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Comparative Constitutional Law assignments and exams
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Assignments + mocksWeek 1:
Question 1
The blogpost ‘Protecting the EU from a Kill Switch: Why EU Law Does Not Require EP
Elections in the UK’ deals with question what the consequences would be if the UK
would not leave the EU before the European elections (to be held in May 2019), but
would also not adhere to the British obligation to organise the British part of European
elections.
a) Why is the author of the opinion that British citizens would still be represented
in the European Parliament even if they would not get the chance to vote for it?
Art. 14(2) does not state that every state should be represented in the EP, not all of
them have to represented. What may distinguish between voting rights and
representation, when somebody voted for you you do not necessarily represent the
people that voted for you but all people you represent, everyone in the state.
Based on Art. 10 TEU they would still be represented by the Council
b) On the potential loss of voting rights of British citizens, the author writes:
“Withholding the right to vote is as dark and problematic as it gets in terms of
democracy, and should not be allowed lightly. Yet if there would be one way to
justify such a restriction of voting rights then it would seem a popular
referendum to leave the EU, by direct universal suffrage and in a free and secret
ballot, would be it. UK citizens voted to leave the EU, which logically entails
losing the right to vote for the European Parliament. If the
democratically-elected UK government, in executing this wish of the UK voters,
then considers it necessary to delay exit without European elections, so be it.”
Explain how this quote sees the relation between the democratic majority and
individual rights. Would you agree that this indeed is democratic?
Issue: The majority has the power to, by popular referendum, deny idnivdual citizens
their voting rights for the European Union, even though the UK was not yet out of the
EU. Is this democratic?
Yes, UK is parliamentary sovereignty not popular sovereignty
The people can vote on voluntary basis
Like Rousseau said, the majority will rule over the majority –>will of all (not general
will)
-volonte generale was expressed in the referendum by majority, therefore the minority
loses the right .
By this quote the author states that as government is directly elected by individuals, it
represents the wishes of the majority, it acts in the will of its people as they expressed
their wish to leave UK therefore gave away their right to vote for the parliament.
, It is demcoratic, as the majority expressed their wish to leave EU
b) In his fifth and last argument, the author draws attention to the role of
the Court of Justice of the European Union (CJEU) in protecting
fundamental rights. He seems to argue that the Court is free to choose
from several interpretations of EU law. To what extent do you suppose
the CJEU is indeed free to choose between several interpretations of the
law?
Written text can enver be 100% clear, every word needs interpretation, and if it’s clear
it has already been interpreted.
The Cour tis bound by the text of the legislator, but can choose freely on which
interpretationm method to use.
-several tools which judicial organs may use to fill in the blanks in law
CJEU should avoid an interpretation that undermines the long-term viability,
stability, and functioning of the polity created.
Question 2
Jean Bodin developed his concept of sovereignty during the great political crisis of the
16th century caused by the Reformation. Discuss the relationship between the coming of
the Reformation and Bodin's development of the idea of sovereignty.
Before reformation, the roman catholic church was seen as the guardian of the truth,
the political isnitution was supposed to uphold the truth and the citizens were supposed
to obey the truth. Reformation caused the sound system of Res Republica
Christianorum to fall apart. Two branches of christianity were created - Catholicism
and Protestanism. Questions were raised - whether citizens were obliged to uphold the
truth of the king whose faith thy do not share, and whether king is supposed to enforce
his version of true Christianity upon his citizens. This was the cause of the blood shed in
France, french King did not have the power to uphold the truth. That’s when Bodin
came up with the concept of sovereignty - indivisible, eternal perpetrual power of the
monarch. Bodin affirmed the authority of king both internally (against feudal nobles)
and externally (against foreing rulers - pope). Based on this, king was the highest
executive power in france, hence he could uphold this his power, grant rights to
protestants if he wanted and end religious wars.
-After the great political crisis in the 16th century broke out because of the
reformation, the kings did not seem to find a solution to the problem. Then Jean Bodin came
up with the concept of sovereignty, he stated that king as the highest executive of the state has
the power to make binding laws for his citizens. This solved the issue created by the
reformation in France.
-pre-reformation - only roman catholic church guardian of the truth in this world, the
link to above
, -then political institution - duty of political institution to uphold that truth (working
together with the church to spread the truth)
-citizens duty to obey the truth of the state, because of the relationship with roman
catholic church
-chain broke, roman catholic church fell out of that system,- was not the guardian of
the truth anymore,
-bodin was trying to find how would you uphold the truth of the king, to
provide kin with his own authority to govern the truth
-bodin invented the concept with sovereignty - king had the absolute and
eternal power himself
Question 3
After the abdication of Emperor Napoleon I in 1814, the younger brother of the late
King Louis XVI ascended the French throne as King Louis XVIII. One of the first
things he did was to promulgate a written Constitution, the so called Chartre Octroyée
(granted Charter). This Constitution was founded upon the sovereignty of the King
himself. It did not contain a provision for amendment. How can this lack of an
amending procedure be explained from the nature of the document?
The nature of the document is absolustic. Therefore the king is seen as the sovereign with
unlimited power.The lack of amending procedure reflect that monarch has undivisible,
powers that cannot be shared with the government. He is the one that creates the laws so he
can change the many time.
The constitution was made in an absolutist nature. The monarch as the sovereign created a
constitution which he could change and repeal any time himself. The concept was that the
monarch is sovereign, therefore not bound by the law, he creates the constitution but is not
bound by it. The lack of amending procedure just reflects the fact that the monarch is
sovereign, has absolute powers, he does not have to share them with a parliament.He is the
one that creates laws therefore he can change them at any time.
Question 4
Art. 3 under 1 and 2 of the French Constitution read as follows:
“(1) National sovereignty shall vest in the people, who shall exercise it through their
representatives and by means of referendum.
(2) No section of the people nor any individual may arrogate to itself, or to himself, the
exercise thereof.”
a) These two clauses can be seen as the legal translations of the principles of
an important political theorist. Who is this theorist and why are these
provisions related to his thinking?
Rousseau was the first one to vest power to the people –>sovereignty belongs to the
people –>exercise their will through referendum
Those are examples of Siyes’thinking. He said that the nation is sovereign, and sovereign
nation exercises its will through its elected representatives. The nation is seen as the
source of as he says „constituent power“ - they created the legal order in a state through
, constitution but are not bound by it. They hand powers to legal organs that exercise
„constituted power.
b) Give at least three parallels between a written constitution and the idea of a
social contract.
Locke was the one that said that essential characteristics of a state should be
written down
1) Both are the foundation of the political order of the state
2) Both organize the state organs and limit their powers
3) Both structure the relationship between the state and the people
4) Both organize the relationship between citizens
5) Both originate in the people and recognize popular sovereignty
Surprise Question:
Calvin and Luther both rejected some of the central dogmas of Roman Catholicism. Yet, they
sharply disagreed on the subject of the relationship between the subject and the
government. Describe these differences and discuss your preference for one of them - and
why.
Luther: Obey the government, even if it does not represent the same religion
Calvin: No obey god more than a man
Week 2:
Question 1
In a well-known handbook on comparative constitutional law, the concept of the so-called “total
Constitution” is discussed. Within this concept, a Constitution’s function is to “essentially resolve, or at
least strongly influence, virtually all moral, legal and political conflicts in a society
a. Explain whether or not this concept is compatible with the notion of the rule of law.
Arguments for
Rule of law revolves around the fact that everybody is equal before law, regardless who they are. It
aims to establish separation of powers, independence of judiciary and respect for HR, to avoid
arbitrariness. All Public authority derived its powers from legal norms and are also bound by these
legal norms in exercising these powers.
Total constitution aims to foresee every solution for every problem that may arise. Therefore it
contributes to legal certainty- makes government action predictable and ensures equality of all
citizens before law –>therefore compatible with the rule of law.
Arguments against:
Not compatible because it aims to resolve all conflicts, and gives no indication that there is a
limit to the powe of the government
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