Origins and main features

Question 1

What is sovereignty?

Answer 1

1. The sovereign is the original source of all public power from which all other power flows
2. External sovereignty is the possibility for a state to exercise control over its population and territory without interference from outside
3. Internal sovereignty is public authority within the state itself
4. Different kinds:
   - Popular sovereignty
   - Royal sovereignty
   - State sovereignty
   - National sovereignty
   - Parliamentary sovereignty

Question 2

What is popular sovereignty?

Answer 2

1. Enacted by the people, by popular will
2. In absolutist systems that does not exist, sovereignty lies with the King – The constitution is than called an ‘imposed constitution’ because the King imposed it on the people

Question 3

What is the impact of the EU on national sovereignty?

Answer 3

1. Member States were willing to give up parts of their sovereignty for the sake of effectiveness of the EU
2. EU law has direct effect on the Member States and supremacy over conflicting national law, it overrides national law
3. Is the country still sovereign?
   - Yes, the EU is limited in its competences by Art. 5(2) TEU, which has been ratified by the Member States.
   - They voluntarily gave up some of their sovereignty, the MS voluntarily ratified the TEU and TFEU
   - Perhaps the problem lies more with the perceived lack of democratic input in the EU

Question 4

How has the EU tried to remedy the perceived lack of democracy/legitimacy?

Answer 4

1. MS want to give more democratic elements and better guarantees of legitimacy and accountability to the EU, by doing so, they are minimizing the role of national parliaments.
2. National parliaments however still act as a safeguard of democracy and legitimacy under the two first protocols to the Lisbon Treaty:
   - The EU has to inform national parliaments
   - National parliaments may engage in a political dialogue with the Commission
   - National parliaments can act as protectors of the principle of subsidiarity under the yellow and orange card procedure

Question 5

What is the difference between a parliamentarian and a presidential system?

Answer 5

1. What matters is whether the head of executive is elected with a mandate of his own or whether he is accountable to parliament
2. Presidential – The head of executive is not accountable to parliament. In this sense, this means that there is no confidence rule
3. Parliamentary – The head of executive is not directly elected but stays in office because he enjoys the confidence or tolerance of the parliament
4. Hybrid system: the semi-presidential system – Both a directly elected head of state with executive functions which not accountable to Parliament (but to the people via direct elections) and a head of government which is accountable to Parliament

Question 6

What is the principle of separation of powers?

Answer 6

1. Public authority is divided into three different functions = Functional separation of powers:
   - Legislative power – Makes laws
   - Executive power – Enforces and executes the laws
   - Judicial power – Interprets and applies the laws in case of conflict
2. Institutional separation of powers – These three functions should be allocated with different organs
3. Personal separation of powers – These three functions should be allocated with different organs and staffed by different people
4. System of checks and balances – To build and ensure collaboration between institutions so that none accumulates too much power

Question 7

What are the purposes of separation of powers?

Answer 7

1. To prevent abuse by public authorities

2. To prevent one person or institution from becoming too powerful and abuse its powers

Question 8

What is the role of judges?

Answer 8

1. All public authority derives its power from legal norms and is constrained by legal norms in exercising it
2. Usually judges are charged with upholding the law against unlawful government action:
   - Mainly through constitutional review of legislation – To check whether laws which are made by the central parliament comply with the constitution

Question 9

What is the difference between a unitary state and a federation?

Answer 9

1. Unitary state – The sub-units receive their powers from the central authority
2. Federation – The sub-units have privileges and powers which are enshrined in the constitution itself
3. Not mutually exclusive, usually a state is somewhere in between

Question 10

What is ‘the rule of law’?

Answer 10

1. German definition:
   - Binding nature of law
   - Legal certainty
   - Ban on retroactive laws
   - Judicial review
   - Separation of powers
2. According to ECHR – The notion that the Human Rights guaranteed in the Convention may only be restricted:
   - On the basis of a law which is
   - Accessible
   - Foreseeable
   - Necessary in a democratic society
   - Respects the principle of proportionality

Question 11

How can the US constitution be amended?

Answer 11

1. The text of the US constitution is never changed.
2. Instead, amendments are annexed to it:
   - (1st, 2/3 of the national parliaments (34 out of 50) must submit a proposal to Congress) – This is not a mandatory step, Congress can start an amendment procedure on its own
   - 2nd, 2/3 majorities of members in both Houses
   - 3rd, at least ¾ (38 out of 50) of the States must ratify the amendment

Question 12

How is the German constitution amended?

Answer 12

1. Both chambers’ consent is required:
   - By 2/3 majority of members in the Bundestag
   - By 2/3 majority of votes in the Bundesrat

Question 13

How is the French constitution amended?

Answer 13

1. 2 stages:
   - 1st – Both chamber must pass a proposal in identical terms by a simple vote
   - 2nd – The proposal is submitted to a referendum
2. If the proposal is submitted by the government:
   - Instead of a referendum it is submitted to both chamber which can pass it by 3/5 majority of votes cast
   - Sometimes, the government will nevertheless call for a referendum and bypass parliament but this is accepted due to popular sovereignty