Class notes
College aantekeningen Comparative Constitutional Law (3802COQPVY)
- Course
- Institution
complete lecture notes
[Show more]
Seller
Follow
josephinetimmer
Content preview
Lecture 1States
● Constitutional law is most often about a state (not always, can also be about international
organization, or the EU for example)
● Different dimensions of the word 'state'
○ State as a (political) community > nation
○ State as a territory > piece of land (geographical)
○ State as in 'government' (relevant for constitutional law)
○ State as the central government (a specific kind of government, opposed to provinces
+ municipalities)
■ constitutional law refers to a central government
● Can a micro-nation also be a state (e.g. Molossia)? Who should recognize a micro-nation for
it to be a state?
○ Some micro-nations originate from liberation movements. If we require the
recognition of the occupying state, it becomes very hard for a new state to set itself
apart from the 'original' occupying state
○ Problem with former colonial regions/areas (e.g. Dutch Caribbean Islands)
○ Occupying country/state becomes a 'veto' player
● Montevideo Convention and its requirements of a state's recognition
○ Population
○ Territory
○ Government (?) > effective authority
○ Capacity to enter into relations with other states
● Complication = even if the recognition by other states is not necessary for achieving
statehood, recognition by other countries is practically necessary for a state to function, it
depends on this recognition
● Effective authority/government is essential criterium for a state and its recognition
Effective authority
● Example = FIFA as a state within a state
○ Made arrangements with the Brazilian state
○ Had the power to decide who could come to the stadium or not
○ Made exceptions for the prohibition of drinking (and tax exemptions) for FIFA's
sponsors
■ change in Brazilian legislation (sign of effective power)!?!?
○ Is FIFA a state (in terms of effective authority)?
■ Brazil no longer able to effect its authority regarding FIFA matters, since FIFA
makes its own legislation
■ However, based on a contractual agreement
■ Answer is no: even though FIFA had huge powers in practice they didn't have
any monopoly (e.g. on violence or power)
■ Besides a state needs sources of legitimacy
Sources of legitimacy
● Main sources of legitimacy according to Max weber
○ Tradition
○ Charisma
○ Legality/procedure (input, throughout legitimacy) > relevant for this
course/constitutional law
○ Outcome legitimacy (added to Weber later on) > effectiveness of a policy or certain
decision
, ● Problem with legality/procedural legitimacy = procedures in themselves should be legitimate
as well
● Constitutions play a role in providing legitimacy for a state, but where do constitutions get
here legitimacy from (the constitutional dilemma)
● Also from procedure
● But the very first constitutions were not established according to certain procedures
○ They get there legitimacy from external factors, such as 1. tradition, 2. outcome
legitimacy, 3. principles such as democracy and the rule of law
○ Lex iniusta non est lex (an unjust constitution is no constitution)
○ The constitution legitimizes all other sorts of law (criminal, private), but it cannot
legitimize itself
Function of Constitutions
● Citizens give authority to institutions who can exercise this authority over citizens on the basis
of the constitution???
● Constitutions provide a narrative for the political community/the people
● Main functions of constitutions (according to Foremans??)
○ Establish the power of institutions
○ Regulating these power (through procedure)
○ Limiting these powers
○ These three factors legitimize authority
● Constitutions are a symbol of a specific identity (the people) (according to Hensel)
○ How does this relate to the legal notion of 'constitution'
● Different dimensions of constitutions
○ The political dimension (Hensel) > liberal-democratic, communist, theocratic etc.
■ We can categorize the constitutions according to their ideology
■ Can we compare constitutions across different categories (communist vs
democratic)?
○ The legal-formal dimension > our idea of 'the constitution'
■ The (foundational) document itself (e.g. basic law) setting out certain rights
and freedoms of governments
○ The legal-substantive dimension > the case when there is no written constitution like
the basic law
■ Unwritten body of rules setting out rights (e.g. in the UK)
■ When the constitutional documents are not collected in one bill (e.g. Canada)
■ Body of rules and (unwritten) norms aimed at constituting and limiting
governmental powers
● Relationship between the three dimensions = both the political dimension and the legal-formal
dimension operate in the structure of the legal-substantive dimension??
The legal-formal dimension is also carried by the political/constitutional culture (political
dimension)
● When studying the legal-formal dimension, it's important to take into account the broader
political culture of the state (political dimension)
Why comparative law?
● Functions of engaging in comparative constitutional law
○ We all have the same problems + ambitions > look to other states to validate this
statements and to investigate how they solved these problems/met these ambitions
○ CCL provides useful material for legal design (constitutional engineering)
○ CCL also provides a framework, a common language, to discuss common problems
in the struggle for freedom & security
, ○ CCL aids the development of new (transnational) structures (e.g. UN, EU), to set up
their own structures (constitutional borrowing)
○ CCL helps us to better understand our own system (educational aim)
Approaches to comparative law
● Classification
○ Classify constitutions into legal families
■ Common law (Anglo-American) vs. civil law (Roman)
■ Presidential vs. parliamentary systems
■ Judicial review vs. parliamentary sovereignty
● Expressivism
○ We try to establish the constitutional identity of a certain constitution
○ Which values underpin this constitution (e.g. liberal or communist?)
○ Focused on the differences between constitutions
● Universalism
○ Look at shared values identified across the globe (e.g. human dignity?)
○ Are there universal aspects about constitutions (e.g. proportionality)
○ Bernard Schlink argued that in the US proportionality is a universal part of the legal
system????
● Functionalism
○ Look at how constitutions can offer solutions to common problems
○ Compare constitutions in how they solve certain problems
○ Identifying problems is necessary and crucial part
○ Most used in CCL
Functionalism
● Part of 'constitutional engineering'
○ 1st step: defining common problem
○ 2nd step: considering different doctrinal solutions proposed by different courts
○ 3d step: passing a considered judgment on the best approaches
● Problems with functionalism (Bricolage) =
1. Specific solution can be part of a specific cultural/historical context that might not be in place
in our own system
○ Legal transplants = transplanting a solution into a different legal system > fails
2. Specific arrangements are designed to meet a specific problem
○ Assumption = a legislator could choose out of every option and chose the best one
○ Reality = a lot of solutions are coincidental (borrowing what is readily at hand), its
choice was also influenced by limits imposed by legal system. Not all solutions were
considered > being bricoleurs (instead of engineers)
This displaces the emphasis on constitutional unity and compromise
● Solution = decontextualize the solution (from the system). It is important to consider more
solutions to the problem (to assemble a senseful and overarching constitutional design)
Normative framework of Constitutional Law (Democracy & Rule of Law)
● Liberal democracy and its constitution derive their legitimacy from democratic principles such
as the rule of law
● Principles are:
○ Democratic when they establish the government to be a government of the people, by
the people and for the people
○ Liberal due to principle such as the Rule of Law
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying these notes from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller josephinetimmer. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for $6.97. You're not tied to anything after your purchase.
Can Stuvia be trusted?
4.6 stars on Google & Trustpilot (+1000 reviews)
50064 documents were sold in the last 30 days
Founded in 2010, the go-to place to buy study notes for 14 years now