Bocconi 30430 Public Law

What is normativism?

Legal system classification theory that emphasizes the formal and State element (Hans Kelsen). The idea of hierarchy tells us that there should be a fundamental rule "Grundnorm" from which any other rule can be derived.

What is institutionalism?

Legal system classification theory that emphasizes the sociological element (Plurality of Legal Systems by Santi Romano). Focuses on interactions between people and authorities.

What is a legal system?

The systems of rules emerging every time humans enter into forms of cohabitation or coexistence. Ubi Societas, Ibi Ius: "Where there is society there is law"

What are the 6 main types of corruption?

· Bribery · Extortion · Theft · Embezzlement · Nepotism · Undue influence

Explain key features of the semi-presidential executive system.

· Double Popular Legitimation · Directly elected fixed-term President · Prime Minister and Cabinet collectively responsible to the Parliament - and in certain countries also to the President

What are the 4 WTO functions?

· Facilitate the implementation of WTO agreements · To provide a forum for negotiations · To cooperate with other organizations · To provide technical assistance to developing countries

Why is there receding globalization / slobalization?

· Frequent use of national security to justify trade restrictions - US tariffs · Geopolitical conflicts - trade restrictions · Geoeconomics · Unilateralism v multilateralism >> Capitalizing on National Security Exception

Why do we need rules for trade?

· Prevent price-fixing · Improve efficiency in the face of trade globalization · Intellectual property · 'Spaghetti bowl' effect: multiple trade agreements that may overlap in rulings

What is a sham constitution?

· Sham Constitution - no relationship to reality · Nobody follows it · "Constitutions without constitutionalism" - can serve to help regimes to advance important goals · Soviet Constitution of 1936 · Difference in application - freedom of after speech (you can object after action is done)

What are the powers of the US President?

· Veto power over legislation · Commander-in-chief of the armed forces · Power to make treaties · Power to appoint ambassadors, officers and judges · Power to issue pardons · Power to call congress for special sessions · Power to initiate legislation · Most legislation passed by Congress is proposed by the Executive

What elements can we consider to analyze corruption?

• "Corruption Mechanisms" • Investigation Catalysts • Enabling Conditions • Anti-Corruption Policy

What are the 4 stages of social movements?

Emergence Coalescence (Uniting) Bureaucratization Decline

What types of evasion strategies do leaders employ?

(1) Amendment: Eliminate term limits of extend (2) Blank Slate / Zeroing: New constitution resets term count (3) Courts: Reinterpret term limits (4) Placeholder President: Use the incumbent as a puppet (5) Delay elections

How is freedom of expression defined by ECHR?

- Everyone has the right to freedom of expression. - Freedom to hold opinions and to receive and impart information and ideas without interference by public authority - Freedom of expression is not absolute - The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to restrictions as prescribed as law

Fluid vs Concentrated?

- Fluid: no central authority (Ex: International Law) - Concentrated: strong central authority - the last decider (Ex: The State)

How do political parties protect democracy?

- Keep would-be authoritarians off party ballots at election time - Root out extremists in own grass roots - Avoid alliances with antidemocratic parties and candidates - Systemically isolate, rather than legitimize, extremists - Unified front to defeat extremists

Enlightened Absolutism

- Royal rule inspired by the principles of the Enlightenment - Efforts to improve life of their subjects (education, moral campaigns) - Limited Recognition of rights - But these kings still believe they have the right to govern by birth.

Voluntary vs Necessary?

- Voluntary: people come together out of common will, interest, need, or belief. Mostly non-territorial. (Ex: Political parties, clubs, associations) - Necessary: people cannot opt out of the system. Mostly territorial. (Ex: Residents in a Town, Citizens in a Nation State)

What is multi-level governance, in the context of globalization and supranational levels?

-Supranational organizations are involved in the exercise of public power and the production of norms at the supranational level. - Globalization - world marketplace where goods, workers, capital and ideas move freely across national borders - has led to growing interconnectedness, so need to regulate more activities at the supranational level. - These norms apply to individuals as much as States and they coexist and interact with national law.

What are the 4 ways Constitutional Courts are formed?

1. Appointment Based System >> Judges are nominated by the Executive >> EX: United States 2. Election Based System >> Parliament elects the judges >> EX. Germany 3. Mixed System >> Various branches of gov involved >> Some Judges elected by the Parliament >> Some Judges elected by the Judiciary >> Some Judges elected by the Government >> EX: Italy 4. Predetermined System >> Composed of the heads of various Courts systems >> Seniority is the main criterion / career progression >> EX: Greece

What are the characteristics of the state?

1. Concentrated 2. Necessary 3. Territorial 4. General 5. Sovereign A legal system having general ends and objectives which exercises sovereign power over a specific territory, to which the subjects or participants belonging to such system are necessarily subject and subordinated.

Describe the WTO's Dispute Settlement System.

1. Consultation (Parties to the dispute) 2. Review of the case - Panels (3 individuals, ad hoc panels, case-by-case basis) 3. Appeal - Appellate Body (7 individuals, appointed for 4 years, renewable once) 4. Adoption of the report - Dispute Settlement Body (All WTO Members) 5. Implementation (Compliance and retaliation) <FEATURES> o Only WTO Members (not companies) o Members have discretion in deciding to bring a case o Members have the right to be heard as third parties in a dispute o Some cases have broad implications for the whole society (e.g. Australia-Plain Packaging for cigarettes)

Classify the forms of state diachronically.

1. Feudal State 2. Absolutist State 3. Liberal State 4. Democratic Pluralistic State 5. Alternatives to the Democratic Pluralistic State

Absolutist State Crises

1. Financial Problems: Overextension of armies and bureaucracies 2. Socio-Economic Transformations: Industrial revolution. Middle classes ask for more power and better representation of their interests. 3. Country-specific political developments o England: English Civil War o France: French revolution 1789 o US: American Revolution

How can legal systems be classified?

1. Fluid vs Concentrated 2. Voluntary vs Necessary 3. Specialist vs General 4. Non-sovereign vs Sovereign

How do we solve conflicts between different laws?

1. Hierarchical o Hierarchically superior law prevails >> E.g. the Constitution over Ordinary Law 2. Specialization o Lex Specialis >> More specific law overrides more general one 3. Chronological o Lex Posterior Derogat Priori: A Later Law Repeals an Earlier One

What are the 4 stages of the Proportionality Analysis?

1. Proper Purpose >> The purpose is certainly proper if it is another constitutionally protected principle or right. >> Ex: Privacy & Public Order 2. Rational Connection >> Are the means adopted capable of advancing the proper purpose? >> Ex: Limitations of free speech rationally connected to the need to protect public order against free speech that incites violence. 3. Necessity >> Are there any other, less restrictive means, to achieve the same proper purpose? >> Ex: Banning violent speech in certain sensitive places (schools, public spaces) or the internet / instead of in all private settings 4. Balancing Stricto Sensu >> Is the objective achieved worth the limitation needed to achieve it? >> Involves a lot of discretion from judges.

What are the features of EU Law?

1. Self-executing It does not require implementation - law of the land 2. Direct effect Individuals can bring their own member state to court for lack of respect of EU law 3. Supreme - EU law > National law *International law is the complete opposite.

List the hierarchy of legal sources.

1. The Constitution 2. Primary Sources of Law 3. Secondary Sources of Law 4. Customs

What are the 3 different conceptions of the People?

1. The subjects of the Sovereign 2. The holders of rights vis a vis the State - citizens 3. The creators of the general will

What are the 4 theories of sovereignty?

1. Theocratic: Priests rule in the name of God 2. Contractualist: A social contract is at the basis of State authority: consent of the governed 3. The Nation / Nationalism: Coincidence of ethnically or culturally defined nations with the State 4. Democratic constitutionalist: It is the will of the people that grants power to the State. Most modern Constitutions adopt this notion - Sovereignty belongs to the people.

What 3 measures enable the International Protection of Human Rights?

1. Universal Declaration of Human Rights o Adopted in 1948 by UN General Assembly o Concept of Dignity appears for the first time o Not formally binding under international law - it is not a treaty. 2. International Covenant on Civil and Political Rights o A Treaty adopted in 1966 - in force since 1976 o Monitored and enforced by the UN Human Rights Committee (court) 3. International Covenant on Economic, Social and Cultural Rights o Adopted in 1966 - in force since 1976 o Monitored by the UN Committee on Economic Social and Cultural Rights

Absolutist State Characteristics

14th-17th century <Characteristics> · The King has supreme authority (sovereignty) · The State became more interventionist especially with economy. · Growing public functions exercised through large centralized bureaucracies · Growing colonial aspirations required large standing armies · Financed by growingly complex tax systems <2 major power shifts> o From the feudal lords to the King - stabilization of monarchical authority o From land to money - seeds for the emergence of urban bourgeoisies

Semi-Presidentialism: Belaurs Case Study

1994 - Direct popular election of President - Fixed term = 5 years - Limit 2 terms - President can dismiss PM w/ Parliament support - No motion of no confidence 1996 - PM responsible to both President & Parliament - Vote of no confidence exists Later On - Changed wording of the election terms - President Lukashenko in power from 1994 to today.

Elaborate on the feudal society.

8th-12th century Patrimonial State - aim to solely meet the needs of the feudal lord - No State 'stricto sensu' yet - Total identification of the feudal lord (or the King) with the land - King exercises power over vast territories through private contracts with feudal lords (vassals)

Explain the relationship between President & Parliament in Semi-Presidential Executive system.

<Dissolution of the Parliament - France> o President of Republic may dissolve Parliament after consulting the Prime Minister and the Presidents of the assemblies o President cannot exercise this power of dissolution in the year following the parliamentary election. <President Parliamentarism> o Russia o In some countries the President can also dismiss the PM with support of the Parliament o Prime Minister and Cabinet responsible to both Parliament and the President <Premier Presidentialism> o France o President cannot dismiss the PM o Prime Minister and Cabinet responsible only to Parliament

Describe the US Model of Constitutional Review.

<FEATURES> 1. Posteriori / Repressive >> The Law is reviewed after it comes into effect. 2. Concrete >> It is linked to an actual case: a real controversy >> Party claiming unconstitutionality of statute needs to have standing >> Incidental: Courts get a chance to decide the Constitutional issue as an incident during normal case. 3. Diffused / Decentralized >> Every Court has the power to find primary legislation unconstitutional during a normal case <STRATEGIC LITIGATION> · Practice of bringing lawsuits to affect social change · Good for Human Rights activists and progressive policy platforms · US Supreme Court landmark cases: Brown v. Board of Education; Loving v. Virginia; Row v. Wade

Explain the right to vote & right to be elected.

<RIGHT TO VOTE> Article 21 of the Universal Declaration of Human Rights (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. (2) Everyone has the right of equal access to public service in his country. (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. <RIGHT TO RE-ELECTION> · No specific and distinct right to re-election · To preserve democracy and protect the human right to political participation · Term-limits on the office of the President are a check against the danger of abuse of power

Absolute Rights vs Relative Rights?

ABSOLUTE RIGHTS o Very few - cannot be limited o E.G. Right to not be tortured RELATIVE RIGHTS o Most rights - can be limited o The Constitution provides modes and reasons of these limitations >> General limitation clauses >> Right-specific limitations o Rights are limited in order to achieve certain other constitutionally protected rights or principles. o E.G. Hate Speech: Freedom of Expression is limited in order to protect freedom of religion of certain groups and non-discrimination.

Distinguish between federal and regional states (decentralized states).

ALLOCATION OF LEGISLATIVE POWER o Federal: Constitution lists the subject-matters that central gov can legislate. o Regional: Constitution lists the subject-matters that sub-state entities can legislate. ALLOCATION OF JUDICIAL POWER o Federal: Sub-state entities often have a separate court system and their own substantive and procedural law, be it civil or criminal. - Separated Model: US states each have own law. - Integrated Model: Canada provinces decide how they will enforce national criminal code. REPRESENTATION IN UPPER HOUSE o Representation of the sub-state entities in the second chamber of Parliament. o Federal: Second chamber represents the sub-state entities. o Regional: Second chamber does not represent the sub-state entities. CONSTITUTIONAL AMENDMENT POWERS o Federal: Sub-state entities have constituent power and take part in amending the Constitution. US - Amendments to the Constitution have to be ratified by 3/4 of states o Regional: Sub-state entities don't have constituent power FEDERAL: States have their own sub-national Constitutions (USA)

What is corruption?

Abuse of entrusted power for private gain Corruption 'undermines' human rights because it reveals the desperate situation of the bribe giver to assess right to education, health, etc.

Semi-Presidentialism: Russia Case Study

Accumulation of Power Problems: Putin managed to evade the fixed term policy for President. Amendment to the Russian Constitution o One and the same person may not hold the office of the President of the Russian Federation for more than two consecutive terms. Putin bypassed new amendment this by (1) extending presidential term (2) switching roles with PM Medvedev: Putin-Medvedev tan-democracy (3) Zeroing of the presidential terms - Cancel out history of the previous terms

Distinguish between Acts & Facts producing law.

Acts o Written sources of law o E.g. the Constitution, law passed by Parliament, decisions by Court, international agreements Facts o Unwritten sources of law o Mostly customs, constitutional conventions, etc.

What are human rights regional conventions in Africa?

African Charter on Human and Peoples' Rights >> All the members of the African Union Interpreted and enforced by two bodies: African Commission on Human and Peoples' Rights >> Quasi-judicial body >> It refers cases to the Court African Court on Human and Peoples' Rights >> Jurisdiction on cases referred by the Commission or State Parties >> 8 Members have accepted jurisdiction of the Court on individual petitions. · Very low compliance rate

What are human rights regional conventions in Latin America?

American Convention on Human Rights >> Most Latin American Countries Enforced by two bodies: Inter-American Commission on Human Rights >> Receive individual complaints >> Tries to settle informally Inter-American Court of Human Rights >> No individual petition! >> Only countries which have accepted jurisdiction of the Court can be brought to Court by the Commission or another state. o Lower compliance rates than ECtHR

Distinguish between civil & common law systems.

CIVIL LAW SYSTEM · Statutory Law is the main source of law · Judges considered bouche de la loi: (1) interpret and apply law to concrete situations (2) not bound by precedent COMMON LAW SYSTEM · Common Law principles as developed by Courts are the main source of law · Judges make the law (1) they produce new law (2) Legal rules determined by higher courts are binding - Stare Decisis

What are the types of Constitution?

CODIFIED: One single doc (American) UNCODIFIED: No doc or multiple docs (British) LONG: Frame of gov & bill of rights SHORT: Only frame of gov RIGID: Modifications of the Constitution require a special amendment procedure (US & Most states) FLEXIBLE: The Constitution is formally equal to ordinary laws, therefore it may be modified with an ordinary law. No constitutional review. (UK?) VOTED: Drafted and adopted by a constituent assembly GRANTED (Octroyée): Granted by a monarch

What are human rights regional conventions in Europe?

Council of Europe >> Promote democracy, human rights and rule of law European Convention on Human Rights (ECHR) >> All Council of Europe member states >> Enforced by the European Court of Human Rights ECtHR >> Receives direct petitions from individuals >> Lodged only against State Parties to the convention >> Exhaustion of Domestic Remedies: Applicants can file a petition to the Court only after having used all the remedies available in their own Member State. >> Very high compliance rate

What are the dispositional properties for EU?

DP1: BOTH HOG = President of Commission HOS = President of European Council DP2: Depends for HOS. No for HOG. Depends on how HOS is elected at the national level because 28 members are reps of own countries, but definitely not for HOG. DP3: Fixed for HOS. Not fixed for HOG. HOS: fixed term HOG: not fixed because they have confidence relationship

What is the Constitution & what does it do?

Dicey's definition: "all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state' o The Law of Laws / Supreme Authority o Constitution is hierarchically superior and more stable than ordinary law. <PURPOSE> o Organizes and distributes the power >> Distributes the power between different branches of government (form of government) >> Territorial organization (form of state) o Determines rules for production of new laws and amendment of the Constitution o Provides rights to people through Bills of Rights

Elaborate on the historical evolution of the state.

Forerunners of the State: Greek Polis, Roman Civitas and Medieval Kingdoms Current State system born the end of the Middle Ages. · From 14th century onwards through gradual consolidation of dynastic States across Europe · The unification of territories under the power of single rulers (first in England, France and Spain) Peace of Westphalia (1648) ending the religious wars

What are the historical origins of the parliamentary executive form of government?

Great Britain o 1782: Change from constitutional to parliamentary monarchy (King has less absolute power) o King George III had to appoint a Prime Minister with majority in Parliament or else vote of no confidence. o 1832: Approval of the Reform Act o King William IV forced to reappoint Lord Melbourne as PM because his choice Peel was unable to obtain majority in elections. o Last time a Monarch would dismiss a Prime Minister of his own accord

What is the difference between human rights & private law rights?

HUMAN RIGHTS Rights that individuals enjoy vis-à-vis the State or public authorities. PRIVATE LAW RIGHTS Claims against other individuals

What are the non-discrimination principles in WTO?

MFN: Most-Favored Nation Principle o WTO Members cannot normally discriminate between "like products" of their trading partners o If a benefit (like lower tariffs) is granted to one country, it must be also granted to all WTO members. NT: National Treatment Principle o WTO Members should treat foreign and local suppliers of "like products" equally

Analyze 1MBD Scandal with corruption elements.

Malaysian national investment fund under the name of 1MDB, wholly owned by the Malaysian Government through the Ministry of Finance. TYPES OF CORRUPTION 1. Embezzlement 2. Bribery 3. Money laundering 4. False declarations & bond pricing CORRUTPION MECHANISMS 1. Misuse of foreign & domestic shell companies 2. Use of nominees or associates to obscure connection to PEP (Politically Exposed Person) INVESTIGATION CATALYSTS 1. Investigative Reporting (Media) 2. Whistleblower ENABLING CONDITIONS 1. Availability of corporate structures that conceal beneficial ownership 2. Weak due diligence in public procurement 3. Complicity of international financial institutions (Goldman Sachs) 4. Weak monitoring & oversight of FI

Constitutional Review: Marbury v. Madison

Marbury v. Madison aka Midnight Judges Case United States, 1803 o Supreme Court case affirmed its power to review the constitutionality of statute law. FACTS o President Adams appointed a series of Judges just 2 days before his term ended. One of these judges was Mr. Marbury. Judges approved by Senate and signed by the President o New President Jefferson did not want the new judges to take office and asked his Secretary of State Madison not to send the Commissions. o Marbury brought a claim to the Supreme Court asking a Writ of Mandamus (a Court Order) requiring Madison to issue the Commissions. DECISION o Marbury has a right to get the job o But the Supreme Court does not have Power to force Madison to hand over the Commission o Judiciary Act 1789, which gives the Court exactly this power is unconstitutional, because it gives the Supreme Court a power it should not have according to Article 3 of the Constitution.

Medieval Europe vs Modern State System

Medieval Europe - Complex and overlapping jurisdictions of towns, lords, kings, emperors, popes and bishops, etc - No clear hierarchies, nor an ultimate political authority, or a unitary system of law. Modern State System - State has continuity in time and Space -States survive changes in leadership and last over time. - Centralization of power administered through different institutions. - Sovereignty: The State has the ultimate authority.

Describe significant milestones in human rights.

Middle Ages >> Individuals had rights by being members of groups with better privileges. Magna Carta 1215 (UK) >> Habeas Corpus - unlawful imprisonment Bill or Rights 1689 (UK) >> Prohibition of cruel punishment >> Freedom of speech in Parliament Declaration of Rights of Man and Citizen 1789 (France) >> Rights linked to enlightenment idea of Natural Law Approval of first 10 Amendments 1791 (USA)

Describe the Italian System of Constitutional Review.

Mix of incidenter and principaliter proceedings INCIDENTER o Question of Unconstitutionality raised during course of an ordinary case and referred to the Const. Court o The Judge a quo works as a gateway verifying if question is relevant and not clearly unfounded PRINCIPALITER o The State can challenge regional law anytime o Regions can challenge state law only if it violates their competences as stated in Constitution

Identify the waves of democratization / constitutionalism.

POST WW2 o 1947 Japan - First post-war Constitution o 1948 Italy - First Parliament o 1949 Germany - West Republic established DECOLONIZATION o 1947 India - Decolonization o 1957 Ghana - Decolonization MEDITERRANEAN o 1974 Greece - But 1st case of suspension from European Convention of Human Rights due to military coup o 1976 Portugal - After Salazar's dictatorship o 1978 Spain - After Franco's dictatorship SOUTH AMERICAN o 1983 Argentina - Democracy catalyzed by the Falkland War 1982 o 1988 Chile - 1973 Bombing of Casa Rosada CENTRAL & EASTERN EUROPE o "Sinatra Doctrine" of Gorbachev o War in Bosnia - End with 1995 Dayton Agreement NORTH AFRICA o Tunisia 2014 - First Constitution

What are the 4 forms of government?

Parliamentary executive Presidential executive Semi-presidential executive Directorial executive

Semi-Presidentialism: Poland Case Study

Problems of Coordination: Who represents the foreign policy of Poland in the European Council? 1. The President of the Republic will represent in foreign affairs... 2. The President of the Republic shall cooperate with the PM and the appropriate minister for foreign policy. 3. The Council of Ministers shall conduct the foreign policy.

What is Constitutional Review?

Review of primary legislation to check if it is in compliance with the Constitution AKA Constitutional Justice / Judicial Review

Distinguish between statutory law & case law.

STATUTORY LAW · Formal laws and regulations approved by parliament · Legislative body draws up legal rules · Dominant in Civil Law Systems CASE LAW · Judicial precedent · Legal rule is contained in a decision by a Court · Dominant in Common Law Systems

What are 4 types of constitutions?

Sham Constitution - Promises a lot, delivers a little Weak Constitution - Promises a little, delivers a little Strong Constitution - Promises a lot, delivers a lot Modest Constitution - Promises a little, delivers a lot

Explain cohabitation.

Situation arising in semi-presidential executives when the President Elect and the majority in Parliament belong to different parties. <CAUSES> • Different voting behavior for President and Parliament • Non-concurrent terms for President and Parliament <EXAMPLE: FRANCE> • In the past, cohabitation happened more frequently because of non-concurrent terms - the President's term was 7 years but Parliament's was 5. • Cohabitation made it more like a parliamentary executive - President forced to appoint PM from different political camp. - President retains power only on defense and foreign policy - Most executive power exercised by PM

Compare and contrast the dimensions of sovereignty.

Sovereignty = The ultimate form of political authority External Dimension: Each sovereign state has equal rights and recognizes no superior authority -Westphalian System (1648) Internal Dimension: The State has supreme authority over subjects/citizens/other entities or legal systems that may claim authority within it. This sovereign power is chiefly exercised through Law - it is a law-making power The concept of sovereignty profoundly changes with Constitutionalism - with the ideas of Rule of Law, Human Rights - and also with International Law.

What is multi-level constitutionalism?

Supranational organizations are subject to checks and balances as much as the State and have to respect human rights. (Ex: Supranational diffusion of judicial review and international courts)

What is the difference between the diachronic and synchronic comparative methods?

Synchronic Method Look at things happening at a given point in time (Unitary vs Decentralized States) Diachronic Method Look at something and how it potentially changes over a period of time (Feudal State -> Alternatives to DP State)

What is the difference between unitary and decentralized states?

Synchronic model for forms of state UNITARY o Legislative power is exercised solely by the central government (France) DECENTRALIZED o Legislative power is exercised by both the central government and the sub-state entities (US) o Federal vs Regional States

What are TBT and SPS in the WTO?

TBT (Technical barriers to trade) Technical regulations, standards, conformity assessment procedures SPS (sanitary and phytosanitary measures) Measures to protect human, animal or plant life or health from specified risks

What are the Alternatives to the Democratic Pluralistic State?

TOTALITARIAN STATE o Strong, one-party system that is ideologically based o Existence of official ideology AUTHORITARIAN STATE o Party system is extremely weak o Driven by individual leaders' lust for power SOCIALIST STATE o The abolition of private property o The monopoly of the state in economic production o Strong central authority

Elaborate on the concept of territory.

The authority of the State is exercised over geographically defined state borders - a distinct territory, normally contiguous Entitlement: Dry Land / Territorial Seas (12 miles) / Continental Shelf (a depth of 200 meters) / Airspace / Subsoil

Elaborate on forms of government.

The distribution of power among different branches of government Horizontal relationship Relationship between constitutional bodies - organs with the same level of sovereignty and independence (parliament, head of state, head of government)

Elaborate on forms of state.

The relationship between the State (the sovereign) and its citizens // relationship between the holder of power and the subjects of that power Vertical relationship Relationship between authority and liberty

Constitutional Review: Thomas Bonham v. College of Physicians

Thomas Bonham v. College of Physicians England, 1610 FACTS o Dr. Bonham practiced medicine without the required license. o College of Physicians Act 1553 gave the College of Physicians the right to imprison those being judged for practicing without a license. DECISION o Judge Coke deemed the imprisonment unauthorized by the law o He affirmed the prevalence of the Common Law over the law of Parliament.

How does impeachment work in Italy?

Two Presidential Crimes: o High Treason o Attempts to Overthrow the Constitution Two Phases of Impeachment o 1st phase: Parliament in Joint Session can present a written report proposing impeachment o 2nd phase: Constitutional Court decides on impeachment. (with 16 additional judges drawn by lot from a list elected by Parliament)

How do courts justify limitations to human rights?

Using proportionality analysis

What is the European Commission?

o "High Authority" / Executive of the EU o 28 commissioners, nominated by the European Council & approved by Parliament o One of the executive bodies o Role: Proposes & implements legislation - monopoly of the power of legislative initiative <President of the Commission? o The Head of Government of the EU o He chooses the various commissioners together with Member States' Governments <High Representative for Foreign Affairs and Security Policy> o Europe's foreign minister o Vice President of the Commission <Appointment Process> 1. European Council proposes President of Comm. 2. Parliament approves by majority. 3. President forms list of Commissioners, in consultation with the Council of the EU. 4. The Commission as a whole is subjected to a vote of confidence by the European Parliament. >> The Commission, as a body, shall be responsible to the European Parliament and can be subjected to a motion of censure.

What are the historical origins of the presidential executive form of government?

o 1787: American Constitution - Hamiltonian v. Jeffersonian visions of the President - Initial prevalence of Congress - Expansion of presidential powers during the 20th century o 1830s Expansion of Presidential in Latin America - Caudillismo: Personalistic rule & prevalence of the President over other branches of government o Post WWII: decolonization of Africa - Nation-building and demands for development called for strong political leadership (Ex: Ghana) o Post 1989: Many post-Soviet republic populists

Elaborate on the democratic pluralistic state.

o 20th century onwards o Gradual transformation of the liberal state at different times and to different degrees in various countries o Universal suffrage = Mono to multi-class representation o Pluralistic = recognizes and protects a plurality of groups, interests, ideas and values that are allowed to coexist in society and are represented in Parliament. o The State is not everything - closer contact between State and Society <CHARACTERISTICS> o Mass political parties supported by millions of voters o Elected bodies as the place of discussion and confrontation of diverging interest groups o Recognition of not only liberal, first generation rights, but also second generation social and economic rights

What are human rights?

o A claim protected by law, belonging to all individuals by virtue of their humanity o Universal, natural, unalienable, rights of mankind

Elaborate on the Welfare State

o A particular form of democratic pluralistic state o State provides support to individuals through social security, healthcare, education. o From cradle to grave: a high degree of intervention from the State o Example - Britain & its National Health Service (NHS)

What is the Council of the European Union?

o AKA Council of Ministers o 28 national ministers, grouped by policy area (variable configuration, 1 seat / member state) o One of the legislative bodies o Role: Approves or rejects legislation o Where member states' interests are repped

Explain the Admissibility of Abrogative Referenda (Italy).

o Allows voters to repeal totally or partially a state law o Request needs to come from 500,000 voters or 5 regional councils o Referenda cannot be called on certain subject matters: tax and budget laws, amnesties or pardons, laws ratifying international treaties o The Constitutional Court checks that the subject matter of the Referendum is admissible

Explain the electoral college.

o An indirect, but popular election o Voters elect presidential electors who will then elect the president. o In most states the presidential electors are not obliged by law to vote for the candidate of their party, but it is extremely rare that they do otherwise. o If a presidential candidate obtains the majority in the electoral college then it is a foregone conclusion that he will be elected President. o If no presidential candidate has the absolute majority (270 great electors) then House of Rep (Congress) will choose the President.

What is the constitutional preamble?

o Broad principles; invocation of national identity § Educational or Expressive Function § References to History o Represent the people's ambitions in forming the constitution (ex: stating the communist mandate)

What are first generation rights?

o Civil & political rights FEATURES o Negative freedoms: Non-Interference. The State cannot do certain things to us. o Typical of Liberal States: power of the sovereign is limited by the duty to respect the liberty of its citizens (Many European countries) o Nondiscrimination: Formal notion of equality EXAMPLES o Right to vote o Freedom of speech o Freedom of religion o American Bill of Rights ENFORCEMENT o Coercive orders directed to the Government: >> Free a prisoner / give back property o Protective Duties: >> Allow the free exercise of one's rights which are threatened by other individuals >> The State may be ordered to stop protesters, in order to allow others to exercise their free speech

Explain the US Impeachment Procedure.

o Congress has power to impeach the president for "treason, bribery or other high crimes and misdemeanors" o House of Representatives acts as the prosecutor o The Senate acts as the Jury o A 2/3 vote is needed to remove the President

What are some problems with semi-presidentialism?

o Coordination Problems o Dual Legitimacy problem o Accumulation of Power in one Institution - the President - Under certain forms of semi-presidentialism, the President has immense powers (more than in a Presidential Executive) - The President combines executive power and the power to dissolve the chambers (Very dangerous where there are authoritarian tendencies.)

Describe the Austrian / Continental Model of Constitutional Review.

o Developed by Hans Kelsen, Austrian Legal Theorist <FEATURES> 1. Centralized w/ Constitutional Court >> Ad hoc body outside of ordinary judiciary >> It only decides question of Constitutionality, so doesn't judge actual cases (abstract review) 2. Principaliter Proceedings >> Cases directly brought to the Constitutional Court by some specific constitutional bodies 3. Can be either a priori or a posteriori >> But most countries follow a posteriori

What is the European Parliament?

o Directly elected by EU citizens every 5 years o One of the legislative bodies o Role: Approves or rejects legislation o Votes confidence to the European Commission

Describe the French Deviation in Constitutional Review.

o Does not adhere to the US or Austrian Model o Purpose: Make law judge-proof and safeguard the Separation of Power French Constitutional Council o Preventative Constitutional Review o Laws can be referred to the Constitutional Council before their promulgation (official declaration) 2008 Reform o Posteriori Review: Can refer a law already in place

Elaborate on the liberal state.

o Doesn't exist today from a constitutional perspective o 17th-19th century <Characteristics> o Permanent limitation of power of the Sovereign through Constitutions - Rule of Law o Prevalence of individualism and the protection of rights and freedoms (First Generation Rights) o Representative government, but still mono-class representation & census-based suffrage o Minimal State: Strong separation of State and society / Min gov interference in economy <Example> The first continental liberal state was created in France during the Revolution (1789-1815).

What are second generation rights?

o Economic, social & cultural rights >> Rights to certain states of affair, entitlements FEATURES o Positive rights: Require State's intervention o Democratic Pluralistic State / Welfare State >> Development of Post-War Constitutions o Substantive Notion of Equality >> State intervenes to remove obstacles to social equality so different categories of people can be treated differently based on different starting points. EXAMPLES o Right to adequate health care o Right to housing o Right to education o African Charter on Human and Peoples Rights ENFORCEMENT o Individual Remedies >> Order appropriate shelter for certain individual. >> Problem: Who can bring these cases to Court? o Systemic Remedies >> Court orders the Health ministry to redesign its system to avoid rights violation. >> Judges monitor subsequent public action >> Problem: Judges need specialist knowledge

Describe the functions of the WTO's Dispute Settlement Body (DSB).

o Establishes panels o Adopts panels and Appellate Body (AB) reports o Supervises Members' implementation of panels and AB rulings and recommendations o Authorizes the suspension of concessions o Takes decisions by reverse consensus: The decision will be adopted, unless everybody is against its adoption

Describe the European Economic Community.

o Establishment of an integrated single market - aka the internal market or the common market. o Prohibition of intra-community barriers to trade: must have free movement factors of production (goods, persons, services and capital).

What is Militant Democracy?

o Form of democracy outlawing ideologies incompatible with democracy o Certain countries allow the Constitutional Court to ban extreme political parties o Middle type of democracy between substantive (protected by militant tools) & formal democracy (extreme form) <GERMANY> o Art. 21 Basic Law o Decision by Constitutional Court after a party is referred by a constitutional body (President, etc). o Power to ban Political Parties used twice: § Ban of Socialist Reich Party § Ban on the German Communist Party <TURKEY> o Constitutional Court can dissolve political parties pursuing goals contrary to secularism o Protection against its pre-Kemalist past >> 20 Parties banned since 1982

France Constitutional Review Case Study: Banning Concealment of the Face in Public Places

o French law prohibits anyone from covering their face in public <European Court of Human Rights> o S.A.S. v France o Woman's claims: Freedom of religion, Freedom of expression, Prohibiting discrimination o France's claims: 'respect for equality between men and women', 'respect for human dignity' and 'respect for the minimum requirements of life in society' o Court - a ban was necessary for 'living together' harmoniously and was within in law

What are the 3 Bretton Woods institutions?

o ITO (International Trade Organization) o IMF: Monetary issues o World Bank: Reconstruction and development

What are the 3 dispositional properties?

o Is there both a head of state and a head of government or only one of the institutions? o Are the incumbents of these institutions popularly elected? o Do the incumbents serve for a fixed term?

What is natural law?

o Legal principles not derived from state law (aka positive law), but that precede it and are above it: >> Moral / religious roots >> Universal o Human rights are prescribed by natural law / rights o Positive law at most recognizes or discovers these rights, but does not establish them <1776 US Declaration of Independence> o "all men are created equal..." <1789 Declaration of the Rights of Man and of the Citizen> o "Men are born and remain free and equal in rights"

What is primary delegated law-making?

o Many Constitutions provide for possibilities to delegate the Government with law-making powers o Partial deviation from the Separation of Powers <PURPOSE> o Situations of urgency o To speed up the legislative process o Highly Technical matters - taxes, immigration, public administration Example: Italy o Legislative Decrees - Normally to regulate highly technical issues o Law Decree - In situations of necessity and urgency

What is the hybrid model of Constitutional Review?

o Most European countries adopt a variation of the Austrian Model >> Centralized system: a Constitutional Court with exclusive jurisdiction over questions of constitutionality >> Incidenter and concrete review: questions of constitutionality can be raised before ordinary judges. § E.G. Italy § E.G. Germany

What is the European Council?

o NOT the same as the Council of EU! o EU's 28 national leaders / heads of state or gov o One of the executive bodies o Role: Sets policy agenda. Defines the EU's general direction and priorities. o President = Head of State of EU - the principal representative of the EU on the World Stage.

Explain the relationship between the Executive & Legislature in Presidential Executive system.

o No relationship of confidence o The President is not responsible to Parliament o Increase the President's ability to influence legislative work o Increase the ability of members of legislature to influence the operation of gov o E.G. Veto Power, Impeachment o Parliament can only impeach the President o Cannot vote a motion of no confidence and force the President to resign for political reasons.

Non-Sovereign vs Sovereign?

o Non-Sovereign: require authorization and legitimation by a sovereign to exercise power (Ex: Regions, local councils, government agencies, EU - its power is not sovereign because it is derived from the State) o Sovereign: sovereign power is self-sufficient -it does not need external legitimation (Ex: The State)

What are fundamental principles in the Constitution?

o Non-amendable provisions o More entrenched than the rest of the Constitution E.G. German Basic Law - Eternity Clause § The democracy principle § The Federal structure of the State § Human Dignity E.G. Italy § Fundamental Principles § Organization of the Republic § Human Rights

What is the constructive vote of no confidence?

o ONLY Germany, Spain, Israel o Article 67, German Basic Law - Parliament can only express vote of no confidence in HOG / Executive by electing a replacing successor by majority of its members & requesting HOS / President to dismiss. - President cannot dissolve Parliament unless HOG/ Executive asks for and loses a vote of no confidence. o Vote of no confidence historically used only twice in Germany o Works as a strong deterrent against "crises in the dark" - overthrowing the gov

What are the WTO origins?

o Originally GATT (General Agreement on Tariffs and Trade) o From de facto organization to de jure organization o The Uruguay Round Negotiations (1986-1993) o Marrakesh agreement establishing the WTO in 1995

Gives some examples of alternatives to constitutional review.

o Political Constitutionalism or Popular Constitutional >> Attempts to reconcile Constitutionalism with the principle of Parliamentary Sovereignty o Tushnet: Taking Constitution Away from the Courts >> Relies on Conscientious Legislators

Explain the US President's Veto Power.

o President normally has 10 days to sign a bill passed by Congress o The President can veto a bill by sending it back to the chamber in which it originated with a message explaining the reasons for the veto o A Veto can be overridden only by a 2/3 majority in both House and Senate

What is the EU?

o Result of an international agreement o Avant garde international organization o New model for transnational relations o "New Legal Order of International Law" o Not sovereign like a State, but it has acquired some fundamental federal qualities: - Exclusive jurisdiction in the area of monetary policy - Enforcement of law by European Court of Justice >> Supremacy (EU Law > National law) >> Direct Effect (Citizens can rely on EU Law directly). o Does not have a technical constitution, but many scholars agree on the constitutional nature of the Treaties.

What are third generation rights?

o Rights with a group dimension - at a collective level FEATURES o New Rights or Innovative Rights o Developed in more recent Constitutions - 1970s+ o Result of a critique that human rights are too individualistic / need for global interdependence o Intergenerational dimension EXAMPLES o Right to economic development o Right to culture (South Africa) o Right to healthy environment (Brazil) ENFORCEMENT o Individual Claims >> Special Accommodation: Court orders gov to allow members of a certain cultural group to behave a certain way in violation of the law o Group Claims >> New development project threatens the habitat of indigenous people >> Problem: Who can represent whole group's interests?

What is primary law?

o Rules on the legislative procedure >> Identify the organs that have jurisdiction to make primary lawS & procedures to adopt types of law o Principle of Nomen Iuris: sources of law constitute a closed system - each source needs to fit one type identified by the Constitution o EX: Law passed by parliament

Why is freedom of expression essential in a liberal democracy?

o Social progress - Intellectual and moral development of individuals o Truth - should be determined in the marketplace of ideas rather than by regulation o Protection of minorities against the tyranny of "governing majorities" o Freedom of expression (civil law) = freedom of speech (common law)

What are the 4 key attributes of the State?

o Sovereignty o Territory o People o Capacity to enter into relations with the other states

Specialist vs General?

o Specialist: rules governing only specific sets of relations (Ex: WTO, The Church) o General: pursuing general aims - aspiration to govern all spheres of life (Ex: The State, The European Union)

What is no-platforming?

o The practice of blocking, or attempting to block, an individual from speaking at a university because of her expressed moral or political views o Idea - to deny controversial speakers the chance to speak at a particular venue or institution

What are secondary sources of law?

o Typically known as regulations, bylaws, decrees, etc. o Issued by: The Executive (the Government) / Single Ministries / Agencies / Local Authorities

What constitutes a legal system?

· A plurality of individuals coexisting · Shared criteria to evaluate behavior · Rules making some behaviors illicit and rewarding others · An authority within the group with some form of law-making power and the power to enforce rules