Introduction to Constitutional Law Flashcards
Constitution in a formal sense
The constitution in the formal sense encompasses all legal provisions enacted in the special enactment procedure of the constitution. All constitutional provisions must be approved through a mandatory referendum by the majority of the people and the majority of the cantons (Art. 140 para. 1 lit. a Cst; Art. 195 Cst)
“This norm has been accepted by means of the special procedure for the enactment of constitutional legislation”
Constitution in the substantive sense
The constitution in the substantive sense encompasses all essential legal principles concerning the nature of the state and its relation to individuals:
-eg. the rules of the organisation and powers of the highest state authorities
-fundemental rights
-procedures applicable for the enactment of the Cst. and statutes
-competencies of the federal entities in a federal state
In Swiss constitutional law, what is customary law and what role does it play?
A rule is part of Swiss customary law if three conditions are fulfilled:
1. Evidence of a continuous, uninterrupted and coherent practice;
2. An opinio iuris, i.e. a belief that the practice is a legal obligation;
3. A lacuna in the written law.
Art. 1 para. 2 Swiss Civil Code allows for recourse to custom as a source of law. Customary law is therefore recognized as a source of constitutional law. However, in the Federal Constitution of 1999, most previously unwritten principles
were written down and thus integrated in the Constitution as prime source of constitutional
law. Consequently, customary law plays a rather negligible role in Swiss constitu-
tional law.
What is meant by the term “flexibility of constitutions”?
The term “flexibility of constitutions” refers to how hard or easy it is to change the constitution in the formal sense. Constitutions that are harder to change than ordinary
legislation are called rigid constitutions. Constitutions that are easy to change
are called flexible constitutions
Which form would the federal provision on the ban on single-use plastic take and what
are its characteristics?
Important legal rules must be enacted in the form of a federal statute by the Federal Assembly
(Art. 164 para. 1 Cst). In particular, fundamental provisions on the
rights and obligations of persons must be enacted in the form of a statute (Art. 164 para. 1 lit.
c Cst). A statute contains important legally binding rules that are generally applicable (to an indeterminate number of persons) [0.5 Points] and abstract (to an indeterminate
number of cases). Federal statutes are subject to an optional referendum and thus
have a great democratic legitimacy(Art. 141 para. 1 lit. a, b Cst) .
In the case at hand, the federal ban on single-use plastic is an important legal rule of abstract
and general nature imposing obligations on persons. Therefore, it must take the form of a
federal statute .
Describe the proceedings to resolve such a dispute between the Canton X and the Federation
According to Art. 44 para. 3 Cst, disputes between the cantons and the Federation
must be resolved by negotiation or mediation where possible. If a dispute cannot
be solved through mediation and negotiation, means for judicial resolution are provided for
before the Federal Supreme Court (Art. 189 para. 2 Cst.).
To conclude, the Federation and the Canton of Lucerne must try to resolve the dispute through
mediation and negotiation. However, if these measures fail, judicial means before the Federal
Supreme Court are available
Name the main functions of a constitution
A constitution fulfills three main functions:
- Order and Organization
- Limits of Power and Guarantees of Freedom - Creation and Direction.
Conclusion: Art. 15 Cst and Art. 2 para. 1 lit. i) of the cantonal constitution fulfill the function of Limits of Power and Guarantees of Freedom.
Name the four different approaches of interpretation
Grammatical Approach: the wording of the term is examined.
* Systematic Approach: the systematic context of the term is examined. In the case at hand, the term X must be interpreted in view of other legal provisions of the cantonal constitution as well as in view of the overall structure of the Swiss legal order.
* Historical Approach: the historical background is examined.
* Teleological Approach: the purpose of a provision is examined. I
In Swiss constitutional law, what is case law and what role does it play?
Case law is made up of judicial decisions. In Swiss constitutional law, these are only binding
upon the court whose decision has been overruled. Thus, case law is not a formal source of
constitutional law.
Due to the textual indeterminacy of most constitutional provisions, judicial interpretation is
an absolute necessity. Therefore, case law emanating from the Federal Supreme Court is of
great importance and has also contributed much to the development of constitutional law,
particularly in the area of fundamental rights.
Case law of the Federal Supreme Court may derive fundamental guarantees from
constitutional provisions (for example the right to be heard in legal or administrative
proceedings; the right to legal assistance for persons lacking the necessary means; and the
right to protection against arbitrariness) and acknowledge unwritten constitutional rights
such as personal liberty, freedom of opinion, freedom of language, freedom of assembly, and
the right to assistance when in need.
b) May the Federal Act of 20 June 2014
What is a parliamentary initiative?
Parliamentary initiatives enable a member to submit a draft legislation or to propose in
general terms that a text be drafted (Art. 160 para. 1 Cst, Art. 107 et seq. ParlA).
What other instruments do members of parliament have to influence the decision
making on federal level?
- By making a proposal, members can make amendments to pending issues under
discussion (Art. 160 para. 2 Cst). - A motion obliges the Federal Council to submit a specific draft bill or decree or to take
appropriate measures. A motion requires the approval of both chambers (Art. 120-122
ParlA). - A postulate is a form of request requiring the Federal Council to examine and report on
whether a federal act or decree needs to be drafted or if other measures need to be taken
(Art. 123-124 ParlA). - An interpellation enables members of the Federal Assembly to request information on
important events or matters relating to foreign or domestic policy affecting the
Federation (Art. 125 ParlA). - An ordinary question, in the same way as an interpellation, enables members to request
information on important events or matters relating to foreign or domestic policy
affecting the Federation (Art. 125 ParlA).
What is the difference
between a federal statute and a federal ordinance regarding the enacting federal authorities?
Federal statutes can only be enacted by the Federal Assembly (Art. 163 para. 1 Cst) and are
subject to an optional referendum (Art. 141 para. 1 lit.a Cst). Federal ordinances can be enacted
by the Federal Council (Art. 182 para. 1 Cst), the Federal Assembly (Art. 163 para. 1 Cst) or the
Federal Supreme Court without the possibility of a referendum.
In which competency does the organization of cantonal courts fall in Switzerland?
According to Art. 122 para. 2 Cst, the cantons are responsible for the organization of the courts
in civil matters in general. According to Art. 123 para. 2 Cst, the cantons are also in general
responsible for the organization of the courts in criminal law matters. However, as the wording
of the respective provisions suggest (“unless the law provides otherwise”), the Federation pos-
sesses a narrowly interpreted competency regarding the organization of courts and the admin-
istration of justice in civil and criminal law matters. In contrast, the organization of the cantonal
judiciary in administrative law matters is still a cantonal competency (Art. 3 and Art. 42 Cst).
What is the principle of subsidiarity
It means that the smaller unit in a hierarchical order should be entitled to act autonomously
and to be responsible for its own rule; the only aspects of government that should be assigned
to the next state level are those that cannot be fulfilled by the smaller unit, or which require
uniform regulation.
The Swiss Constitution states in Art. 5a Cst that the principle of subsidiarity must be observed
in the allocation and performance of state tasks. The concept of subsidiarity is also expressed
in Art. 43a para. 1 Cst, according to which the Federation only undertakes tasks that the can-
tons are unable to perform or which require uniform regulation by the Federation.
What are the two Constitutional Conceptions?
Instrumental conception: Constitutional Law should only consider provisions regarding the state organization. Including state organs, delimit power of these organs, define state procedures.
substantive conception: looks for additional guidance by defining core values of the stat. Including basic norms specificying the relationship with the state, state goals, principles of state action.
