Constitutional Law Flashcards
What is constitutional law
The branch of law that regulates the state itself
Sources of Constitutional Law
- Constitution
- Case law
- Customs
- Entrenchment
What is Entrenchment? (Verankerung)
Most written constitutional documents can only be amended through difficult, special procedures often involving special majorities.
An entrenched constitution is called rigid
Internal sovereignty
Ability of the state as highest power to maintain law and order inside its own borders
The people
In a system that is based on popular sovereignty the people are bound by laws that are made on the basis of a constitution that was enacted in the name of the people itself
Secession (Abspaltung/Trennung)
When a state is not able to upheld its internal sovereignty the secession of a part of a state is the only option and thereby a new state is born
Failed State
If a state does not meet the criteria of statehood it’s called failed state
External Sovereignty
A state is independent of other states and other states are not authorized to interact into internal affairs of a sovereign state
Absolutism
An absolute ruler free from laws
Unitary States
In a unitary state all states power ultimately resides in one central government authority
Federations
In a federation state power is divided between the organs of the central state (federal level) and the organs of the subunits (regional level)
Confederations
When a group of nations form an alliance, allowing each member to govern itself but agree to work together for common causes
State functions by Montesquieu
- legislation
- administration
- adjudication
Trial Politica
- legislature
- executive
- judiciary
Forms of Governments
- Parliamentary system
- Presidential system
- Semi presidential system
Checks and Balances
- Forced cooperation
- Judicial review
- Constitutional review
The rule of law
- the state rules through law
- the state itself is ruled by law
Legality
State action requires a legal basis
Interpretation of fundamental rights
- Scope of rights
- Reversal of rights
- Balancing
Reasons for Judicial Review of Legislation
- Checks and Balances
- Will of People
- Protection of Minorities
Decentralized system
All judges must uphold the constitution as a norm
Centralized system
Ordinary judges refer questions about the constitutionality of laws to a constitutional court which can then decide about them
Types of review
- Concrete review: Review that arises from court proceedings between parties
- Abstract review: Review that follows the claim of an office-holder that a law is unconstitutional
Democracy (Systems)
- Indirect democracy:
State power is exercised by the peoples representatives
Direct democracy:
State power is actually exercised by the people themselves - Representative democracy:
State power is exercised by a ruler or group of ruler who have been elected or appointed by the ruled
Forms of Referendum
- Mandatory referendum
- Optional referendum
- Binding referendum
- Consultative referendum
Authoritarian Government
Undemocratic government that is rules by those that achieved a position to impose their will on the rest of the population
Election Systems
- Franchise: The right to vote
- Majoritarian System: Candidate is elected if he receives a defined majority of votes
- > Plurality system: Candidate with the most votes is elected
- > Absolute majority system: Candidate will need more than half the votes
Proportional Representation
Share of seats is proportional to the share of votes
