Lecture notes for Comparative Constitutional Law ( previously known as Introduction to Public Law) delivered by Prof. Michiel Duchateau, R. Herregodts and H.G. Herregodts
Extended Lecture Notes on Comparative Constitutional Law
Tutorial 5: Netherlands, ISBN: 9781780688831 Comparative Government (PUB1002/2020-200)
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Comparative Constitutional Law (RGPIR50310)
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Introduction to Public Law Shrey Shrestha
Week 1
› Jean Bodin, “Six livres de la République”, 1576
› Thomas Hobbes, “Leviathan”, 1651
› John Locke, “Two treatises of government”, 1689
› Jean-Jacques Rousseau, “Du contrat social”, 1762
› E.J. Sieyès, “What is the third estate?”, 1789
› Popular sovereignty
› Pouvoir constituant / constituent power and pouvoir constitué / constituted power
› Constitution revolution
Christianity- Protestant Reformation- precursor to change in political structure of Europe –
Catholic Church’s powers reduced – 30/80-year wars
In relation to tensions in Europe, the question of how to regain peace and order was raised
Bodin- Introduced Concept of Sovereignty
Sovereignty of People
The Sovereign- responsible for maintaining order and protect the people.
The concept of sovereignty was improved upon by Hobbes
Thomas Hobbes-Leviathan
- Introduced the foundational logic - Sovereignty comes from people-
- Social contract to maintain peace and order- gives power to Sovereign (An individual
or an assembly) i.e. we the people make the sovereign a sovereign
- Hobbes- Freedom of Conscience – People are entitled to Freedom in their minds-
first fundamental right
“Auctoritas nec veritas fecit legem”- Authority, not the truth makes the law- States
power should not be based under truth- truth is more of a private question
Human beings are essentially problematic – according to Hobbes – sentiment not
shared by everyone – his ‘philosophical anthropology’
*Put certain limits on sovereignty – has far reaching, but not unlimited powers
Main function of sovereignty is to neutralize the State and the law- he agnosticizes
the law – not bound by religious truth
Hobbes corrected what Bodin had left out – where does sovereignty come from? Put
some limits to sovereignty (State cannot take my life, and the State shouldn’t control
my conscience)
,Introduction to Public Law Shrey Shrestha
John Locke- Successor to Hobbes- Two treatises of government (1689)
- Times were better, so he had a better fundamental view on human beings – religious
strife was not as big of an issue
- Humans should live in a natural state- live amongst one another
- ‘In order to avoid the wolves, one should enter the lion’s cage’ ; State should not be a
lion- wolf hardly as scary as a lion: State should have powers to uphold the law and
protect us from one another, but cannot be unlimited
- State should have powers, and citizens should give up certain freedoms- But the
state should not interfere with one’s ‘property’- one’s life, liberty and one’s estate
- For this, two social contracts necessary: a) between citizens and b) between citizens
and the government. The latter dictates powers and limits of the government (certain
fundamental rights/norms)
- Locke proposed a parliament ( popular assembly): citizens should have influence in
the decisions government takes- elected by the people so citizens can make the
laws- renewed regularly through elections and the laws should be made ( partially or
fully) by the parliament (as opposed to Hobbes: sovereign can be a man or an
assembly, but didn’t have the idea of renewals)
- Must guarantee fundamental rights
- Separation of powers: introduced by John Locke – legislative power, executive power
(executive+ judiciary- since judiciary is the implementation of laws), and federative
power (treaty making, foreign relations) – operate independently
- Clause in second contract: citizens have the right to rebellion against tyrannical
governments
- Sovereign must protect its people from the wolves, but not turn into a lion itself.
- Sovereignty is limited in Locke’s theory- power is required to get order - unlimited
power is scary- optimum balance has to be calibrated
- English constitution: to this day- is heavily influenced by Locke- Locke’s theory is the
idealized version of how the actual constitution came about to be
18th century France: Montesquieu
– critical of French Monarchy
- Didn’t think there was one solution that fits for all States.
- Published- Spirit of the law: compilation of legal beliefs and practices from around the
world
- Misinterpreted English legal system as to have an independent legislative, executive
and judiciary.
Separation of powers- limit on sovereignty
The idea of having to give up some liberties for protection and order- varying degrees-
Hobbes (a lot), Locke (less so); no other way ‘ it’s a trade’
,Introduction to Public Law Shrey Shrestha
Jean Jacques Rousseau - Du contract social
- Remains a very controversial figure- enigmatic ideas
- Believed one could get benefits of protection of State and remain as free as before:
Reste aussi libre qu'auparavant – enjoy protection of the laws and not be limited
- How? Assumption that liberty is a human quality that is natural – no limits and doing
as you please
- Believed that freedom is instead a moral quality- human nature is not that of liberty,
but of limitlessness – “somebody who jumps off a cliff in many cases is not a free
man, but a dead man”
- One limit- laws of nature- but are not seen as limits of freedom, but a structure within
which freedom takes place- political laws can be seen as the same thing with an
organized boundary
- Laws are not boundaries of one’s freedom, but rather exception of it; for this, political
laws much be as alike to natural law as possible e.g. under the laws of nature, we
are all mortal – similarly, political laws must apply equally to everyone- if everyone(
citizens) participate in making the laws themselves, this would be possible ( via a
popular assembly like in Athens) – But States much be small for this to be realistic
Rousseau- State is not a limit of the freedom, but an expression of it, and hence the
sovereign mustn’t be limited.
Problems from this: case for minorities? – force people to be free-
totalitarianism?
Virtuous laws= virtuous citizens
First since Bodin to suggest sovereignty is unlimited- but hands sovereignty to people
instead of a Monarch like in Bodin’s case.
Sovereignty- invisible and eternal power of the republic - Bodin
Only if we the people are free; can we be sovereign
Liberty exists within political order and only exists when there is a legal and political order
(Kant and Rousseau)- as opposed to the Anglo-Saxon school (Hobbes and Locke)
Sieyès- What is the third estate? (1789)
People are sovereign, as per Rousseau, but for a large state like France- to make the idea
of sovereignty practical
Sovereign is not part of the legal order- it precedes and creates the legal order
Sovereign, like the Abrahamic god- is the source/creates of the whole legal order – and
hence it cannot act within the legal order and is not a part of it(because there are limits
within the legal order)
Theological analogy: Dialectics: Son represents the father within the world, but god still
exists outside creation. Ordained priest represents Jesus via mass.
, Introduction to Public Law Shrey Shrestha
Representation- Parliament – A sovereign speaks through its representation (the people),
the people themselves cannot act alone, because they are the sovereign and make the
legal order (by creating a constitution and thus the legal order)
How to make a constitution? - Representation via constituent assembly
*Pouvoir Constituant i.e. Constituent power (the nation) v. Pouvoirs constitués i.e.
constituted powers (state organs)
Sovereign is unlimited (because it’s the basis of power), but within the state nobody should
have unlimited power and be unlimited
Representation of sovereign is in the hands of the elected polity- independent minds - they
represent everyone, not only the one who voted for them
Napoleon- agreed with this idea, but claimed that he represented the people (via
referendums)
Following Napoleon, Europe decided popular sovereignty was a bad idea since it could one
person could claim to represent the people- discarded
Written constitution remained- Monarchies introduced- limited the Monarch’s powers
19th century constitutions became more descriptive rather than idealistic- underlining some
rights (e.g. Netherlands)
20th century- After the WWs, returned to being value driven e.g. German Basic law of 1949
(sovereignty rests in people), Post-communist states, Spanish constitutions
Most constitutions today agree- Popular sovereignty idea is acknowledged- original source is
nation of the people, but state powers are limited by constitution- separation of powers,
elected parliament, independent judiciary and human rights.
Week 2
Functions of the constitution
Constitution: Single document that has hierarchical supremacy over other legislation and
over all govt. authority e.g. delineation of municipal council in art 129 of Dutch Constitution
constitution: combination of written legislation, customs, court rulings, scholarly writings, and
customary law that serve as legitimizing and limiting government authority (gives effect to
the Constitution, but is of a lesser relevance e.g. no of seats in the municipal council
underlined in the gemeentewet)
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