topic 3
Form of Government (FoG)
Refers to the manner through which State functions are distributed among constitutional bodies.
Involves complex power relationships among these bodies.
The Role of Political Parties
Addresses who holds power within the political system.
Fundamental to understanding the distribution of power in a state.
Transition from Books to Action
Rules Governing Relationships
Govern relationships among constitutional actors.
Written sources of law (Law in Books) vs. constitutional conventions (Law in Action).
Good legal scholars delve into both legal forms and the substance of the law.
Political System's Influence
The political system shapes the substance of law through its interpretation of formal rules.
Each country possesses a unique political system, indicating forms of government are often non-replicable.
Different Forms of Government
Constitutional Monarchy
Parliamentarism
US Presidential System
French Semi-Presidential System
The Role of Political Parties (Continuation)
Preventing the "World Series Syndrome"
Various forms of republics and monarchies:
Presidential Republic: Executive presidency independent, often associated with a complete party system.
Semi-Presidential Republic: Executive powers divided, usually between a president and a prime minister.
Parliamentary Republic: Executive presidency elected and dependent on parliament.
Absolute Monarchies: Monarch holds total power.
Constitutional Monarchies: Monarch has limited power; in parliamentary constitutional monarchies, the monarch does not personally exercise power.
Not fitting in traditional categories: no government scenarios and republics with a single-party governance.
Constitutional Monarchy
Transition from Absolute to Liberal State
Historical examples include the United Kingdom (late 1600s), France (1791, 1814), Italy (Statuto Albertino, 1848), Prussia (1850) - showcasing the development of liberal constitutions.
Main Features:
Limits on Crown's power while still keeping the King as a central figure in governance.
Clear separation of powers between Crown and Parliament.
Powers of the Crown and Parliament
Crown:
Controls executive, appoints/revokes ministers, can dissolve Parliament early, ratifies legislation.
Parliament:
Holds legislative power, approves state budget, has authority to prosecute ministers (impeachment).
Political legitimization:
Based on aristocracy (for Crown) and bourgeoisie (for Parliament).
Crisis in Constitutional Monarchy
The bourgeoisie's strengthened political role shifted the functioning of Parliament, leading to more significant powers for the Parliament over government actions, thereby creating a responsible government to Parliament.
The Rise of Parliamentarism
Emerged during the Liberal State in the 18th century, primarily in England.
Government becomes independent from the monarch, fostering a confidence relationship with Parliament, allowing passage of votes for no confidence against the government.
Parliamentarism Evolution: Dualist to Monist
Dualist and Monist Structures
Dualist System:
Power shared between King/Head of State and Government; both must have the confidence of each other.
The King is an active participant in political processes.
Monist System:
Executive power is reserved for the Government, needing only Parliamentary confidence; the King is excluded from decision-making.
Parliamentarism with Cabinet Predominance
Characterized by a bipolar political system, creating strong parties or coalitions, as seen in countries like the UK, Canada, Germany, and Spain.
Features include pre-electoral coalitions, a stable opposition, and voting behavior increasingly resembling direct votes for Prime Minister based on political priorities.
Parliamentarism with Parliament Predominance
More common in multiparty political systems, with electoral competition seldom yielding a clear majority (e.g., Italy, Belgium).
Features include post-electoral coalitions reliant on agreement preservation, a fragmented opposition, and electoral behavior driven by ideological identification rather than issue-based voting.
The Role of Parliaments and Governments
Crisis of Parliament as Legislator
The government often acts as the primary legislator alongside European Parliament, leading to a legislative crisis for Parliament.
Government's Role as Executive Power
Traditionally associated with executing the will of the monarch, the government is now seen as possessing significant normative and legislative functions.
Directly through decrees and regulations.
Dominant role in legislative initiative via direct and indirect resources.
Limitations include political decentralization favoring regions and reduced public sector roles in the economy.
Polycrisis Overview
A range of issues: stagflation risk, geopolitical tensions (Ukraine, Russia), inflation (US and EU), hunger crises, climate policy challenges, and governmental pressures in various nations.
The U.S. Presidential System
Basic Features
A dualist system with the President and Congress operating independently yet interconnected through checks and balances for the maintenance of balance.
A system where conflictual relations may lead to operational paralysis (e.g., government shutdowns).
Presidential Powers
The President of the United States (POTUS):
Elected by the people through the Electoral College system.
Serves a term of four years, immune to removal through a no-confidence vote.
Holds executive power, presiding over the Cabinet made up of secretaries with advisory roles defined in Article II, Section 2 of the Constitution.
The Legislative Power of Congress
Congress, as the bicameral legislative body, comprises:
House of Representatives: 435 members representing nationwide interests, elected directly by people for 2-year terms.
Senate: 100 members representing states, elected for 6-year terms, with elections held every 2 years for one-third of the seats.
The Replicability of the U.S. Executive System
The U.S. Presidential executive represents a unique evolution of 200 years of political and constitutional practices.
Details include political parties being weak and undisciplined, thus allowing members to engage in political negotiations flexibly.
The French Semi-Presidential System
Key Features
Combines elements of presidential and parliamentary systems.
The President is directly elected (universal suffrage) with relevant powers:
Appoints the Prime Minister.
Presides over meetings of the Council of Ministers.
Addresses Parliament.
May dissolve the National Assembly.
File legislation petitions to the Constitutional Council.
Scenarios Following Elections
Scenario A: President has a parliamentary majority: appoints PM, strong executive power.
Scenario B: President has no majority: must appoint a PM supported by Parliament, sharing executive role leading to cohabitation.
Constitutional Reforms**
Reforms in 2000/2001 equalized electoral terms to five years, reducing potential for cohabitation and aligning election dates between the presidential and parliamentary elections.
Example: 2017 elections coinciding closely between presidential and parliamentary contests.
Form of Government (FoG)
Defines how State functions are distributed among constitutional bodies, involving complex power relationships.
The Role of Political Parties
Determines who holds power and clarifies power distribution within the state.
Transition from Books to Action
Relationships among constitutional actors are governed by both written law ("Law in Books") and constitutional conventions ("Law in Action").
The political system shapes law interpretation, making forms of government often unique and non-replicable across countries.
Different Forms of Government
Constitutional Monarchy
Parliamentarism
US Presidential System
French Semi-Presidential System
Types of Republics and Monarchies
Presidential Republic: Executive presidency is independent, often with a complete party system.
Semi-Presidential Republic: Executive powers divided between a president and a prime minister.
Parliamentary Republic: Executive presidency elected and relies on parliament.
Absolute Monarchies: Monarch holds total power.
Constitutional Monarchies: Monarch has limited power; in parliamentary constitutional monarchies, power is not personally exercised by the monarch.
Constitutional Monarchy
Evolved from absolute to liberal states (e.g., UK late 1600s, Italy 1848), limiting the Crown's power while maintaining its central role and establishing a clear separation of powers between Crown and Parliament.
Parliament's increased political role shifted power, leading to a responsible government accountable to Parliament.
The Rise of Parliamentarism
Emerged in the 18th century (e.g., England), making the government independent from the monarch and reliant on a confidence relationship with Parliament, allowing no-confidence votes.
Parliamentarism Evolution: Dualist to Monist
Dualist System: Power is shared, requiring confidence from both the King/Head of State and the Government; the King remains an active political participant.
Monist System: Executive power is solely with the Government, needing only Parliamentary confidence; the King is excluded from decision-making.
Parliamentarism with Cabinet/Parliament Predominance
Cabinet Predominance: Seen in bipolar systems with strong parties (e.g., UK, Germany), featuring pre-electoral coalitions and direct Prime Minister-like voting.
Parliament Predominance: Common in multiparty systems (e.g., Italy, Belgium) where electoral competition rarely yields a clear majority, driven by post-electoral coalitions and ideological voting.
The Role of Parliaments and Governments
Parliaments face a legislative crisis as governments increasingly act as primary legislators, using decrees and regulations, and dominating legislative initiatives.
Governments' executive power has evolved to include significant normative and legislative functions, though limited by political decentralization and reduced public sector roles.
The U.S. Presidential System
A dualist system where the President and Congress operate independently but are interconnected by checks and balances.
The President is elected via the Electoral College for a four-year term, immune to no-confidence votes, and holds executive power, presiding over a Cabinet. Congress is a bicameral body (House of Representatives, 435 members; Senate, 100 members).
This system is a unique evolution, with weak political parties allowing flexible negotiations, making it largely non-replicable.
The French Semi-Presidential System
Combines presidential and parliamentary elements. The President is directly elected with significant powers, including appointing the Prime Minister, presiding over the Council of Ministers, and dissolving the National Assembly.
Two scenarios following elections:
If the President garners a parliamentary majority, the executive is strong.
If there is no majority, the President must appoint a PM supported by Parliament, leading to cohabitation (shared executive power).
Reforms in 2000/2001 equalized electoral terms to five years, aligning presidential and parliamentary elections to reduce cohabitation potential.