Constitutions, The Law, and Judiciaries Flashcards
a set of rules that seek to establish the duties, powers, and functions of the various institutions of government, regulate the relationships between them, and define the relationship between the state and the individual
Constitution
How do we classify constitutions? (4)
- THE FORM OF CONSTITUTION AND STATUS OF ITS RULES
- THE EASE WITH WHICH THE INSTITUTION CAN BE CHANGED
- THE DEGREE TO WHICH THE CONSTITUTION IS OBSERVED IN PRACTICE
- THE CONTENT OF THE CONSTITUTION AND THE INSTITUTIONAL STRUCTURE
A formal document defining the nature of the constitutional settlement, the rules that govern the political system, and the rights of citizens and governments in a codified form.
Written constitution
Processes of the government that are considered an essential part of the system yet they are actually not in the constitution. They are supposedly embodied in custom and tradition.
Unwritten constitutions
Key constitutional provisions are collected together within a single legal document, popularly known as “written Constitution” or the “constitution”
Codified constitution
A type of constitution where the fundamental rules of government take form of customs, usage, precedent and a variety of statutes and legal instruments.
All the elements are typically written down in a variety of official documents, not codified in a single type of document.
Uncodified Constitution
A constitution that requires a special procedure for its amendment (ex. The American constitution)
rigid constitution
A constitution that can be amended in the same manner as the ordinary laws are made (ex. The British constitution)
flexible constitution
Practice affairs of the government corresponds to the provisions of the constitution. The constitutions also has the capacity, through whatever means, to limit government behavior
Effective constitution
Its contents does not always correspond to the local reality, that is, the real policies carried out within a country. Its text is mainly (or even only) nominal and thus not really enforced, due to the lack of appropriate conditions or because the social body is not still ready for them.
Nominal constitution
It is a fundamental law enforced to normalize and legalize monopoly of power previously held by the same social and/or economic groups, who in fact may have already become illegitimate. This tends to fulfill, at best, only a propaganda role.
Facade Constitution
In theory, this invests constitutional supremacy in a dynastic ruler. While the monarch may hold formal reserve powers and government may officially take place in the monarch’s name, they do not set public policy or choose political leaders. The monarch fulfills an essentially ceremonial function largely devoid of political significance.
Monarchial Constitution
Political authority is derived from the people. It’s where the officials are elected as representatives of the people, and must govern according to existing constitutional law that limits government’s power over citizen.
Republican Constitution
A system governed constitutionally as one single unit, with one constitutionally created legislature. This means that all powers of the government are centralized in one government that is Central Government.
Unitary System / Constitution
A system of government in which sovereignty is constitutionally divided between a central governing authority and constituent political units (like states or provinces). The United States and Germany are examples. The government shares power with its member states.
Federalism / Federal Constitution
A system of democratic governance of a state in which the executive branch derives its democratic legitimacy from, and is held accountable to, the legislature (parliament); the executive and legislative branches are thus interconnected. The head of the state is normally a different person from the head of government.
Parliamentary Constitution
A system of government where a head of government is also head of the state and leads an executive branch that is separate from the legislative branch. The US is an example. The executive is elected and often titled “president” and is not responsible to the legislature and cannot, in normal circumstances, dismiss it.
Presidential Constitution
This is a characteristic of liberal democracies in that they ensure that political power is dispersed, usually through guarantees of participatory rights, and party competition.
Pluralist Constitution
Commonly found in communist or authoritarian states where the unquestionable authority of a ‘ruling’ party or supreme leader is formally entrenched.
Monopolistic Constitution
A constitution that is made up of rules
drawn from a variety of sources, in the absence of a single authoritative document.
Uncodified constitution
What are the purposes of a constitution? (5)
To empower states
To establish unifying values and goals
To provide government stability
To protect freedom
To legitimize regimes
A distinctive band of social control, backed up by the means of enforcement; objective by nature.
Law
Concerned with what can and cannot be done
Law
Concerned with ethnically questions between ‘right’ and ‘wrong’; subjective in nature
Morality
Concerned with what should and should not be done
Morality
An activity through which people make preserve and amend the general rule under which they live
Politics
Involves methods and tactics used to formulate and apply policy. Concerned with conflict resolution.
Politics
Defined laws not in term of its conformity to higher moral principles, but in terms of the fact that it was established and enforced: the law is the law because it is obeyed.
Legal Positivism (John Austin)
The branch of government that is empowered tp decide legal disputes.
Judiciary
Their central function is to adjudicate on the meaning of the law, in the sense that they interpret or ‘construct’ the law.
Judges
Their central function is to adjudicate on the meaning of the law, in the sense that they interpret or ‘construct’ the law.
Judges
Judges are expected to observe strict _________
__________: the authority of law is based on the assumption that the law is interpreted by independent and impartial judges.
political neutrality
Derived from the influence that political bodies, such as parties , the assembly and government, are able to exert on the judiciary
External bias
Stems from the prejudices and sympathize of judges themselves, particularly from those that intrude into the process of judicial process making
Internal bias
The constitutional principle that there should be strict separation between judiciary and other branches of government; an application of the separation of powers.
Judicial Independence
Government operating within constraints, usually imposed by law, a constitution or institutional checks and balances.
Limited government
Rights that mark out a realm of unconstrained action, and thus check the responsibilities of government.
Negative rights
Rights that make demands of government in terms of the provision of resources and support, and thus extend its responsibilities.
Positive rights
A constitutional document that specifies the rights
and freedoms of the individual, and so defines the legal extent of civil liberty
Bill of rights
A declaration by government through which it assumes special powers, supposedly to allow it to deal with an unusual threat.
State of emergency
A legal philosophy in which law is defined by the capacity to establish and enforce it, not by its moral character.
Legal positivism
Law that is not binding and cannot be enforced; quasi-legal instruments that impose only moral obligations.
Soft law
Law that is enforceable and so establishes legally
binding obligations.
Hard law
A relationship of mutual exchange that ensures favors in return for favors or punishments in return for punishments.
Reciprocity
A violation of the laws or customs of war, for which
individuals can be held to be criminally responsible.
War crime
The absence of any form of partisanship or
commitment; it consists of a refusal to ‘take sides’.
Neutrality
Conduct of legal proceedings strictly in accordance
with established rules and principles, linked to ensuring a fair trial.
Due process
