College aantekeningen
Introduction to Public Law. Lectures
- Instelling
- Rijksuniversiteit Groningen (RuG)
A complete compilation of notes from lectures from the course of Introduction to Public Law (LLB 1st year 4th block)
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A. Costov IPLLecture 1: History of Constitutionalism
- Government should serve the people instead of making the people serving them; the authorities
must be bound by the law; everyone is equal under the law
“We are governed not by men but by measures”
- We are ruled by people (but we are equal), so everybody is suited to rule
Democracy – people govern themselves
European democracy – governed by the people + governed by the rules
- 16th century – Europe developed a system of government which became rather successful
- There is no country in the world left which at least doesn’t claim that it’s a democracy
o Saudi Arabia and Iran – claim there are no fundamental human rights (in their states)
because of incompatibility with their religion
o 5-6 countries in the world don’t have a written constitutions (e.g. UK)
o 5-6 countries of the world do not acknowledge the sovereignty of the people (e.g. NL)
- Basically, the great majority of the countries acknowledge the sovereignty of people, the
importance of human rights etc.
HISTORY
- Beginning of the 16th century – end of Middle Ages
- The view of the world changed:
o before 15th century: Jerusalem – center of the world, the Earth is flat, the Sun revolves
around the Earth
o then: discovery of Americas, ways to Asia by sea, everything revolves around the Sun
o As a result, profound changes in Europe:
Printing press: before that the Church controlled everything written; after that
education and literature became more available inventing censorship as an
attempt to regain control
Thus, the people of power could no longer fully control the spread of ideas
E.g. Martin Luther published 95 propositions discussing Catholic church, which
spread throughout Europe really quickly Reformation of the Church
Catholicism and Protestantism (Schism)
Before that, the authority of the Roman Catholic church was never really in doubt
in the Western Europe (Pope + Roman Emperor below him, both under God –
the Christian Republic): faith of the one TRUE god and one TRUE church must
have been adhered to every monarch was the defender of the church who
HAD to adhere to catholic rules
After Martin Luther the system was destroyed
Catholicism or Lutheranism?
Some rulers preferred the latter (especially German princes)
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Division in Europe: in some countries both rulers and subjects were adherent
only to one religion; in some countries – parts became protestants, parts remained
catholic
Religion at that time was deeply public: if your ruler adheres to the WRONG
religion threatens your eternal soul and your chance to go to heaven – who do
you obey? Your ruler or god?
The Bible gave two different opinions: we have to obey the government one
should obey god more than the government
Luther: you must still obey your ruler, in any situation
Calvin (later): if a government demands from you things which you cannot
adhere to you shouldn’t obey; you must obey god more than your ruler
As a result: armed conflicts (30 year’s war, 80 year’s war, etc.) – underlying this
was one big cause – the question about the truth could not be answered
unanimously anymore
- European countries were able to wage into such long and money-consuming wars because of the
resources their exported from the newly-discovered lands
- But, in the end, the wars couldn’t be fought forever; there was a need for a solution: how do we
live in the world where it is no longer certain how do we deal with the truth?
- France was one of the first and most influential countries where philosophers tried to answer this
question
Jean Bodin – “On Sovereignty”
- One of the reasons why the King of France couldn’t solve the problem was because the King
didn’t have enough power to do so: feudal relations in medieval Europe – the King just gave
away land to vassals as if it all was the King’s property relations between the feudal lord and
his vassals
- If a King need (for example) money, he would go to the States (clergy and nobility + citizenry)
and receive money in exchange for something (e.g. grant some rights to certain cities)
- Bodin: What if we start looking at state power in a different way and abolish the idea that it is
even possible for the state to bargain public powers; let’s start looking at public powers as the
ones which only belong to the public authority; let’s start looking at the state as if it was
sovereign (invented the word “sovereign”)
- Sovereignty – the perpetual eternal and indivisible power (there is no trade in sovereignty, it is
the state’s power only)
o If the state is sovereign the King is sovereign (as an organ not an individual)
- If this is true the King is not bound by any limitations created by his ancestors due to
bargaining
o As soon as people started to believe it was true it became true
o Sovereignty also means not being bound by any foreign power the Pope in Rome
doesn’t have the power in a state because the state is sovereign
- Thus, popes and kings became equals
o Henry IV granted the protestants their religious rights
o Pope was strongly against this
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- France was the country were sovereignty was invented and where it worked best absolute
monarchy
- Absolute monarchy at that time was the only regime where the ruler could fully govern the whole
country (e.g. introduce a tax or one official language for the country)
- Louis XIV – the Sun King – there is only one sun and everything else revolves around the sun
(uses the modern discovery of the fact that everything revolves around the sun)
o takes the latest scientific discovery to legitimize his absolute powers – very modern for
that time
- NL fought against the idea of sovereignty, against Spain who tried to introduce it in the NL
still no sovereignty of the people in the NL
- UK: Parliament vs. the Crown Parliament is the sovereign
- Sovereignty became an extremely influential theory
- Peace of Westphalia – brought about the new post-war medieval system of Europe: all the rulers
of Europe were sovereign and equal in their sovereignty (+ they chose the religion themselves)
- The sovereign equality of states
- A contested idea: could lead to unlimited power of the state + Bodin never explained where the
concept came from
o At that time (need to end the war) the lack of an explanation was acceptable
o However, after the end of all the wars – the concept needed proof
Thomas Hobbes – “Leviathan”
- After the loss of the English King, Hobbes exiled to France where he was introduced to the theory
of sovereignty
- Hobbes was convinced that if you want to create a good political theory – have to act
scientifically
- In “Leviathan” he first described human beings first to understand what humans are about
because they are the ones who create societies
- Second part – of Commonwealth describes the society itself
o We, as human beings are mostly driven by fear because we know we are mortal, and like
every living creature we want to escape death by living and trying to make the best of our
lives
o We fear death and we know that everybody else does the same thing and is motivated by
the desire to escape death
o We try to escape death by finding security we constantly compare ourselves to others,
and find security in the companionship of human beings
o The knowledge of our mortality is a source of our willingness to sacrifice others for our
own security as well (e.g. through lying)
o So, when we enter in an agreement, a party knows that the other party might be lying
because the first party might be doing the same thing
o The solution: this ratio that we have brings us into trouble; but the solution is the
guarantee of life with each other and among each other that would allow us to live
without fear of being stabbed in the back every minute
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o For that we need a person (organ) above us all with great power to enforce a compact
upon us all, making us all his equal subjects, against our will, if necessary the
sovereign
- Hobbes, thus, gives an explanation of where the sovereignty comes from and justifies its
necessity
- Hobbes doesn’t use the word “democracy” but still explains that the origin of sovereignty is the
people
- Hobbes also puts certain limits on sovereignty: the sovereign is nominated with one value in mind
the ability to protect us, as his subjects
o What if a war breaks out? Can the sovereign command subjects to join the army to
protect the state?
The risks – one can get killed in a war
But, since it’s defense of the state have to
But what is in there for an individual since we, as individuals, enter in compacts
for our own interests, not for the interest of the country
o Same situation for death penalty
The best that Hobbes comes up with if this happens, the state of nature is
returned and everyone is entitled to everything (sovereign – to kill an individual,
individual – to resist)
- Hobbes thought of religion (in the first place): the sovereign is not bound by the Pope o any
foreign religious authority. The sovereign CAN enforce religion, but does that mean that he can
force people to believe that that is true? No, because even a sovereign cannot control human
consciousness
o We are free in our heads within our own minds we are free to believe in whatever we
want to
o The state commands one to believe, but cannot force a person to actually believe
something is true
o Concept of faith (private matter – one’s own belief) and confession (public matter –
worship): freedom of consciousness – the first and core human right – people are
entitled to freedom of their minds
o What a state can enforce (a confession) is that Jesus is the Christ (the one thing both
Catholics and Protestants believed in and agreed on) neutralized religion
- We are bound by the state because the state works and we have authorized the state to rule – the
idea was born with Thomas Hobbes
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