Week 1

what is a constitution in the narrow / fomal meaning?

• central written document that sets out basic rules that apply to govs of states

what is a constitution in the broad meaning?

• comprises the entire body of fundamental rules that govern the socio-political entity

where can the constitution be found in the broad meaning?

• central document

• many written documents

• unwritten documents

substantive meaning of a constitution

• constitution is a body of law that:

  • attributes power to public authority

  • regulates fundamental relations between public authorities

  • regulates fundamental realtions between public authorities and the individual

what areas of law does the broad constitution consist of?

• institutional law = how institutions function

• human rights = protect the citizen against the state + regulate the relations between public authority and individual

UK’s constitution

• Does not formally have a central written constitutional document (no constitution in narrow sense)

• Still substantively have a constitution

• Have it in broad sense, body of constitutional law, rules laid down in case law

• (eg. concept of sovereignty (supremacy) of parliament laid down in statutes, laws

• made by parliament)

• Unwritten constitution, customary law

US constitution

• Do have a written constitution, also have statutory written and unwritten rules that form part of their broader constitution

Do US judges have the right to declare constitution unconstitutional?

• Judges have right to declare legislation unconstitutional

  • But US constitution does not explicitly give judges this right

  • This is a right established by case law

Why are some pieces of legislation considered broadly constitutional rules, even if not laid down in central document?

• A constitution in the narrow sense (written constitutional document) cannot capture and exhaustively codify the entire body of the constitution in the broad sense

• example = law on election system, the statute of a constitutional court, rules of

  procedure of parliament

working constitution

• The working constitution (de facto or "living" constitution) is how the government actually operates in practice

• It includes the habits, traditions, and interpretations that aren't necessarily written down but are followed as if they were law

what is the distinction of a written constitution and the working constitution

they represent the gap between what is written constitution and how a country actually functions day-to-day

Limited government (constitutionalism)

• Exercise of public power is governed and constrained by a constitution and the rule of law = Called ‘Constitutionalism’

• Presupposed that political actors will obey legal norms in how and what extent they govern

• Thus, now even a monarch is bound by the constitution

rigidity

• refers to both the procedure and scope of a possible amendment

• Makes change relatively difficult to accomplish

• Limits the subjects that can be changed in the first place

• Most rigid arrangements are those can only be amended by unanimity

States which adopted a single charter as its constitution typically give that

document…

• a special status

• that is reflected in the fact that in order to change it, special procedure must be followed

what is the importance of constitutional interpretation

• The powers of interpretation by judges/constitutional courts play crucial role in determining the substantive flexibility of a constitutional text

example of constitutional interpretation

• ECHR applies a ‘dynamic’ interpretation,

• so term ‘family life’ no longer exclusively means straight, married couples, but has evolved to include many different forms of families

Revolutionary constitution

the adoption of a new constitution marks a new beginning for society

Evolutionary constitution

when a constitution develops gradually over time

new features embedded into the existing framework

state as in sovereign country

socio-political entity with own set of gov. institutions exercising control over population and territory

state as in a federal entity

territory made up of several sub-entities

nation

used interchangeably with nation, an ethnic-cultural category

government as in state order

• entity of organs of public authority

• includes 3 branches of gov + military, police, civil servants

government as in executive

• specifically the branch which executes laws

government as in governing majority

• parliamentary democracies

• refers to parties that have enough seats in parliament to support the cabinet and pass law

republic

• the absence of a monarch

• power belongs to public

monarchy (+types of monarchies)

• can be hereditary or elective

• constitutional monarchies = power of monarch is limited by constitution

• absolute monarchies

democracy

• citizens exercise the right to vote for their legislature

• authorities are accountable to elected assemblies

notion of sovereignty

authority resides with the sovereign

sovereignty = the original source of all public power which all other power flows

external sovereignty

• refers to the state’s relationship with the international community

• It is the right of a state to manage its affairs without interference from other states

Internal sovereignty

• original source of public authority within the state itself

• refers to the supreme power of a state within its own borders

• It is the right of the state to make, interpret, and enforce laws over its population without being overruled by any other domestic body

• sovereign on the basis of the preamble to the constitution

black letter version of internal sovereignty

• codified legal rules that establish where absolute, final, and supreme authority rests within a state's legal order

• In black-letter law, internal sovereignty is not a political concept about power dynamics

• it is a strict question of constitutional competence

• Who has the ultimate legal right to make, amend, and repeal law, and whose decisions cannot be legally overruled by any other domestic body

black letter internal sovereignty in popular sovereignty explain

• popular sovereignty = internal sovereignty is explicitly codified as residing in "the people."

• The people are the constituent power (pouvoir constituant)

• The legislature, executive, and judiciary are merely constituted powers (pouvoirs constitués) bound by the supreme text authorized by the people. (the people exercise their power through the institutions)

black letter internal sovereignty in parliamentary sovereignty

• In legal systems without a single, supreme codified constitution (traditionally exemplified by the UK), black-letter internal sovereignty rests entirely with the legislature

• Parliament has the legal right to make or unmake any law whatever, and no person or body is recognized by the law as having a right to override or set aside the legislation of Parliament.

• There is no legal distinction between a standard statute and constitutional law

black letter internal sovereignty in absolute monarchies

• In absolute systems, the black-letter rule consolidates all legislative, executive, and judicial authority into a single office or person

• The will of the sovereign is the law. There is no independent constitutional framework capable of limiting the ruler's domestic legal competence

popular sovereignty

• idea that sovereignty resides with the people

• the people are the source of political power and legitimacy

• supported by republican democracies

royal sovereignty

• sovereignty is vested in the monarch who rules by divine right or historical tradition, not by consent of people

• supported by absolutist systems = original source of public authority is king / queen

• even if monarch grants their people a constitution, they are still sovereign

• often the sovereignty due to religious claims =

imposed constitutions

• a constitution was meant to limit and direct the use of power by a public authority

• yet these constitutions still derived their authority from the monarch themselves

national (popular) sovereignty

• sovereignty belongs to nation as a whole, not to individual citizens

• nation is viewed as a collective

• often represented by parliament = people do not exercise sovereignty directly, they do so through representatives

What is the difference between national and popular sovereignty?

• popular sovereignty = sovereignty is in concrete living individuals who currently make up a state

• national sovereignty = nation is an abstract entity that is different from the people living in the moment, includes past, present and future people (not individual citizens)

state sovereignty

• implies that state, as an abstract legal entity, holds supreme power within its territory, independent of external powers or internal subordination

• focus is more on the continuity, independence and supremacy of the state structure rather than a democratic legitimacy

• historically associated with monarchial or authoritarian systems

potential conflict of sovereignty in a federal state

• in a federal state there are 2 levels of gov claiming to be the boss at the same time

• popular sovereignty view

  • people created federation

  • hence, gov gets its power from the whole population

  • individual states are just administrative subdivisions

• state sovereignty view

  • individual states (as legal entities) existed first

  • these individual states have contracted together to create a central gov.

  • therefore states are the ultimate sovereign authorities over anything that was not explicitly handed over by the gov

  • powers not delegated to gov = sovereign powers of states

Parliamentary sovereignty

• sovereignty of parliament means legislative supremacy

• acts of parliament are the highest law of the land = no public authority is able to invalidate an act of parliament

Different usages of word sovereignty

1. Inviolability of a state and its presence in international legal relations

2. Indicate a hereditary monarch

3. Ultimate source of state powers

4. Ultimate state authority

5. Powers connected to state authority = sovereign powers

6. To indicate a notion that state must not transfer too many powers to an international organization at the risk of losing sovereignty

7. To indicate legal status, or factual status

absence of sovereignty

avoid complications of determining what sovereignty means / where it resides

example of absence of sovereignty

• Netherlands

• NL constitution does not occupy itself with questions of sovereignty

• to avoid conflict between = republicans (sovereignty with people), royalists (sovereignty with monarch), clericals (sovereignty with god)

• governing relation between the monarch, parliament, and gov. are still governed almost entirely defined by custom (not constitutional text)

presidential system

• whether the head of the executive is elected with a mandate of their own

• or whether they owe the continuation of their office to parliament and is therefore accountable to parliament in the sense of a confidence rule

parliamentary rule

head of executive is not directly elected but stays in office because they enjoy confidence of parliament

how does head of state get replaced parliamentary system

• sufficient for parliament to have lost confidence

• no reasoning required

how does head of state get replaced presidential system

• impeachment

• criminal trial for serious offences

characteristics of a presidential system

• strong president

• formally safer in office

• elected independently from congress

  • majority of congress do not need to be loyal to president

• congress adopts statutes, decides on budget

• parliament tends to be more independent and more assertive with regard to the executive

chracteristics of parliamentary system

• strong parliament

• theoretically head can get replaced easily

• have greater political power domestically

semi-presidential system

• hybrid between parliamentary and presidential system

• directly elected president and prime minister

• both have executive functions

• president accountable to people

• prime minister accountable to parliament (but appointed by president)

separation of powers

• originally defined by Montesquieu

• legislative = makes law

• executive = enforces and executes law

• judicial = interprets law

personal separation of powers

in practice different organs should be staffed by different people

institutional separation of powers

different institutions should be operating different branches

parliamentary system membership overlap

prime minister is almost always sitting member of parliament

parliamentary system legislative initiative

executive proposes to legislature what laws to pass

parliamentary system delegated legislation

parliament can pass act but delegate non essential details to executive

no confidence

• parliamentary system

• parliament keeps the executive in check

presidential system membership overlap

forbidden to hold both office for legislative and executive branches

presidential system legislative initiative

congress or parliamant (legislative branch

presidential system delegated legislation

no delegation

presidential system vote of no confidence

does not apply

fusion of powers

• doctorine in the UK, common in parliamentary democracies

• the executive and legislative functions are integrated

• the executive branch is carved directly out of the legislative branch

what is the aim of fusion of powers

efficiency of the government

explain fusion of powers

• The Parliament is Elected First (legislative branch)

• The Executive Emerges from Parliament = The political party (or coalition) that wins the most seats in Parliament forms the government. The leader of that party becomes the Prime Minister (the head of the executive).

• Dual Roles: The Prime Minister and the cabinet ministers do not leave Parliament. They keep their seats, they debate, and they vote on laws. They are simultaneously lawmakers (legislators) and lawenforcers (executives).

• hence executive will = legislative will

explain how the judiciary was part of the fusion of powers in the UK

• before constitutional reform act 2005

• Lord chancellor occupied positions in all 3 branches

• Executive = The Lord Chancellor was a senior Cabinet minister who ran the government’s court department and pushed the Prime Minister's political agenda

• Legislative = The Lord Chancellor served as the Speaker of the House of Lords, where they could actively debate and vote on government laws

• Judicial = They were the head of the entire UK judiciary and a senior judge

• the UK's highest court of appeal didn't exist as an independent institution. It was just a committee of judges who sat inside the House of Lords (called the Law Lords)

What did the constitutional reform act 2005 change?

• The Lord Chancellor was removed as head of the judiciary

• removed as the speaker of the House of Lords.

• Today, the role is purely an executive Cabinet position (the Secretary of State for Justice).

• Created the Supreme Court of the UK

• Established the judicial appointment commission

Why is the judiciary not fused in fusion of powers?

• the executive and the legislative are fused to ensure efficiency in passing laws, The Prime Minister leads Parliament

• judiciary is separeted to check the legislative and executive branch, independently interpret law without political interference

• compliance with art. 6 ECHR right to fair trial by an independent tribunal

rule of law

all public authority derives its power from legal norms and is constrained by these legal norms in exercising its powers

why is constitutional review of legislation controversial?

• why is an unelected judge allowed to claim supremacy in correctly interpreting what the constitution means

why is constitutional review allowed in some states?

• in the US all judges have power to review constitutionality of legislation

• justified by supremacy of constitution over ordinary laws

does the UK and NL have constitutional review?

• no neither UK nor NL have constitutional review

• it is the responsibility of the lawmaker itself to obey the constitution

why does the UK not have constitutional review?

But the UK has an unwritten constitution governed by Parliamentary Sovereignty, which states that no court can strike down or overrule a law passed by Parliament.

what type of judicial review did the UK introduce?

• Human Rights Act 1998

• When a court reviews a piece of legislation that seems to violate human rights, Section 3 of the HRA commands judges to interpret that law, as far as possible, in a way that is compatible with human rights

• If a piece of legislation is written so clearly that it is absolutely impossible to interpret it in a human-rights-friendly way, they issue a Declaration of Incompatibility

• contra legem interpretation

rule of law elements

• respect for legality

• equality before law

• absence of arbitrariness

• separation of powers

• independence of judiciary

• fundamental right

• respect for human rights

EU context rule of law

art. 2 TEU = union is founded on rule of law

art. 7 TFEU = weak mechanism to discipline member to discipline member states that deviate from rule of law

Jean Bodin

• invented the idea of royal sovereignty with no reference to religion

• Bodin believed that the only solution to the Blood Wedding (1572) this was to give the sovereign (king) “high absolute and perpetual power” without needing consent of individuals

• consent would hinder the power of the sovereign

• purpose of Bodin’s ideas = bring peace and stability

Blood wedding 1572

• peace treaty between catholics and protestants 1571

• marriage between a catholic and a protestant

• exemplified conflict between protestants and catholics (2000 protestants killed by order of the king)

Thomas Hobbes

• believed that natural state of man was evil

• therefore believed we needed a structure in society to keep us from killing each other

• affirmed that Leviathan (sovereign) needed to have absolute power to preserve peace

Hobbes social contract idea

• individuals lose freedom but gain security

• for the general good of the nation

defining characteristics of Hobbes

• Leviathan found his power in his subjects (citizen) instead of god

• Leviathan could not force people to be of a certain religion

John locke

• argued that the state of man was not horrible (contrary to Hobbes)

• criticized the idea of choosing between absolute war or absolute sovereign

• there should not be absolute sovereign, but instead a gov. that protects peoples natural rights

• the gov. should work through the power granted to it by its citizens

Locke’s ideas on social contract

• individuals delegate the power to enforce law protect citizens to gov.

• because power is given to gov. by citizens it is unconditional

• gov. should not control what citizens can do, and citizens should be able to influence decision making by the state

• emphasized need for education

• proposed for separation of powers and popular sovereignty

Jean-Jacques Rousseau

• opposed Hobbes = believed that state of man was better before civilization

• believed that individuals can be free in society as long as their will reflects general will of the public

according to which principles should society work with Rousseau

1. Population must be well informed about choices they are making

2. Negotiations cannot happen privately

3. When voting you distance yourself from your own interests

4. Legislation should be adopted to everyone equally (even if you do not agree with it)

Mary Wollstonecraft

• argued that every person, man or woman has inalienable rights given to them by god

• toxic to tach women to be ornamental and decorative

Sieyes

• before french revolution french society was divided into 3 estates

• 1st estate = clergy (church)

• 2nd estate = nobility

• 3rd estate = everyone else

• argued that the 3rd estate is an entire nation of itself

• representative democracy

  • 3rd estate should make up the national assembly

  • sovereignty belongs to nation not the king

  • 3rd estate makes up the nation = hence they have right to write the constitution

• law should be universal

  • old system nobles had privilages

  • nation is a body of individuals represented by some legislature

  • if you have special legal exemptions you are not part of the nation