Constitutional Law Flashcards
Constitutional Law
- branch of law that regulates state, contains rules on organization of state
- ## primary role: provide peace, order and stability
Sovereignty
- states sovereign power may still be hindered for reasons of international politics, resources, military powers, or the role of the financial markets
- Internal sovereignty: constitutional issue since ultimate authority in a state lies and originates in constitution
- External sovereignty: in the mutual relations between states; all states are independent and cannot meddle into each others internal affairs
- sovereignty of the people
Statehood
- state: organization that is able to control a certain territory and people living in it
- criteria state: permanent population, defined territory, government, (international recognition)
Unitary states
- all state powers reise on one central government authority
- decision making powers granted by central laws
- central government can act without institutionalized involvement
Federations
- state power divided between organs of central state (federal) and subunits (regional levels)
- division enshrined in constitution
- regions can exercise powers that they have a saying in federal law making process
- criteria
1. state is divided in subunits
2. possess constitutionally protected powers
3. participate in conditional amendments
4. represented on federal level
Functional Division of State Power
- creation of general rules by means of legislation = legislature
- practical implementation and execution of these rules = executive
- Application of rules to descide disputes in individual cases = judiciary
Checks and Balances
- building of mutual checks and controls between trias politica
- to prevent abuse of power and concentration
- need to seek other organs approval
- might slow down processes
Treaties
In order to be able to exercise external sovereignty, national constitution might allow government to sign international agreement
-> national government must always accept them in a referendum
The rule of Law
rule of law: includes speeting notions (fairness, inclusiveness, independent adjuration, …)
- law needs to be legal, reasonable, fair and compatible with human rights)
state rules through law: exercise of power with minimum standards to prevent arbitrariness
state itself is ruled by law: principle of legality, not legal to act unauthorized in written law
prohibition of abuse: where powers actually have been given, they can only be exercised in accordance with pupose for which they have been given
Types of democracies
direct and indirect
Direct democracies
- lies with people, state power is exercised by people themselves
- Two problems:
1. Complexities of decisions
growth of rising living standards increase complexities of society and decisions
2. local organization of democratic decision-making
there are many citizens that have a saying
Indirect democracy
- power is exercised by people’s representatives
- public power is exercised by ruler who has been elected or appointed by rules
Challenges
- system needs to be devised to regulate how powers are distributed among various rules and how offices relate to one another
- fundamental consideration should be devoted to the question of how to prevent abuses of power by the rules
Recall & referendum in indirect democracies
Recall & referendum
- recall: popular vote to dismiss an already elected officeholder before term of office has expired
- referendum: approval/ continued effect of certain decision is subjected to popular vote
- mandatory referendum: for certain types of decisions you need a referendum (i.e. constitutional amendments)
- optional referendum: for certain types of decisions a referendum is optional (popular vote on whether to join an IO
- binding referendum: the outcome is binding: rejected proposal cannot enter into force -> it has to be approved
- consultative referendum: outcome indicates the preferences of the voting population but the government may deviate from it
- initiating referendum: referendum initiates new bill or proposal
- corrective referendum: referendum is held to support or block a law already adopted by parliament
