountable to parliament - can be voted OUT with a “vote of no confidence'“

Explain Judicial Review in the Dutch system

Judicial independence (art 117 C. / Chapter 6) 

• Judges appointed for life by Royal Decree

• Legal status regulated by statute

• Grounds for termination of appointment: 

1. Resignation, 2. Pensionable age (70 years old), 3. Suspension 4. dismissal by Supreme Court