constitutional law and international private law Flashcards
Systems of Government and their evolution
Ochlocracy (Mob-rule)
Monarchy
Tyranny
Aristocracy
Oligarchy
Democracy
Depths of democracy
Representative democracy
Direct democracy
Building the rule of law; legislative power divided
The constitution
Constitutionally designated Legislation
Legislative reserve
Delegated Legislation
(Subordinate; secondary; LI)
Most Common Designs of Parliament
- Unicameral
- Bicameral in Federal States
- Bicameral in Unitary States
Unicameral
One House of Representatives – Many unitary states
bicameral in federal states
: One House of Representatives, One House representing States (Senate)
– Nigeria, United States, Germany
bicameral in unitary states
One House of Representatives, One Chamber for reflection– Netherlands, United Kingdom.
The EU Legislative process
- European Commission submits the proposal
- European Parliament approves proposal or amends proposal
- council of ministers approves: adopts proposal or amends proposal
- European Parliament approves: adopts the proposal, rejects: proposal not adopted, or European parliament amends a proposal a second time
- Council of ministers approves: proposal adopted, or council of Ministers rejects: proposal not adopted
Electoral principles
- General
- Direct
- Secret
- Equal
- Free
functions of political parties in representative democracy
- Forum for public debate
- Selecting representatives
- Internal party democracy
- Sifting out ‘bad’ candidates
- Developing ideas
- Specialisation of public officials
- Campaigning
- Structuring process of coalition building.
- Selecting higher officials of government
The relevance of the legal profession to law-making
Advocating the ethics & practicalities of using the law
- Practicing lawyers
- Non-practicing lawyers
Conflict of interest (client duty vs fiduciary responsibility)
-At least three conflicts of interest areas
1) legislative efforts, 2) lobbying, or 3) legal appearances on behalf of clients
Cure:
- Interpretation in courts of law?
- More Laws?
- More training in ethics?
Separation of power
executive, legislative and judiciary
Conflicts of norms
- superior norms suppress inferior norms
- later norms suppress earlier norms
- specific norms suppress general norms
Continental Europe system of review
Only Special courts outside the judicial system can
check the constitutionality of the law
–> Centralised system
US American system of review
All federal Courts can check the constitutionality of
the law (Marbury v. Madison, 1803)
–> Decentralised system
procedural setting to control the constitutionality of a national law
- Centralized or Decentralized
- Abstract or Concrete
- Ex-ante or Ex post
Federal State characteristics
- Division of Territory
- Regional Autonomy
- Shared sovereignty
- Regional Representation in Parliament
- Codification of Prerogatives
- Participation in Constitutional Amendments
unitary state chracteristics
- One Territory
- No Autonomy
- Centralisation of power
- Unicameral or Bi-cameral with other purpose
- Codification not necessary
- No Participation in Constitutional Amendments
types of unitary states,
Possible delegation of powers to lower levels:
- Centralized unitary State
- Deconcentrated unitary State
- Regional unitary State
It is still a unitary State because the powers of the regions are NOT enshrined in constitutional law (they are for federal States)
Types of Federal States
Integrative, Devolutionary, Symmetrical and Asymmetrical
