constitutional law

ancient constitutionalism

idea of regulating the actions of the ruler

modern constitutionalism

the idea of a limited government, where the exercise of state/ public power is governed by a constitution and the rule of law

amendent

the prescribed mechanism for constitutional change

rigid

unamendable, 2/3 parliamentary majority → referendum

flexible

simple majority → based on judicial interpretation

hybrid

both rigid and flexible elements

state

the political and legal community whose public power is organised by the constitution

country

various countries in a state → UK and NL

nation

multi-ethnic states, eg myanmar

sovereignty

the ultimate power to exercise authority over oneself

constituent power

the authority to make a constitution → an exercise of sovereignty

internal sovereignty

ultimate authority to act within the state itself

external sovereignty

ultimate authority to act in relation to other states → eg. exercise control over it’s population and territory without interference from outside.

popular sovereignty

all the people’s → referendum

state/ provincial sovereignty

semi-autonomous sub-units [federal or devolved systems]

royal sovereignty

the monarch

parliamentary sovereignty

the parliament

national sovereignty

representatives of the nations state

pluralistic sovereignty

shifts between different actors

the government

The set of institutions and actors that currently exercise the state’s public power within the constitutional framework

the seperation of powers

1 that of enacting laws

2 that of executing the public resolutions

3 that of judging the crimes or differences of individuals

Hobbes Levithian ‘the sovereign’

an absolute, indivisible power to secure order

Lord Acton 1887

power tends to corrupt, and absolute power corrupts absolutely

judiciary

power to make judgements on the law

parliament

power to make and change the law

executive government

power to put law into action

legislature

Power to make and change the law → Parliament

• representative democracy

• direct democracy → referendum

parliament’s check on the executive

• right of information

• right of investigation

• power of the purse

• power of legislation

the executive

the group of persons that is tasked with the responsibility of running the daily affairs of state/ government → often headed by ministerial cabinet and it’s prime minister

role of the executive

1. Setting legislative priorities

2. Implementing policy and legislation

3. Conducting foreign policy and defence

4. Structuring the public budget

5. Representing

internal funtions executive

1. Chief executive/commander in chief’

2. Appointments (officers, department heads etc)

3. Execute/ enforce laws

4. Policy leadership (legislative proposal, leading departments)

5. Budget authority

external functions executive

1 head of state (also internally: national unity)

2 official representation & diplomacy, eg to make treaties

3 military authority (operations and intervention)

4 foreign affairs

judicial review

A type of proceeding in which a judge/ court reviews the lawfulness of a decision or action made by a public authority or body. → Lawfulness can also refer to validity or constitutionality.

Kelsen’s pyramid of norms

1. Constitution

2. Statutes

3. Decrees

4. Executive power regulations

lex superior

superior norms prevail over inferior norms

lex specialis

specific norms prevail over general norms

lex posterior

later norms prevail over earlier norms

ex-ante review

before the law is enacted → review of bills rather then legislation

ex-post review

review after actual legislation is already adopted/ passed (not necessarily “in force”)

concrete review

review of legislation occasioned by an actual court dispute

abstract review

review of legislation not occasioned by an actual court dispute

centralised systems for judicial review

only higher or specialised courts for judicial review

decentralised systems for judicial review

judicial review possible also at lower courts

Disapplication of the legislation at hand

The statute still stands but is set aside in a particular context, sometimes, after a certain time limit

annulment of the legislation at hand

the statute ceases to exist

presidential system

president

parliamentary (presedential) system

prime minister/ chancellor → president

parliamentary system/ monarchy

prime minister → monarch

monarchical system

monarch

the president

• direct popular mandate, election, fixed term

• does not need support of parliament to stay in action

• head of state = head of government

• often involved in lawmaking proces

the prime minister/ chancellor

• Chosen by the parliament

• Accountable to parliament through a vote

• Usually different from head of state

Semi- presidential systems

• mixed system of the dual executive

• president= elected by popular vote

• sometimes: certain control by parliament over the president

• prime minister: appointed by president, sometimes after election by parliament

→ shared control of appointment and removal

advantages presidential system

• direct mandate

• stability (fixed term of office)

• clear separation of powers (executive and legislature are two parallel structures that check on one another)

disadvantages presidential system

• susceptibility towards populism and authoritarianism

• political gridlock (if president does not have the majority in the parliament)

• cronyism (or even nepotism)

advantages parliamentary system

• inclusiveness (coalition governments)

• politics of reason (compromise necessary)

• high relevance of (diverse) political parties

• flexibility (easy chance of HoG)

disadvantages parliamentary system

• Instability (coalition governments are especially vulnerable)

• Lack of inherent separation of powers

• Intransparency (power of political parties can exclude voters)

meaning separation of powers

• separate powers

• limit powers of government

• guarantee the rights of citizens

horizontal separation of powers

executive, legislative and judiciary = on the same level

vertical separation of powers

seperation ←———————— ————————> intagration

Federal States DbUS DUS FCS

Federal States

almost act like separate states but are not separate states

fully centralised states

all powers are considered at the top, and there are no powers at the bottom → no powers given to local governments

decentralised unitary states

all powers belong to one central government but, there are some administrative powers given to the local government

devolved but unitary states

Federal states facts

• constitutional recognition of divided internal territories

• power shared with regions over legislative, executive, and judicial powers

• shared sovereignty/ autonomy

• mainly bicameral parliaments

• constitutionally entrenched provisions of separation of powers between regional and central-state governments

• regions may participate in a constitutional amendment

unitary states

• no constitutional recognition of divided internal territories

• centralised power over legislative, executive and judicial powers (no independent regional powers)

• centralised sovereignty/ autonomy

• mainly unicameral parliaments (sometimes bicameral)

• no constitutionally entrenched provisions of separations of powers between regions and central government

• regions don’t have a role in constitutional amendmenment

symmetrical

same powers for local sub-states/ regions

asymmetrical

different powers to sub-states/ regions

unicameral in unitary states

one house of representatives

bicameral in federal states

one house of representatives, one house representing states

bicameral in unitary states

one house of representatives, one chamber of reflection

constitutional matters in relation to state structure

• supremacy of several (federal) government laws

• explicit provisions on regional sovereignty/ autonomy

• constitutional indications of the (shared) sources of sovereignty

• clear provisions on areas of regional powers in relation to central government powers. i.e. legislative, executive and judicial

• representations of regions in federal governments

• means of resolving disputes over such SoP provisions (eg constitutional courts op supreme courts)

vertical separation of powers

unitary, federal structure

defining features differentiating federal and unitary states

whether there are constitutional provisions that entrench powers/ sovereignty at the regional level of state

what is a constitution?

• collection of rules to set up, regulate, and govern a state

• basic laws

• usually, highest in the hierarchy of norms

• symbol/ products of sovereignty and statehood (authored by the constituent power)

what is international law?

• states that sign a treaty among each other

• The treaty between the states is international law

better said: international law consists of rules and principles that regulate the relations between states and other enteties, provided they have international legal personality

what is a treaty?

an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever it’s particular destination

a treaties primary function is to create rights and obligations for states

synonyms for treaties are

• convention

• agreement

• protocol

• pact

• accord

• covenant

• statute

• charter

treaty-making

state organ entering into treaty negotiations and signing treaties:

• monarch

• executive power

• representing international legal personality of the state

ratification

declaring a treaty binding internationally

• often the organ competent for law making eg., parliament

• (often) involvement/ representation of all (seperated) state powers in the conclusion of treaties

• rules set out by and in constitution, particularly to limit power of the executive

monism and dualism

How international law enters the domestic sphere

More precisely → how to describe the constitution at processes of integration when comparing the different constitutions

dualism

National law and treaties are treated in two separate realms. Treaty law needs to be transposed into national law by the lawmaker

monism

Treaties ratified by the state are treated as part of the (coherent) national legal order. Individuals can invoke treaty provisions before a national court, like national law.

how to determine if a system is monist or dualist

• Search the constitution (and/ or domestic laws)

• What is the status of international law in domestic law

→ Answer may be explicit in the text

• where not stipulated, look at the practice:

→ legal or political tradition. judicial decisions, or political practice

• writings of constitutional scholars

• lastly analyse and conclude yourself

(purely) monist

original treaties, their wording, languages, negotiation records, their interpretation or domestic courts

(purely) dualist

transposing national law, its wording, languages, and negotiation records, their interpretation of domestic courts

exeptions that dont change the result for dualism

if transposing national law (clearly) incorporates meaning wording, languages, and negotiation records of original treaty or subsequent court decisions as binding

exeptions that dont change the result for monism

only theoretically possible

treaty binding domestically dualism

upon transpotition of norms

treaty bonding domestically monism

upon ratification of treaty

treaty based court

operates under rome statute

constitutional conflicts

disagreements between constitutional actors, or about constitutional rules within a constitutional order

constitutional crises

a constitutional conflict in which decision-makers are unable or unwilling to manage conflicts within the confinement of the constitutionally provided boundaries

common sources of constitutional conflicts and crises

states of emergency, the conflicts and crises may arise from a state of emergency due to uncharted territory or higher urge/ motivation to disregard boundaries

another source of conflict or crises

constitutional silence, if the constitution doesn’t say anything about what needs to be done, it will create gaps and loopholes

non-feasibility of constitutional provisions

constitutional provisions exist but not feasible to implement

constitutional ambiguity

express meaning (is supreme)→ clear text

implied meaning → text and structure (words, paragraphs, chapters etc)

approaches for constitutional argumentation/ interpretation

1 argument based on text and structure

2 argument based on purpose

3 argument based on judicial precedent

4 argument based on political custom and traditions

5 argument based on honered authority

argument based on text and structure

The literal text and the structure of the document itself. Words and the relationship between different sections.

argument based on purpose

underlying objectives, purpose or intent of its framers

argument based on judicial precedent

previous court decisions to interpret the constitution. consistency of interpretation over time.