Constitutional Law

4) Democratization of State Power

"Democracy" means "rule by the people." Democratization of state power means that - the government is installed to rule the people because it is in the interest of the people to have a government in the first place, - this government pursues the interests of the people rather than its own. Under a democracy, the idea is that the government rules with the consent of the governed, or at least that the government is established with the support of the people and has regular confirmation of that support, or else should not be in power. As a form of government, democracy is endorsed around the world. States are either democratic, or if they are not, they usually claim to be democratic. In democracies, regular elections ensure that the government remains accountable to the people and the risk of abuse of power is minimized.

b) Functional division of state power

"Power tends to corrupt, and absolute power corrupts absolutely."

State functions, according to Montesquieu.

1. the creation of general legal rules by means of legislation, 2. the practical implementation and execution of these rules: administration, 3. the application of rules to decide disputes in individual cases: adjudication. Montesquieu argued that these three functions ought to be kept apart and should be assigned to three separate branches of the state: the legislature, the executive, and the judiciary. Moreover, each branch would have to stay within its domain.

Secession

A major problem in connection with statehood is how to cope with parts of a state that wish to secede and become an independent state of their own. Given the demand of internal sovereignty, a state must exercise internal domestic control and possess the power to stop civil unrest and prevent secessionist and other revolutionary movements. This demand is obviously not met if secession is ongoing. In such cases, it depends on the extent and proportionality of the power used by the seceding "state," the legitimacy of the secessionist movement.

Recall

A recall is a popular vote to dismiss an already elected officeholder before the term of office has expired. A powerful check on the government in a representative democracy is the introduction of elements that are taken from direct democracy. In an otherwise representative democracy, direct democratic elements can take two main forms: the recall election and the referendum.

Referendum

A referendum, meanwhile, deviates from the principle that decisions are taken by the rulers on behalf of the governed. Instead, the approval or continued effect of a certain decision is left to a popular vote.

c) Election systems

A representative democracy is still not the only alternative form of democracy, and in fact it may not even be the fairest one as Montesquieu argued. Election-based systems were seen as having an aristocratic tendency in that rich and influential elites would monopolize power, whereas lots would ensure a healthy rotation in office.

2) Establishment of State power Sovereignty

A state is an organization that is able to control a certain territory and the people living in it, both in the sense of defending it against the outside world (external sovereignty) and in the sense of exercising powers and maintaining law and order inside its own borders (internal sovereignty) In many Western constitutions, reference is explicitly made to the people as the origin of the written constitution and as the source of the powers of the state.

Decentralized systems

A very fundamental organizational distinction regarding judicial review is whether the review is carried out by all courts in a system or by one special constitutional court. In a decentralized system, the constitution is a norm that all judges must uphold whenever they are asked to apply a law whose validity they doubt. The power of judicial review is in that case linked to the regular jurisdiction of all courts to resolve conflicts of norms before resolving disputes between parties.

Judicial review as checker of state power

A very important check on the political institutions of parliament and government is judicial review, whereby courts would check the legality of acts of these institutions. Arguably, the ultimate power of judicial review is constitutional review, whereby a court checks whether legislation adopted by parliament itself is lawful in the light of what the constitution provides. The judiciary acts as a check upon the legislature.

g) Fundamental Rights

A very important way to curb the state's power, and to protect the individual against it, is to commit the state to respect fundamental human rights.

Elected Judges

Another way of trying to secure this principle is the election of judges by popular vote so that they are answerable to the community and do not depend on the government for appointment or reappointment. In Europe, the notion of elected judges is usually met with distrust since the emphasis is put on the judiciary's professionalism rather than on popularity.

Impartiality

Apart from being independent, courts and judges must also be impartial in two senses. First, they should not have any interests in the outcome of a case, be related to a party to a case, or have had an earlier involvement in the issue at hand (objective impartiality). Second, they must have an open mind and not be (or be seen as) more favorable to one party than to the other (subjective impartiality).

Judges for life

Appointment for life may be one of such mechanisms to ensure that the government cannot put pressure on judges to decide one way or another or otherwise interfere with the administration of justice.

Entrenchment

Because of their fundamental nature, written constitutional documents almost always provide that they can only be amended through difficult, special procedures often involving special majorities.

Case law

Case law may be constitutionally relevant where courts lay down rules with a "constitutional" focus, such as the UK doctrine of parliamentary sovereignty or the US doctrine of judicial review, or when courts are called upon to interpret the meaning of the constitution or establish fundamental rules and principles with constitutional significance in practical cases.

Scope of Rights

Consider in this respect the principle of equality or nondiscrimination, which prescribes the equal treatment of people in equal circumstances, and the difficult questions that can arise from its application. Ex: Letting and banning headscarves.

h) Judicial Review

Constitutional review of legislation by courts, where it exists, means that judges have the power to check whether a law is in compliance with the constitution. After all, it means that judges overrule the will of the lawmaker and impose policy choices on society through their own interpretation of what the constitution supposedly means. It plays the rule of checker of state power, protector of will of the people, minorities and individuals.

a) Direct and Indirect democracies

Democracy is a system of government where public power lies with, or emanates from, the people.

Reversal Rights

Does the freedom of religion only entail the right to freely practice one's religion, or does it also include the right not to be bothered by other people's religion,?

The European Union

EU is not sovereign, since it is not itself the master of its own constitutional development: it is not the master of the treaties. This role is kept by the 28 member states. The EU's powers have been transferred to them by these states and can ultimately, by amending the treaties, be taken back. However, it is accepted that the member states by transferring parts of their sovereign powers, some of them even exclusively, to the EU now share the exercise of their sovereign rights with the EU. Some would therefore argue that the sovereignty of the memberstates is now, severely, restricted.

Balancing

Even where the scope of a fundamental right as such is relatively clear, it may still be that the right has to be balanced against a public interest.

Power Differences

Finally, there are many power differences between small, weak, or poor states, on one hand, and large, powerful, or rich states, on the other hand, and they are greater than ever before. Whether we like it or not, the US and China have a greater impact on international politics because of their sheer economic size and military power than a small and poor and less-developed state. Apparently, some states are more sovereign than others.

Semipresidental systems

France and also other states such as Romania or Russia feature a semipresidential system. They have a directly elected Head of State who has executive powers (the presidential aspect), as well as a Prime Minister who is accountable to parliament and can only remain in office with parliamentary support (the parliamentary aspect).

Suppression of Dissent

However, there are some rather more compelling arguments against dictatorship. Firstly, rulers will tend to suppress dissent by violent means, chiefly because once ousted they may be banned from power forever, whereas in a democracy a government that has been voted out of office can try to win elections in the future.

Direct Democracy

If the democracy is direct (lies with the people), the state power is actually exercised by the people themselves, not by their representatives. In increasingly large and increasingly complex societies, assuming they are still to be organized according to democratic principles, decisions also become complex. This may extend to the point where ordinary citizens cannot grasp the full extent of the implications any particular decision could have. This leads to the other problem: the logistical organization of democratic decision making in societies made up of millions of people is complicated.

f) The Rule of Law

In a broad sense, the rule of law may include such sweeping notions as fairness, inclusiveness, independent adjudication, accountability, or transparency. It also has the qualitative meaning that the law must not only be legal but also reasonable, compatible with human rights, and fair. In its narrow essence, though, it means that - the state rules through law, - the state itself is ruled by law.

Confederations

In a confederal structure, the participating entities effectively remain sovereign states in their own right. The decision-making process in a confederation typically requires unanimity (voluntarism) and is restricted to limited issues. A confederation may in fact be so loose that it would not actually be called a state.

Federations

In a federation, state powers are divided between the organs of the central state (the federal level) and the organs of the subunits (the regional level), and this division is enshrined in the constitution itself. The involvement of the regions in any changes of this division of powers, if at all allowed under the constitution, is highly relevant because this protects the regions against possible restrictions of their powers. The regions in a federation can exercise the powers that they have in their own right. Even where the federal level is competent to make laws that cover the entire national territory, in many federal states the regions are involved in the federal lawmaking process.

Parliamentary systems

In a parliamentary system, the head of the executive—usually a prime minister—comes to office as long as he is supported by parliament. The effect of it in constitutional monarchies is that the government is accountable to parliament rather than to the monarch. In a republic, the Head of State may still appoint a prime minister but then would do so either after the prime minister has been elected by parliament or, again, with a view to the creation of a stable government that has enough support in parliament. Other republics may have presidents and prime ministers too; if these presidents have only ceremonial roles and no executive powers, the system is still considered parliamentary.

Plurality systems

In a plurality system, the candidate with most votes is elected.

Representative Democracy

In a pure representative democracy, public power is exercised by a ruler, or group of rulers, who have been elected or appointed by the ruled. if the democracy is indirect, the power is exercised by the people's representatives.

Unitary states

In a unitary state, all state powers ultimately reside in one central government authority. There may be local or regional authorities, but in a unitary state any such local and regional decision-making powers are granted by central laws.

Absolute Majority Systems

In an absolute majority system, a candidate will need more than half the votes.

Centralized systems

In centralized systems, ordinary judges must refer questions regarding the constitutionality of laws to a constitutional court, which then has the sole power to quash them. This model allows for a concentration of constitutional expertise and for the imposition of specific requirements and procedures for the appointment of constitutional judges who are, after all, entrusted with a delicate task.

Presidential systems

In contrast, in a presidential system, the head of the executive has his or her own mandate, which is independent from parliament. In such a case, the head of the executive does not rely on parliamentary confidence to stay in office, and members of parliament—who are directly elected as well—are not compelled to support the head of the executive either.

1) Sources of constitutional law Constitution

In most states, the most important of these constitutional rules have been laid down in a central written document. This document is typically called a constitution, but it may also carry different names, such as basic law, charter, or regulation of state. However, it may not be always written.

3) Limitation of state power

In order to exercise sovereignty effectively, a state must be powerful. It must be able to keep a grip on what the German sociologist Max Weber (1864-1920) called the monopoly on violence: only the state can use coercion against individuals. Nowadays, different from Thomas Hobbes, we expect the state itself to be organized and regulated by the law as well. Constitutional law subjects the state itself to constraints. Its power may be distributed between different territorial subunits, such as regions, so that the central authority does not have an exclusive grip on all state power. Its power may be distributed among various organs, so that it does not wholly rest in any one organ.

Customs

In some constitutional monarchies, such as the United Kingdom, the Netherlands or Denmark, the King or Queen will appoint as Prime Minister the person who leads a majority in Parliament, and will not appoint anyone against Parliament's will.

European Union

Judicial review also exists in the European Union. It is exercised by the Court of Justice of the European Union (CJEU): a centralized system.

Codification of Fundamental Rights

Magna Carta in Engalnd (1215) = a document in which King John of England accepted limitations to his arbitrary power. Declaration of the Rights of Man and the Citizen in France (1789) Bill of Rights in US (1791) International Instruments (Universal Declaration of Human Rights of 1948, European Convention on Human Rights of 1950)

Forms of Referendum

Mandatory referendum • For certain types of decisions, a referendum is required. Examples include constitutional amendments, which in some states must be approved by referendum. Optional referendum • For certain types of decisions, a referendum can be but does not have to be called. Examples may include a popular vote on whether or not to join an international organization. Binding referendum • The outcome is binding: a rejected proposal cannot enter into force; it has to be approved. Consultative referendum • The outcome indicates the preferences of the voting population, but the government may deviate from it nonetheless.

b) Authoritarian Government

Modern societies can also function very well in the absence or only partial presence of democracy. The most extreme forms of undemocratic government, historically and in modern times, are absolute monarchies, where the monarch is not constrained by law, and republican dictatorships, where legal constraints on power are purely theoretical and therefore absent.

Advantages of Authoritarian Regimes

Notably in times of emergency or possible conflicts or turmoil and great challenges. In present times, attention is sometimes asked for the ineffectiveness of democratic systems to cope with growth, economic and financial crisis, and globalization.

Transition of Power

One concerns the transition of power from one ruler to the next, which in a stable democracy is competitive but regulated and bloodless, whereas power struggles may arise over the succession in monarchical autocracies or in republican dictatorships.

Recognition

One possible criterion for statehood is whether a potential state is recognized by the "international community" of states. This would mean that most or all other states engage in diplomatic relations and that the potential state is accepted as a member of an international organization, such as the United Nations.

a) Territorial division of state power

One way for constitutional law to curb state power and to prevent its concentration is to spread it over smaller territorial units and to create regional and local governments that exercise state power. At the local level, the typical territorial subunit would be the municipalities: towns and cities. The more prominent entities are found at regional level: districts, provinces, or— somewhat confusingly—individual states within a larger federal state.

Heteronomy

Secondly, rule by one or a few results in almost all people living in heteronomy, with the will of others imposed on them, rather than in autonomy. Rule by majority ensures that the smallest number of people lives in heteronomy and the greatest number lives in autonomy, that is, under decisions they support.

c) Independent Courts

The aspect of the separation of powers that is probably easiest to imagine, much more so than the separation between parliament and government, is the independence of the courts and of the judges sitting in the courts.

External sovereignty

The basic idea is that a sovereign state is independent of other states and that other states are not authorized to meddle into internal affairs of a sovereign state.

Constitutional Law

The branch of law that regulates the state itself is called constitutional law. It is a matter of policy, or politics, to what extent and how the existing powers are being used. A state may have the power to intervene in the market and enforce free competition and still consider it unwise and politically inopportune to do so in general or in specific cases. Obviously, some choices have to be made with regard to the tasks that states are to fulfill and with regard to the powers and budgets—and therefore also taxes—that states need for these tasks. How these choices are being made, by whom, and through what procedures are a primary domain of constitutional law.

d) Parliaments and Governments

The legislature creates laws, while the administration executes them. In this view, the executive would be the servant, or agent, of the legislature. In reality, the issue is more complicated. In lawmaking in parliamentary systems, parliament generally follows the agenda of the government where its policy agenda and proposals for laws are concerned. The actual tasks of the administration go beyond mere execution of the laws created by the legislature. Administrations are also prominent in formulating and drafting legislative proposals. In Western democracies, most policy making is carried out by the government. In doing so, the government relies on the expertise of its civil service. For the realization of its policies, the government actively seeks the approval of desired legislation in parliament.

Voluntarism

The most important way to secure the construction whereby the sovereign is not bound by any higher authority is to insist on the principle of unanimity in international relations. Unanimity means that a decision can only be taken with the approval of every participant. As a result, no state is forced to accept anything it did not voluntarily agree to.

b) Proportional representation

The other main model for election systems is proportional representation (PR), whereby the share of seats in the assembly is proportional to the share of the votes. Thus, roughly speaking, 20 % of votes will translate into 20 % of seats for a political party.

Interpretation of Fundamental Rights

The rights are formulated in a necessarily broad manner so that it is up to the authorities, and often in the final instance to the judge, to determine what is allowed and what is not in real-life circumstances.

Legality

The state action requires a legal basis: the state may do nothing unless it is authorized by law, a concept known as the principle of legality. The opposite is true for private citizens: they may do everything unless it is prohibited by law.

e) Checks and Balances

This deliberately allows the powers to interfere in each other's domain to a certain extent, keeping each other in check, and it forces them to collaborate to achieve common goals. The idea is called checks and balances. It forces each other to cooperate.

Trias Politica

This view of Montesquieu has become known as the Trias Politica, after the three bodies that fulfill the three separate state functions.

a) Majority systems

Where a candidate is elected if he receives a defined majority of votes.

Appointed Judges

Where judges are appointed, independence can be ensured in a number of ways: judges may be appointed for life, which means that they cannot be removed very easily and will not need to cater to the interests of the incumbent government, or they may be appointed for a limited but long period of time and without the possibility of a second term, which is again designed to remove incentives to please those who may reappoint the judges.