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CONSTITUTIONAL LAW15/09/21 - Session 1 - Introduction
20/09/21 – Session 2
Constitutions from the perspective of Comparative Constitutional law: Definition and Typology of
constitutions 1.0
Readings notes
What is a constitution?
Two different functions; political and legal
Broad meaning - constitution compromises the entire body of the fundamental rules that govern a state
Narrow/formal meaning - a central written document that sets out such rules
Different classifications; written/unwritten, codified/uncodified, rigid/flexible, proclamatory/regulatory
A. Comparative Constitutional Law
Deep analysis of fundamental core principles of const law
Wide analysis of divergent application of such principles in different const orders
B. The different conceptions of the Constitution
1. The State (political) conception of the Constitution
Constitution as an act constituting political organization
Constitution forms the State; 2 logical moments:
Constituent - when the state/legal order is established
Organizational - when the state is organized, establishment of core institutions, relationship
between the institutions...
Second significance of constitution - architecture of regime and allocation of sovereignty (monarchical
or republican constitutions)
2. The legal conception of the Constitution
Defined as the fundamental and supreme law of the State; it’s a set of regulatory provisions, defining
state power and the fundamental rights of citizens against the state power
Transition from state to legal conception; took place after French and American Revolutions
Regulatory focuses on legality and validity
Constitution - foundation of the state and statehood; particular features:
1) law celebrated - enacted one-off at the time of establishment of the state
2) binding erga omnes (towards all)
Constitution consists of concise, abstract and comprehensive text; abstract wording is deliberate
Legislator is allowed to specify the constitution in different ways and to apply different political choices
(but framework of const is still respected)
Constitution is the backbone of legal order (supplemented by ordinary laws) and has the highest formal
power (prevails over other laws)
C. The different concepts and distinctions of the Constitution (based its legal conception)
1. Formal vs Substantive constitution
, Even states w/o formally written const documents have substantively const (ex. UK; no legal document,
but conventions, customary laws… “unwritten const” but not entirely correct since some parts are
written down
→ What exactly are those fundamental rules? What is the regulatory scope of constitutions?
Irrespectively of the form of the constitution, formal or substantive, each constitution regulates three
areas: (horizontal) the organization and the interaction between the main institutions, (vertical) the
relationship between the state and the people and finally the territorial application of such rules (in some
regions the local authorities can impose their own local regulations, for instance Spain and the UK)
2. Written vs Unwritten (based on the format)
Written - called the single codified Constitution (typical); officially published text(s), product of
constituent power
Unwritten - called constitution (or customary constitution, requires consistent practice); not imprinted in
a written text, formed by producing constitutional custom, exercised w the conviction of applying a rule
of const law
3. Codified vs Uncodified Constitution
(substantive const) UK typical ex of unwritten const but w formal meaning (has many written parts);
Magna Carta (1215), Petition of Rights (1628), Act of Union Human Rights Act → historical
significance
Hence, we could say that UK does have a written const, but it is rather uncodified (likewise New
Zealand, Israel and unlike US, France...)
Uncodified - points of basic law regulating const matters such as the role of legislature or human rights
Codified - written document including systematic apposition of provisions regulating const issues
4. Rigid vs Flexible Constitution (based on the amendment process)
Majority of formal consts are rigid! (provisions not subject to amendment, the change can only be done
by breaking of the current const order and establishing a new one)
Relatively rigid const provides for an amendment process subject to numerous conditions stricter than
those applicable to ordinary legislation
Flexible const - amended by the ordinary legislative procedure (its rules equal to ordinary laws), can be
adapted to any change in socio-political conditions → disadvantage since sometimes subject to
occasional will of majority and common legislator
5. Virtual/descriptive/proclamatory vs Regulatory (on the basis of its regulatory quality)
Proclamatory const may seem valid, but only to some extent bc authority tends to apply it only when
desirable for them; its content often narrative
State is constitutional when its const is regulatory; produces legal effects (has binding force and
effectively regulates political processes), consists of binding laws which are not vague!
Why do constitutions have a ‘special status’ within their respective legal orders? And do all Constitutions have
a special status?
, - Constitutions derive their special status from the fact they are enacted by ‘the people’
1.Heringa-Kiiver: ‘The Notion of Sovereignty’
Constitution making process is an expression of sovereignty (highly political)
Not constrained by the law; constituent power = primary power --> bc legislative, executive
and judicial power emanate (originate from) and depend on const power
Concept of sovereignty evolved, but definition remains; ‘sovereignty is that absolute and
perpetual power.’
different notions of sovereignty
Most constitutions derive their claim to authority from having been enacted by the people, a
concept called popular sovereignty
External sovereignty; possibility for a state to exercise control over its population and
territory w/o interference from outside
o Breakthrough in 1648 Peace of Westphalia (ended 30y wars in Europe) -->
fundamental concept in international law
Internal sovereign; original source of public authority within the state itself (“we the people
of US...”)
Sovereignty in this sense – abstract notion --> even when claimed that ppl are the sovereign,
it was not written by the ppl (often not even approved by the people, ex. The German Basic
Law), by contrast, French Constitution (1958) adopted by majority
Popular (endorsed by republican democracies) vs royal sovereignty (expressed by
monarchs who remains the sovereign even if he chooses to grant his ppl a const, also often
coupled w religious claim)
o Ex. Constitution enacted by Tsar Nicholas II of Russia in 1906.
Revolutions that established republics would go away with royal sovereignty
Popular vs National sovereignty (often used synonymously), difference; people are a
concrete and real entity, while the nation is more abstract notion and does not coincide w the
current population
National sov prominently proclaimed by the French declaration of the Rights of Man (1789)
In popular sov the sov population is able to change the const through a referendum, but if the
nation is sov, the possibility is excluded bc the nation is abstract and not able to act on its
own, hence it can only be exercised by its representatives
o In Belgium the sovereignty lies with the nation (all ppl ever), not people (current
population) --> nation represented by parliament (laid down in constitution)
o France; compromise to claim that 'national sovereignty belongs to the people, who
exercise it through their representatives and by means of referendum’
Absence of sovereignty; const law of the NL does not occupy itself with the Q of
sovereignty --> simply leave the Q open
2. Jon Elster, ‘Forces and Mechanisms in the Constitution-Making Process’
Shows in practice the process of constitution making and discusses constraints in the
constitution making process (although its power is limitless)
Upstream (imposed on the assembly before it starts to deliberate) vs downstream constraints
(created by the need for ratification of the document assembly produces)
There is an institutional mechanism that selects delegates to the constituent assembly -->
, 3. Case study: the Icelanding ‘crowdsourced’ constitution
Failed (never approved) attempt to adopt a new constitution in Iceland (2013) --> tried to
give itself a new const in the wake of financial crisis
Who should write the constitution of a democratic country --> obvious answer: its people -->
regardless, it is usually written by a small unrepresentative sample of the elite individuals
(professional politicians and state bureaucrats)
Iceland's recent experiment in re-drafting of its const challenged the assumptions that it
needs to be exclusive
In 2013, Iceland came close to passing the most transparent and inclusive const text, hence
prof politicians were purposely excluded from the survey
While the crowd did not ultimately write the const, it surely contributed valuable input
Unfortunately failed bc the parliament kept for itself the veto for final product (downstream
constrains) --> proof that democratic const process designs are bound to fail
20/09/21 – ses 2&3 (in person)
Class notes
The legal aspect of the constitution is possible to exist w/o the political one
Ex of demonstration in China --> connect to the Chinese const (virtual, no
regulatory/binding part); allowing demonstration
In order to move from the idea of royal sovereignty to popular sovereignty, 3 wars were
needed to finally achieve certain rights such as education access or gender equality
Does UK have a constitution? --> in narrow meaning; no bc there is not a central written
document, but in a broad meaning; it does bc it has a list of set out rules, regulations and
institutions responsible for proper governing of the country
Customary rule (ex w US president and vice president)
How do customs change? What happens in the case of breaking customary law?
King of Spain accused of corruption --> no legal consequences, charges, prison..., only
political ones (not able to return)
Creation of customary rules, bc they are not written --> easier to change, but needs to be
related to security reasons (for instance, US presidents not allowed to have a form of
personal communication)
With violation of constitutional law, it is left to the elections to solve the issue
Codified – single document where all the regulations are stated
Uncodified – several different constitutional texts, several sources
Difference between flexible and rigid constitutions; both have pros and cons
o Rigid is not subject to amendment and cannot be changed
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