Intro to public law
Separation of Powers
- 3 branches do not operate in total isolation from each other and there is a system of checks and balances between the branches - Institutional separation = 3 functions are allocated with different organs - Personal separation = 3 different organs staffed by different people - Purpose of separation of powers = prevent abuse public authorities
Types of veto
- Absolute - cannot be overruled - Suspensive - merely delays the adoption of a law
Separation of powers
- Attribution of functions (tasks) - Autonomous institutions (bodies) - Incompatibilities and immunities (persons)
Why isn't the EU a confederation
- Confederations are states, the EU is not a state (matter of a definition) - Some competences have been transferred from the MS to the EU, confederations don't do that - It deals with life of the citizens, whereas confederations deal with government relations
Limitations to the parliament
- Delegation: has to allow other institutions to make regulations on its behalf - Fundamental rights: cannot be restricted - International treaties - Constitutional review: guardian of fundamental rights - Separation of powers
Consequences of a judicial decision stating that a statute is unconstitutional
- Disapplication, invalidation, setting aside: the statute is left as it stands, but it is not applied to a particular case - Annulment, declared void:the statute is struck out and ceases to exist.
Government stability in parliamentary systems
- Dissolve parliament <-> rule of confidence (balance by threat) - Rationalized parliaments (Constructive motion of no-confidence) parliament can get rid of the gov, but e.g. once a year or they have to find a replacement - Electoral threshold: having a less fragmented government/less groups within the parliament is to make sure there is a predictability on what the parliament wants. Unpredictable government = no plans for the upcoming years
characteristics of federal system
- Division of territory: State is divided into smaller component territorial subunits - Regional autonomy: sub-units possess regulatory powers and separate institutions which are autonomous with respect to the central authority - Federal supremacy: national law has supremacy over the law of the subunits - Regional representation: Sub-units are represented at the federal (national) level -- federations provide foe the representation of their regions in federal decision-making -- apart from having autonomy for their own affairs, they have a stake in the system as a whole as well, usually in the upperchamber of the bicameral parliament - Codification of o Prerogatives: autonomous powers of the sub-units and their representation are enshrined in the constitution -- Insertion of those principles in the constitution ensures that federalism is fundamental and entrenched feature of the state - Participation in Constitutional Amendment: Sub-units are involved in the process when the constitution is changed - Constitutional Court: An independent arbiter resolves conflicts between the central authority and the sub-units over the scope of their powers
Proportional representation
- Doesn't focus on constituencies - Gives a proportionate number of seats depending on the proportionate number of votes cast (10% of the votes = 10% of seats) - E.g. the Netherlands 3 types of PR: 1. List system: voters can cast their votes for political parties which then go on to fill the parliamentary seats they have won form pre-established list of candidates (Israel) 2. Single transferable vote system: multi-member constituencies where voters can rank-order their candidates of choice (Irleand) 3. Mixed-member proportional system: includes combinations of proportional representation and single-member constituency systems (Germany)
Fundamental principles underpinning the election process in a representative democracy (elections must be)
- General - the entire voting population must be entitled to participate in the vote - Direct - the votes must be cast for contestants immediately - Free - voters can make up their mind without interference - Equal - each vote carries the same weight - Secret - voters' choice cannot be made public
Thomas Hobbes
- Government entrusted to a Sovereign, who acts on behalf of the people - Sovereign has far-reaching powers, both political and religious - the authority is the one that makes the truth - put limits to sovereignty (state cannot take away life or control one's consciousness)
Types of federalism
- Integrative: states that used to be independent decide to pool their powers to create a new federal system - Devolutionary: formerly unitary states re-establish themselves as federations, or devolve so much power to their sub-units that they become federal - Symmetrical: each component region is considered equal - Asymmetrical: some regions have greater autonomy
Difference between legislative and administrative power
- Legislation may be passed on certain designated areas in principle freely - Administrative/regulatory power means only the power to implement specific pieces of national legislation
Independence of judicial branch
- Life terms: takes away the risk of being fired - The least dangerous branch? -> only responds to the breach in rules - Judicial activism: By interpreting a rule they make a new rule -> acting as lawmakers. They do something they have to do, but shouldn't - Danger of judicial activism exists especially when it comes to the public law issues, bc under the private law, contracts govern the relations between private persons - Administrative tribunals: A way to diminish the risks of judicial activism is to keep separate disputes considering the public law from the ordinary courts - Nonjusticiability (political question)
Dualist system
- National law and treaties are treated as falling under two separate realms - Individuals can invoke national provisions only, in order to benefit from the treaty provisions, they would have to wait until their lawmaker has transposed them into national law, in pursuance of the state's international obligations
why is Parliament =/= legislature
- Parliament does not in fact initiate and draft laws by itself (usually the government does this) - Parliament is not the only lawmaker (also the gov, king)
Publius (Hamilton, Madison, Jay)
- The Federalist (1787-1788): Separation of powers as an internal mechanism within the framework of the government to avoid the situation of abuse - They weren't looking for a way to combat the dangers of one single individual, but the dangers of democracy -> divided, balanced and limited government
Sieyes
- The sovereign proceeds the legal order - The sovereign creates the legal order - If government wants to remain sovereign, it CANNOT act within the legal order - Parliament represents the legal order - Constitution is the highest norm -> created by the sovereign - Constituent power = the sovereign nation = creator of the legal order and the Constitution - Constituted Powers = All state organs derive their power from the nation. Whoever has the constituted power has the power of the sovereign
John Locke
- Two Treatises of Government: - state should have powers but state should not involve itself in our liberty, life and estate - every state is based upon a social contract between free and rational agents - government has limited powers Liberty, life, estate = possession, property (Should be guaranteed) Powers should be separated
What is the difference between the written and working constitution
- Written: covers the black-letter law - Working: covers the entirety of rules and perceptions regarding this subject in society: not only political institutions and courts but also media, churches, trade unions
Why is the EU not a state
- it does not claim to be a state (it wants to be one) - There is a claim of sovereignty within the MS (sovereignty is indivisible) as long as there is a claim of sovereignty, the EU won't be able to proclaim its own sovereignty over the MS
Monist system
- national statutes and provisions from treaties ratified by the state are treated as forming part of one and the same national legal order - individuals can invoke treaty provisions before a national court, in the same manner as they would invoke national law. If a conflict arises between national law and a treaty provision, the latter prevails.
Government (terminology)
- state order: refers to the entirety of the organs of public authority including lawmakers, ministers and judges. Thus legislature, executive and judiciary are referred to as 'three branches of government' - executive: comprises the head of government and a body of ministers representing executive power as opposed to the parliament and courts - As in governing majority: in parliamentary democracies
What do typical amendment procedures for rigid/entrenched constitutions require for?
- super-majorities in parliament (Germany, Portugal) - parliamentary readings of the amendment and new elections in between these readings (the Netherlands, Sweden) - ratifications of the amendment in the state's component territorial sub-units (USA, EU when major treaty amendments need to be approved by all MS) - referendum (Australia, France usually)
Majoritarian election system
- whoever has won the majority within a specific region then gets to send its own representative to the national parliament - either that majority is a first-past-post majority (whoever gets the most votes) or an absolute majority (likelihood of 2 elections) - (UK) the number of seats in parliament corresponds to the number of constituencies whenever there is a vacant seat there are by-elections = elections all the time - There are MANY parties
Separation of powers (3)
1. Functional separation of powers - public authority can be dissected into three different functions: - Legislative: makes the laws - Executive: executes and enforces the laws - Judicial: interprets and applies laws in cases of conflict 2. Institutional separation of powers - these functions should be allocated with different organs 3. Personal separation of powers - these organs should be staffed with different people
2 branches of constitutional law
1. Institutional law: governs the way how state and its institutions function 2. Human rights: protect the citizen against the state and regulates relations between public authority and the individual
Election systems (2)
1. Majoritarian 2. Proportional representation
2 meanings of the constitution
1. Narrow/formal: a central written document that sets out the basic rules that apply to the government of socio-political entities, in particular states. Can also be called a basic law or a charter 2. Broad/substantive: an entire body of fundamental rules that govern that socio-political entity: - Attributes power to public authorities - Regulates the fundamental relations between public authorities - Regulates the fundamental relations between the public authorities and the individual
Rule of law (German theory)
1. Separation of powers 2. Binding constitution 3. Binding nature of the law 4. Legal certainty + no retroactive effect of the law 5. Judicial review
Rule of law (Dutch theory)
1. Separation of powers 2. Binding laws 3. Judicial review 4. Protection of human right
Locke on separation of powers
3 shortcomings in the state of nature that make it difficult for these fundamental claims to be put in practice: 1. The lack of general rule to live by (lack of institution to make those rules) 2. Lack of an effective institution to execute those rules 3. Lack of institution to resolve disputes - Long parliament - institution that remains for a lengthy period of time --> there should be legislative, executive and federative power (power to enter into international relations, start wars etc) --> Separate persons and institutions
Popular Sovereignty
A belief that ultimate power resides in the people. - existing population that can exercise its will through referendum -> the principle of sovereignty of the nation is preserved, but the living population is capable of exercising such sovereign powers e.g. France
Parliamentary System
A system of government in which the legislature selects the prime minister or president. - stays in office because enjoys confidence rule of parliament - can be voted out of office by a parliamentary vote of no confidence
Models of constitutional review
Abstract or concrete: - Concrete: verification whether a law that is about to be applied in adversarial judicial proceedings is actually constitutional. It arises out of concrete dispute between two parties before the court - Abstract: a law is submitted to scrutiny outside the context of an actual application in a dispute; typically triggered by office-holders, such as the government Ex ante or ex post: - Ex ante: takes place before the law has entered into force, and strictly speaking targets bills rather than existing legislation - Ex post: subjects legislation in force to judicial review Centralized or decentralized - Centralized: a special constitutional court or quasi-judicial body exists to check the constitutionality of legislation - Decentralized: any court may check the constitutionality of legislation
presidential system
Head of executive is elected by a mandate of its own No confidence rule
democracy (terminology)
Citizens may exercise the right to vote for their legislatures and possibly other public authorities - Indirect, representative democracy: the people itself do not govern but vote for their representatives to govern on their behalf - Direct democracy: electorate itself decides specific issues through popular vote, such as referendum
Federal constitution
Contract: between federal and local authorities - Gives a legal description of the relationship between the two - Changing the relationship within the federation requires a mutual agreement - Bilateral legal act - Consists of: · A positive or negative list of competences: federal or state · Competences are distributed Demarcation - Federations acknowledge the absence of unity based - Division may be based on: Territory, culture, ethnicity, religion Symmetrical and asymmetrical federalism - Scope of autonomy · Is the same: USA · Differs: Canada
Montesquieu on separation of p
De l'esprit des lois (on the spirit of laws): we need a modern government - In order to form a moderate government, the competences need to be combined - A competence restrains a competence o He took a step further -> discussed to find a consensus between the 'rivalling powers' - There is a need for a limited government --> moderation through distribution
Arguments for judicial review
It guarantees the supremacy of the constitution: - Constitution is the highest norm in a legal system and all other law derives from its authority. - Contra: supremacy of the constitutions should not frustrate the will of the lawmaker - he should simply take the constitution into account while creating laws It provides a check on the lawmakers for the protection of minorities - Checks and balances are necessary to provide a counterweight against the majority of the day. - Contra: one may wonder what exactly make majority-appointed judges more likely than legislative majorities to respect minorities
Parliamentary Sovereignty
Parliament is supreme in all matters; Acts of Parliament are the highest law of the land e.g. United Kingdom
evolutionary and revolutionary constitutions
Revolutionary constitution: a new constitution that marks a new beginning for a society - distinguished by the fact that it has been adopted in a 'constitutional moment' - France, US, the Netherlands Evolutionary constitution: a constitution that develops gradually over time. - The UK, the Netherlands, EU
Jean-Jacques Rousseau
Social contract - The people are the sovereign - Political rights should be equal - Every legitimate state based upon a social contract transforming human beings into citizens and creating in the a General Will - Sovereignty rests with the people as a whole, it cannot be transferred or divided - Every citizen is entitled to take part in political decision-making in person
Bicameralism - why? Complications
o Why? - Counterbalancing power - (Quasi)federal representation: to reflect the federal character of the state - Estates: representation of nobility and clergy/independent expertise (UK) o Complications - Animal farm: asynchronous bicameralism (elections, size, competences) if the two houses do not agree, what competences should they have? - Opposite views: reconciliation mechanisms (compromise or overrule)
National sovereignty
a nation's right to establish its own form of government and laws without external influence - does not coincide with the current population - can only be exercised by the nation's representatives e.g. Belgium -> sovereignty lies with the nation not the people, the nations is represented by the parliament
Referendum (+ types)
a popular vote on a decision already taken or yet to be taken , which may include the decision whether a draft should enter into force, or whether an already existing law should be repealed or not - Mandatory - a popular vote must be held to approve a certain type of decision - Optional - may, but does not have to be called - Binding/consultative - relates to the outcome (consultative is an indicator of voters' preferences)
Devolution / Decentralization of power
certain types of power should be exercised centrally and for the whole nation, whereas other types of powers should and could be exercised in a decentralized manner
Representative democracy
citizens do not take all decisions on their public affairs themselves persons or institutions elected by the citizens take these decisions on the citizens' behalf
Confederation
cooperation between independent (probably) sovereign states on a fairly limited number of topics. Absence of a claim to sovereignty on the confederal level
Constituent power
godlike power to create the state. He who has this power is the sovereign. It's a foundation of nation and source of a legitimacy for the nation
Constitutions octroyées
imposed constitutions - imposed on people without their full agreement, consent
Jean Boudin
invented the term 'sovereignty' in order to restrict the influence of states upon one another about religious matters - sovereignty lies in the State, fullness of the authority cannot be given away = it's not depended on God, Pope
Federation
legal construct in which two or more jurisdictions are in a fact at the same time within one state compound in which there is no logical subordination/ absence of legal claim to dominance. Any changes to this relationship require both of the legal spheres to agree/ mutual agreement - work based on conferral, subsidiarity and proportionality
Bicameral parliaments
not a single assembly but two assemblies/chambers, next to each other 1. The 'lower' chamber: usually directly and democratically elected, more important one politically, and powerful constitutionally 2. The 'upper' chamber: typically additional chamber that complements the lower chamber - In federal systems: used to represent the constitutent parts of the state as such , next to the lower chamber which is elected - Senates (US and Australia); Bundesrat (Germany, Austria)
Functions of the constitutions
o Constitutive: creates limits to the government authority (oldest) o Programmatic: setting an agenda, determining the course (what does it feel like to live in the country)
Contents of constitutions:
o Limiting government power: --> By the architecture of the government --> By the determining scope of the government = physical (territory), human rights
Powers of the Parliament
o The right of initiative (the right to propose legislation) -> EU Commission o The right of amendment (the right to propose changes to draft legislation o The right of veto (the right to stop, completely or subject to an override, the adoption of legislation)
Upsides and downsides of social contract
o Upside: man made source of the government authority, no longer would the states be dependent on the divine inspiration from 'heaven' o Downside: the ruler created by the treaty was omnipotent, capable of doing anything this lead to the emergence of the French revolution
Flexible constitutions
ones that are easier to amend E.g.: the UK - since it's not contained in a central document, it does not prescribe any special amendment procedures - it can be changed in the course of an ordinary legislative process Constitution's flexibility points to formal amendment requirements. A constitution's substantive rigidity depends on whether the text is accepted as meaning what it says in a narrow sense, or whether it is perceived as a 'living document' that evolves together with the society it serves
Rigid/entrenched constitutions (what can rigidity refer to)
ones that are harder to change than ordinary legislation Rigidity may refer to the procedure and the scope of the possible amendment - procedure: makes change difficult to accomplish - scope: limits the subjects that can be changed in the first place Most rigid constitutional arrangements are those that can only be amended by unanimity (the founding treaties of the EU)
Semi-presidential
political system with a directly elected president and a government headed by a prime minister who is responsible to an elected parliament e.g. France
Constitutional review
power of judges to check if laws made by the central parliament comply with the constitution - UK and NL have no constitutional review
Superentrenchment
procedure that leads to a constitution being rigid 1. Substantive: - Whenever a state sees a reason to extra protect a provision because of its substance (e.g.: Germany protecting articles on popular sovereignty and human dignity) 2. Conditional: - Under certain conditions no amendments are possible (e.g. France in times of war) 3. Temporal: - Limited in time 4. Basic structure: - Cannot be found in the text, only in case law - Started in India: 1973 an amendment interfering with landowners' rights was proposed: landowner would be deprived of his property (Kesavananda Bharati v State of Kerala) --> it's a part of the constitution that cannot be altered
Federalism
territorial distribution of powers within a constitutional system - component regions of a state have their privileges: constitutional autonomy, their legislative competences and their participation in federal decisions enshrined in the national constitution
Parliamentary sovereignty
the cornerstone of the British constitutional law - The Parliament has under the British constitution the right to make or unmake any law whatever; no person or body is recognized by the law as having a right to override or set aside the legislation of Parliament --> the Parliament is omnipotent
Constitutionalism
the idea of limited government, where the exercise of public power is governed and constrained by a constitution and the rule of law. Presupposes that political actors will obey legal norms in how and to what extent they govern.
sovereignty (2)
the possibility for a state to exercise authority over oneself - External: the possibility for a state to exercise control over their population and territory without interference from the outside - Internal: source of public authority within the state itself.
when does the working const. deviate from the written one
· Communist regimes, dictatorships and other forms of authoritarian systems.
Recognition problem
· If a wanna-be-state acknowledges that it needs the rest of the world to recognize it as a state, it thereby acknowledges that it depends on other states to recognize it: and what is a statehood but the absence of such dependence · --> we need it in practice, but by acknowledging the need for it we also undermine the very essence of statehood: sovereignty
Constitution/constitution
· a single document that has a hierarchal supremacy over other legislation and over all government authority (capital C) · a combination of written legislation (Case law, customary law) that serve as legitimizing and limiting government authority (small c) · Instead having one single document
Parliament
· representation of the people (result of the French Revolution). It exercises two core tasks under the constitutional law: - Legislation: main legislative institution - Scrutinizing: checking, controlling the government (executive)
Perfect bicameralism
· systems where both chambers of parliament are co-equal (especially where a bill requires the approval of both chambers to become law) - The upper chamber has an absolute veto as against the lower chamber because it can withhold its approval and thereby stop a bill (US, NL, EU)
constitutionalisation
· the attempt to subject all governmental action within a designated field to the structures, processes, principles, and values of a 'constitution'' - structurizing, limiting, organizing, making predictable government
Constituted power
·= the things that are created organs of the state, created by the sovereign, they are the agents of the constituent powers. The extent to which they can create powers is stated in the constitution, They do not have the fullness of the powers themselves, only those powers that have been given by the sovereign
