TASK 6 - CONSTITUTIONS Flashcards
- constitutions. what is the problem?
aim to lay down certain frameworks in which gov and pol activity are conducted but none have been successful
(inaccuracies, distortions, omssions)
- constitutions. what do they do (3)
- lay down meta-rules for pol system
- rules that govern the government
- bring stability, predictability and order to gov’s actions
as a means of change:
means of establishing a new political order following the rejection or collapse of an old order
- constitutions. what are the first?
- us constitution (1787)
- french declaration of the rights of man and citizen (1789)
- classfications. according to 4 factors
- form of the constitution and status of rules
- written/unwritten
- codified/uncodified - ease with which the constitution can be changed
- rigid or flexible - degree to which the const. is observed in practice
- effective
- nominal
-façade - content of const. and institutional structure that it establishes
- monarchical/ republican
- federal/unitary
- presidential/parliamentary
2.1 written/unwritten constitution
-> written const.: constitutions enshrined in laws
ex: no fully written one
->unwritten const.: embodied in customs and traditions
ex: new z, israel, uk (liberal d), saudi a, oman… (non-liberal d)
ALL CONST ARE A BLEND OF BOTH
ex: france, usa (loose framework for gov, priority on written rules)
2.2 codfied/uncodified constitution
-> codified: based on existence of a single authoritative document
- ‘higher law’
- binds all pol institutions (binded to courts)
- entrenched provisions
- hierarcy of laws
unitary system: 2 tier (const above statute law)
federal system: 3 tier (+ lower state laws)
-> uncodified: very diff characteristics
ex: uk
- statute law
- common law
- legislature enjoys sovereign unchallenged authority (arbitrers)2
2.3 rigid/flexible constitution
-> rigid: codified constitution tend to be more inflexible
- enrtenched provisions
-> flexible: uncodified constitution tend to be
- laws of const. significance can be changed
-> various degrees possible: not directly proportional to the formality of its procedures and rules
- referendums, amendments used
- meanings under constant revision of judicial interpretation
2.4 effective/nominal or façade constitution
-> effective: one fulfilling 3 criteria
1. practical affairs to gov correspond to provisions of constitution
2. const has ability to limit gov behavior
-> nominal: text/principles may accurately describe gov but fail to limit it
ex: chinese const
-> façade: differ from pol practice (propaganda role)
ex: dictatorial/authoritarian states
2.5 based on content and pol structure that it establishes.
- Monarchical/republican
- Unitary/federal
- parliamentary/presidential
- pluralistic/monopolistic
2.5.1 monarchical/republican
-> monarchical: invest const supremacy in a dynastic ruler
-> republican: pol authority derived from people
2.5.2 unitary/federal
-> unitary: based on centralized decision-making power in one institution
ex: france (assembly in paris)
-> federal: based on decentralized power distribution
ex: germany (federation)
- bundesland has own sovereignty (own asseblies, police forces, judiciaries…)
2.5.3 parliamentary/presidential
-> parliamentary: executive derived from and accountable to the assembly
- chooses exec
-> presidential: 2 branches of gov function independently (separation of powers)
2.5.4 pluralist/monopolistic
-> pluralist: liberal democracies
- pol power is dispersed
- guarantees of participatory rights and party comp
-> monopolistic: communist/authoritarian
- unquestionable authority of the ruling party or supreme leader
- PURPOSE OF A CONST (5)
- empower states
- establish unifying values/goals
- provide gov stability
- protect freedom
- legitimize regimes
- 1 empower states
mark out existence of states and make claims on their sphere of independent authority
3.2 establish values/goals
embody broader pol values, ideals, goals..
- cannot be neutral
- statements of national ideals
- others largely implicit
ex: usa
shaped entirely for econ purposes
3.3 provide gov stability
powers and functions amongst gov institutions
- organizational charts
- guides and blueprints
- formalize relationships btw pol bodies
- mechanism through which conflicts can be resolved
- measure of stability and predictability of workings of gov
3.4 protect freedom
devices for establishing and mantaining limited gov
- relationship btw gov-individual
- define spheres: gov and personal
- civil rights and liberties (bill of rights)
negative and fundamental!
3.5 legitimize regimes
build legitimacy (2 dimensions):
- existence of const as prerequisite for state’s membership of international comm
- promotion of respect and compliance amongst domestic population
- DO CONSTITUTIONS MATTER? the debate (3 points)
- doesnt ensure govs being constitutional
- work in certain circumstances - const respected by rulers?
- major provisions can be abrogated by states of emergency
- gov of the days can abuse and change const as they see fit - adaptability of const to remain relevant to changing pol circumstances
- no cont reflects pol realities
- can also be overly flexible: too easily reshaped to serve rulers’ interests
- LAW AND MORALITY. each concepts
-> Law: form of social control, backed up by means of enforcement
- defined what may or may not be done
-> morality: concerned w ethical questions and differences btw right-wrong
- prescribes what should or should not be done
- subjective entity
- Natural law theory:
- suggests that law should be rooted in moral system
- natural god-given rights
- science of ‘positive’ law
- ‘legal positivism’: defines law in terms of the fact that it was established and enforced
ROLE OF LAW IS TO PROTECT THE MEMBERS OF SOCIETY AND PREVENT THEIR RIGHTS TO BE ENCROACHED ON
5.1 International law. Why is it outside of the concept?
law often thought of as domestic entity, since it reflects the will of a sovereign power over all other norms and rules
–> BACKED BY SYSTEM OF COERCION AND PUNISHMENT
international law is SOFT law -> the key is simply reciprocity
- JUDICIARY. characteristics of judges
-> central function is to adjudicate meaning of law, interpreting or constructing law
- particularly imp for codified const.
- independent and non-political actors
- political not merely legal institution
- central figures in legal process
conflict resolution
maintenance of state authority
6.1 Are judges political?
- some regimes expect no neutrality
- other regimes require it
may be political in 2 senses 1. external bias 2. internal bias
6.1 are judges pol? external bias
derived from influence that pol bodies are able to exert on judiciary
- supposedly kept at bay to respect JUDICIAL INDPENDENCE
- protection by
security of tenure
restrictions on criticism of judges and court decisions
6.2 are judges pol? internal bias
stems from prejudices and sympathies of judges themselves
- bias may creep in through values and culture of judiciary
6.3 do judges make policy?
YES
- impose meaning of law through processes of ‘construction’ that forces them to choose amongst number of poss interpretations
- all law is judge-made law
5.3 do judges make policy? based on what?
- clarity and detail with which law is specified
- broadly framed laws or const principles allow greater scope of interpretation - existence of codified const
- enhances status of judiciary
- power of judicial review
