LEGAL TOOLS AND KEYWORDS

Parliamentary Prerogatives and Privileges in Modern Constitutionalism

The Glorious Revolution was the occasion to outline a 

set of prerogatives of Parliament concerning its internal 

organization. This development was a sign of the institu￾tional role gained by the Parliament of Westminster in 

the new constitutional monarchy, especially toward the 

monarch, whose royal authority was equally reduced as a 

result of the rise of parliamentary privileges.

This set of prerogatives affected all aspects related to 

the functions, the activities and the organization of the 

parliamentary assemblies. It included, among others:

5 Regular and free parliamentary elections;

5 The autonomy of the chambers of Parliament as to 

the verifcation of the results of the elections and the 

validity of the election of its members;

5 The power of each chamber to approve its internal 

rules of procedure (“standing orders”);

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2.4 · The First and Second English Revolutions: The Settlement…

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5 The exclusive power to syndicate the acts of its inter￾nal bodies (interna corporis), without any interference 

from external authorities and powers;

5 The unlawfulness of any act of the regal authority 

intended to suspend, dispense or execute laws with￾out consent of Parliament;

The unlawfulness of the imposition of any taxes by 

the Crown without the approval of Parliament.

Together with parliamentary prerogatives, privileges 

and immunities of members of Parliament were affrmed, 

with the aim to grant their independence from the other 

branches:

5 The freedom of speech of members of Parliament, 

and the ban on any prosecution or questioning of 

their debates before courts;

5 Partial immunity of members of Parliament from 

prosecution, which requires that, before prosecuting 

a member, the immunity be removed by the Assembly 

itself;

Since the end of the seventeenth century, parliamen￾tary prerogatives and privileges arisen in England have 

become an inspiring model for all modern constitutions: 

indeed, they largely infuenced the development of par￾liamentary rights in the Western World.



Legal Tools and Keywords: Habeas Corpus

The expression habeas corpus literally means “that you 

have the body”, but in fact it is the abbreviation for “[we 

command] that you have the [detainee’s] body [brought to 

court]”.

Habeas corpus has been described either as a “right”, 

a “procedural right” or a “remedy”. In Common law, 

indeed, remedies often precede and pave the way to the 

emergence of a right.

Habeas corpus is in fact a Common law action (writ), 

through which a person could report an unlawful 

detention or imprisonment to a court, to trigger its 

review. The writ of habeas corpus is addressed to the per￾son who holds a prisoner in custody, ordering the former 

to bring the body of the latter before the court, in order 

to verify if the detention was unlawful or arbitrary.

This remedy has deep roots in English legal history: 

Article 39 of the Magna Carta stated that: “No freeman 

shall be taken or imprisoned, or be disseized of his 

Freehold, or Liberties, or free Customs, or be outlawed, 

or exiled, or any other wise destroyed; nor will We not 

pass upon him, nor condemn him, but by lawful judg￾ment of his Peers, or by the Law of the land”.

Nonetheless, habeas corpus originated before the 

Magna Carta, having its roots in a set of writs that the 

courts already employed during the twelfth century in 

order to hold custodians and jailers accountable before 

justice.

In modern times, the procedure for issuing a writ of 

habeas corpus was frstly codifed in the Habeas Corpus 

Act of 1679.

The importance of habeas corpus in English constitu￾tional history lies also in the fact that, beginning with Sir 

Edward Coke, this method of judicial review of custody 

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2.5 · The Bill of Rights of 1689 and the Rights of First Generation

2

and imprisonment has gradually become connected to 

the concept of “due process of law”, which Coke 

equated with “law of the land,” referring to the right of 

anyone to a fair judicial trial before an independent 

judge: therefore, many other rights individuals own in 

case of being submitted to a criminal prosecution stem 

from habeas corpus.



Legal Tools and Keywords: Representative 

Democracy

Representative democracy is the main method developed 

in the environment of western constitutionalism through 

which the people govern themselves through elected off￾cials.

Its functioning is founded on the idea that public 

deliberations—such as constitutional amendments, legis￾lation, decisions authorizing the state’s budget or interna￾tional treaties—must be assumed by an assembly elected 

with the aim of representing the citizens: electors confer 

a representative mandate to their delegates by means of 

free elections. The delegates’ duty is to represent citizens 

The affrmation of 

modern representative 

democracy

68 Chapter 2 · Achievements: Constitutionalism in the Age of the Modern Revolutions

2

and assume decisions on their behalf within the represen￾tative assembly. Such a representative relationship, how￾ever, is based on the free mandate principle, according to 

which, each member of the parliamentary assembly is 

not a delegate of the specifc electors who voted for him/

her, but instead represents the nation as a whole—with 

the consequence that no mandatory instruction can be 

imposed by electors on delegates, who assume their 

decisions and votes based on their opinions, and after 

parliamentary debate.

At the time of the modern revolutions, and through￾out most of the nineteenth century, representative gov￾ernment was characterized by limited sufrage, according 

to which the right to vote and to be elected were submit￾ted to several restrictions based on wealth, property own￾ership and gender. This tenet of nineteenth century’s 

liberal society represented a weakness, in the light of the 

inclusive ideology of constitutionalism, where equality 

of men played a crucial role. The process of 

democratization happened in the Western World in the 

19th and the frst half of the twentieth century, allowing 

the broadening of the right to vote, eventually reaching 

universal sufrage.

In political theory, representative government is often 

juxtaposed to direct democracy. The expression, usually 

applied to describe the political experience of the 

Athenian democracy in the ffth century BC, relates to a 

method of government in which people decide on policy 

initiatives directly and all of the citizens take part in deci￾sions dealing with the governing of society.



Recall is a procedure aimed at enhancing the democratic 

control on political representatives, elected to public 

offces, either in legislative or executive branches.

Depending on the specifc provisions, an institutional 

body or, most frequently, a certain number of electors, 

have the right to call the popular by-election, which will 

involve the same constituency that had elected the person 

in offce: the vote has the goal to remove the elected 

person from his/her ofce before the conclusion of the 

Term.

Recall entails a limitation of the free political man￾date, a cornerstone of representative democracy (7 Sect. 

2.14), through the expansion of popular control on polit￾ical representatives. At the same time, it raises concerns 

related to the continuous electoral campaign it provokes.

Because of its inconsistency with the classical model 

of representative democracy, recall is not frequently pro￾vided for in contemporary constitutional law.





1 Etat de droit (RULE OF LAW) and Legal Enlightenment: new set of legal principles that guide relationships between state and ind 

allowed Civil law legal system to align with the set of legal guarantees already affirmed in the environment of the Common law legal system, thanks to the judicial elaboration of rule of law

  • Legality in criminal matters: prosecution of criminal offense follows specific written norms and provides penalty classification (ex in us felonies and misdemeanors, degrees)(Nulla pena (IT): There is to be no penalty without written law.)

  • Non-retroactivity of law in criminal matters: cannot be accused or condemned of an act that happened before a provision considered it a crime 

  • Judge must be impartial, jurisdiction provided by law not by discretion of judge (natural judge)

  • Penalty is to punish and reeducate the guilty common values

  • Right of Appeal, judgement must be able to be appealed 

  • Formal equality before the law, no legal discrimination 

  • Legal certainty: clear general rules understandable by the people 




the reserve to legislation, adopted by 

European constitutions in many provisions related to 

individual rights, permits the parliamentary statutes to 

provide detailed norms regulating the exercising of rights, 

while excluding any other source of law—especially 

the normative acts of the executive branch—from the 

regulation of the subject.



The Directorial Government

The directorial government occupies a proper position in 

the classifcation of patterns of government: it is charac￾terized by the presence of elements of both parliamen￾tary government and presidential government.

The name of this pattern derives from the name of 

the executive body, a collegial institution of “directors”, 

appointed by the parliamentary assembly.

Nonetheless, the directorial government also shares 

features of the presidential system of government, 

namely the fact that the executive body is appointed for a 

fxed term, it cannot be removed by a parliamentary 

motion of censure; and symmetrically, the executive can￾not dissolve the parliament.

Today, Switzerland represents the only country in 

Europe where the frame of government (provided for 

by the Constitution of 1999) is a directorial one.



2 Representative Democracy

Representative democracy: main method through which the people govern themselves through elected officials.

Representative mandate: voters give mandate (power of representation) to delegates by election 

Free mandate principle: each member of parliament represents not just electors who voted them but nation as a whole 

Democratization of 1800’s-1950’s → universal suffrage 



3 Normative functions and instruments of exec branch, Growing power of exec → involvement in normative function by:

  1. Introduce leg into parliamentary process

    1. In EU cabinet already had this role, presidential had rigid separation of powers so could not create legislation 

  2. Proper normative instruments of the exec branch - RADICAL

    1. Exec can create secondary sources of law, in new century new sources of primary law were set up in constit 

      1. Delegation of legislative functions by parliament to government for regulation of specific complex or technical subjects 

      2. Normative acts in case of emergencies 

  1. International executive agreements scope expanded, circumvent advise and consent of senate 

    • SCC US v Belmont 1937, exec agreements can extend to treaties 



Patterns of Electoral Systems

In constitutional law, electoral systems are methods, pro￾vided by the law, for the transformation of votes into 

seats of a political assembly.

Contemporary constitutions generally do not regu￾late electoral systems in detail, leaving the scope to pri￾mary legislation. Constitutions usually impose just 

general principles regarding the right to vote, elections 

and electoral legislation.

In contemporary western countries, the electoral sys￾tems are usually classifed into three general patterns—

plurality, majority and proportional representation.

Both plurality and majority entail the organization 

of the territory into single member constituencies. 

Plurality electoral systems—applied in the United 

Kingdom for the election of the House of Commons but 

also in the United States for all the elections at the federal 

and state level, and in several other countries—do not 

require the candidate to obtain an absolute majority of 

the votes to win the seat, but rather just the plurality.

Majority electoral systems, instead, require the can￾didate to obtain an absolute majority of the votes in 

order to be elected. In the majority system (which is cur￾rently in force in France, for instance), if no candidate 

gains a majority, the competition passes to a second 

round, in which only the candidates with the highest 

number of votes are admitted.

Despite the differences, scholars have nonetheless 

demonstrated that both of these electoral systems sup￾port the two main parties, while disadvantaging the third 

parties in the competition (Duverger 1964).

Proportional representation is an electoral methodol￾ogy whose aim is that of reproducing the same ratio 

among votes cast by electors in the composition of the 

assembly. With this objective, the territory of the nation 

is partitioned in multi-members’constituencies, where 

political parties present their lists of candidates. Electors 

vote for a list, corresponding to a political party, and, 

according to the electoral legislation, may also express 

preferences among the candidates within the list. At the 

end the electoral process, the distribution of available 

parliamentary seats happens on the basis of the respec￾tive quotas of votes obtained by the party’s lists.

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4.3 · The United Kingdom Between the Two World Wars

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If, on the one side, proportional representation avoids 

the effect of misrepresentation of popular intentions 

determined by both plurality and majority electoral sys￾tems, on the other side it is often linked to the creation of 

multiparty systems, encouraging fragmentation and 

polarization of political parties rather than their aggrega￾tion and cooperation.

This is why, in contemporary electoral legislation, 

proportional representation is often adopted together 

with corrective measures, aimed at reducing its natural 

outcome: those corrective measures are (i) the electoral 

threshold, which bans the access to the parliament to 

political parties with an overly limited consensus, (ii) the 

majority bonus, which assigns to the political party(ies) 

that obtains the plurality of votes an additional amount 

of parliamentary seats, useful to reach a more stable 

majority, and (iii) small constituencies, because it is evi￾dent that, the lower the amount of available seats in a 

constituency, the lower the amount of political parties 

that are able to participate in the distribution.

In comparative law, it is also possible to fnd eclectic 

electoral systems, not falling within one of the categories 

explained so far, as well as mixed systems, that adopt dif￾ferent kinds of electoral systems in the same electoral 

process.




4 Patterns of Parliamentary Government 

Both founded on relat confidence but DIFFER by 

  1. Design of political system (type of gov, type of leg, role of head of state [italy, spain germany head has more power], head of gov, body is cabinet formed from, electoral system)

  2. Interaction of pol actors (powers of head of state, head of gov interaction w cabinet, powers of parliament opposition)

  3. Stability (coalitions)

  • Majoritarian democracy FIRST PAST THE POST ELECTION

    • 2 party system, plurality or majority electoral 

    • Competitive attitude of political parties 

    • STABLE, cabinet in charge for whole legislature

  • Consociational democracy PROPORTIONAL ELECTION

    • Multi-party/fragmented pol systems, proportional election

    • UNSTABLE 

    • Crisis: reshuffling coalitions and different agenda, dissolution of parliam to resolve common



5 CENTRALIZED REVIEW OF LEGISLATION 

CONSTITUTIONAL COURT 

  • Constitutions regulate 4 issues of const courts: composition, jurisdiction, principles of procedure, and effects of their ruling

  • Main function of CC: constitutional review

  • Methods of submitting legislation 

    • Incidental access - judge deciding a case has doubt writes preliminary reference with: 

1. Reasons why the norm is invalid and 

2. How it applied to the case they are judging 

*sometimes goes through SC which filters to decide if important enough for CC to review

  • Direct appeal by government/member states - where distribution of leg competencies exists these courts can appeal for protection of their competencies 

  • Direct appeal by parliamentary minorities - political minorities 

  • Direct appeal by public bodies/institutions - president of republic, president of chamber of parliament supervisory body

  • Automatic control - certain specific cases acts involving specific subjects 

  • Individual complaints by citizens - last resort in some countries 

**initial control = concrete bs based on specific case while direct appeal = abstract bc no actual cases considered 

  • Effects of rulings are general, lead to annulment of legislative provisions that do not comply with constitution 

    • Judicial review: all courts have power to review constitutionality vs centralized where it is sent to the specialized const court  



Legal Tools and Keywords: Defnitions and Typologies of Constitutional Rights

In legal dictionaries, several defnitions of “right” are 

available: in very general terms, a right is a condition, 

regulated by the law, that grants to the subject the enjoy￾ment of a liberty, or the use of a good, exercise of a power, 

or entitlement to a credit, to receive a service or a good.

Within the general category of constitutional rights, 

we can distinguish:

(a) individual liberties (frst generation rights), which 

can be also divided into (a.1) civil rights (habeas cor￾pus, fair trial, privacy, free movement, free speech, 

etc.), (a.2) economic rights (private property, free￾dom of contract, economic undertakings, etc.) and 

(a.3) collective rights (right to assembly and associa￾tion, etc.);

(b) political rights, that imply the rights related to the 

participation in the direction of the polity and are 

usually restricted only to citizens: above all, the right 

to vote and to be elected;

(c) social rights (second generation rights): among oth￾ers, these include education, welfare, and health.




The Alternative vote system in Australia 

Aka transferable vote 

House of Representatives have special kind of majority election that differs from double ballot system

  • Electors rate candidates in order of preference, candidate must receive majority not plurality 

  • If no candidate earns majority the lowest candidate is eliminated and votes are redistributed w second choice 

  • Avoids second ballot avoiding difficulties of past the post 



Territorial Organization of the State 

UNITARY STATES 

  • French I Republic Const of 1791 strict unity of state, only present in east central countries earlier under soviet union

  • Centralization of leg exec and jud, little local autonomy 

FEDERAL STATES

  • US

  • Federal state is a state composed of states, territorial entities compose the federation 

  • Division of competencies but fed has higher power to keep stability 

REGIONAL STATES 

  • Spanish Const 1931 2nd repub, Italian 1948, Spain 1978

  • Intermediate between unitary and federal, division of competentices 

  • Regions have some leg and administrative functions (not jud)(no leg chamber in states/no amending procedure involvment)(no regional const)




Equal Protection Clause and Suspect Classifications 

14th amendment - established formal equality [equality of any individual before the law without distinctions based on personal conditions], not be blind to differences but take them into account

*idea of distributive justice by Aristotle, substantial equality 

Equality - to treat an individual in the same manner as others in similar conditions and circumstances 

  • Equality must be interpreted when authorizing distinctions presented by the law and when a condition deserves special legal protection 

  • Legislative classification: discrimination or affirmative action

    • Affirmative action -  a measure aimed at empowering disadvantaged category of people on the sake of reaching actual equality

    • Legislative classification turns into discrimination when no legally acceptable grounds that justify classification 

  • Equality in jud review depends on rationality test, courts and those carrying out leg assess leg rationality and interfere with political vires at deeper level than usual

  • SUSPECT CLASSIFICATIONS: how formal equality is interpreted (for race, nationality, religion, ethnicity, and gender)→ Brown v Board any classification based on race is suspect bc constitution is color blind

  • Strict scrutiny leg only compatible with const only if it pursues compelling public interest and is narrowly tailored (principle of proportionality, strict adherence to the leg measure to the goal it pursues)



Incorporation of Fundamental Rights 

  • Incorporation - SC can extrapolate certain rights from the fed bill of rights that are deemed as fundamental and grant them a special enhanced protection which implies most importantly consistent protection throughout nation 

  • 2 diff approaches of applying incorporation to case law 

    • Historical test - must be deeply rooted in nations history and tradition 

    • Constitution is ‘living body’ - liberty based approach, ignore nat legal tradition, right is fundamental bc of liberty

      • Disputed by originalism, people wanting interpretation of org framers understanding




Gerrymandering: the practice, carried out by state legislators, to draw electoral districts according to voting predictions in order to predetermine election outcomes, goal is to maximize effects of votes by certain candidates and minimize effect of votes by opponent 

in 1965 Voting Rights Act prohibited racial discrimination—> SC declared gerrymandering against 14th EPC 

Shelby County v Holder SCC - voting act provisions struck down, gerrymandering allowed




Politics & Constitutions of Socialist Democracies 

Stalin Const aka Soviet Const of 1936

differences from liberal constitutions: 

  1. the role of the state and its relat w society collectivist class based society COMMUNIST: state instrument in hands of proletariat (ruling class) who aims for communist society, no distinction of classes SOCIALIST: collective interest prevail over ind rights, equality among men, ind/pol liberties cannot go against objectives of state 

  2. concept of ind rights 

  3. org state power COMMUNIST concentration of power in communist party with democratic centralism, unity of state power and one party system, supreme body with leaders that support secretary of leading party PRINCIPLE OF SOCIALIST LEGALITY respect of cont and law, no judicial review usually carried out by leg assembly (supreme body that holds all power of state) 

  4. nature and function of the const 3 main tenets: socialist legality, democratic centralism, collective mastery, CONSTITUTION: collection of general principles of socialism and a list of social goals to be achieved by the state




Patterns of Const Amendment Procedures 

rigid: particular more complex amending procedure than primary leg 

diff between power of const amendment process vs constituent power = de facto power: establish new pol and legal regime not regulated but customary/written law 

CRITERIA FOR PATTERNS OF AMENDMENT PROCEDURES 

  1. institutions/bodies involved [ad hoc assembly: discuss/approve amendments vs constituent assembly: new const, bicameral may have 2 chambers, participation of states]

  2. participation of electoral body [referendum (participation seen in italy, switzerland, spain, poland, and sometimes france)]

  3. more complex process requirements [supermajorities ⅔ or ⅗ to pass amendment or absolute majority (italy), double vote, referendum if procedure requirements not met, automatic dissolution of parliament and electoral approval]

  4. overall or partial constit reform  



Balancing of fundamental rights and proportionality scrutiny 

adjudication 



judicial balancing: review of leg, binding pol discretion within limits of rationality, checking reasonability of rational means, and avoiding excessive sacrifice to const rights (SCOTUS, GERMAN TRIBUNAL) *room for abuse of democratic process

proportionality scrutiny: scrutiny of statute is the courts checking the possibility to use a less intrusive means and compare costs/benefits (EUROPE started in germany, review of public admin —> review of leg with GBL) 

—>proportionality: set of rules determining necessary and sufficient conditions for a limitation of constitutionally protected rights by law to be constitutionally permissible 




5 Organization and Functions of Parliaments in Europe 

PATTERNS 

  • bicameralism, (English) federal states, chamber for fed and second chamber representating member states usually elected by the people 

  • symmetric bicameralism: two chambers share same powers and functions 

  • asymmetric bicameralism: two chambers w diff powers and functions, second chamber usually does not have relat confidence and has restricted subjects for law, first chamber has last say

  • unicameralism (French rev) unity, one chamber (adapted by denmark, sweden, greece, portugal, norway) 

STRUCTURE 

  • pres of leg assembly: (speaker of house) presides and guarantees rule/efficiency, ‘super pares’ = should be impartial 

  • parliamentary groups: main pol bodies, expression of pol parties and carry out: parliamentary works, bodies composed in proportion to strengths of parliamentary groups, discipline of parliament 

  • parliamentary committees and plenum assemblies: standing committees [permanent, subjects are of competencies] or special committees [specific affairs, temporary only until task fulfilled] 

PARLIAMENTARY FUNCTIONS 

  • relationship of confidence: main channel through which (chamber of/whole) parliament and exec agree upon general pol orientations and commit themselves to making it effective through policymaking 

  • initial vote of confidence (germany, italy, spain, central/eastern euro) and presumed vote of confidence (france, uk, portugal, austria, scandinavian)

    • PARLIAMENT NEEDS TO VOTE FOR CABINET

  • question of confidence: cabinet has power to question relat of confidence by submitting this when approval of bill is fundamental for cabinets policy 

    • CABINET introduces proposals to parliament, winning vote = have confidence of parliament

  • Motion of no confidence 

    • MOTION of parliament to say that they do not support gov → gov must resign OR NEW PARLIAM ELECTIONS 1 parliam dissolved and new elections held and new gov chosen (uk, canada, australia, new z, ) OR 2 CHANGING CABINET parliam stays and new cabinet (italy, spain, germany)

  • legislative function [submitted by 1. member parliament 2. cabinet 3. people (popular initiative) 4. territorial entities 5. other bodies w const relevance]

  • structured on double examination: procedures in committee then debated and voted on by house floor 

  • in bicameral houses both chambers must approve, will of lower house prevails 

  • conciliation committee for compromise between chambers (germany and france)

  • control and inquiry function: examining and challenging work of cabinet to monitor its policy and keep it effective [questions to ministers, investigative activities, parliamentary debates]

  • power of inquiry: specialized committees investigating matters of public interest have judicial tools 




Legal Tools and Keywords: Composition and Functions of Constitutional Courts

In 7 Sect. 4.6, I stressed that one of the characteristics 

of the European centralized pattern of constitutional 

review consists of the special method regarding the com￾position of the constitutional courts, aimed at ensuring 

sensibility to the political background of the legal issue, 

in consideration of the functions they are entrusted to 

carry out.

This element is quite evident if we analyze the meth￾ods of composition of the constitutional courts pro￾vided for by European constitutions (Harding and 

Leylan 2009).

All the constitutional courts in Europe are completely 

or partially elected by the parliaments. In some cases, as 

In this case, a qualifed majority is often required, with an 

aim to involve the oppositions in the election of a judicial 

body entrusted with guaranteed functions. Such majori￾ties usually oscillate from an absolute to a two thirds 

majority.

Many European constitutions, however, adhere to a 

somewhat different model, based on the participation of 

a plurality of bodies apart from the parliament, with a 

view to balancing the weight of the main powers of the 

state within the composition of the constitutional court. 

According to these different patterns, judges of constitu￾tional courts may be partly appointed by the Head of 

State (Italy, France), by the Cabinet (Spain), by the 

Judiciary Council (Spain) or by the supreme ordinary 

and administrative courts of the judicial branch (Italy).

To be appointed/elected, a constitutional judge must 

possess qualifcations of professional excellence. 

Moreover, some constitutional courts are composed tak￾ing into account additional criteria, such as the linguistic 

factor or the place of origin (Belgium).

With regard to their functions, the constitutional 

courts do not limit themselves to the main task of consti￾tutional review of legislation, which is the core of their 

activity (Ginsburg and Elkins 2009). The methods 

according to which this task is organized in the different 

constitutions is schematized in 7 Sect. 4.6.

Ancillary functions of the constitutional courts that 

can be inferred from the analysis of European contempo￾rary constitutions are:

Judgments on the conficts arising from allocation of 

powers of the state and powers allocated to state and 

regional entities (Italy, Germany, Spain);

5 Judgments on appeal against decisions made by the 

parliament on the check of the credentials of its 

members (Germany, France);

5 Supervision over parliamentary or presidential elec￾tions and judgements of related complaints (France, 

Germany, Austria, Portugal);

5 Judgments on the admissibility of referendums 

(Italy);

5 Judgments on the charges brought against the Presi￾dent of the Republic (and, in some cases, the minis￾ters) for high treason or serious misdemeanors 

contrary to the constitution (Italy, France);

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6.2 · The General Features of Contemporary European…

6

5 Overview on the exercise of emergency powers 

(France);

5 Judgments on the constitutionality of political par￾ties (Germany);

5 Assessment on the constitutionality of international 

treaties, before their ratifcation (France);

5 Judgments on direct individual complaints of viola￾tions of rights guaranteed by the constitution com￾mitted by legislative, administrative or judicial acts 

(Germany, Spain, Switzerland, Belgium, most coun￾tries of Central and Eastern Europe).




ENHANCED TOOLS OF RATIONALIZATION 

second wave rat post WW2 for institutional stability, this time —> enlarged exec powers and consolidation of majoritarian dem

—> new methods of sep of powers 

  1. pol control by parliamentary opp

  2. control by indep institutions [pres of republic in parliamentary gov]

  3. territorial decentralization of powers regionalism and federalism (fra, it)

  4. indep judiciary [check of pol power][sep of jud from exec obtained through diff techniques 1 provision of separate careers for judges w adjudicating and public prosecutors 2 obligation to prosecute any crime despite pol direction 3 provision of judiciary councils: autonomous bodies entirely representative of jud (sometimes has political membership) appointed to appoint/assess magistrates] 

  5. settled system of constitutional review 

  6. pluralistic public opinion  

  7. indep administrative agencies [admin and quasi-jurisdictional functions differ from typical idea sep but limitation of pol decision making is sep



Local independentism in Euro

secessionist movements (movement to leave state) SPAIN 

Basque region and indep group ETA violent 

Catalonia region referendums and parliament resolution indep but dismissed and spanish govt kept control 

BELGIUM 

French community in Wallonia and Flemish in Flanders wanted indep, const reforms led to federal state based in 3 regions




Coopertive Federalism - based on these elements GERMANY

  • 1 Bundesrat, 2 administrative functions of laender, 3 subsidiarity principle which entails mobility of leg competencies, 4 equalization of public finance = solidarity among laender 



 Emergency powers in constitutional law

  • Emergency clauses in const’s provide emergency frame of gov - rationalize states of emergency but also weaken const rigidity 

    • Weimar A48

    • France 5th Republic A16 - pres can take emergency measures after consulting prime minister pres of houses of parliam, and const council, nat assembly should not be dissolved for 30 days 

    • EU International Covenant on Civil/Pol rights states can take emergency measures but protected human rights 




UN Universal Declaration of Human Rights 1948

Main goal: demolish link between ind rights and state citizenship, legal protection of core values to mankind for all

Human dignity and catalog of civil and pol human rights 

NOT a treaty bc human rights thought of as western liberal idea, states not required 

Influenced 1. Const and statutory provisions protecting fundamental rights and 2. Intl treaties



 Comparative Legal Reasoning

Judicial dialogue useful for finding answers to shared problems, promotes use of comparative reasoning which is used when court's reasoning is based on law/jurisprudence from other (foreign) courts



Hirst v UK 2005 (Euro court case) - Representation of the People Act of 1983 banned right to vote of imprisoned citizens which violated A3 ECHR, ban fell outside margin of appreciation

→decls incompatibility of rep of people act w HRA and UK had to amend leg (Euro court Greens and MT v UK)

Congress thought this was political and therefore a matter for leg not courts





European Political Parties

Treaties reformed to allow regulating pol parties [new registration procedure, sanctions for misuses and abuses, new procedure for funding]

European political parties have legal personality & must respect values on which EU is based





EU engagement in tackling member states democratic regression

Democratic regression involves aggression to pillars of const architecture and dismantling of basic const principles [fundamental rights, minorities rights, prerogatives of pol opp, free speech, pluralism of media, respect intl law obligations, rights of migrants and refugees, indep of judiciary, rule of law standards](infringement of basic values in A2 TEU)

→Solution should be utilizing A7 mechanism but that is pol difficult, ECJ preliminary reference has been used instead (Poland)

  • Poland - right wing populist party PiS, ECJ imposed respect of the rule of law in Poland 2018-2021, polish CC disregarded and affirmed const incompatible w EU law primacy

  • Hungary - Prime minister Orban wants to establish illiberal democracy

ECJ affirmed principle of non-regression, imposing respect of A2 common values by member states, assuming the power to review states measures 

Rule of Law conditionality: created method of conditionality on distribution of EU financial resources, imposing the assessment of respect of rule of law standards and other basic values as a condition for national govs to assume funds, method of pol sanctions

  • Challenges to rule of law:

    • Transparent, pluralistic, and democratic lawmaking process

    • Legal certainty 

    • Effective jud protection 

    • No erratic use of exec powers

    • Access to justice in courts, fundamental rights, non-discrimination and equality before law

  • Judicial substitution and financial conditionality important but other inst checks too




The EU’s Accession to the ECHR – A dead end? 

TEU in A6.2 foresaw EU accession to ECHR → affirmation of the court of strasbourg power of adjudication (judgement) of acts of union, if completed →strong cooperation in euro legal space but also threat to court of strasbourg as only guardian of legitimacy of EU law so court rejected accession in 2014 opinion

ECJ set obstacles for acceding to ECHR, today EU not part of ECHR

EU is supposed to acceed to the ECHR, but it is not known if and when it will happen