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Introduction to Public Law

Introduction to Public Law

  • Public law involves the relationship between the state and its citizens. It encompasses the organisation of and actions by public authorities.

    • Branches of Public Law:

    • Constitutional Law: Governs the structure of the state and its foundational principles.

    • Criminal Law: Relates to offences against the state and penalties for violations.

    • Administrative Law: Regulates the activities of governmental agencies.

    • Property Rights: Considerations within public law include ownership regulations such as zoning and planning law. Ownership is often regarded as a human right.

Private Law

  • Private law governs the relationships between private parties, detailing the rights and obligations of societal members.

    • Branches of Private Law:

    • Contract Law: Governs the agreements made between individuals and organizations.

    • Law of Obligations: Outlines the obligations that parties have to one another.

    • Property Law: Concerns the ownership and usage of property.

    • Examples of Private Law Relationships:

    • The relationship between a lessor and lessee.

    • Neighbour law governing interactions between adjacent property owners.

Trias Politica (Separation of Powers)

  • The structure of government divided into three branches:

    • Legislative: Responsible for enacting laws.

    • Executive: Enforces laws and oversees the administration of the state.

    • Judicial: Interprets the law and adjudicates disputes.

Hierarchy of Norms

  • The hierarchy of legal norms is crucial to resolving conflicts between laws and ensuring consistency within the legal system.

    • Definition: "The hierarchy of norms refers to the idea that in a legal system there will be a vertical ordering of legal acts, with those in the lower rungs of the hierarchy being subject to legal acts of a higher status." — P. Craig and G. de Búrca, EU Law, Text, Cases and Materials (2020).

Examples of Hierarchy of Norms

Example 1: Belgium

  • Constitution

  • EU Legislation

  • Law/Decree/Ordinance

  • Royal Decree

  • Ministerial Decision

  • Provincial Regulation

  • Municipal Regulation

Example 2: South Korea

  • Class I: Constitution

  • Class II: Acts and Treaties

  • Class III: Presidential Decrees

  • Class IV: Ordinances of the Prime Minister/Ministries

  • Class V: Administrative Rules and Municipal Ordinances or Rules

Why is there a Hierarchy of Norms?

  • A hierarchy exists to:

    • Solve potential conflicts between norms and ensure legal clarity.

    • Establish the unity and consistency of norms that contribute to stability and predictability in law.

    • Ensure compliance with the rule of law by requiring that acts of all branches of government respect higher laws, particularly constitutional provisions that protect fundamental rights and freedoms.

Principles for Resolving Legal Conflicts

  • Lex Superior: In cases of conflict, the superior rule overrides the inferior rule.

    • Example: National laws typically prevail over provincial laws; EU law prevails over national laws.

  • Lex Posterior: The newer rule prevails over the older one.

  • Lex Specialis: The more specific law prevails over the general one.

Constitutional Law

  • Defined as the highest piece of national legislation and serves as the primary source of binding law.

    • Scope of a Modern Constitution Includes:

    • Separation of Powers: Distinct allocation of functions and authorities within government.

    • The Rule of Law: Legal framework governing state and individual actions.

    • Fundamental Rights: Protection of individual rights against governmental infringement.

    • Distribution of Sovereignty: Describes federal structures in states like Belgium.

    • The Constitution also establishes the constitutional state organizer, detailing checks and balances.

Fundamental Rights and Freedoms

  • Constitutions often outline aspirations and societal objectives, as exemplified by:

    • Article 66 of the Portuguese Constitution: Right to a healthy and ecologically balanced environment.

    • Article 51A(e) of the Indian Constitution: Duty of citizens to promote harmony and respect for women.

Nature of Constitutional Documents

  • Most states possess a written constitution, fundamental in nature and typically require special procedures for amendments, reflecting public input and often involving referendums.

    • Example: Polish Constitution article on amending the constitution.

Example (Polish Constitution)

  • Contains chapters detailing rights, sources of law, and procedures for amendments with requirements for majority voting.

Non-Written Constitutions

  • Some states operate without a written constitution, relying on ordinary laws, customs, and case law (e.g., the UK).

    • Example: The Magna Carta of 1215: "No freeman shall be taken or imprisoned… save by the lawful judgment of his peers."

Systems of Government

  • Distinct forms of government categorized as:

    • Republican:

    • Presidential republics (full/semi-presidential systems).

    • Parliamentary republics (with either executive or ceremonial presidents).

    • Monarchical:

    • Constitutional (ceremonial/non-executive) and absolute monarchies.

    • Unclear Political Situations:

    • Includes military dictatorships, one-party states, and transitional governments.

Checks and Balances

  • Essential mechanism ensuring that power is distributed and regulated among the three branches of government:

    • Legislative Branch (Congress):

    • Writes laws, confirms appointments, grants money, declares war, and can declare laws unconstitutional.

    • May propose amendments to counter judicial decisions.

    • Executive Branch (President):

    • Proposes and administers laws, commands armed forces, and conducts foreign policy.

    • Can veto bills and declare executive actions unconstitutional.

    • Judicial Branch (Supreme Court):

    • Interprets the Constitution and laws, reviews lower court decisions.

The Rule of Law

  • Ensures accountability of both private and public actors under the law, fundamentally protecting citizens’ rights and ensuring equal legal protection through independent courts.

    • Emphasizes the principle that majority decisions must respect constitutional boundaries safeguarding fundamental rights.

Supremacy of the Constitution

  • All laws inconsistent with the Constitution are invalid and must adhere to it, protecting the legal standing of individuals against state actions.

Human Rights and Generations of Rights

  • Human rights evolve through generations:

    • First Generation: Civil and political rights focusing on protection against the state (e.g., freedom of press).

    • Second Generation: Social, economic, and cultural rights (e.g., right to housing).

    • Third Generation: Collective rights such as the right to a sustainable environment.

Article 11 ECHR Example

  • Article 11 ensures freedom of assembly and association except when restricted by law for specific societal reasons. A court decision highlights the need to protect assemblies from counter-demonstrations potentially leading to violence.

Importance of International Instruments

  • International human rights law, such as the European Convention on Human Rights (ECHR), significantly influences national human rights protections and mandates interpretation that respects broad formulations of rights.

Environmental Infringement Example

  • The ECHR considered a case of land and water contamination affecting rights to private life and family life under Article 8, setting precedent for environmental considerations even without explicit environmental rights in the ECHR.

State Sovereignty and Limitations

  • The functionality of a state requires the presence of internal and external defense mechanisms, constantly checked by constitutional law which limits its power.

    • Distribution of Powers: Divided among various branches and levels, including local, regional, and central authorities.

Territorial Distribution of Powers

  • Unitary State: Central government holds ultimate authority (dominant model: 163 out of 193 UN member states).

  • Federal State: Powers are constitutionally divided between central and regional authorities.

    • Example: Belgium, where power is allocated among communities and regions.

  • Confederation: A coalition of sovereign states working toward common goals, each retaining independence.

    • Historical examples include the Confederation of the United States (1781-1787) and the European Union.

Legislative Competencies in Belgium

  • Defines the legal authority and powers across the federal and regional levels:

    • Federal Level: Governs aspects like foreign affairs and military.

    • Regional Level: Handles economic and urban planning matters.

    • Community Level: Focuses on education and social welfare.

Legislative Power Structure in Belgium

  • Illustrates the multi-level governance structure encompassing federal, community, and regional legislative authorities, each with defined competencies and legislative texts governing their operations.

  • Various levels include:

    • Federal Parliament: Enacting national laws.

    • Community Parliaments: Addressing community-specific matters.

    • Regional Parliaments: Focusing on regional laws.

  • Multi-level governance complexities unfold in interactions and interrelations among international, national, regional, and local laws and governance.