lecture 9 - judiciary + federalism Flashcards
why attention to judiciary in polsci
was previously understudied, now more attention about the role of judges, of judicial politics because:
3 reasons why it is important to look at judiciary politics:
-
separation of power: trias politica = ensures people can appeal
legislative branch (makes laws + checks gov)
executive branch (puts laws into operation)
judicial branch (interprets laws) -
judicial activism = political phenomenon = process whereby judges are more and more willing to rule to enter political arena and influence public policy (less restraint, judges more willing to use political preferences)
e.g. Roe vs Wade: US supreme court 1973: women have right for abortion based on right of privacy (was later weggewerkt when the court’s judges were less liberal)
e.g. urgenda NL: 2015 ruled in favor of urgenda (climate protection interest groups) that sued the dutch gov (didn’t keep up with promise) - hybrid regimes: judicial politics important element in autocratization
constitution
definition
= body of meta-norms (higher order legal rules) that specify how all other legal rules are to be produced, applied, enforced and interpreted (Sweet Stone)
codified vs uncodified
- codified = written -> specific article/book
- uncodified = unwritten (e.g. UK, New Zealand) -> not one document, constitutional legislation spread around across other legislation
rigid vs flexible
- rigid = difficult to amend/change (makes sense in our definition of a constitution)
*e.g. Dutch constitution: 2 different govs need to agree with the change - flexible = easier to change
constitutional rule
/rule of law
= ‘‘government by law’’, a commitment of the political community to accept the legitimacy of, and obey the rules of, the constitution
commitment from the community to respect the constitution
this is not the case in all countries with a constitution
- constitutional rule is a feature of liberal democracies
- hybrid regimes have a constitution, but no constitutional rule
enforcing constitutions
= the power of ordinary or special courts to give authoritative interpretation of the constitution and constitutional rights which is binding to all the parties concerned
ordinary judicial review
- decentralized (all judges) = every judge can make a ruling whether something is in accordance with the constitution
- the Supreme Court (general jurisdiction = judgments about constitutional rulings, but also everything else)
- concrete review = activated during normal case (someone pleads that their constitutional right is violated) = about concrete/specific cases
- e.g. in US, Caribbean countries
special judicial review
- centralized (special judges)
- Constitutional Court (special jurisdiction = only rule over questions of constitutionality)
- abstract review = politically activated/initially: trade union groups, politicians, parties, senators, regional govs. say they think gov. is acting inconstitutional->constitutional court needs to judge
- most of Europe, large parts of Africa
!!!concrete vs abstract review revolve around how constitutional cases arise, what process/pathway they follow
(see also reading)
what influences power of judiciary?
2 factors
2 factors:
legal doctrine in a country
- parliamentary sovereignty -> there is no and should be no higher authority than the elected parliament = systems don’t like judiciary review systems : parliament should decide if something is constitutional or not
e.g. UK (EU wanted to be able to rule constitution rather than parliament -> brexit) - ?
(who) control of judicial appointments (often underestimated) = important one
- influences how independent judges are from gov.
- judges can be appointed
- judges can be (directly) elected = unusual, e.g. lower level US courts
- judges can be co-opted: proff. organization of judges appoints judges
- judges appointed for short or long term or life period?
best for independence: co-opted + life period
in practice: appointment (esp. in constitutional courts)
e.g. judicial appointment: 2018 new vacancy US Supreme Court (appointment for life): Trump nominates (conservative) Kavanaugh, Kavanaugh is confirmed by the Senate (was really close call: 1 vote made the difference)
republicans had earlier changed the appointment rules: made it simple majority rather than 2/3
conclusions judiciary
- most countries have written constitutions that stand above ordinary law, but not all countries have constitutional rule
- most countries enforce constitutions but there are different systems of enforcement (judicial review)
levels of governance
- supranational = IOs
- national = national, central or federal gov.
- regional = states, provinces, regions, cantons
- local = gemeentes, cities, metropolitan areas
- sub-local = communes, neighborhoods
!supranational is becoming more and more important, but also regional government is growing in importance (e.g. decentralization in NL)
2 caveats:
- lecture focus not on supranational + very little on local and sub-local
- lecture focus not on policy making (textbook does: multilevel governance), only on powers
3 categories based on division of power between central and regional levels
modern states can be divided into:
- federal states
- confederal states
- unitary states
federal state
- legal sovereignty is shared between the federal gov. and the constituent states/regions
*federal gov. = currency, monetary policy, external affairs
*states/other polities = other policy areas, e.g. education - powers of constituent units are entrenched in the constitution
- states/regions are represented in an upper chamber of the assembly
e.g. US Senate, Bundesrad Germany
~20% existing states is federal
~40% population lives in a federal system
~50% world territory of states is part of a federal system
large territory -> good system: easier to function (administrative)
*China is not federal but very large
*Austria, Belgium, Switzerland are federal despite being very small: federalism was introduced not to administratively govern a country, but to bridge differences between communities
key features of federal systems
4
dual and cooperative
- cooperative: less clear division of competencies between federal gov. and states (e.g. Germany)
- dual = clear division of competencies between federal governments and the states (divide in powers and procedures)
e.g. US
Symmetric and asymmetric
- symmetric: parts of the federation have equal rights
- asymmetric: not every state/region has same powers vis a vis the federal gov
e.g. Canada (10 provinces, Quebec has more powers), Russia, India
bottom-up and top down
- bottom-up = federation created of individual states/cantons/etc.
e.g. Switzerland, US - top down = central state gradually federalized/decentralized
e.g. Belgium
territorial and non territorial
- territorial =
- non-territorial = rather unique = autonomy granted on non-territorial (e.g. cultural) basis
e.g. Finland (Lapland): only people that are in minority can be elected for a specific parliament of minorities
mutlilevel governance
= how policy is made, how policy making is arranged between levels of government
confederal state
= loose-knit cooperation between sovereign states
= weak form of federations
- there are not many real life examples
- independent countries give little sovereignty to cooperative org.
- US emerged from a confederation
unitary state
= legal sovereignty rests exclusively with the central government
*complication: often central gov. does transfer competencies to some local and regional govs. -> pure unitary states are hard to find
distribution of power:
*see also textbook
- deconcentration: central gov. functions are executed by bureaucrats/staff in the field (in the regions, cities)
- decentralisation/delegation: central gov. gives regional/local gov. the implementation/executing power
e.g. NL - devolution: central gov. grants decision making authority to the regional or local gov. (-> unitary states meets federal states)
e.g. UK, Spain
*in book: quasi-federal units
e.g. NL, Scandinavian countries
example federal state - Germany
textbook example: federal republic of Germany
- 16 different Lander represented in the Bundesrat (Federal Council)
- landers have between 3-6 votes in Bundesrat
- landers are in charge of police, medicine, education
- bundesrat has absolute and suspensive veto on legislation (in all matters that relate to the lander) = equal to second chamber
symmetrical federalism: all constituents parts of the confederation have equal rights and powers without the federal gov.
co-operative federalism: people in diff parts are the same (no cultural, language differences)
US
federal system
- symmetrical
- big differences between states and the sizes of their populations
- dual federalism
