My Final Constitutional Law Summary
Lecture 1: Introduction
1. Political Institutions
2. The Law of Politics: Constitutional Law
a. Sources?
b. see: constituteproject.org
3. A comparative approach
a. Aims
b. Pitfalls
i. Language - translation
ii. Institution - different solutions, different institutions, different functions
iii. cultural, political, and social context: Constitutions closely linked to start of
new legal moments
c. the concept of legal families or traditions
Legal families - legal systems that are similar to each other (doesn’t help us very
much, nowadays combination of systems)
4. European Institutions
EU - constitutional legal order (would also apply in EU context, to some extent, EU differs)
5. Framework: Rechtsstaat / Rule of Law
Separation of power (1&2&3)
● Parliament: law-making by representatives
● Governments: executing laws, law-making (but not always, e.g. US)
● Ministers
● “Bureaucracy”
● Proposes new laws
● President: executive or ceremonial
● Courts: applying the law, interpretation needed (political), the way they are appointed, the
cases they deal with
● Constitutional law: testing laws against the constitution
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,Lecture 2: Constitutions and Constitutionalism
Constitutions - What are they?
1. the ‘broad’ and ‘narrow’ meaning
○ Broad = constitution (not written down in one single document, e.g. UK)
○ Narrow = Constitution (the document itself)
○ Supreme legal rule = law made by Parliament (highest law in the UK)
○ Problem with EU law making because it is above the Parliament law, so they made a
law saying that they will follow EU law. Problem: how to stop that now?
○ UK, New Zealand (former colony of the UK), Canada (partial constitution, Quebec
does not accept is still), Israel (basic laws that could be seen as chapters of such a
constitution)
2. the ‘supreme law of the land’ (?)
E.g. UK, international organizations produce legal rules which in a lot of cases can
override the constitutions, not all countries accept that international law is supreme
to their constitution
3. rigid and flexible constitutions
● Flexible: The possibility to revise or amend the constitution
● Rigid: hard to change. What’s good about that? It guards the fundamental things about your
system, otherwise some political majority could change it as it pleases
● How do you make it rigid? Amendments have to be voted for through special procedures,
referenda, long discussions and talks
● What is bad about a rigid one? Times change and constitutions become irrelevant, creates a
need for a lot of interpretation, hard to adapt to changes in the society
● You have to strike the right balance between rigid and flexible
4. And why do we have them?
○ Constitutionalism: the state derives its power from the constitution, a supreme
○ law which is legitimized by the people, and it is limited in exercising this power
○ by the constitution
○ ‘constitutional moments’ and identity
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,Guarantee of rights and freedoms, create institutions, create power, but also limits the power of
institutions (best way to limit the powers of the institutions)
i. Constitutionalism
ii. Reason why the international order should constitutionalize
Types of Constitutions
Karl Loewenstein:
a. Normative - Dutch, it just creates legal rules (US well, it does so with a different
language that is more symbolic) - most western liberal constitutions
b. Nominal - reflects the reality but does not create rules (nominal elements, for
example: French, Dutch {Article 24 - the King}
c. Semantic - Chinese, window pressing, contain all the language and proper things
you’d expect, but does not reflect the actual law of the state (most Asian ones, old
soviet and communist constitutions), Dutch (Article 106, not true)
Most constitutions contain elements of all these categories
Other typologies?
i. Liberal democratic - individual freedom to the extent to which it does not
harm others
ii. Liberal non-democratic - Singapore (authoritarian state, one political party,
well developed legal system that provides security and welfare, but
criticizing the government, free speech, demonstration are not allowed. We
have a proper legal system but we must limit the freedoms of people to
avoid conflict between groups), other Asian systems would fit this sense as
well
iii. Non-liberal (illiberal) democratic - Hungary, democratically elected
government and parliament but limit freedoms by stating that’s what the
people want
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, Contents of constitutions
1. Form of State
a. vertical division of powers; organization of the state in various levels
(layers of government, state, regional, provincial, municipalities, local…)
2. System of Government
a. Horizontal separation of powers; organization and functioning of state institutions
(institutions, within each layer there is a horizontal separation)
3. Legal System
a. The organization of judicial control, including fundamental rights protection
(courts)
Basically three things in all constitutions
Reference to “the people”
● China and the US, not in the Dutch one
● Provides legitimacy to it because it is made by the people
Individual vs. collective/state freedom
Fundamental rights part of all constitutions
● US added them in the amendments
● All original articles stand
● Dutch constitution has amended all articles from the original constitution
Separation of power
● Dutch in the chapters creates institutions and their functions
● US states the separation of powers by branch
● Even present in the Chinese one (not so explicit)
Form of state
● Present in all constitutions
● Limited in the US because it is a federal constitution, a lot if left to the individual states
Principle of Democracy
● Elections of organs, etc…
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