Exam Review

Question 1

Jean Bodin

Answer 1

• Introduced the concept of sovereignty
• Argued that the sovereign was responsible for maintaining order and protecting the people
• Argued that the sovereign was the most high, absolute, perpetual power over the citizens and subjects in a Republique
• The King has power because he is acting on behalf of God (i.e., no social contract as the majesty is sovereign because God said so)
• Believed in absolute sovereignty in which the sovereign is the absolute power that allows you make and repeal law, and as sovereign you are above the law

Question 2

What led to Jean Bodin’s view of sovereignty?

Answer 2

He witnessed the Protestant Reformation and the uprisings against the King and the subsequent bloodshed and conflict that had engulfed France. As a way of dealing with this factional/sectarian violence, Bodin argued that absolute power should be vested in the sovereign. If there is one, absolute, perpetual sovereign, then they will be able to maintain law and order in the country. Jean Bodin also argued that if you share powers between the King and his subject, then neither would be bound by the law, and this would result in anarchy. Hence, sovereignty must be absolute, and this absolute sovereignty must be held by the King.

Question 3

Thomas Hobbes

Answer 3

• Created the social contract theory
• He argued that humans are in a horrible state of nature and anything besides purely surviving in this state of nature is useless
• Thus, if we want to escape this state of nature, we need to transfer our power and submit to a higher authority to protect us
• Believed that sovereignty comes from the people, and we transfer this sovereignty to the higher authority in the form of a social contract
• However, to protect us, the sovereign needs absolute power
• Subjects are not allowed to change a tyrannical government

Question 4

John Locke

Answer 4

• Less pessimistic about the state of nature
• Believed that there is indeed a social contract between subjects and authority, but we do not transfer all of our powers
• Against absolute sovereignty
• There must be the ability to have freedom of religion and freedom of speech
• Must have safeguards on the King’s powers in the form of separation of powers
• Executive, federative, legislative
• Argued for two social contracts: 1) between citizens, 2) between citizens and government

Question 5

Rousseau

Answer 5

• In Rousseau’s idea of popular sovereignty, you do not give away power to the state but rather you have the power
• People become the government by becoming citizens, and therefore by having citizenry, they have the sovereignty to rule their own country
• The purpose of the government is to support the general will
• We can be free in a society as long as our rules express the general will
• Thus, the social contract is solved through the general will. The general will exists in every citizen as a moral compass that guides their answers.

Question 6

The legislative process under the general will

Answer 6

• population must be well-informed
• no negotiations
• voting must be led by ways of argument and not what is beneficial for you
• legislation must apply to everyone equally
• everyone participates

Question 7

Sieyes

Answer 7

• Believed that the sovereign people are unlimited
• There are no rules for the sovereign as they precede the legal order
• sovereignty is a source of the legal order
• thus, the sovereign cannot be subject to the legal order
• Backed popular sovereignty and representation
• Sovereign acts through their representation
• Described the people as the legal order and are outside the legal order since they created it
• Thus, the legal order binds everybody but the people
• Obviously, what is ‘the people’

Question 8

Jean Bodin developed his concept of sovereignty during the great political crisis of the 16th century caused by the Reformation. Discuss the relationship between the coming of the Reformation and Bodin’s development of the idea of sovereignty.

Answer 8

Jean Bodin saw lots of bloodshed and war during the Protestant Reformation. He saw the factional strife issues that France was plagued in, and said to solve this, we need to have a central authority that has absolute power – i.e, the Monarch. As such, the Monarch is responsible only to God, has absolute sovereignty in this respect, and thus, the sovereign is the most high, absolute, and perpetual power in the Republique. This absolute power would help repeal the factional strife and make the citizens of France subject to the absolute power of the monarch who was above the law and could create and repeal law as he wished. Having sovereignty, according to Bodin, means that you are able to make and repeal law, and as having absolute power, you are above the law. In this line, Bodin argued that if you share power between the King and his subjects, neither would be bound by the law, thus resulting in anarchy (what was happening during the reformation).

Question 9

Hobbes’ concept of citizenship

Answer 9

Citizenship essentially means entering into the social contract whereby you transfer power to the King making him an absolute sovereign, thus subjecting yourself to the almost unlimited power of the sovereign that you and your fellow citizens have elected to govern. Citizens begin with power of the state, but then they give all this power away to the King in the form of a social contract

Question 10

Rousseau’s concept of citizenship

Answer 10

By becoming a citizen, you have the power of the state. As such, people become government by becoming citizens, and therefore by having citizenship, they have the sovereignty to rule their own country. Their decision-making and rule is guided by the general will that all citizens have and must awaken when ruling the country.

Question 11

John Locke and Madison on the separation of powers and checks and balances

Answer 11

Both Locke and Madison agreed that the ruler/sovereign should not have unlimited power, but rather there must be a system of checks and balances in the form of separation of powers. Locke came up with the separation of powers in which he argued that there should be federative, legislative, and executive wings that check on the King’s powers. Locke believed that subjects should still have freedom of religion and freedom of speech and was against absolute, unlimited, sovereign power - a concept that Madison (and the Founding Fathers of the US) agreed with and built upon.

Question 12

Relationship between social contract and the Constitution

Answer 12

The Constitution is a written form of the social contract. It codifies the social contract and builds the state and its entities, organs, institutions, and functions. In essence, the social contract is the foundation of political order of the state as it structures and organizes relationship between states and the people and amongst the people themselves and thereby recognizes popular sovereignty, and the Constitution codifies this idea.

Question 13

Rousseau’s general will idea

Answer 13

The people have general will and the state must be guided by this general will. As such, the general will informs the decisions that the people make in their state, and it is part of every citizens of the state as a moral compass and influences their choices. Citizens guided by the general will can make decisions for the betterment of society without self-interest. As such, Rousseau believed that people can be free in a society as long as they are guided by, and make decision on, the general will

Question 14

General will in the legislative process

Answer 14

Everyone participates
Population must be well-informed
No negotiation
Voting is guided by points of argument, not what is just beneficial for you
Legislation must apply to everyone equally

Question 15

‘C’onstitution vs ‘c’onstitution

Answer 15

Constitution: refers to the apex, legal document of the state. Usually, the central written document that is often referred to as the country’s “Constitution”
constitution: refers to the combination of legislation, custom, court decisions, scholarly writing, and customary law that serves as legitimizing and limiting government authority and functions. Basically gives effect to the Constitution, but is of lesser relevance. Can consist of constitutional review, constitutional preview, customs, international law and treaties, etc.

Question 16

Purpose of the constitution

Answer 16

Basically establishes and codifies the social contract: symbolize and legitimize the relationship between citizens and government, between the organs of government, between citizens themselves, establishes and guides the organization of the state, attributes power to public authorities, and must be superior and bind all state organs to it

Question 17

Constitutive constitution

Answer 17

Also known as a descriptive constitution: reserves itself to the outline of the functioning of the different organs of the state and the codification of the power structure. Usually consisted of shorter articles in a bare-boned description and structure, and typical of older constitutions such as the Dutch, Belgian, Norwegian, etc.

Question 18

Programmatic constitution

Answer 18

Also known as a prescriptive constitution: these constitutions are more forward-looking and normative and, while they do outline the structure and functionings of the state, they also contain ideas and promise for the future, advising on how a model society should look, and provides aims and what the nations people and government’s should strive for while also giving more context for solving political and societal issues. These are typical of newer, post-World War II constitutions such as Nigeria’s or Germany’s.

Question 19

Entrenchment and super-entrenchment

Answer 19

Entrenched articles and provisions are those that typically require more steps, more approval, and more consensus to amend than regular articles and provisions in a Constitution. An entrenched article will usually require something like two-thirds of both houses in the national parliament, a referendum, etc.
Super-entrenched articles and provisions are more difficult to amend than entrenched articles. Such articles will usually require a mammoth effort of the country as they typically will require something like 3/4 of both houses + a referendum, passing by the federal national parliament and a certain threshold must be met in the state/sub-unit parliaments, etc.

Question 20

Rigidity vs flexibility

Answer 20

Rigidity and flexibility are terms that refer to how much a constitution has changed historically. A rigid constitution typically has many entrenched and super-entrenched articles and has proven to be incredibly difficult to amend with very few amendments having happened.
A flexible constitution typically has fewer, if any, entrenched and super-entrenched articles, and has proven to be easy(ier) to change.

Question 21

‘Total constitution’ and the rule of law

Answer 21

Total constitution: resolve, address, and strongly influence virtual all legal, moral, and political conflicts in a society.
Rule of law: the concept that the law precedes and is above everyone and everything in the country - all state institutions, subjects, organs, etc. are bound by the law.
The notion of total constitution is in line with the rule of law, as the constitution is the highest law of the land, and a total constitution means that everything is subject to the constitutional rule of law.

Question 22

Constitutions regulate…

Answer 22

…relationship between citizens and the state; between state organs

Question 23

Montesquieu’s central idea

Answer 23

For different eras, different cultures, and different groups of people - different solutions are needed. This was opposite the thinking of the time that said that antiquity knowledge (Ancient Greece and Rome) was superior to all else

Question 24

Montesquieu’s ‘three methods of ruling’

Answer 24

Monarchy: driven by ‘glory’
Aristocracy: driven by ‘virtue/inner nobility’
Democracy: driven by ‘equality’

Question 25

Presidential system

Answer 25

• Independent executive from the legislative
• Two sources of legitimacy: the legislature and the President
• The President is independent of the legislature, has his own mandate and separate powers, and is superior to his ministers
• The President is both Head of State and Head of Government
• The government is executed by the President and his ministers, who operate separately from the legislature

Question 26

Parliamentarian system

Answer 26

• The executive is dependent on the legislative
• One source of legitimacy: Parliament
• Ministers must be responsible to parliament, and since parliament is elected by the people, they are thereby responsible to the people
• PM is usually the leader of the largest party in Parliament
• PM is head of government while a ceremonial figure (monarch, AG, President, etc.) is head of state

Question 27

Marbury v Madison

Answer 27

• Established principle of judicial review
• The Judiciary is now able to review bills passed by Congress for constitutionality, and has the ability to strike down laws they find that violate the Constitution
• Also established that the US Constitution is not just a set of political ideals, but rather actual law that must always be followed
• Judge Marshall reasoned that the Constitution places limits on the US governments’ powers and functions, and this purpose would be meaningless without some form of judicial review

Question 28

Majoritarian electoral system

Answer 28

• UK, Canada electoral system
• The seats in parliament are distributed amongst districts in the country, and the amount of districts a party wins across the country is translated into the number of seats in Parliament
• The candidate that wins the most votes in a district becomes the MP for that district in national parliament
• Issues with this system: it is not an accurate representation of the political ideology as a candidate can win a district with just 35% of the vote; people may engage in strategic voting where they will vote for a candidate of a party just to make sure that the opposition party does not get elected; can often lead to a ‘two-party’ system;
• Advantages of this system: election results are very clear and government formation is quick and problems by the party in power can be quickly addressed, thus very good at legitimizing strong, clear governments.

Question 29

Proportional representation electoral system

Answer 29

• Netherlands electoral system: 150 seats divided over 20 political parties
• The country is seen as one big electoral district and everyone casts their votes, and the percentage of votes for a party nation-wide is translated into the percentage of seats won by the party in the national parliament
• Government usually has to rule through coalition agreements (must have a simple majority of seats in parliament to rule)
• Many countries include minimum threshold rules to enter parliament - such as getting at least 5% of the vote
• Advantage: parliament usually reflects the political ideologies and divisions of the country
• Disadvantage: forming government is often a difficult and lengthy task

Question 30

Constitutional mechanisms used to ensure parliamentary protection and effective functions

Answer 30

• Immunity of MP from civil liability/prosecution during their tenure
• Balance between parliament’s power to oust the executive and the executive’s power to dissolve parliament (rule of no confidence balanced out by dissolution of parliament)
• Elections with reasonable intervals so no government stays on too long
• Parliamentary sovereignty: parliament has the right to make or unmake law, and no person or body has a sole right to override or set aside the legislation of parliament
• In the UK and NL, Courts are not allowed to review or change parliamentary legislation
• No parliament can pass laws that future parliaments cannot change
• Parliament allowed to create laws about anything

Question 31

Separation of powers within government

Answer 31

Institutional, functional, personal
E.g., cannot be minister and part of the House of Parliament at the same time (NL, US)
Cannot be part of two houses at the same time

Question 32

Why should the legislative branch dominate?

Answer 32

• As the legislative is directly elected by the people, thereby representatives of and responsible to the people, it is imperative that they are the dominant branch in a republican state. The legislature is also the body that creates and passes laws affecting not only the entire country, but also each organ in the state. Hence, their dominance is key in this respect.

Question 33

Declaration of incompatibility

Answer 33

• Declaration of incompatibility: In UK constitutional law, this is a declaration issued by a United Kingdom judge that a statute is incompatible with the European Convention of Human Rights under the Human Rights Act 1998 section 4. This ensures that the legislative must still be cognizant of its role as representative of the people and does not engage in or pass laws that are counter to human rights. Furthermore, declaration of incompatibility by a court against a legislation that runs counter to a key fundamental right maintains that parliament, while supreme and sovereign, still has a responsibility to its people and cannot engage in tyrannical actions.

Question 34

Non-delegation doctrine (advanced by Judge Rehnquist)

Answer 34

• The non-delegation doctrine is a principle in administrative law that Congress cannot delegate its legislative powers to other entities.
• Rehnquist is arguing that the legislature should not be delegating their legislative powers to other bodies to review, create, or supplement laws. Hence, Rehnquist is criticizing the process of legislative delegation that is common in many constitutional systems.

Question 35

Federalism

Answer 35

• System of government in which sub-units have considerably more power than sub-units in unitary states
• Sub-units derive their power from the constitution
• A decentralized and deconcentrated form of governance

Question 36

Unitarianism

Answer 36

• The power of sub-units is derived from the central authority
• The central government will usually delegate certain powers to the sub-units
• The existence of the sub-units still depend on the power of the legislator
• Unitary states are often characterized either by the fact that all powers of local authorities are granted by the central legislator, or the constitution may provide some form of local authority but it is up to the central legislator to decide what those limits, powers, and functions are

Question 37

How does the Constitution detail power structure in federalist states

Answer 37

• Constitution normally will declare about the actual division of powers and functions between the federal authority and sub-units
• Constitution may say that all powers rest with the sub-units except for designated powers mentioned in the constitution that rest with the federal authority
• Constitution can also have a list of designated powers for each level of authority
• Constitutional guarantee that sub-unit powers will not be taken away from them

Question 38

Symmetrical federation

Answer 38

• Federal states can also be classified as symmetrical federations where all the sub-units enjoy the same powers and have the same say in the federal framework
• The norm is equality between all the units

Question 39

Asymmetrical federation

Answer 39

• In systems of asymmetrical federalism, some sub-units have greater autonomy than others even though they have the same constitutional status
• E.g., Catalonia, Quebec, Kingdom of NL in which Netherlands has greater autonomy and decision-making than Aruba
• Asymmetrical federalism can be divided into two types of agreements or arrangements:
• The first type resolves differences in legislative powers, representation in central institutions, and rights and obligations that are set in the constitution. This type of asymmetry can be called de jure asymmetry - essentially, asymmetry derived from the constitution
• The second type reflects agreements which come out of national policy, opting out, and bilateral and ad hoc deals with specific provinces, none of which are entrenched in the constitution, with this type of asymmetry known as de facto asymmetry - essentially, asymmetry derived from political agreements and acts determined by the central legislator with the sub-unit

Question 40

Centripetal federalism

Answer 40

• Also known as integrative federalism: refers to states who used to be independent and then decided to pool their powers together to create a new federal system
• Power goes to the centre, while the independent states (now united) still have quite a bit of power styll (still federalism)
• E.g., US, Switzerland, UK

Question 41

Centrifugal federalism

Answer 41

• Also known as devolutionary federalism: refers to when formerly unitary states would re-establish themselves as federal states or devolve so much power to their regions that it would eventually become federal
• Power goes away from the centre
• E.g., Mexico, South Africa

Question 42

See: “local governments shall have the right to regulate and manage a substantial share of public affairs” - does this point to a federal or unitary state?

Answer 42

• This points to a unitary state as the statement in the constitution is extremely vague
• It is not clear what substantial means as it could mean a lot or a little
• But, what substantial means, as it is not properly defined by constitution, is likely to be defined by central legislator who will be able to keep as much power as it wants/give as little power away as it wants
• If you don’t make law specific enough, power stays with the central government because they can define what competencies the local governments have

Question 43

Dutch state system

Answer 43

• Decentralized/Devolved unitary state
• The country itself is unitary, but the kingdom acts kind of like a federation
• All three levels of government are allowed to regulate anything, however, once a higher power regulates that thing, the lower powers lose the ability to regulate it
• No subject matter in the constitution regarding this, so legislator can regulate whatever they want
• Legislator does leave some autonomy to the lower authorities of provinces and communities

Question 44

Spain state system

Answer 44

• According to the constitution, Spain is a unitary state with municipalities, provinces, and the central authority
• However, there are ‘autonomous communities’ which is a coming-together of various provinces that constitution ‘historical regions’ - See for e.g., Catalonia is a coming-together of four provinces (Barcelona, Lleida, Girona, Tarragona)
• These communities all enjoy a varying level of autonomy (Catalonia has more than other autonomous communities)
• However, they do not have their own constitutions and the legislator creates the autonomous communities

Question 45

Decentralization

Answer 45

• Federalism is a radical form of decentralization
• Decentralized governance
• Giving (more) power to local authorities and sub-units of the state
• Usually, the highest organ and/or constitution delegates legislative powers and other competencies to lower organs (decentralization on the basis of the constitution)
• Usually organized across territorial lines (territorial sub-units)

Question 46

Deconcentration

Answer 46

• Authorities and organs of the central government are not all centralized in the same space/area
• Central state organs spread out over the territory of the entire country
• Parliament in city 1, government in city 2, judiciary in city 3
• E.g., South Africa
• In Germany, the government and parliament in Berlin but SC in Karlsruhe
• Having the state organs spread out in different cities is how unitary states deconcentrate
• In federal states, deconcentration runs deeper (can combine with decentralization)
• Only the highest courts are federal courts while the lower courts are state courts
• State courts deal with matters under state law while federal courts are for matters concerning federal laws

Question 47

How do we ensure that the Constitution remains the ultimate law of the land?

Answer 47

1. Everyone entering into a public official function must swear an oath to the constitution (in constitutional monarchies, one swears to the monarch as they are the embodiment of the constitution)
   - This makes people, themselves, believe that they are loyal to the constitution above all else
2. Advisory bodies are created to preview the constitutionality of a proposed law
3. Advisory bodies are created to review the constitutionality of a proposed law
4. Constitution review by a Court

Question 48

Advisory body constitutional preview

Answer 48

Constitutional preview: an advisory body will look over a proposed bill before it is presented to Parliament for a vote
- Example: in Netherlands, there exists the Council of State which looks over a proposed bill the government wants to enact before it is presented to the Parliament for a vote to provide obligatory advice on if it is consistent with the Constitution

Question 49

Advisory body constitutional review

Answer 49

Oversee and advise the constitutionality of a bill that is already passed by parliament, but not signed by the President, so it is not in force yet
Example: in France, there exists the Constitutional Council that takes charge of this task
- The CC’s advice is binding!

Question 50

Constitutional review by a Court

Answer 50

• Takes place after a bill comes into force (is already made law)
• Reserved for Supreme Court/Constitutional Court’s
  Example: In the US, all courts (both state circuit and federal circuit) must review the act, and the SC gives the final decision on the act. Thus, both federal and state court judges involved (this is a form of decentralized constitutional review)

Question 51

Decentralized constitutional review

Answer 51

• Every court in the country can check the constitutionality of a possible act before passed.
• Meaning, state circuit courts and federal circuit courts along with the supreme court can check the constitutionality of a bill before it is passed.
• However, this would take forever for a bill to pass and is super impractical.

Question 52

Several Constitutions of federations envisage so-called asymmetrical federalism. Mention one feature by which this type of federalism can be recognized in either the institutional design of the federation or the distribution of competences amongst the constituent states?

Answer 52

Asymmetrical federations are those in which some sub-units of the federal state have more powers than other sub-units, even though all sub-units have the same constitutional status. This is opposite to symmetrical federations in which all the sub-units have the same powers. Examples of asymmetrical federations are Spain, Canada, and the Kingdom of the Netherlands. In Spain, Catalonia has considerably more autonomy and decision-making powers than many other autonomous communities, while in Canada, Quebec has its own unique language and schooling rights with more autonomy and power in its decision-making than other provinces, while in the Kingdom of the Netherlands, the Netherlands has more power than Aruba across a spectrum of issues. As such, asymmetrical federalism can be divided into two types of agreements:

• In de jure asymmetry, the greater power of a sub-unit is reflected in differences in legislative powers, representation in central institutions, and rights and obligations that are set in the constitution: In Canada, there is the constitutional requirement that three Supreme Court justices must come from Quebec. The nine other provinces are each entitled to fair representation in the Supreme Court, but their entitlement is based on convention rather than enshrined in the constitution
• In de facto asymmetry, the greater power and autonomy of a sub-unit arises from agreements that come out of national policy, bilateral and ad hoc deals with the legislator, and other acts that are derived from political agreements and acts determined by the federal legislator with the sub-unit:The case of Spain in which certain autonomous communities (Catalonia, Basque Country, Valencia, Andalusia, etc.) have been granted more rights and powers by the central/federal legislator than other autonomous communities out of respect for the specific autonomous communities’ nationalist sentiment and the power these communities have enjoyed historically

Question 53

Constitutions that grant the power to assess the constitutionality of acts of parliament to a specialized court often make the appointment of judges on such a court the shared responsibility of several institutions, such as the (houses of) parliament and the executive. Explain why.

Answer 53

• To make the appointment of judges on a specialized Court for constitutional review or preview the shared responsibility of several institutions ensures that no one institution or group can “pack” the Courts and potentially affect the democratic integrity of the country.

Question 54

Treaty of Westphalia

Answer 54

• Established that state is sovereign, and is the only entity that can enter into treaties, and decide on how to apply international law domestically
• Treaty-making powers afforded solely to the state
• Treaties should not be seen as limitations to a state’s sovereignty, but rather an expression of their sovereignty
• The ability to enter into treaties come from the sovereignty of a state and its right to choose for itself

Question 55

Although the executive is the main organ in treaty-making, how can the legislative get involved?

Answer 55

• If the treaty affects legislative power-making, creates, or sets aside legislation, and/or affects the citizens of a country by which the legislature is directly elected to represent them, then the legislative wing of the state may/must get involved

Question 56

Concluding treaties

Answer 56

To conclude a treaty, and thus for it to have effect in the country, you must first sign then ratify the treaty

• treaty only enters into force after ratification
• between signing and ratification, there is usually approval stage which is where the legislative usually gets involved

Question 57

Monism

Answer 57

• International law is the higher norm
• International law is simply incorporated into the national law of a country once ratified, and thus has automatic effect
• CIL also has direct effect
• International law can be directly applied by a national judge, and can be directly invoked by citizens, just as if it were national law.
  A judge can declare a national rule invalid if it contradicts international rules because, in some states, international rules have priority.
• EU law consider itself to be monist (constitutional law of the member state is automatically put aside if it conflicts with EU law)

Question 58

Dualism

Answer 58

• Dualists emphasize the difference between national and international law and require the international law to be made into national law – without creating international law as national law, it does not exist in the country’s system
• International law has to be national law as well, or it is no law at all.
• According to dualists, national judges never apply international law, only international law that has been made into national law.
• International law and national law are different spheres, and so international law must be made into the national law sphere
• transformism and incorporism are forms of dualism

Question 59

Transformism

Answer 59

• International law must be transformed into the national sphere
• Transformism translates treaties ‘as such’
• Can be literal translations or dynamic translations
• Basically, transformism directly translates the treaty into national law
• Transformation/translation into a national ‘Act’: For e.g., ECHR in Britain has been translated into the Human Rights Act. So, citizens in the UK cannot invoked the ECHR, but rather the Human Rights Act that has just literally translated (i.e., transformed) the ECHR into the HRA
• Essentially, transformism is a system where international law isn’t applicable as such in the domestic legal order, citizens can’t be bound by international law itself nor international treaties themselves, but rather by the national acts that make those treaties into domestic law
  Issues:
• No application of international norms domestically as they are translated/transformed into the domestic legal norm of the country (by way of a national act)
• There is no lex posterior rule (higher law [treaty] over lower law [national law]) in this view (thus, in this system you can override treaty law which is basically an international law violation): E.g., new legislation can be made that contradicts the national act
• Also, transformism is unclear about how CIL is to be applied in such a country

Question 60

Incorporism

Answer 60

• Constitution gives basis to international norms
• Less extreme version of dualism, extra step for monism
• International law is applied domestically because the constitution says so, and with the exceptions the constitution says to apply
• Constitution may give rank to how the international law applies in the hierarchy of legal norms in the domestic legal system
• Essentially, incorporist systems recognize that international treaties, norms, obligations are applicable domestically, but by the Constitution that allows it to be and places it in the domestic hierarchy of legal norms
• Thus, problems may exist as regard to the hierarchy and conditions of the international law
• Constitutions may also give (conditional) precedence to the application of international law

Question 61

Difference between monism and incorporism

Answer 61

• Monism stipulates that the international law is directly applicable
• Incorporism stipulates that international law needs to be applied via the constitution that gives it a basis and outlines its rules for application
• Thus, under both systems, international rules have domestic legal effect and can override national provisions
• However, they differ in that incorporism requires the constitution to give legitimacy and basis for the international law while monism requires nothing of the sort and international law is directly applicable once ratified
• Further, under incorporism, if the constitution provides so, then not all international provisions may have domestic effect given the constitutional rules and basis
• Moreover, in monism, the executive signs and ratifies the treaty without Parliament (given the treaty does not affect legislation or citizens), while in incorporism, as the constitution is being (re)written, Parliament must get involved
• Constitution claims to have authority in incorporism, while in monism the treaty itself is the authority

Question 62

Treaty conform interpretation

Answer 62

• A treaty conform interpretation means that a judge would try to interpret the national law in conformity with the treaty law so it can be applied somehow. In an incorporist system, the treaty law itself is applied domestically with the Constitution allowing so, and thus accounting for the treaties place in the domestic system as an international norm. In the transformist system, however, the law is translated into the domestic system via legislation and made an equal part of the domestic legal system, thereby disallowing even applying international norms itself, and so there is no real treaty-conform interpretation as it is a domestic Act for judges to apply. Thus, it must be an incorporist system (or just dualist or monist) for judges to apply treaty-conform interpretation.

Question 63

• “The law stemming from the treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law‚… the validity of an EU law or its effect within a member state cannot be affected by allegations that it runs counter to fundamental rights as formulated by the constitution.” - (IH 1970)
• “EU has it’s a new kind of legal order, nature of which is peculiar to the EU, its own constitutional framework… accession must be arranged in such a way as to preserve the specific features of EU law” - (Opinion 2/13 2014)
  What do these judicial quotes mean?

Answer 63

The autonomy of EU law stems from the fact that the EU law is its own, unique, independent, and autonomous legal system that is directly applicable, in some instances directly effective, and legally binding on all member states irrespective of their legal systems.
EU law thus takes a monist view
- EU law is its own autonomous legal order
- Must have unity and effectiveness, and EU law must be the higher norm to achieve unity and effectiveness
- EU law must be applied everywhere in the same way as well
- EU law has its own ‘complete’ constitutional framework that is higher than the constitution of the member states (EU law thus has primacy and direct effect)
- The CJEU is the ‘ultimate arbiter’
- EU says member states have given away parts of their sovereignty when they created it, and now it is an autonomous law-creating body.
- The EU makes laws, and those laws are directly applicable in all member states (basically, monism).

Question 64

Art 4(2) TEU self-limiting clause of EU law: “Union shall respect the national identities inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government […]”

Answer 64

EU law won’t apply if it clashes with an eternity clause in the constitution, identity of a country’s constitution. But the CJEU will do a proportionality test to decide on whether in this particular case, a country can invoke Art 4(2) TEU

• There must be a “genuine and sufficiently serious threat to a fundamental interest of society” for EU law to be set aside
• However, the CJEU cannot interpret national law itself, but only how EU law is applied in the member states
• National courts must decide if a constitutional provision in question is part of the national identity (CJEU cannot determine what the constitutional identity of a member state is)
• If the national court says this provision that clashes with EU law has constitutional identity, then the CJEU must take it as is, and decide on whether or not the concerns involved are serious enough to deviate from EU law
• In a proportionality test, CJEU may decide that it is indeed part of your constitutional identity, but it is not serious enough to deviate from EU law or the opposite may happen

Question 65

Ultra vires review (Germany)

Answer 65

• Ultra vires review is when a court is reviewing the competence of the EU in and asks if the EU has overstepped its boundaries and power. As the German Court argues: if EU law goes past its limits, firstly it is up to the CJEU to police its own authority, but because German law is based on the constitution, and the GCC is the guardian of the constitution, then it is up to the GCC to review the EU law and possibly scrap it (for example, if it clashes with an eternity clause in the constitution)
• Basically, check on if EU law is overstepping its limits and competence
• German Constitutional Court gives itself the authority to scrutinize and possibly disapply EU law if the EU law is overstepping its boundaries/transgressing its competencies
• Issue: Ultra vires review, however, puts into question the autonomy of EU law and the supremacy of its character as an autonomous legal order and as an international norm, as well as its effectiveness and unity as the higher legal norm. As member states have agreed to give away part of their sovereignty to the EU and be under the EU autonomous legal order, it does not make sense for EU law to be under scrutiny of such reviews.

Question 66

Identity review (Germany)

Answer 66

The Court will see if the EU law clashes with the essential characteristics of a country constitution (constitutional identity)

• Identity review is when a court determines if a treaty/rule is in correlation or violates the nation’s identity
• GCC will police the identity of the German Constitution
• Here, it is an absolute test (opposite of proportionality test the EU gives when assessing if EU law collides with Constitutional identity of courts
• If EU law were to violate any form of German constitutional identity, then the EU law has overstepped, and it is up to the GCC to decide this
• Thus, according to the GCC, EU law has primacy and direct effect, but limits exist in identity review

Question 67

Wightman and Others

Answer 67

Brought the question of whether the UK can leave the EU without the permission of other member states. The Court answered that member states have given away parts of their sovereignty to the EU, the EU is an autonomous law-creating body, and those laws are directly applicable in all member states (monist view). A state has full sovereignty before joining the EU and after leaving it, too, but while in the EU, it must respect the fact that it gave away some of its sovereignty to the EU.Court said that the United Kingdom may, if it chooses to, unilaterally revoke its notification of intention to withdraw from the European Union.

Question 68

Which two types of constitutional provisions may form an obstacle to a state joining the EU, if it is to fully apply both these constitutional provisions and EU law, as it is explained by the CJEU?

Answer 68

• Eternity clauses, clashing with the identity of the state: these two issues provide obstacles for EU law to be directly applied in a state. For example, Germany says that EU law can be applied directly and be legally binding in Germany (hence having legal autonomy), except in cases of violating an eternity clause and/or the identity of the German Constitution. The German Constitutional Court reserves for themselves the ability to engage in ultra vires review (seeing if EU law goes past its limits and authority) and identity review (seeing if EU law is in conformity with or clashes with the constitutional identity of Germany). The EU has also addressed this with Art 4(2) TEU: “EU shall protect the constitutional identity of its member states.” However, the CJEU has the power to check if an EU law is in conformity or violation of a member states constitution. The member state determines if a constitutional provision in question is part of the national identity, while the CJEU decides if the EU law does clash and in its proportionality test, if this clash is serious enough to deviate from EU law.

Question 69

First generation fundamental rights

Answer 69

• Negative rights: state should abstain from interfering in these rights
• E.g., right to free speech, right to life, freedom of religion, etc.

Question 70

Second generation fundamental rights

Answer 70

Positive rights: state should actively ensure/take action that these rights are protected and upheld
E.g., right to food, housing, health care etc.

Question 71

Third generation fundamental rights

Answer 71

Group and solidarity rights

- E.g., right to self-determination

Question 72

How the ECtHR analyzes if there is a violation of the Convention?

Answer 72

Is the alleged infringement under the scope of the Article in the Convention?
Was there an infringement of the action of the state?
- Was this infringement prescribed by law?
• Was the law that prescribed this infringement accessible and foreseeable?
- Did this infringement serve a legitimate aim (i.e., under one of the aims in the article (usually in section 2 of the article))?
- Was the infringement necessary in a democratic society?
• Did it fulfill a pressing social need, and;
• Was it proportional for the goal it sought to achieve, and;
–> Proportionality assessment:
* Identify the ingredients involved in the proportionality assessment
* Attach weight to those different elements
• Was it done for relevant and sufficient reasons?

Question 73

Enforcement mechanisms of the ECHR

Answer 73

• Monitoring mechanism: Member states must report on how it practices and furthers its obligations under the treaty to a committee each year and this committee will make recommendations in a report that is up to the state to enforce
• Interstate complaints mechanism: a state can complain of another states’ violation of the ECHR
• Individual complaints mechanism: Art 34 allows individuals to take their case (and thus, the state) to Court
• Methods of interpretation mechanism: member states courts can engage in different interpretation methods to ensure that the treaty and its judgements are complied with
  • The Court also engages in different forms of interpretation to ensure that the treaty follows the modern-day and is widely applicable

Question 74

Autonomous meaning

Answer 74

ECtHR can develop its own concept of what something in the Convention means
- E.g., what is property, criminal, etc.

Question 75

Living instrument

Answer 75

• The Convention should not be static but rather be interpreted in light of present-day conditions

Question 76

Evolutive/dynamic approach

Answer 76

• As our ideas of things change, the obligations of a state under the Convention changes too
• As societies ideas change, the meaning of certain articles and things in the Convention can change as well

Question 77

Common-ground method

Answer 77

• Is there a common ground (consensus) among the member states regarding the application of a certain provision of a treaty?
• If there is little common ground, then there is a wide margin of appreciation of how a treaty provision/article can be assessed (meaning, the treaty can be assessed in a broad manner as the states have not applied them all similarly)
• If there is a lot of common ground, then there is a narrow margin of appreciation of how a treaty provision/article can be assessed (meaning, the treaty can be assessed in a very narrow, specific manner as the states have applied it similarly)

Question 78

Teleological approach

Answer 78

• What is the purpose of this treaty provision/article?
• What is the purpose of the principles underlying the convention?
• What is the purpose of the law?
• Looks at values such as human dignity, personal autonomy, democracy, pluralism
• “Interpretation of the rights and freedoms guaranteed [in the Convention] has to be consistent with the general spirit of the Convention…”

Question 79

Effective approach

Answer 79

• The convention intended to guarantee rights that are practical and effective, not theoretical and illusory
• E.g., positive obligation of states to provide legal assistance to fulfill the right of access to courts
• Thus, to effectively enjoy right A, we must have right B

Question 80

Lord Hoffman’s criticism of the ECtHR’s methods of interpretation

Answer 80

• Discusses the legitimacy of case law and says the court should not introduce new concepts
• Argues, where does judicial interpretation end and judicial treaty-making begin since this is basically the court making new protocols and treaties

Question 81

Freedom of expression’s political and personal components

Answer 81

Political: must have freedom of expression for a proper political process
Personal: must have freedom of expression as a fundamental right to receive and disseminate ideas for personal development

Question 82

Scope when analyzing the freedom of expression

Answer 82

• What is the content of the expression?
• What is the form of the expression?
• Who can invoke the freedom of expression?
• Content (Art 10): protects expressions that shock, offend, or disturb (Handyside v UK); commercial advertisements; clothing; certain behaviours
  Form: audio broadcasts, paintings, symbols, leaflets, demonstrations, films, and electronic information

Question 83

How Art 10 (Freedom of speech) provides positive obligations for the state to ensure this right is effectively upheld and protected.

Answer 83

• The state has a positive obligation to put in place appropriate legislative and administrative framework to guarantee effective pluralism
• Positive obligation in two ways (in newspaper case): ensure that the applicant had a reasonable opportunity to exercise his right of reply by submitting a response to the newspaper for publication, and ensuring that the applicant had an opportunity before the domestic courts to contest the newspapers refusal
• The state needs to establish an effective mechanism for the protection of authors and journalists in order to create a favourable environment even if they run counter to those defend by official authorities or even if they are irritating or shocking to the latter

Question 84

Sunday Times v UK (1989)

Answer 84

Background:

• Thalidomide causing deformed kids
• Parents of these kids in the UK started suing the manufacturers
• The Sunday times published several articles about the distillers of these meds and the distiller’s started proceedings against the Sunday Times and asked the court to prohibit an upcoming article about them
• The Court agreed with the distillers and said publishing the article would constitute a contempt of court
• Said that the publication would interfere with the requirements of justice
• The Sunday Times went before the ECtHR and said that their freedom of expression rights under Art 10 had been violated

ECtHR proceedings:
- Is the alleged infringement under the scope of the Article in the Convention?
Yes
- Was there an infringement of the action of the state?
Yes
- Was this infringement prescribed by law?
• Was the law that prescribed this infringement accessible and foreseeable?
• Applicants’ argument: the law of contempt of court was so vague and uncertain and the principles enunciated by that decision so novel that the restraint imposed cannot be regarded as ‘prescribed by law’
• ECtHR argument: the applicants were able to foresee, to a degree that was reasonable in the circumstances, a risk that publication of the draft article might fall foul of the principle’
• In this case, yes, the infringement was prescribed by law
- Did this infringement serve a legitimate aim (i.e., under one of the aims in the article (usually in section 2 of the article))?
• Art 10 includes limitation such as ‘for maintaining the authority and impartiality of the judiciary
• Yes, within the text of the convention, the limitation had the legitimate aim for maintain authority and impartiality of the judiciary
(Remember! UK said the aim was to cover contempt of court and the ECtHR agreed)
- Was the infringement necessary in a democratic society (for maintaining the authority of the judiciary)?
• Did it fulfill a pressing social need, and;
* The Court in this case looked at the margin of appreciation:
- Handyside v UK: protection of morals -> less consensus -> broader margin of appreciation
- Sunday Times: authority of the judiciary -> more consensus -> smaller margin
- The Court found that such interference did not meet the “necessary within a democratic society” standard because “the inference…did not correspond to a social need sufficiently pressing to outweigh the public interest in freedom of expression within the meaning of the Convention.”
• Was it proportional for the goal it sought to achieve, and;
* Proportionality assessment:
- Identify the ingredients involved in the proportionality assessment
- Attach weight to those different elements
* In this case: the interests involved were those of the journalists/paper to publish the results of their research and the injunction delayed the publication of the book; the distillers’ interest was that the publication would have increased pressure to be more generous in and out of court settlements; and the general public’s interest was getting more information on distillers and thalidomide and generally on quality controls on medication
* ECtHR: the article was considered moderate
* The court attached a great deal of weight to importance of the press
• Was it done for relevant and sufficient reasons?
* Not analyzed
Verdict: Article 10 ECHR violated

Question 85

Der Standard Case

Answer 85

 Nothing stands in the way of the newspaper to report and publish on whatever they want about the politicians and parties
 Concerns the forum comments by people who are not their journalists
 Court on the scope and interference
 The case is about the duties of Der Standard as a host provider
• The Court concludes that the comments posted on the forum by readers of the news portal, while constitute opinions and therefore information, were clearly addressed to the public rather than to a journalist. This is sufficient for the court to conclude that the comments’ authors could not be considered a source to a journalist. The Court therefore agrees with the Government that the applicant company could not rely on editorial confidentiality
• No editorial confidentiality as the comments were not made by a journalist
 However, the freedom of expression includes the ability to commentate anonymously
 Conclusion of the court: this does fall under the scope of Art 10 and there has been an interference with the right of the newspaper company
 Limitation has been prescribed by law and serves a legitimate aim
 But was the interference necessary in a democratic society?
 If you have to balance Art 8 against Art 10, you must pay attention to questions such as whether contribution is made to public interest, how well someone is known, consequences of the publication, gravity of the penalty, etc.
 Importance of anonymity online
 Promotes free flow of opinions is worth protecting, especially in regard to political speech
 Conclusion: there had been a violation of Article 10

Question 86

Does the ECtHR provide horizontal effect of fundamental rights?

Answer 86

• The ECHR lays down obligations for states, thus, individuals cannot invoke the ECHR against each other (in a horizontal sense) as the ECHR only has vertical effect. As stipulated in Art 33 and 34 of the ECHR – access to the court is only allowed on proceedings against the state, thus court decisions are only directed at states (case law has pure a vertical effect)

Question 87

Connection between the principle of effectiveness and positive obligations

Answer 87

• The principle of effectiveness, or effective judicial protection, obliges member state courts to ensure that national remedies and procedural rules do not render claims based on EU law impossible in practice or excessively difficult to enforce
• Thus, the state has positive obligations that the principle of effectiveness is upheld – i.e., right to a fair trial, right to access court, be effectively protected by the rights and freedoms in the Convention.
• There should be an effective way to use these rights, so they are not just theoretical conceptions, and the state has a positive obligation to make sure such rights are effective

Question 88

How can a citizen invoke fundamental rights that are required by the treaty against another citizen (horizontal effect)?

Answer 88

 Through the principle of effectiveness, the state must make laws in their own country to ensure that fundamental rights of the EU have effect, are effectively laid down, can be effectively enforced, and are effectively followed in the member state
 E.g., freedom of press issue
 Party A tries to monopolize all publishing markets in the country
 Party B wants to publish his book but cannot do so as A has monopolized publishing
 Party B goes to the ECtHR and says that the state does not make sure that freedom of expression isn’t guaranteed as they’ve allowed A to monopolize all publishing markets
• In this case, it would be Party B vs member state – alleging violation of Art 10
 ECtHR would then tell the state that they have a positive obligation to ensure the effectiveness of the freedom of speech right under Art 10 ECHR
 The state will then make a law saying that no one person can monopolize the market
 This domestic law can now be used in a horizontal effect by A against B

Question 89

Dual nature thesis

Answer 89

• Dual nature thesis: Advanced by Robert Alexy who argued that the law has both a real and an ideal dimension. The real dimension being the laws authoritative issuance and social efficacy, while the ideal dimension is laws claim to moral correctness. In applying to breaches of the law and how it protects rights, we can summarize the dual nature thesis as follows: the higher the breach of right A, the more justified the aim of right B must be; the lower the breach of right A, the less justified the aim of right B must be. Essentially, courts must engage in a weighing of the law when analyzing a breach of one person’s right against another persons’ legitimate aim to protection of their own right that may have constituted that breach. If we apply this concept to the right to privacy (A) and the freedom of expression (B) – the higher the breach of one’s right to privacy, the more justified the aim of the right to expression must be. For example, if a politician complains that their right to privacy (A) was breached by an exposing article in a newspaper, the Court must weigh how justified the claim is of the newspapers’ right to freedom of expression (B). If the breach of the politician’s right to privacy was really high, then the newspapers’ claim to the freedom of expression must be really high; if the breach of the politicians right to privacy was not high/really low, then the newspapers’ claim to the right to freedom of expression does not need to be as highly justified. In engaging themselves in this dual nature thesis, the Court often uses methods of interpretation to come to their conclusion, mainly proportionality, legitimate aim, etc. and teleological and living instrument interpretation.

Question 90

“Differences between first and second generation fundamental rights play no relevant part in the judgments of the European Court of Human Rights”

Is this true?

Answer 90

• Art 10 is the right to freedom of expression, widely considered a first generation right, thus governments classically have a negative obligation meaning they must refrain from any actions that affect this right. However, in this article, there is a positive obligation for the governments of the EU to ensure this right, thus entailing a positive obligation in this article. Hence, the ECtHR does not differ between negative obligation first generation rights and positive obligation second generation rights and can mix the two.

Question 91

Netherlands application of european law and International law

Answer 91

• Apply European law in a monist way (whatever is passed at the EU level is automatically part of the Dutch legal system)
  •Thus, the constitution has no authority on the applicability on European law
• Apply international treaties an incorporist way – “the only requirement for international provisions to be judicially enforceable is that they should have direct effect according to Article 94 of the Dutch Constitution.”

Question 92

Germany application of european law and International law

Answer 92

• Apply European law in an incorporist way: those in Germany can rely on European law directly based on Art 23 of the German constitution
• Apply international law in a transformist way
  •Treaty law is transformed into national law and thus, German citizens do not rely on international treaties as such, but they rely on the domestic acts that transform those treaties into national law

Question 93

Strategic Europeanization

Answer 93

• National executives try to ‘Europeanize’ certain topics they can’t get through at home
• They will use European legislation to enact laws they can’t pass at home, so they pass it in the European Parliament, and then it is applicable in the home country

Question 94

Dual democracy legitimacy

Answer 94

• View 1: As European citizens vote directly for the European Parliament, the democratic legitimacy of the EU comes from the popular-voted EP
• View 2: Members of the Council and the European Council are either responsible to their citizens directly or to their national parliaments (either way, they are responsible to their countries), and so the democratic legitimacy of the EU comes from the fact that national governments (which are representatives of these democracies) are members of the Council and European Council

Question 95

Parliamentary vs semi-presidential system

Answer 95

• Parliamentary system: head of the executive (Prime Minister) enjoys the confidence of parliament, in which parliament is the only directly elected organ, and the government only has legitimacy because parliament supports it
• Semi-presidentialism: the President is voted on his own mandate by the people (directly elected), and the Prime Minister is voted by parliament
• Thus, president has his own source of legitimacy

Question 96

The Council vs European Council

Answer 96

• The Council
  Responsible for legislation and budget, and is the core legislative organ of the EU
  Art 16: two requirements to attend Council meetings – someone who has ministerial level and can bind the government of the member state
• European Council
  Most important decisions are made by the EC as the decide on guidelines and priorities and they suggest to the EP who the Commission’s President should be
  Composed of heads of state, heads of government, and head of the Commission

Question 97

Semi-presidentialism in the EU

Answer 97

• With countries that have a semi-Presidential system, both the head of state and the head of government have enforcement and policy mandates, and so they may have different priorities and views, and so they must work together and reach compromises in EU matters

Question 98

The European task of national parliaments

Answer 98

 Art 12 TEU: national parliaments contribute actively to the good functioning of the Union
 (a) through being informed by the EU
• National parliaments get sent EU legislation and decisions directly
 (b) by seeing to it that the principle of subsidiarity is respected
• Subsidiarity: the EU can only use its competences if the problem can be better addressed by it/the national governments cannot address the problem as effectively as the EU can
• National parliaments are asked to scrutinize every proposal
• E.g., by asking: is this legislative proposal in line with the subsidiarity principle?
 (c) by taking part in evaluation and oversight of Eurojust and Europol;(d) by taking part in the Treaty revision procedures; (e) by being notified of applications for accession; (f) by taking part in COSAC

Question 99

Should the parliament have government do policy and then scrutinize it, or is it to tell the governments what to do?

Answer 99

• Parliament has information rights
  
  • The obligation to be informed of/inform actively European decisions
  • Scrutiny reserve: national parliament actively taking part in telling the government what to do at the EU level
    • An information instrument
    • When parliament invokes a scrutiny reserve, they must invoke it on a specific item. As soon as it is reserved, the minister for the country must first tell the council that they are not participating right now on the item because they are informing and discussing with parliament, and then the minister must inform and discuss with parliament, and as long as discussions with parliament continues, they do not take part in the meetings and discussions at the EU level.
    • Thus, representatives at the EU level for the country should abstain from voting until parliament has scrutinized the potential decision and given their opinion on it.
    • However, EU law cannot be blocked by scrutiny reserves
    • Must also check if the scrutiny reserve has a legally binding mandate or not
     Negotiation mandate/voting instructions
     (Non-)binding traditional resolutions; (semi-)binding mandates
     Legally binding negotiating mandate: parliament giving a manade to the ministers on how to negotiate in the EU
    • Can be seen as parliament sort of having some control over thexecutive in this sense
     Approval rights
     Decisions ‘reserved to parliament’ for their approval
     Procedural strategies
     Follow up on EC and Council meetings
     Engage in rapporteurs: the EU sends a few people to each member state parliaments to figure out what’s going on in regard to Europe there

Question 100

Different ways national parliaments engage in EU policy making/influencing

Answer 100

• Policy shaper: influencing national ‘agents’ ex ante – meaning that the national parliament tries to influence EU policy by actively telling government what to do
• Government watchdog: scrutinizing them ex post – it isn’t proper for parliament to tell the government what to do at the EU as the executive is the main player in foreign policy
• So, executive does all the work and parliament heavily scrutinizes what they do
  
  • Actively asks for meeting minutes, reports on what happened, agenda, etc.
• Public forum: widely communicating your position ex ante and ex post
  
  • Parliament tells the voters where they stand on European issues, and thus have their audience as the voters, not the government
• Expert: convincing everyone (early) with arguments
  
  • Parliamentary bodies create reports regarding EU politics, and thus convince the audience with expertise, not politics
• European player: influencing the EU and member states (early) by directly speaking with the EP, EC, Council, European stakeholders before the proposals are set (when it’s too late). As such, national parliaments that try to act as the “European Player” try to influence EU policy, tells the EU what to do, and mainly wants their own parliamentarian policy preferences made into EU law

Question 101

Populism

Answer 101

 An ‘essentially contested concept’ in which the core is “the people rule”
 Populist politicians claim that the people rule through them (by direct, unmediated support such as active social media)
 Strong leadership style with a focus on simplicity, directness, evocation of emotions, and capitalizing on distrust
 The ideology of populist’s centers around the common people vs the elite
 The populist claims they will be a representative of the people against the elite
 Concludes the contract for the people and carries out the social contract on behalf of the people
 Engages in narrative discourse, often invoking popular sovereignty (only the people should rule)
 At the core, populism is: a thin-centered ideology that considers society to be separated into two groups, ‘the pure people’ versus ‘the corrupt elite.’ And which argues that politics should be an expression of the general will of the people
 The general will is aimed at the common good and the populist claims they know what the general will is

Question 102

Muller’s view of populism

Answer 102

• Us vs them: the sovereign people vs them
   The people are a moral, symbolic unity (although, an imagined community) that should be the sovereign but ‘we the people’ are existentially under threat
• Populists also have a claim to exclusive representation
   Hence, they are anti-pluralist and claim ‘we alone represent the [true] people’ while all opposition to us is illegitimate and seeks to undermine us
   Prefer direct representation
• Further, populists claim that the common good is obvious and they know what this obvious common good is that the people infallibly want
• In essence, populism is a contested concept, in which the populists claim to exclusively represent the imagined, morally superior people whose will supersedes all, and this is done through radical ‘democracy’ in which all opposition is illegitimate