Lecture 7 Flashcards
Forms of state: Liberal-democratic; main feature
- optimistic view of the “state of nature”: such states are more concerned with the guaranteeing and preservation of people’s rights and liberty
- rule of law: state’s power is constrained by constitutional limitations– fundamental rights are ensured by impartial and independent judges. State’s power has to be limited to guarantee citizens’ rights
- principle of equality: state guarantees formal equality of people before the law– no possible discrimination
- liberty rights: inviolable by the state
- economic rights: both fundamental and inviolable– they present a limitation to state’s intervention
- political rights: people as source of legitimization and power
- representative elected bodies, firstly of the nation then of the people
- separation of powers: system of checks and balances to avoid the concentration of power
- market economy by the principle of lassaiz-faire
- the state recognizes, protects and promotes the autonomy of the individual
Forms of state: social-democratic
Different from a socialist state; social-democratic= evolution of the liberal form of state.
Similarities with the liberal:
- rule of law
- representative government of the people
- separation of powers
- recognition of the liberty rights
- recognition of the political rights
Political parties= private entities with crucial role in the public function
Differences with the liberal:
- economic rights: in SD economy is oriented and limited; the state can own enterprises
- social market economy: state can intervene in the economy and provides public services or redistributive purposes
- social rights: the LD state provides equality among people; the SD provies equity= equal opportunities for everyone (education)– the SD has the duty to remove any economic and social obstacle
Forms of state: electoral-autocratic (illiberal-democratic)
= intermediate between the SD and Autocratic; is either:
- incomplete transition from AU. to DE.
- erosive involution from a DE. to an AU.
FORMALLY state is ruled according to institutional mechanisms:
- popular sovereignty
- Constitution
- multiple politicla parties
- separation of powers among the different branches of government
- representative bodies peiodically elected by, and politcally responsible before, the citizens
EFFECTIVE state’s condition:
- extended emergency powers beyond reasonable duration/intensity
- intentional adoption of electoral laws to maintain political dominance
- abscence or lack of transparency, regularity and fairness in electoral competitions
- Executive’s practices or rules that undermine the independence of the judiciary
- wide implementation of preventive surveillance
- non-neutral rules for the media
- unreasonable restrictions regarding civil liberties
- discriminatory rules againts ethtnical, social or religious minorities
- wide political/ administrative corruption
Forms of state: Theocratic
Theocratic= still not a stabilized definition
Differences with the LD and SD
- religious texts= source of state’s law and of parliament interpretation of statutes
- only one religion is admitted within the stata; has privilegies and immunities
- internal religious bodies are bound with civil affairs
- religious political parties– strongly connected to religion and admit only religious people
Similarities:
- division of powers
- rule of law
- representatives elected in the Parliament
- guarantees for individual rights
- pluralist political party system
Forms of state: Socialist (modern)
MIMICS:
- principle of popular sovereignty
- rule of law
- different branches of government
- written Constitution
- right of assembly
- guarantees of some individual and social rights
- plural party system (little difference)
Features:
- communist party= center of the government and state, thus of power. Its internal bodies coincide with those of the state
- there’s no majority nor opposition
- administrative, supervisory and judicial organs of state are created by the people’s congresses
- economy:
1. old model= purely planned economy
2. new model= dual system– liberal economy system controlled by the Communist Party’s supervision
Forms of state: Unitary
concentration of sovereignty and institutional powers at national level– central power is exercised through national authorities in the territories= “longa manus”.
Therefore there are only bodies of national level.
Regional power is possible but only with administrative capacities.
Forms of state: Regional
- sub-national bodies (= regions): legislative and administrative powers exercised by autonomuous apparatuses.
NO TOTAL INDEPENDENCE:
- judiciary is national
- no representation in national decisions
- no power over regulating fundamental institutions
- limited tax and financial autonomy
- no regional constitution, no statehood - national body (the state)
The national body possesses:
- retains all typical powers related to sovereignty
- complete legislative, executive and judiciary apparatuses
Legislative power may be allocated using the principles of:
- list of matters + residual clause
- list of “separated” matters + list of “concurring” matters + residual clause (usually in favour of the national state)
Administrative powers may be allocated in the National Constitution by using:
- the principle of subsidiarity and proportionality: state guarantees a degree of independence to a lower authority in order to address matters on closer level so to increase efficiency, but intervenes where the regional authority is insufficient. With proportionality instead it is addressed that governmental actions are conmensurate to the aim pursued. It is to protect individuals and their liberties.
- the principle of parallelism: powers are divided among larger governamental system and lower ones– here sub-national entities mirror the govenmental structure of larger level (like Germany)
Forms of state: Federal
- sub-national bodies( e.g. “states”) have:
- legislative administrative and judiciary powers exercised by their autonomuous apparatusses
- participate and are represented in one of the Houses of a bicameral Parliament
- autonomous power to regulate fundamental institutions
- tax power
- financial authority
- civil and criminal laws - the “national body” has:
- full statehood
- international personhood
- Constitution
- administrative and judiciary power exercised by autonomous legislative
- relevant but not all sovereign powers (diplomacy, currency, army, internal commerce, foreign relations, …) - Legislative power might be allocated in the federal Constitution by using:
- list of matters (= provision that assigns powers and areas of competence to different levels of government) + residual clause (= provision that covers matters not explicitely addressed in a piece of Constitution or statute, assigning the competence to the level of government addressed before, in order to confer more flexibility)
- list of separated matters (= provision that assigns SPECIFIC matters to differrent levels of powers, unlike the list of matters, this leaves no doubt about the area of competence) + list of “concurring” matters (= provision that on the countrary may assign competence to multiple entities in certain subject areas– the powers may be shared according to proportionality and subsidiarity) + residual clause - administrative powers may be allocated by using the principle of parallelism
- judiciary powers may be allocated by usingthe applicable law or the different residency of litigants
Forms of state: Multilevel
Supra-natural organization may have legislative, adminsitrative and judiciary powers, but the execution and adjucation of supranational legislation rely mostly on the Member States apparatuses.
Member States:
- participate to the supranational legislative process
- are the “masters” of the international treaties, upon which the supranational is based and ruled
- may legally recess from the supranational organization
- have “Kompetenz-Kompetenz” (ability of a legal body, like court or tribunal, to determine the extent of its own jurisdiction and competence in particular matters, including mattes about its authority)
- supranatural organization has not statehood and not a Constitution, but has some form of internationa limited agency and it has been devoldes of some relevant sovereign powers (common market, concurrence, …)
1. national body (the Member State) has legislative, executive and judiciary powers exercised by complete apparatuses; the “national body” retains typical sovereign powers (external boundaries, criminal and civil law, army and war,…). It has statehood and international personhood and a Constitution
2. legislative powers may be allocated by using:
- lists of matters “separated” in favour of the supranational organization
- list of “concurring” matters (flexible: subsidiarity and proportionality)
- “generic clause” (always in favour of the Member States)
