Chapter 2A - Constitutional law Flashcards
The purpose of constitutional law
1) Defining the state
How to obtain nationality of state, boundaries, national anthem, flag, etc.
2) Attribution of power to state institutions
What power do the different state institutions have?
3) Recognition of the rights of the rights of the citizens of that state
Who came up with the idea of a social contract?
Thomas Hobbes
Social contract
Is an actual or hypothetical contract, or agreement, between the ruled or between the ruled and their rulers, defining the rights and duties of each.
- People give power to institutions in exchange for a safe and secure society
- Starting point for societal development in european countries
Trias politica/seperation of powers
Is the division of the legislative, executive, and judicial functions of government among separate and independent bodies.
- In order to avoid dictatorship
- Media is seen as a potential fourth power (= the public’s watchdog)
BUT sometimes the media is controlled by het government.
The state structure
The way power is distributed amongst the entities of the state. A state can either be unitary of federal.
- Unitary state
- Federal state
Unitary state (China, SK, South-Africa,…)
Legislative,executive & judicial branch are centrally focussed/have exclusive power to deal w adoption, execution & interpretation of law.
Federal state (Belgium, USA, The Netherlands, …)
- Unites federated areas that are self-governing within the boundaries set by the federation.
- Provinces, regions, cities, states
- Certain lvl of autonomy in government and legislation
- Often includes constitutional court
The government system
- Monarchy
- Republic
Monarchy (Denmark , Sweden, Belgium, …)
- Highest power is vested in one person & transferred from generation to generation. This person is appointed based on tradition (mostly family ties).
- Only 10 in Europe, 40 globally
Republic (France, USA, Germany,…)
- Highest power is given to political bodies that rule within the boundaries of a constitution, the president.
- The highest legislative power consists of a body that represents the people, democratic level can differ.
Democracy
Is a form of government in which the highest power is vested in the people that are governed. This can either be direct or indirect.
- Direct democracy; the people are involved in the decision making process
- Representatives (indirect); the people decide who represents them in the decision making process, not the judiciary but legislative/executive branch
About the head of the state
Exact power can differ, especially in a republic where the role of the president is not always the same. This is written down in the constitution .
About the legislature
It’s mostly composed of two houses.
- The upper house; in Belgium this is he senate.
- The lower house; in Belgium this is the parliament
Although it is seen as a bicameral system (= legislature comprises two houses), this is not entirely true in practice. We don’t need the senate that much, which was clear from the sixth reform.
About the executive branch (The core cabinet)
It includes the government, and is usually led by a prime minister/president. They
- Execute the law
- Have a margin of discretion
- Are controlled by the legislator (budget laws)
- Sometimes have veto power over the adoption of law
They also have ‘principles of good governance’. These include legitimacy, accountability and fairness.
About the judiciary
There is either a common law system (USA, UK, Australia,…) or a continental law system (Western Europe). A combination of both also exists (South Africa)
