3: Sovereignty, States & Constitutional Law
What is meant by a 'Supranational union'?
"Above the nations": a type of multinational political union where negotiated power is delegated to an authority by governments of member states. 1: A supranational union is an entity which lies somewhere between a confederation which is an association of States, and a federation that is a state. 2: Schuman described it as "a midway between confederalism which recognises the complete independence of States in an association and federalism which seeks to fuse them in a super-state". 3: The EU has supranational competences, but it possesses these competences only to the extent that they are granted by its member states, however, within the scope of these competences, the union exercises its powers in a completely sovereign manner, having its own legislative, executive, and judicial authorities. 4: Unlike states in a federal state, member states retain ultimate sovereignty, although some sovereignty is shared with, or ceded to, the supranational body.
Aristocracy
"Rule of the best": a form of government that places power in the hands of a small, privileged ruling class; 1: From "aristos-kratia" (best + power).
Oligarchy
"Rule of the few": a form of power structure in which power effectively rests with a small number of people. 1: From "oligos-arkho" (few + rule, command). 2: This minority are distinguished by royalty, wealth, family ties, education, corporate, religious or military control - such states are often controlled by a few prominent families who typically pass their influence from one generation to the next, but inheritance is not a necessary condition for the application of this term.
Democracy
"Rule of the people": a system of government in which all the people of a state are involved in making decisions about its affairs, typically by voting to elect representatives to a parliament or similar assembly; 1: From "demos-kratia" (the people + power, rule). 2: Democracy is government by the people and rule of the majority - the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections.
Autocracy
"Self power": a system of government in which a supreme power is concentrated in the hands of one person, whose decisions are subject to neither external legal restraints nor regularized mechanisms of popular control. 1: From "autos-kratos" (self + power).
What is 'Constitutional law'?
"The arrangement of the offices in a state": the body of law which defines the relationship of between the executive, the legislature, and the judiciary.
Monarchy
"The rule of one": a form of government in which sovereignty is actually or nominally embodied in one or several individuals reigning until death or abdication; 1: From "monos-arkho" (one + rule, command).
Anarchy
"Without rulers": the condition of a society, entity, group of persons or single person which does not recognize authority. 1: From "an-arkhos" (without + ruler, leader).
What are types of fundamental rights?
1: Civil and political rights such as the right to life and privacy. 2: Social and economic rights such as the right to employment and education. 3: Group rights such as the right to peace and a clean environment.
Who enforces constitutional laws?
1: Constitutional courts whose main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e., whether they conflict with constitutionally established rights and freedoms. 2: National courts who sometimes have the power to interpret fundamental rights. 3: International courts who have certain jurisdiction concerning these rights.
What does 'proportional representation' refer to?
A 'all-votes-have-influence'-system of voting in which every party is represented in parliament proportionate to its votes. 1: If A gets 30%, B gets 30% and C gets 40%, these percentages will also be the percentage of seats they get in parliament
What does 'first past the post' refer to?
A 'winner-takes-it-all'-system of voting in which one district represents one seat, and the party with the most votes in each district wins and takes the seat. 1: If A gets 40%, B gets 30% and C gets 30%, A will get the district's seat in parliament and all other votes will be disregarded.
What does 'Internal sovereignty' refer to?
A State's authority to establish and enforce laws over its subjects within its jurisdiction. 1: A central concern of internal sovereign is legitimacy: by what right does a government exercise authority? Claims of legitimacy might refer to the divine right of kings or to a social contract (constitution). 2: It is also the freedom of the state to make internal laws as it wishes - it is however limited in that a state has to respect rule of law.
Constitutional monarchy
A form of monarchy where the governing powers of the monarch are restricted by the terms of a constitution. 1: The monarch acts as a non-party political head of state under the constitution: while this monarch may hold formal reserve powers and government may officially take place in the monarch's name, they do not set public policy or choose political leaders.
What is a 'Bill of rights'?
A formal declaration of the legal and civil rights of citizens of a State. 1: The U.S. Bill of Rights includes freedoms that are not explicitly indicated in the main body of the Constitution, such as freedom of speech.
Sovereign state
A juridical entity represented by one centralised government that has sovereignty over a geographic area and the population within it. 1: States came into existence as people "gradually transferred their allegiance from an individual sovereign such as a King to an intangible but territorial political entity of the state". 2: International law defines sovereign states as having a permanent population, defined territory, one government, and the capacity to enter into relations with other sovereign states: a sovereign state is neither dependent on nor subject to any other power or state. 3: While according to the declarative theory of state recognition a sovereign state can exist without being recognised by other sovereign states, unrecognised states will often find it hard to exercise full treaty-making powers and engage in diplomatic relations with other sovereign states.
What is a 'Fundamental right'?
A right that is owed to citizens by the State, and is thus included in the constitution or other important legal texts. 1: These rights require a high degree of protection from government intrusion, and laws limiting these rights must pass strict scrutiny to qualify as constitutional. 2: The function of fundamental rights is to limit the power of the state, such as the fundamental right of privacy making it impossible for state authorities to enter your house without a warrant. 3: Fundamental rights are found in constitutions, bill of rights and international treaties.
What is a 'Unitary state'?
A state governed as one single power in which the central government is ultimately supreme and any administrative divisions exercise only powers that their central government chooses to delegate. 1: In a unitary state, subnational units are created and abolished, and their powers may be broadened and narrowed by the central government - although political power may be delegated through devolution to local government by statute, the central government remains supreme; it may revoke the acts and reduce the powers of these local governments. Example: -- The United Kingdom is compromised of England, Wales, Scotland and Northern Ireland -- Well-structured, effective levels of government exist at regional, county, local and national levels -- Sovereign authority remains exclusively vested in only one source of British government - the Parliament at Westminster
What is a 'Centralised state'?
A state that concentrates power and decision-making in a single unit, which can be dispersed geographically, but is more frequently focused within a single city.
What is a 'Decentralised state'?
A state that divides power among several units (which usually occupy distinct territories), thus sovereignty exists on different levels.
What is a 'Constitutional assembly'?
An assembly representation the people, composed for the purpose of drafting or adopting a constitution. 1: Constitutions can arise by a sovereign lawgiver laying down the constitution for all later generations, by an assembly elected for the sole task of writing a new constitution or through referenda.
What is a 'Right'?
An entitlement to something, whether to concepts like justice and due process or to ownership of property or some interest in property, which is created and enforced either by the Constitution or by ordinary law.
Federal state
An entity comprised of partially self-governing states or regions under a central government where the sharing of power is sovereign in nature and cannot be altered by the "higher" level of authority: states relinquish right to retain sovereignty unlike in a confederacy. 1: A federal state, a community of communities, results from the unification of fully sovereign states in pursuit of mutual advantage, protection or other forms of self-interest. 2: The U.S. is a union of partially self-governing states wherein the constitution determines the division of power and ultimate sovereign power is centralised at the head. 3: The sovereign authority that is delegated to this central government include those powers necessary for a state to function at the international level such as foreign relations, international commerce and military and naval affairs.
What is a 'Confederal state'?
An entity comprised of partially self-governing states that delegate sovereign authority to a central government, but retain the ultimate right to reclaim their delegated sovereign authority and abandon this relationship in favour of establishing their own. 1: The states provide a conditional delegation of their sovereign right, rather than an absolute surrender their that ultimate political power. 2: A confederal state is created by treaty but often later adopts a common constitution. 3: They tend to be established for dealing with critical issues (such as defense, foreign affairs, or a common currency), with the central government being required to provide support for all members. 4: The EU has confederate characteristics - it operates common economic policies with hundreds of common laws, which has enabled a single economic market, opened internal borders, a common currency and allow for numerous other areas where powers have been transferred and directly applicable laws are made.
What is the 'Convention of the Protection of Human Rights and Fundamental Freedoms'?
An international treaty to protect human rights and fundamental freedoms in Europe from 1953. 1: Any person who feels his or her rights have been violated under the Convention by a state party can take a case to the Court. Judgments finding violations are binding on the States concerned and they are obliged to execute them
What are the roles of constitutional law in organising the State?
Attributing powers, determining compositions of institutions and arranging the electoral system. 1: Constitutional law attributes legislative power to the parliament, executive power to the president and judicial power to the courts. 2: It determines that the legislative branch is made up of two chambers, that the executive branch is composed of the head of state and head of government, and that the judiciary is made up of courts. 3: It determines if people are elected by proportional representation or the 'first-past-post'-system.
What are the sources of national law and how is relevancy determined?
Constitutions often clarify which sources are relevant and applies to which cases. 1: Legislation and executive decisions - statutes and regulation. 2: Case law (judge-made law). 3: General principles of law - principles that are recognised in all kinds of legal relations, regardless of the legal system to which it belongs. 4: Scholarly writings - legal texts which can be used argumentatively. 5: Soft law - resolutions and declarations.
What are the limitations on fundamental rights?
Some fundamental rights can be limited if three criteria from the Convention on Human Rights are met, while others (such as torture) can never be limited. 1: If it is laid down by law. There must be a legal basis, but it must also be necessary for the well-functioning of the democratic society, and only so far that it is proportional to the aim of the measure. 2: If the country is in a state of emergency. 3: If the limitation is used in war. After 9/11 the limitation of fundamental rights have been important.
What does 'Shared sovereignty' refer to?
Sovereignty in which the sovereign jurisdiction over a single territory is shared jointly by two or States. 1: Member states of international organisations may voluntarily bind themselves by treaty to a supranational organisation, such as the EU, who refers to it as "pooled sovereignty".
What are the three elements of a State?
Territory, permanent population and organised authority. 1: Territory is an area of land under jurisdiction of a State. 2: Permanent population is the inhabitants of a State's territory. 3: Organised authority is the governing body of the State and the implied sovereign capacity to enter into relations with other states.
What are the sources of constitutional law?
The constitution. 1: Not all nation states have codified constitutions, though all such states have a jus commune, or law of the land, that may consist of a variety of imperative and consensual rules - these may include customary law, conventions, statutory law, judge-made law, or international rules and norms.
What does 'Right of legislative initiative' refer to?
The constitutional power to propose a new law. 1: It is common that both the government (executive) and the parliament have legislative initiative, but it also can be restricted to the government alone.
What did the 'Montevideo convention' from 1933 set out?
The definition, duties and rights of states. 1: It codified the theory of statehood and made it part of customary international law. 2: It defined a State as "an entity of international law which possess the following qualifications: a permanent population, a defined territory, a government and capacity to enter into relations with the other states".
What is 'Sovereignty'?
The full right and power of a State to govern itself without any interference from outside sources or bodies.
What does the 'Rules of the game' refer to in connection with constitutional law?
The powers, composition, competences and procedures of government. 1: It determines how the parliament is elected, what the required competences are, etc. 2: It sets out principles such what the required majority is.
What does 'External sovereignty' refer to?
The relationship between a sovereign power and other states. 1: External sovereignty is connected with questions of international law such as "when, if ever, is intervention by one country onto another's territory permissible"? 2: External sovereignty is also the freedom of the state to act as it wants in relations to other states, this is however limited in that a state cannot interfere with the sovereignty of another state. 3: A state's sovereignty cannot go against international law - President Bush was tried in Belgian courts because of human rights violations in Palestine, which violates the sovereignty of the US, but only as a result of his violation of international law.
What are the 'Three functions of power'?
To make laws, implement them and settle disputes that arise from these laws. 1: Legislative power consists of making laws based on policy choices. 2: The executive power consists of implementing, elaborating on specific rules associated with these and appointing government positions. 3: The judicial power settles disputes that arise from the implementation of laws.
