Constitutional law

Question 1

Voluntarism

Answer 1

The most important way to secure the construction whereby the sovereign is not bound by any higher authority is to insist on the principle of unanimity in international relations. Unanimity means that a decision can only be taken with the approval of every participant. As a result, no state is forced to accept anything it did not voluntarily agree to (voluntarism).

Question 2

unitary state

Answer 2

all state powers in one central government authority. There may be local or regional authorities, but in a unitary state any such local and regional decision-making powers are granted by central laws. This means that the central government authority may again retract these powers without institutionalized involvement, let alone consent, of the local or regional governments themselves.

Question 3

federation

Answer 3

state powers are divided between the organs of the central state (the federal level) and the organs of the subunits (the regional level), and this division is enshrined in the constitution itself, not in ordinary central laws. The involvement of the regions in any changes of this division of powers, if at all allowed under the constitution, is highly relevant because this protects the regions against possible restrictions of their powers.

Question 4

confederation

Answer 4

the participating entities effectively remain sovereign states in their own right. The decision-making process in a confederation typically requires unanimity and is restricted to limited issues. A confederation may in fact be so loose that it would not actually be called a state.

Question 5

idea put forward by Montesquieu,who distinguished three functions of the state, namely

Answer 5

1. the creation of general legal rules by means of legislation,
2. the practical implementation and execution of these rules: administration, and 3. the application of rules to decide disputes in individual cases: adjudication.

Question 6

Parliamentary systems

Answer 6

• The head of the executive —usually a prime minister—relies on the confidence or tolerance of Parlia-
ment to enter, or stay in, office.

Question 7

Presidential systems

Answer 7

• The head of the executive is elected independently from Parliament.

Question 8

semi presidential system

Answer 8

• A directly electe Head of State and a Prime Minister who is accountable
to Parliament share executive power.

Question 9

the rule of law

Answer 9

• – the state rules through law, and

* – the state itself is ruled by law.

Question 10

legality

Answer 10

These condaspect means that the state and its organs are only allowed to perform particular tasks if it has been given the power to do so by law and to the extent that such performance is allowed by law. Thus, state action requires a legal basis: the state may do nothing unless it is authorized by law, a concept known as the principle of legality.

Question 11

for private citizens

Answer 11

: they may do everything unless it is prohibited by law. Even where the state is authorized to act, it remains bound by the law in the performance of the action itself.

Question 12

This is called the prohibition of abuse (or misuse) of power, or of de ́tournement de pouvoir.

Answer 12

And even where powers actually have been given, they can only be exercised in accordance with the purpose for which they have been given.

Question 13

This is a state “under the law,”

Answer 13

which generally means that the state is bound by legal norms, respects the separation of powers, and abides by human rights. (abides-выполнять)

Question 14

Judicial Review

Problematic Nature

Answer 14

Constitutional review of legislation by courts, where it exists, means that judges have the power to check whether a law is in compliance with the constitution.

Question 15

Reasons for Judicial Review of Legislation

1) check and balance 2)Will of the People 3)ProtectionofMinorities

Answer 15

First,judicial review of legislation can be an element in the checks and balances between state organs. The judiciary then acts as a check upon the legislature. A second rationale for judicial review is that it upholds the supremacy of the constitution and thereby, in systems based on popular sover- eignty, protects the will of the people itself, as is expressed in that constitution. A third argument is based on the assumption that courts, situated at a certain distance from politics, are more inclined to protect individuals and minorities against majorities that control lawmaking institutions and that a democracy must also protect such minorities.

Question 16

In a decentralized system

Answer 16

, the constitution is a norm that all judges must uphold whenever they are asked to apply a law whose validity they doubt. The power of judicial review is in that case linked to the regular jurisdiction of all courts to resolve conflicts of norms before resolving disputes between parties.

Question 17

centralized system

Answer 17

ordinary judges must refer questions regarding the constitu- tionality of laws to a constitutional court, which then has the sole power to quash them. This model allows for a concentration of constitutional expertise and for the imposition of specific requirements and procedures for the appointment of consti- tutional judges who are, after all, entrusted with a delicate task.

Question 18

concrete review

Answer 18

concrete review, which arises from actual adversarial court proceedings between parties,

Question 19

abstract review

Answer 19

some constitutional courts may also engage in abstract review. In that case, officeholders such as the government or members of parliament may claim that a law is unconstitutional even though it is not being applied in a concrete case. If judicial review is considered sensitive or controversial, it is surely abstract review that will attract most controversy

Question 20

democracy,direct and indirect (representative )

Answer 20

If the democracy is direct (lies with the people), the state power is actually exercised by the people themselves
If the democracy is indirect (emanates from the people), the power is exercised by the people’s representatives.

Question 21

franchise Who is allowed to vote?

Answer 21

Franchise – the right to vote. the exclusion of minors through a minimum age limit, the exclusion of soldiers, the exclusion of convicted prisoners or persons with a prior conviction, the exclusion of foreigners, and the exclusion of nationals living abroad.

Question 22

Majority systems:Plurality systems (for example, elections for Parliament in Azerbaijan) and Absolute majority systems (for example, Presidential elections in Azerbaijan)

Answer 22

Majority systems – a candidate is elected if he receives a defined majority of votes.
 Plurality system (for example, elections for Parliament in Azerbaijan) – the candidate with most votes is elected.
Absolute majority systems (for example, Presidential elections in Azerbaijan) – a candidate will need more than half the votes.

Question 23

Proportional systems; benefit and downside

Answer 23

– the share of seats in assembly is proportional to the share of the votes. Benefit of this system is sought in the representation of many political sentiments in society; the idea of parliament here is to mirror the composition of the population in parliament. Downside is that the parliament may be fragmented into too many political parties, which may make the formation of stable government coalitions more difficult. The imposition of a threshold (such as 5%) will help to solve this problem.
Hybrid systems also exist.