Constitutional law
Lecture 1
There is no form of absolute government
- Understand and explain the fundamental themes within constitutional law
- Understand the central features of a constitution and the role the constitution plays in a socio-
political entity
Purposes of a constitution
1. Construct and maintain the efficacy of a state to ensure a stable society
2. Respect democracy
3. Adhere to the rule of law
The essence of these three elements is balance and they are necessary in a socio-political entity to
secure a balanced constitutional order.
What is balance?
- Stability
- Equal distribution of powers
- Equilibria-balance of the economy
Balance
- Relationship between those that exercise public power, authority, and influence and individual
self determination
- Relationship between public actors operating on the same level
- Relationship between public actors operating on different levels of governance
- Relationship between competing constitutional norms and societal values
What is a constitution?
Narrow/formal:
a constitution is a central written document that sets out the basic rules that apply to the government of
socio-political entities, in particular states.
Constitution as a text
Broad/substantive:
Describes the whole collection of rules which establish and regulate or govern a country of polity.
Partly legal norms, in the sense that courts of law will recognize and apply them and partly non-legal
or extra-legal norms, taking the form of usages, understandings, customs, conventions, interpretative
context or practices which courts do not necessarily recognize as law, but are no necessarily less
effective in regulating societal interactions than the formal rules or laws strictly.
Constitution not only as a text, beyond a single formal document
Functions of a constitution substantively
- Attributes power to public authorities
- Regulates the fundamental relations between public
- Regulates the fundamental relations between the public authority and the individual
Two main strands to achieve these objectives
1. Institutional law
Governs the way how the state and its institutions function. I.e. the terms and the powers of
the legislature, executive, voting composition
, Designed to ensure balance between the relations of distinct organs within socio-political
polity
2. Human rights
In the classical sense, prohibition of torture, freedom of speech, due process.
Designed to protect the citizen against the state, balances the relations between the exercise of
public power and individual self-determination.
Why comparative constitutional law?
- Ensures limited government
- Establish & maintain the organs that constitute the government
- Delineates power between the main organs of government
- Delineates the boundaries between the exercise of public power and individual self-
determination
- Confers rights on individuals against government action
- to a certain degree entrenches central organs and individual rights against legal change
Normative Hierarchy
Provides its effect on prior or subsequent law (normative hierarchy)
Rule of law (constitutionalism)
presupposes that political actors will obey legal norms in how and to what extent they govern.
The constitution may provide for constitutional change
Amendment (change in amendment)
Establishes the extent to which it may be changed
Rigidity may refer to procedure and the scope of a possible amendment: the former makes change
relatively difficult to accomplish, the latter limits the subjects that can be changed in the first place.
Opposite of hard-to-amend constitutions are ‘flexible constitutions’
UK has flexible constitution-> flexibility should not be confused with arbitrariness. Customs may in
fact harder to change than texts are. Just because UK Parliament might change the constitution easily
does not mean it will do so or do so light-heartedly.
Separation of powers
Regulation: they must operate separately or together with one another (important criterion: separate
and detail the ‘’functions’’)
Separation of powers holds that public authority can be dissected into three different functions:
legislative power, which makes laws; an executive power, which enforces and executes them; judicial
power, which interprets and applies them in cases of conflict -> functional separation of powers
Separation of powers doctrine: to prevent abuse by public authorities. the idea is to split state functions
so as the prevent one person or institution from becoming too powerful and abuse it powers.
Separation is complemented by a system of checks and balances. This is to ensure that no single
branch accumulates too much power for itself.
For example, congress is the lawmaker, but the president can veto bills.
See page 29/30 for examples of other countries
Judges are typically charged with upholding the law as against unlawful government action.
,Constitutional review of legislation: the power of judges to check whether laws which are made by the
central parliament comply with the constitution.
The US: All judges have the power to review the constitutionality of legislation.
Division of power between Federal Government v. Federated State/Devolved Local Authority
Value of enforceable provisions:
Who applies them? Judicial Review – Who has the ultimate authority to exercise constitutional
authority?
- Supreme court
- Constitutional court
- Diffused review of constitutionality (many court)
What effect do they have?
- Constitutional amendment: new constitutional provisions operate for the future (prospective)
- Revolutionary constitution: constitutional provisions operate for the past as well as for the
future (retroactively and prospectively)
Republic
A state that has adopted a republican form of government is one whose head of state is not a monarch.
Republic can refer to the name of a state which has a republican order (French Republic).
A republic can also refer to a period in s state’s history when a republican order prevailed, especially
after the deposition of a monarch or before the establishment of a monarchy in the same system.
Democracy
Indirect, representative democracy: the people itself do not govern but votes for its representatives to
vote on its behalf. (Netherlands)
Direct democracy: where the electorate itself decides specific issues through popular vote, such as
referendum. (Switzerland)
UK: on the national level only, the house of commons is elected directly
Germany: the bundestag
France: the president and the national assembly
The Netherlands: the second chamber
US: the house of representatives, the senate, and the president
The European parliament is elected directly by the European citizens every five years
A so-called duel legitimacy: not only are the citizens represented but also their states and these
are democratically accountable to their national parliaments or citizens.
Sovereignty
The original source of all public power from which all other power flows. Most constitutions
derive their claim to authority from having been enacted by the people, a concept called
popular sovereignty
External sovereignty: the possibility for a state to exercise control over its population and
territory without interference from outside.
Internal sovereignty: the original source of public authority within the state self
, Who makes the national constitution? Usually that is the organ or branch or composite of organs
which sets the fundamental rules.
A federal and unitary system
A federation is composed of territorial sub-units whose privileges are enshrined in the constitution
itself. Unitary states receive their power from the central authority.
Difference between popular and national sovereignty:
The people are concrete and real entity, namely the existing population at any point in time, while the
nation is a somewhat more abstract philosophical notion that does not coincide with the current
population. According to the constitution the nation is represented by the parliament.
Sovereignty of parliament: legislative supremacy
Acts of parliament (statutes made by parliament with royal assent) only the king-in-parliament himself
may undo his previous legislation.
Constitutional law is combining backward-looking with forward-looking assessment, applying
existing law to future cases
Presidential system
- The independent electoral requirements by the president and the legislature may have a
conflict without having an explicit constitutional
- The president is elected on the basis of popular vote (or an institution who is intended to
represent the electorate)
- The head of state is not directly elected
- The president has a fixed term that does not require a vote of confidence/or nor confidence
from the legislature and generally not politically accountable to the legislature nor do they
necessarily need the support of a political party to stay in office
- The president is often involved in the lawmaking process (veto, advisory opinion)
- USA, Ghana, Brazil, Mexico, Iran
Parliamentary system
- The head of government has a responsibility to the parliament through a vote of no confident.
- Usually the head of state monarch/ceremonial president is not the same person as the head of
government
- Ministers are either appointed or dismissed by the head of government, but this might be
subject to legislative approval
- The executive is generally subordinate to the legislature
- The head of government’s origin and survival depend on the legislature – generally must have
support of majority of legislature
- Head of government is chosen by the legislature
- The parliament does not need to give any reasons for the censure (crime that has been
committed)
- UK, Netherlands, Japan, Turkey, Ethiopia
Semi-Presidential System
- The fundamental element of the mixed system is the dual executive
