Constitutional LAW Flashcards
Doctrine of Trias Politica
It is based on the separation of powers within a state establishing their function; legislative power makes the power, executive power enforces and executes and judicial power, which interprets and applies them in conflicts
Bi-cameral system
Only applies in the netherlands to the Dutch Parliament, so to the states General art 51.C which falls under Montesquieu’s legislative function.
Consequence of Trias Politica
The doctrine of separation of political powers only requires a separation between the three functions. As a consequence, a parliamentary system that consists of two chambers is not required by the doctrine of separation of political power
Rule of law in 4 categories
- Separation of political powers → legislative branch makes generally binding regulations (no deviation is possible, executive branch implements statutes and makes decisions for individuals art 97(2) and 131 C, judicial resolves disputes. Art 112-113.
- Notion of legality → no one is above the law, public bodies are bound by law. State activities require a basis in law; consists of attribution which directly gives powers to different state bodies and delegation transfers power to another person that needs a statutory basis.
- Fundamental rights → classic such as liberty a state is not allowed to interfere, it is enforceable in court “freedom speech, religion, right to a fair trial. Social rights a state has to obey to these rights and implement norms in the government, no enforceable in court “right to work”
- Judicial Review → appointed for life by royal decree,legal status regulated by statute, resignation, pensionable age 70. Prohibition review statutes supremacy formal legislator and suspension or dismissal
Enacted Law (law made by a body invested with the power of law-making)
- Treaties → legally binding international agreements between countries, bilateral or multilateral jurisdiction, ratified by all countries. As NL is a monist system treaties are already part of the law
- Charter Kingdom
- Constitution → NL contains human rights and provides for governmental bodies, establishes independent judiciary, election and rule making powers such as parliament, provinces and municipality. Highest national law because 1983 basic rights were expanded.
- Acts of parliament statutes → statues from formal legislators (government and parliament) → the government may only limit the freedom of citizens on the basis of general, public laws
- Orders of council= government regulation make additional rules by the statute to other government bodies, giving more regulation towards governing bodies whom have independent rule making powers given by the constitution.
- Ministerial Regulation
- Provincial → divided into municipalities (can draft pieces of legislation)
- Municipality → can make laws
- Water board → check water quality, sea level, ensure safety, can create legislation
Unwritten laws
- Case Law –> judges have no power to make laws
a. its a dispute between two opposing parties which may be resolved by a court or by some legal process. - Customary law –> is a traditional source of unwritten law if a certain rule has been practiced uniformly and constantly. USUS & OPINIO NECESSITATIS. Customs are required as a legal requirement or obligatory rules of conduct, practice, beliefs that are a part of society.
- General Principle of Law –> a source of unwritten law which is formed through abstract norms that refer to basic legal values and underlie the whole legal system –> private law freedom of contract as there are obligations and interpretation of legal rules.
Hierarchy of sources in law
hierarchy rules determine which rules overrule others:
written
1. higher rule prevails over lower rule
2. Newer rules prevails over older rules
3. specific rule prevails over general rules.
unwritten:
1. case law is an additional source in NL (legislation has priority)
2. no formal principle of precedent –> courts can make their own interpretations and ruling
3. customary law gets binding effect when practiced
4. General principles supplement law (no one can benefit from somebody’s wrongdoing.
STATE
- defined territory
- Permanent population
- effective + independent authority
- recognition by other states
Unitary state
Unitary state:
- central gov’t is supreme
-receive their power from the central authority
any subnational; units exercise only powers that their central gov’t chooses to delegate
france, uk and nl
Federation state
- composed of territorial sub units whose privilges enshrined in the consitution
- a union of partially self governing states or regions under a central (federal gov’t)
Americas, Russia
Confederate states
- supremacy of individuals states that unite for a common action
-marginal loss of sovereignty
Motion of No confidence
It is used in a parliamentary system, where the head gov’t must have support from the parliament. If the government does not have the support of the head , they can use the motion of no confidence and vote them out.
In a system of the Trias Politicas the parliament is primarily responsible for the legislative branch, and the government is responsible for the executive branch. Thus, this is the legislative branch indication of superiority to the executive branch + ultimate sanction against the executive branch
