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Comparative Constitutional Law summary
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Comparative Constitutional Law-Week 1:
I. How history shaped Constitutional Law?
1. What is the rule of law/a democratic Rechtsstaat?
-> The power of governments is set in the Constitution which is often made by a sovereign or
the source of all public power (highest body)
-> Constitution is a rulebook of the state reflecting the will of the people and
guaranteeing certain rights such as the rule of law or the separation of powers
-> The rule of law/democratic Rechtsstaat was built on 4 caracterstics:
- democracy (no one is above the law and everyone is equal)
- principle of legality (government isn’t above the law, people can do what they want
as long as it is not forbidden)
- separation of powers
- human rights
- independent judiciary: judiciary can adjudicate on the dispute between citizens and
subjects of state
-> Characteristics were built in the middle ages and were transformed into the current ones:
respect for legality, equality before the law, absence of arbitrariness, separation of powers
and independence of the juridicary and respect for human rights
2. Throughout history in Europe
-> Western Europe suffered from lots of wars and battles; created governments as a war
reaction
-> in 16th century, monarch and religion separated and the question arose “should
we or should we not obey a ruler whose faith we do not share”
-> Philosophers changed the view in which public power was viewed; 5 main philosophers
-> Always introduced through 3 questions;
1. What did they try to fix?
2. What is their take on legitimization of the authority of the state? Who is the
constituent power(person with whom power lays)?
3. How does the theory of this philosopher play in practice? What would the state look
like?
- Constituting/constituent power = power given to the people
- Constituted power= state organs (representatives of the people) exercising
transferred constituted power
A. Jean Bodin
-> “Six livres de la République” 16th by Jean Bodin
->wanted to find a solution to the religious tensions around the King - King lost his
powers to an extent where religion>government
,-> introduced the concept of sovereignty; sovereignty is a perpetual, eternal and indivisible
power - it is unlimited and absolute (only with one person)
-> can only be 1 body (no separation); can only be one sovereign aka anarchy
-> so since the King was the sovereign, he retains the power as it was there
-> state is sovereign because the king is and he acts on behalf of the state but his unlimited
power does not derive from the population
-> BUT did not explain where the sovereignty came from and presupposes unlimited power
of the monarch so an absolutist regime
B. Thomas Hobbes
-> “Leviathan” 17th by Thomas Hobbes
during the English civil war, the concept of sovereignty was interesting for the state of
war
-> wanted to fix Bodin’s definition of sovereignty; the state of nature is so chaotic that
humans need a sovereign to protect them
-> humans enter into social contracts with the ruler (Leviathan) by giving up your freedom for
obligations and duties
-> only gives us security which means the state in practice would be like “the purge”
(pessimistic view)
-> but sovereignty stems from the people so they legitimize the sovereign through their need
for protection from the state of nature
-> exchange of natural life for safety so state cannot simply take the life of people
and control people
-> sovereign cannot force conscience, we are bound to obey the state but not bcs of
religion or morality
C. John Locke
-> “Two Treatises of Government” 17th by John Locke
changed concept of sovereignty and limits sovereignty to prevent absolute monarchy
-> social contract is a rational choice to develop a society and economic security, humans
should live in a natural state - live amongst one another (optimistic view)
-> mankind is not wild life, people still have standards and principles
-> state should protect us and develop society (arts, science etc) & powers needs to
be limited to the 3 fundamental norms: life, liberty and estate
-> State needs consent from people to legitimize their power; citizens need to agree
with sovereignty through popular assembly ( citizens vote for representative )& only 2
powers; executive and legislative
-> right of rebellion (dissolve parliament) & state should have his powers written
down (like Constitution)
, D. Jean-Jacques Rousseau
-> Jean-Jacques Rousseau “Du contrat social” 18th
-> the social contract benefits it in 2 ways:
1. connects us to all become one society instead of simple individuals
2. transform from person to being a citizen & as a citizen you obey the general will, so it
is guiding force for everyone -> citizens get the right to take decisions as a whole but
for the common good (cannot be selfish)
-> the will of majority is always right bcs it is the duty of the majority to compel the minority to
agree with the majority
-> no one creates a law that is a disadvantage
-> done through popular assembly, where all people make the law
-> sovereignty cannot be limited where people rule over themselves, the people are
sovereign
-> exists as a whole within the people, cannot be transferred or divided
-> state is not a limitation on our freedoms but a structure to speak about it
-> having a limitless state of nature without law is not a freedom
-> freedom is living in a well ordered society & citizens get the right to take part in
political decision-making
-> liberty only exists within a political order, no order -> no liberty
-> distinction between the general will and the will of all:
- general will: focus on the common good and what's best for society as a whole
- the will of all: identifying the best option for yourself and see if the majority agrees
-> general will can develop society but will of all is like voting (own benefit)
-> E.J Sieyès “What is the third estate” 18th
tried to build on Rousseau’s idea, sovereign creates a source of legal order, but not
part of legal order
-> the sovereign people (nation) create the legal order but is not limited by it & sovereign
enters the legal order through representation
-> constitution is the legal basis for the legal order & binding
-> sovereign nation is the creator of the legal order and the constitution
-> parliament represents the sovereign people
-> & the people elect an assembly that makes the constitution
-> state is divided into organs:
- constituent power: the people/nation (sovereign) create the legal order through
constitution
- constituted powers: state organs vest their sovereignty within the governance
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