LEGAL TOOLS AND KEYWORDS

Parliamentary Prerogatives

Set of powers held by Parliament, influencing its internal organization and reducing royal authority, established during the Glorious Revolution.

1 Regular and free parliamentary elections;

2 power of verifcation of the results of the elections and the validity of the election of its members;

3 power of each chamber to approve its internal rules of procedure (“standing orders”);

4 The exclusive power of acts of its internal bodies (interna corporis), without any interference from external authorities and powers;

5 The unlawfulness of any act of the regal authority intended to suspend, dispense or execute laws without consent of Parliament;

6 The unlawfulness of the imposition of any taxes by the Crown without the approval of Parliament.

Habeas Corpus

a person could report an unlawful detention or imprisonment to a court, to trigger its review

Representative Democracy

A system where citizens elect officials to represent them in governance, characterized by the representative mandate granted through free elections.

Recall

A procedure allowing voters to remove elected officials from office before the end of their term through a direct vote.

Rule of Law

A principle asserting that all individuals and institutions are accountable to the law, which is applied equally and fairly.

Directorial Government

A governmental system characterized by a collegial executive body, combining features of both parliamentary and presidential systems.

Electoral Systems

Methods prescribed by law for converting votes into seats in a political assembly, typically classified as plurality, majority, or proportional representation.

Constitutional Court

A specialized court responsible for interpreting the constitution and reviewing the constitutionality of legislation and governmental actions.

Proportional Representation

An electoral system aimed at ensuring that the number of seats held by a party in the legislature reflects the number of votes they receive.

Gerrymandering

The manipulation of electoral district boundaries to favor one party over others, often resulting in unrepresentative election outcomes.

Affirmative Action

Policies aimed at increasing opportunities for historically marginalized groups to promote actual equality.

Legal Enlightenment

An era emphasizing the application of legal principles and rule of law in governance and public administration.

Centralized Review of Legislation

A process in which a constitutional court reviews the constitutionality of laws and legislative acts.

Emergency Powers

Powers that allow the government to take actions outside of normal legislative processes during times of crisis.

Independence of Judicial Review

The principle that courts have the authority to review the constitutionality of legislative and executive actions.

Political Parties in the EU

Organizations representing different ideologies in the European Union, regulated by treaties to ensure democratic practices.

Enhanced Methods of Rationalization

New practices developed post-WW2 aimed at stabilizing institutions through greater separation of powers and independent judiciary.

Hirst v UK (2005)

A European Court case that ruled the UK's ban on voting for imprisoned citizens violated the European Convention on Human Rights.

Voting Rights Act of 1965

A landmark piece of federal legislation designed to eliminate various forms of voting discrimination in the United States.

EU's Accession to the ECHR

A proposed accession of the European Union to the European Convention on Human Rights, which remains uncertain and unresolved.

judicial balancing:

review of leg, binding pol discretion within limits of rationality, checking reasonability of rational means, and avoiding excessive sacrifice to const rights (SCOTUS, GERMAN TRIBUNAL) *room for abuse of democratic process

proportionality:

set of rules determining necessary and sufficient conditions for a limitation of constitutionally protected rights by law to be constitutionally permissible

relationship of confidence:

main channel through which (chamber of/whole) parliament and exec agree upon general pol orientations and commit themselves to making it effective through policymaking 

question of confidence:

cabinet has power to question relat of confidence by submitting this when approval of bill is fundamental for cabinets policy

Motion of no confidence

MOTION of parliament to say that they do not support gov → gov must resign OR NEW PARLIAM ELECTIONS 1 parliam dissolved and new elections held and new gov chosen (uk, canada, australia, new z, ) OR 2 CHANGING CABINET parliam stays and new cabinet (italy, spain, germany)

comparative reasoning

 court's reasoning is based on law/jurisprudence from other (foreign) courts

Hirst v UK

Representation of the People Act of 1983 banned right to vote of imprisoned citizens which violated A3 ECHR, ban fell outside margin of appreciation

→decls incompatibility of rep of people act w HRA and UK had to amend leg (Euro court Greens and MT v UK)

Congress thought this was political and therefore a matter for leg not courts

Democratic regression

involves aggression to pillars of const architecture and dismantling of basic const principles [fundamental rights, minorities rights, prerogatives of pol opp, free speech, pluralism of media, respect intl law obligations, rights of migrants and refugees, indep of judiciary, rule of law standards](infringement of basic values in A2 TEU)

→Solution should be utilizing A7 mechanism but that is pol difficult, ECJ preliminary reference has been used instead (Poland)

Rule of Law conditionality:

created method of conditionality on distribution of EU financial resources, imposing the assessment of respect of rule of law standards and other basic values as a condition for national govs to assume funds, method of pol sanctions

de facto power:

establish new pol and legal regime not regulated but customary/written law 

Incorporation

SC can extrapolate certain rights from the fed bill of rights that are deemed as fundamental and grant them a special enhanced protection which implies most importantly consistent protection throughout nation 

SUSPECT CLASSIFICATIONS:

how formal equality is interpreted (for race, nationality, religion, ethnicity, and gender)→ Brown v Board any classification based on race is suspect bc constitution is color blind

Affirmative action

a measure aimed at empowering disadvantaged category of people on the sake of reaching actual equality

Strict scrutiny

leg only compatible with const only if it pursues compelling public interest and is narrowly tailored (principle of proportionality, strict adherence to the leg measure to the goal it pursues)

formal equality

[equality of any individual before the law without distinctions based on personal conditions]

The Alternative vote system in Australia 

Aka transferable vote 

House of Representatives have special kind of majority election that differs from double ballot system

• Electors rate candidates in order of preference, candidate must receive majority not plurality 

• If no candidate earns majority the lowest candidate is eliminated and votes are redistributed w second choice

right

a condition, regulated by the law, that grants to the subject the enjoyment of a liberty, or the use of a good, exercise of a power, or entitlement to a credit, to receive a service or a good.

individual liberties (first generation rights)

civil rights (habeas corpus, fair trial, privacy, free movement, free speech, 

economic rights (private property, freedom of contract, economic undertakings, etc.) and 

collective rights (right to assembly and association, etc.);

political rights,

 participation in the direction of the polity and are 

usually restricted only to citizens: above all, the right 

to vote and to be elected;

social rights (second generation rights):

these include education, welfare, and health.

Methods of submitting legislation to CC

• Incidental access - judge deciding a case has doubt writes preliminary reference with: 

1. Reasons why the norm is invalid and 

2. How it applied to the case they are judging 

*sometimes goes through SC which filters to decide if important enough for CC to review

• Direct appeal by government/member states - where distribution of leg competencies exists these courts can appeal for protection of their competencies 

• Direct appeal by parliamentary minorities - political minorities 

• Direct appeal by public bodies/institutions - president of republic, president of chamber of parliament supervisory body

• Automatic control - certain specific cases acts involving specific subjects 

• Individual complaints by citizens - last resort in some countries 

**initial control = concrete bs based on specific case while

direct appeal = abstract bc no actual cases considered

Majoritarian democracy

• FIRST PAST THE POST ELECTION

  • 2 party system, plurality or majority electoral 

  • Competitive attitude of political parties 

  • STABLE, cabinet in charge for whole legislature

Consociational democracy

• PROPORTIONAL ELECTION

  • Multi-party/fragmented pol systems, proportional election

  • UNSTABLE 

  • Crisis: reshuffling coalitions and different agenda, dissolution of parliam to resolve common

Normative functions and instruments of exec branch

1. Introduce leg into parliamentary process

   1. In EU cabinet already had this role, presidential had rigid separation of powers so could not create legislation 

2. Proper normative instruments of the exec branch - RADICAL

   1. Exec can create secondary sources of law, in new century new sources of primary law were set up in constit 

      1. Delegation of legislative functions by parliament to government for regulation of specific complex or technical subjects 

      2. Normative acts in case of emergencies 

      international executive agreements scope expanded, circumvent advise and consent of senate 

Representative mandate:

voters give mandate (power of representation) to delegates by election  

Representative democracy:

main method through which the people govern themselves through elected officials.

Free mandate principle:

each member of parliament represents not just electors who voted them but nation as a whole

Directorial gov

PARLIAMENTARY a collegial institution of “directors”, 

appointed by the parliamentary assembly.

PRESIDENTIAL executive body is appointed for a 

fixed term, it cannot be removed by a parliamentary 

motion of censure; and symmetrically, the executive cannot dissolve the parliament.

Legality in criminal matters:

prosecution of criminal offense follows specific written norms and provides penalty classification

due process of law

right of anyone to a fair judicial trial before an independent judge

plurality

NOT absolute majority of the votes to win the seat, but rather just the plurality

Uk, canada, US elections

FIRST PAST THE POST

majority

absolute majority of the votes in order to be elected, if no candidate gains a majority, the competition passes to a second round, in which only the candidates with the highest number of votes are admitted.

France

proportional representation

political parties present their lists of candidates. Electors vote for a list, corresponding to a political party, and, according to the electoral legislation, may also express preferences among the candidates within the list

INCLUDES CORRECTIVE MEASURES:

(i) the electoral threshold, which bans the access to the parliament to political parties with an overly limited consensus (narrow platform)

(ii) the majority bonus, which assigns to the political party(ies) that obtains the plurality of votes an additional amount of parliamentary seats, useful to reach a more stable majority, and

(iii) small constituencies, because it is evident that, the lower the amount of available seats in a constituency, the lower the amount of political parties that are able to participate in the distribution.

(italy, spain, new zealand, germany, australia)

Right

A condition regulated by the law that grants the subject the enjoyment of a liberty, the use of a good, exercise of a power, or entitlement to a credit, to receive a service or a good.

Constitutional Rights

Rights whose legal source is the constitution and are therefore endowed with the special protection afforded by their constitutional status.

Formal Equality

Equality of any individual before the law without distinctions based on personal conditions.

Rationalized

Refers to the bureaucratisation and organisation of government processes, often in the context of a government structure that understands its complex relationship with the parliament.

Coup d'état

A seizure of power and overthrow of government.

Constitutionalism

A Western invention, entangled with liberal and democratic values and goals of social empowerment and inclusion.

Constitutional Democracy

A complex system of political, social, and legal conditions that govern a society, ensuring the involvement of citizens in the democratic process.

Aristocrats

Members of the aristocracy, a class of persons holding exceptional rank and privileges, typically based on birth.

Clergy

The body of all people ordained for religious duties, often holding authority within religious institutions.

Just Naturalism

A government based on human nature and natural laws rather than being dictated by religious or divine authority.

Stare Decisis

A legal principle by which judges are obliged to respect the precedents

Legal Order

A set of institutions and norms regulating the structure and rules of a stable group of men.

Nation-State

A political entity characterized by a defined territory, a permanent population, and a government.

Sovereignty

The authority of a state to govern itself or another state.

Public Law

Law created by the institutions of the State and governs the relationship between the State and individuals.

Private Law

Law created by individuals or legal entities for fulfilling their own interests.

Sources of Law

Acts or facts that the legal order acknowledges as valid forms of normative production.

Sources-Act

Written laws and regulations recognized as valid sources of law.

Sources-Fact

Behaviors that are acknowledged as valid norms after they have settled and gained acquiescence from the people.

Jurisprudence

The set of decisions by Courts adopted for resolving legal cases.

Legal System

The set and methods of organization of the sources of law to avoid normative conflicts. (System of relations among sources of law.)

Normative Antinomy

A contrast among norms within a legal system.

Principle of Legality

All acts of the executive and judiciary branches must follow and be consistent with the norms.

Constitutional Review of Legislation

The method for assessing the consistency of primary legislation with the Constitution. (Resolution for antinomies involving legislative norm and constitutional norm.)

Judicial Review

The authority of all courts to assess the constitutionality of a norm. (Marbury v. Madison)

Centralized Review

A specialized Court reviews the constitutionality of legislative norms. Review initiated by 1. incidenter proceedings 2. direct appeal by regions/states 3. direct appeal by political minorities 4. direct appeal by political institutions inside government 5. automatic control 6. individual appeal.

Chronology (in legal context)

Preferred criterion in resolving conflicts between norms, favoring the newer norm.

Hierarchy (in legal context)

Preferred criterion in resolving conflicts between norms based on their levels in the legal system.

Constitution

A legal document, outcome of a fundamental political decision or legal process, expressing the values and goals of a political community, and regulating 1. the frame of government, and 2. the relations between the state and societies, mainly through the fundamental rights of citizens.

Constitutional Rigidity

Amendments of the constitution can happen only through a special, enhanced proceeding, more complex than the proceeding for passage of other sources of legislation.

Parliamentary Form of Government

A government structure characterized by cooperation between the legislative and executive branches. Legitimacy of power comes from the election of the Parliament.

Presidential Form of Government

A government structure characterized by a rigid separation between the legislative and executive branches.

Semi-Presidential Form of Government

A government structure that combines elements of both presidential and parliamentary systems.

Case

Trials for the punishment of crimes and litigations among individuals.

Civil law legal system

Courts bound by enacted legislation and only have power of interpretation.

Common law legal system

Laws are developed by judges through decisions in specific cases, using judicial review where precedent of superior court is binding for all other courts.

Flexible Constitution

Constitution that does not require a special process for amendment.

Superior principles

Principles of the constitution that cannot be amended.

Criteria for resolution of antinomies

Chronology, Hierarchy, Competence, and Interpretation.

Criteria of hierarchy

Superior annuls the invalid inferior norm. Past and current applications are invalid and have no effect. RETROACTIVITY.

Criteria of Chronology

New norm repeals old. The past application norm is still in effect but the old norm cannot be applied in the future. NON-RETROACTIVITY.

Criteria of Competence

Federal and regional competences of different sources of law established by the constitution. A norm produced from a source without competence is invalid and annulled.

Form of Government

Set of relationships existing among the branches of government and the institutions sharing the political power in a specific legal order.

Relationship of Confidence

Parliament must approve the appointment of cabinet with a vote of confidence.

Motion of no confidence

Parliament passes motion that requires Cabinet to resign.

PRINCIPLE OF LEGALITY

Exec and fed must follow norms and be consistent with the law, parliamentary acts are primary sources. in civil law legal system. this is a principle of rule of law.

reserve to leg on certain topics given to parliam + parliamentary sovereignty = LEGISLATIVE STATE