Chapter 2: separation of power

Question 1

From a legal pov, distinguished 2 forms of states:

Answer 1

• Unitary states (France)
• Federal states (USA).
• the intermediate situation that we call the regional states.

Question 2

The unitary state

Answer 2

• 1 constit: The same law applied in the states.
• Infra states entities (towns, regions…) = administrative power (not legi et constit power).
• Characterized by the unity of unity of political power. It does not prevent the adoption of certain rules which apply to a part of the territory.
• Law is national but there are national rules.
• Local rules can only be adopted in application and conformity with national law. Review those local laws.

Question 3

In France, division in the state:

Answer 3

states are considered to be indivisible (art 1) principle recognized in several constit.
All citizens are subject to the Senate’s power

Question 4

Power centralized =

Answer 4

• the absolute monarchy
• movement continues with Jacobin.
• Napo reinforced this centralization
• Centralisation can be tempered through deconcentration
• transfer of power from the central admin to its local representatives
• The goal is to make the states present throughout the territory.

Question 5

Decentralized entities

Answer 5

are legal persons distinct from the states unlike le prefet. Certain degree of autonomy art 72 of constit “la libre administration des collectivites territoriales”
Decentralization 1940’s + Reinforce in 2003 with a constant revision: art 1 “fr shall be organized on a decentralized basis” recognized in the constit

Question 6

Protect the financial autonomy of the local authority

Answer 6

• art 72, and that freedom is assured by financial autonomy
• local authority may carry out local experiments
• if the experiment is evaluated positively then the delegation of competence to odd the authorities at the same level can be done.

Question 7

Federal state

Answer 7

It is a union of states which means that a new state is created above a sovereign state agreeing to give up certain competencies to the federal states.
⇒The federal state can be formed by association of disaggregation

Question 8

2 level

Answer 8

• second level we find the member states can have different names (provinces in Canada, Canton in Switzerland, Landers in Germany, etc).
• The first level is THE STATE: which doesn’t absorb those states = international entities

Question 9

Principe de superposition

Answer 9

different level, the risk is chaos because of plurality so the rule is that federal law is superior to state law (that is the superposition principle)

Question 10

Principle of autonomy:

Answer 10

it means that states must have a sphere of competence in which the federal state can interfere, with the distribution of competencies and it’s based on the distinction between general competence at a state level and external competence.

Question 11

law of participation

Answer 11

states participate in the federal power ⇒ administration with two chambers and one of them represents the state. For instance, in the USA the Senate is state participation in the creation of the constitution.
⇒All members have to agree to change the constitution

Question 12

The Regional States

Answer 12

More recently, the intermediate position between the unitary states and federal states appeared. Regions will have the power to adopt certain laws in certain areas.
Ex: Italy, UK

Question 13

Separation of power implies different rules

Answer 13

• Distinction: leg, exe, judi
• Separation of organs
• Balance of powers

Question 14

Separation of organs

Answer 14

several possibilities for the differentiation of the institution responsible before exercising dif fonction=> 1 Institution= 1 function or a Specialization of the institution, each orange is different, independent, and is composed differently from the others.

Question 15

Balance of powers

Answer 15

here there will be a base not between the leg and exc power but between different institutions, in other words, different authorities would participate in the legislative function.

Question 16

A parliamentary regime is based on

Answer 16

the balance of power however sometimes it becomes imbalance or the benefit of the executive, in other words, the power of the parliament= to limited, and the executive enjoys privacy in such a regime

Question 17

Presidential regime

Answer 17

The expression used by an English author Bagehot. Highlight the fundamental role of the
president in the US. characterized by a strict separation of power, more rigid.

Question 18

1st constitution was based on the idea of strict separation of power in 1790

Answer 18

• Power is separate and independent, and doesn’t have the power of mutual destruction.
• a minimum relation between “checks and balances”
• the head of state is not accountable to the parliament.
• that regime is vulnerable because if the sep is too strict, the regime will fail ⇒ Solution checks and balances

Question 19

minimum relation between presidential regim

Answer 19

• The head of state=the executive power
• the head of state is not accountable to the parliament.
• The US Congress can move the president with the impeachment = criminal responsibility ( in practice it is more political).
• No gov = cabinet
• Veto right to the president
• Impeachment
• Every year the pres exposes his program to the parliament
• The judge from the Supreme Court needs to be approved by the Senate
• Senate decide if yes or no they will ratify a treaty in the USA