Class 5 Public law

• Three legal conditions for a State

Territory, People, and Government factually in control.

• Control = monopolising violence (Max Weber)

Maintaining "law and order" - no vigilantism.

• Key difference in legal default

State can only act if authorized by law; Individuals are only prevented from doing something if there is a law.

• National sovereignty

State's ability to govern itself and make decisions without external interference.

• Internal sovereignty

State's ability to exercise domestic control.

• External sovereignty

State's ability to exercise external control (relations to other countries).

• Popular sovereignty

"Ultimate internal power" belonging to Parliament or the people.

• Voluntary limitation of sovereignty

Occurs by ratifying international treaties or joining international organisations.

• Nation state

Based on common identity of population such as language, culture, history, and physical appearance.

• Constitutional law

reflects expectation of state itself to be organised:

• Every exercise of authority by state officials

to be traced back to the constitution

• Gradual expansion

police state → welfare state (Expansion of powers & budgets):

• Expectations for the Role of the State

To provide peace, order and stability, To provide infrastructure and education, To provide social protection, To provide the conditions for a functioning market, To protect national values & cultural heritage:

• The Constitution (Hiến pháp)

The highest piece of national legislation containing separation of powers, rule of law, fundamental rights, and sovereignty

• Entrenchment

The characteristic that a constitution is more difficult to change than other laws, requiring special procedures

• Article 195 Belgian Constitution

Requires a declaration to revise, automatic dissolution of Houses, and a 2/3 majority vote in new Houses for changes to be adopted

• Monist vs. Dualist

Different systems of interaction between constitutional law and international/transnational sources of law

• Sources of constitutional law

Beyond the written Constitution, it includes "constitutionally relevant" provisions in ordinary statutes, case law, and customs.

• Role of constitutional law

Provides the framework for what is possible in a state

• Law

provides the general organizational framework and concrete limitations (e.g., fundamental rights, budget limits)

• Politics

involves concrete policy choices within that framework

• Rule by law

A state depending on law for functioning.

• Rule of law

Law based on values like fairness, inclusiveness, and accountability.

• Fundamental rights

Là các quyền cá nhân được quy định trong Hiến pháp, đóng vai trò là giới hạn nội dung cụ thể đối với quyền lực nhà nước

o Vertical application of fundamental rights

Bảo vệ cá nhân trước sự xâm phạm hoặc lạm quyền từ phía Nhà nước.

o Horizontal application of fundamental rights

Yêu cầu Nhà nước phải có trách nhiệm bảo vệ công dân trước các hành vi xâm phạm lẫn nhau.

o Fundamental right

is an important source for courts when checking the constitutionality of actions of the executive / legislature

• Rationale

The primary means of restricting state powers to avoid abuse.

• Functional division (Trias Politica)

splits powers by task

• Territorial division

splits powers by geographic levels (Unitary vs. Federation).

• Trias Politica

(Legislature, Executive, Judiciary):

o Legislature (Lập pháp)

The branch that makes laws. In practice, the separation between political and bureaucratic parts of the executive is often considered more critical.

o Executive (Hành pháp)

The branch that implements laws (Government). Ideally a servant of the legislature, but often driven by party loyalty in practice.

o Judiciary (Tư pháp)

The branch that interprets and applies laws.

• Judicial independence

Inherent part of the right to a fair trial, requiring subjective and objective impartiality.

• Checks and balances

The mechanism where Legislature, Executive, and Judiciary keep each other in check to avoid abuse of power, such as impeachment, veto powers, or declaring acts unconstitutional

• Constitutional review by courts

Power of courts to examine whether laws or state actions comply with the constitution.

• Constitutional review

The power of courts to check the conformity of laws with the constitution or administrative acts with the law.

• Increasingly recognised in modern constitutions

The power of courts to ensure that the legislature and executive comply with the constitution.

• Relationship with separation of powers

Courts act as a check on the other two branches to prevent abuse of power.

• Rationale for constitutional review

Providing a distance from politics and ensuring the protection of minority interests.

• Administrative review

Checking if administrative acts follow the law

• Constitutional review

checking if laws follow the constitution.

• Specialised constitutional court

A dedicated court for constitutional issues

• Decentralised review

review power spread across the entire judiciary.

• Concrete review

Review arising from a specific legal case

• Abstract review

a general review of a law's constitutionality (often not possible or exceptional).

• Direct competence of constitutional courts

Specific authority over elections, competence disputes between state organs, and minority rights in parliament.

• Review of politically sensitive or budgetary issues

Courts dealing with matters like abortion, euthanasia, or large-scale funds (e.g., EU recovery fund).

• Procedures for appointing highest judges

A critical focus due to the significant power these judges hold in the constitutional system.

• Role of international/European law (Notably human rights)

Assessment criteria used by courts in countries that lack a formal system of constitutional review.

• Territorial division

phân chia quyền lực theo địa lý

• Unitary State

All state powers reside in one central authority; local powers are delegated and not constitutionally guaranteed in detail.

• Federation

Power is divided between central and regional organs by the constitution; regional power cannot be unilaterally retracted.

• Confederation

Participating entities remain sovereign states; based on international treaties rather than a common constitution.

• Belgium Structure

A federal state composed of Communities (based on language/culture) and Regions (based on economy/territory).

DEMOCRACY

RULE BY THE PEOPLE (Quyền lực thuộc về nhân dân)

• Democracy = rule by the people

The key legitimation of state powers in almost all countries today, through direct or indirect reference.

o Historical evolution of democracy

Transition from absolutism to state concepts based on Enlightenment.

o Basic premises of democracy

Mechanisms to prevent arbitrariness, ensure peaceful transition of power, and maximize the well-being of the greatest number of people.

• Direct Democracy

Dân chủ trực tiếp

o Direct democracy

Exercise of state power by the people who make concrete policy decisions (laws) themselves.

o Prevalence of direct democracy

"Natural" for smaller communities; today still prevalent at local levels but usually exceptional at the national level.

o Challenges of direct democracy

Complexity of society, logistics, protection of minorities, and the need for judicial review.

o Representative democracy

People vote for representatives (parliaments) to make decisions for them with limited terms of office.

o Montesquieu's Rationale (1748)

In large states, it is impossible for every man to govern himself, so the people must act through representatives.

o Key decisions in representative systems

Modalities of electing rulers, distribution of functions, and measures to prevent abuse of power (e.g., recall elections).

o Referendum

A direct democratic element within representative democracies involving the "referral" of a concrete question to the people (trưng cầu dân ý)

o Forms of referendum

Mandatory vs. optional; Binding vs. consultative; Initiating vs. corrective.

• SYSTEMS OF GOVERNMENT

Các hệ thống chính phủ

o Parliamentary system

Head of executive (often prime minister) derives legitimacy from and is accountable to parliament.

o Presidential system

President as head of executive is directly voted by the people.

o Semi-presidential system

Features both a directly elected head of state AND a prime minister dependent on parliament.

o Constitutional monarchy

Ceremonial / non-executive head of state is a monarch with no limit to term in office.

o Absolute monarchy

The monarch holds executive power.

• ELECTIONS

Bầu cử

• Universal suffrage

The right of all adult citizens to vote, regardless of wealth, gender, or race, originating from Enlightenment ideas.

• Historical evolution of suffrage

Gradual abolishment of census suffrage in the 19th century (e.g., 1793: first universal male suffrage in France; 1893: first universal suffrage in New Zealand).

• Modern restrictions on the right to vote

Limitations still applied today for minors, non-nationals, nationals living abroad, or convicted prisoners.

• Core principles of the right to vote

The vote must be personal (not transferrable), secret, and can be either voluntary or mandatory.

• Translating votes into seats in parliament

Chuyển đổi phiếu bầu thành ghế trong Nghị viện

• Majoritarian system

A "winner-take-all" principle where candidates/parties with the most votes win the seats, often based on local subunits.

• Plurality system (Majoritarian)

The candidate or party with the most votes wins, even without an absolute majority.

• Absolute majority system (Majoritarian)

The candidate or party needs to achieve more than 50% of the votes, sometimes requiring several election rounds.

• Proportional representation

A system where the share of seats in parliament is roughly proportional to the share of votes received.

• Analysis of Electoral Systems

Phân tích các hệ thống bầu cử

• Pros and cons of different systems

Evaluating based on representation of pluralist opinions, regional/minority interests, government formation, danger of fragmentation, and equality.

• Hybrid systems and variations

Common modifications like minimum thresholds for proportional representation, extra seats for largest parties, preferential voting, or alternative voting.