2. Constitutional Law

Constitutional Law

Purpose of Constitutional Law

• Constitutional law serves several purposes:
  • Defines the state, including its boundaries, anthem, and flag.
  • Attributes and limits power to state institutions.
  • Recognizes the rights of citizens within the state.
• Example: The Belgian Constitution.

Three Types of Rules

• Constitutional law encompasses three types of rules:
  • Defining the state.
  • Attributing and limiting power to state institutions.
  • Recognizing citizens' rights.

Belgian Constitution

• The Belgian Constitution includes titles such as:
  • Title I: On federal Belgium, its components, and its territory.
  • Title Ibis: On general political objectives of federal Belgium, the Communities, and the Regions.
  • Title II: On Belgians and their rights.
  • Title III: On powers.

Struggle for Power

• Constitutional law addresses the balance between state power and individual freedom.
• It considers the extent to which authorities should interfere in citizens' lives.
• The idea of a ‘social contract’ is a starting point for organizing states in most European countries.

Distribution Amongst State Institutions

• Constitutional law regulates the distribution of power among state institutions.
• This is related to the concept of Trias Politica, or separation of powers.

Trias Politica

• Legislative Branch (Parliament):
  • Power to make and change laws.
• Executive Branch (Government):
  • Power to put laws into action.
• Judiciary Branch:
  • Power to make judgements on law.

Language of Constitutional Law - Overview

• Key aspects include:
  • The state structure.
  • The government system.
  • The head of state.
  • The legislature.
  • The executive branch.
  • The judiciary.

State Structure

• The state structure defines how power is distributed among the entities of the state.
• This includes:
  • Unitary state versus Federation.

Federation

• A federation unites federated areas that are self-governing within the boundaries set by the federation.
  • Implies a certain level of autonomy in legislation and government.
  • Examples: Provinces, regions, cities, states.
  • Often includes a constitutional court.

Unitary State

• In a unitary state, the legislative, executive, and judicial branches are centrally focused and have the exclusive power to ultimately deal with the adoption, execution, & interpretation of law.

Government System

• Includes:
  • Monarchy versus Republic.

Monarchy

• In a monarchy, the highest power is vested in one person and transferred from generation to generation.
  • Appointment is based on tradition, mostly family ties.

Republic

• In a republic, the highest power is attributed to political bodies that rule within the boundaries of a constitution.
  • Headed by a president.
  • Highest legislative power consists of a body that represents the people (democratic level can differ).

Democracy

• A form of government in which the highest power is vested in the people that are governed.
  • Direct versus Representative democracy.

Direct Democracy

• The people are directly involved in the decision-making process.

Representative Democracy

• The people decide who represents them in the decision-making process (legislative and/or executive branch, not the judiciary).

Head of State

• The exact power of the head of state can differ, as specified in the constitution.
• Especially in a republic, the role of the president can vary.

Legislature

• Mostly composed of two houses:
  • The Senate.
  • The House of Representatives.

Executive Branch

• The government, mostly led by a prime minister and/or president.
  • Executes the law.
  • Mostly has a margin of discretion.
  • Is controlled by the legislator (budget laws).
  • Sometimes has veto power over the adoption of law.
  • Adheres to ‘Principles of good governance’:
    • Legitimacy.
    • Accountability.
    • Fairness.

Judiciary

• Legal systems:
  • Common law (‘stare decisis’: UK, USA, Australia, parts of Africa).
  • Continental law (Western Europe).
  • Combination (South-Africa).