Constitutional Law

Lecture 2 of Business Law I

Constitution

A constitution is the fundamental set of laws and principles that establish the structure, powers, and functions of a government, as well as the rights and duties of its citizens. It serves as the supreme legal framework of a state.

Entrenchment

Entrenchment refers to the process of making certain laws, rules, or constitutional provisions more difficult to change than ordinary laws. This is done to ensure stability and protect fundamental principles from being easily altered by temporary political shifts.

An entrenched constitution is a constitution that requires a special, more complex procedure for amendments, rather than a simple majority vote in the legislature, such as qualified majority, referendum, etc.

Case law

Judicial review refers to the authority of courts to strike down ‘ordinary’ legislation if found contrary to the constitution. The ultimate power of judicial review is constitutional review.

Customs

In constitutional law, customs (or constitutional conventions) refer to unwritten practices that are followed by government institutions and officials over time, even though they are not formally written in legal texts. These customs help shape the operation of a constitution and fill in gaps where laws are silent.

State

Can be described as a legal person made up of: people, national territory and sovereign public authority Ionvolves the legitimate monopoly of use of force). Sovereignty can be external or internal.

External sovereignty

Is independence in international law. The state’s independence and recognition by other states, meaning it is free from external control or influence.

Internal sovereignty

The source and legitimacy of the state to adopt and enforce binding rules on its citizens and residents, which surfaces as legislative sovereignty.

In modern times the ultimate source of authority within a state lies with the people.

Often the preamble, the declaratory introductory statement, makes clear on whose authority a constitution is enacted.

• Internal Sovereignty: A country’s government controls what happens inside (laws, policies).

• External Sovereignty: Other nations recognize that the country has the right to rule itself without outside interference.

Failed states

A failed state is a country where the government has lost control and can no longer perform basic functions such as maintaining security, enforcing laws, or providing essential services. This often leads to political instability, economic collapse, and widespread violence.

Separation of powers

Dividing state power according to function (legislature, executive, judicial), and/or geographically, in federalism.

Unitary state

In a unitary state, all state powers ultimately reside in one central government authority. There may be local or regional authorities, but in a unitary state any such local and regional decision-making powers are granted by central laws.

Federal states

Szövetségi állam (USA, Switzerland). Even where the federal level is competent to make laws that cover the entire national territory, regions are involved in the legislation (i.e.: by the upper chamber: in the US Senate, each state has the 2 members, whereas the states’ representation in the House of Representatives depends on their population size.)

The federal constitution can only be changed with the involvement of the regions.

Confederations

The participating entities effectively remain sovereign states in their own right. Decision-making process typically requires unanimity and is restricted. may in fact be so loose that it would not be called a state.

Checks and balances and seperation of powers

(i) to avoid too much concentration of power, the same people should not legislate, govern and judge. Each branch of the state should be independent of the others.

(ii) there should be some way in which each branch can be kept in check by the others.

Seperated powers: The Judiciary

Independent Courts: neither a court nor its judges can be abolished or be dismissed

Tools: appointment for life, election of judges by popular vote, or by parliament; conflict of interest (other occupation, interests in the outcome of a case, be related to a party to a case)

Seperated powers II-III: the legislature and the executive

Parliaments and Governments: less straightforward: in lawmaking systems parliament generally follows the agenda of the government, parliament elects government.

Forms of government

The forms of government explain where the sovereign power lies: In the traditional monarchy: the king; in the modern democratic republics it is with the citizens.

There are also monarchies, aristocracies, timocracy (in Aristotle's Politics it is a state where only property owners may participate in government), oligarchies, democracies, theocracies and tyrannies + juristocracy, technocracy, etc. 

Parliamentary systems

Parliament can be unicameral or bicameral.

the head of the executive (administration, government)—usually a prime minister—comes to office (or at least stays in office) as long as supported (or at least tolerated and not voted out of office) by parliament (or at least the lower chamber of parliament).

Presidential systems

The head of the executive (whether called President or something else, such as Governor) has a mandate independent from parliament.

(US governors are directly elected. The US President is elected formally by indirect popular vote via an electoral college, but this has de facto all the features of a direct election)

The head of the executive does not rely on parliamentary confidence to stay in office.

Semipresidential Systems

Directly elected Head of State who has executive powers, as well as a Prime Minister who is accountable to parliament and can only remain in office with parliamentary support. -- a dual executive

The head of state (a president or a monarch) can either have a wide range of constitutional powers (the authority and possibility to make decisions that are binding on others: institutions or individuals), and the various models include strong and weak heads of states, where competences range from actual governing authorities to veto, or political negotiation.

Further powers

Further, fourth, fifth ‘powers’

autonomous, independent power houses in democracies: the ombuds-institutions, the media, the internet, international law, monetary regulators, the civil society,  etc.

Constitutonal review

In a decentralized system, the constitution is a norm that all judges must uphold whenever they are asked to apply a law whose validity they doubt.

In centralized systems a specialized constitutional court has the sole power to quash laws. Review can be prior or after legislation.

Rule of Law

In the boad sense: fairness, inclusiveness, independent adjudication, accountability, or transparency and that the law must not only be legal but also reasonable, compatible with human rights

The narrow essence: the state rules through law, and the state itself is ruled by law. (for example, laws that are enforced against citizens should be published before they are enforced and proper procedures have been followed in making the law and that the law was executed by the competent authorities)

The state and its organs are only allowed to perform particular tasks if it has been given the power to do so by law and to the extent that such performance is allowed by law. Thus, state action requires a legal basis: the state may do nothing unless it is authorized by law: the principle of legality.

Democracy

“Democracy” means “rule by the people.”

It is in the interest of the people to have a government in the first place, and this government pursues the interests of the people rather than its own, and the government rules with the consent of the governed. If the democracy is direct, power is actually exercised by the people themselves (referendum); if the democracy is indirect, the power is exercised by the people’s representatives.

The logistical organization of democratic decision making in societies made up of millions of people is complicated. Also, decision making is not supposed to be limited to casting a vote but should also include collective consultation and an exchange of opinions.

Franchise

The first, preliminary question to be decided in a democracy is: who are members of the political community, and who can participate in political decision-making. This is ‘franchise.’ In Western democracies, the franchise is in principle universal, as the most important limitations have been overcome: gender, wealth, origin.

Electoral models

Neither system is more superior or more effective; there are hybrids.

Majority Systems: a candidate is elected if she receives a defined majority of votes. Districts or constituencies electing one representative each are called single-member constituencies.

Plurality Systems: the candidate with most votes is elected.

Absolute Majority Systems: a candidate will need more than half the votes. (run-off between the two-three strongest candidates).

Proportional Representation: the share of seats in the assembly is proportional to the share of the votes. In a purely list-based system, political parties fill their seats with candidates from the lists that they had established before the elections. parliament here mirrors the composition of the population

Direct democracy (check on the gov. in a representative democracy)

1) referendum.

Sometimes a referendum vote is used not only to correct decisions as taken by the legislature (asking for a yes or no of a legislative decision – corrective referendum), but also to enable the people to adopt a new and original proposal which becomes law after adoption,

a)mandatory (in the case of some constitutional amendments),

b)some are binding: a rejected proposal cannot enter into force, others are consultative, and only indicate the preferences of the voting population.

2) recall election (typically at regional and local levels)

Liberal democracy

Not only free and fair elections, but also rule of law, separation of powers, and the protections of basic liberties of speech, assembly, religion, and property.

Political scientists often qualify the term democracy by adding adjectives such as liberal (or illiberal), deliberative, representative, participatory, delegative, façade, direct (or indirect), electoral, hybrid, Western, Islamic, managed, etc. Others refer to electoral or competitive autocracies, managed democracy.

Three independent but interconnected elements of democracy, human rights, and the rule of law need to be simultaneously present

Illiberal democracies

formal electoral democracy prevails but either or both of the other elements are missing, as in the case of theocratic (such as Iran or Saudi-Arabia), or communitarian (such as the South Korean or the Taiwanese) constitutions.

autocratic regimes (Russia), where there are opposition parties and there is even an independent press, and these allow for the pretense of electoral competition, though in reality the opposition has no actual chance of winning an election, and dictatorships (such as the Soviet Union and the former communist countries or contemporary China, Vietnam, Cuba and Belarus), where there is/was neither an opposition nor an independent press, so these cannot be considered constitutional regimes at all, even if formally speaking they happen to have written constitutions.

Grey zone

Which contains several mixed regimes: semi-democracies, semi-dictatorships, “guided,” “sovereign” or “managed” democracies, delegative democracies, illiberal democracies, liberal autocracies, electoral authoritarianisms, competitive authoritarianisms, democradúra and dictablanda

Democracy and dictatorship: not simply an “either-or” question, but “more or less.”

Hybrid regimes: have competition, although the political elite in power deliberately rearranges state regulations and the political arena as to grant itself undue advantages.