unit 2 Flashcards
define constitution
set of fundamental norms on which legal and political order is grounded.
define constitutionalism
philosophical movement aimed at establishing limits on public power with the view to protect private autonomy.
illustrate the characteristics of a traditional constitution
Descriptive Nature: Traditional constitutions reflected a country’s existing state, including geography, laws, and societal norms.
Feudal Context: Operated in a feudal society, where individuals were defined by their social group affiliations, not as free equals, and no central sovereign entity existed.
Norms and Regulations: Governed by inherited customs and political conventions, which preserved societal hierarchy while preventing despotism.
Binding Nature: Laws emerged from societal practices, lacking the power to strongly constrain political authority.
Cultural Artifact: Viewed as a product of national spirit, evolving organically, reflecting traditions and customs across generations.
illustrate the characteristics of a modern constitution
Prescriptive Nature: Modern constitutions establish the political and legal structure of society, based on deliberate reflection and choice.
Unified Society: Sovereignty is centralized in a single political entity, with individuals viewed as free and equal, moving beyond social hierarchies.
Act of Political Will: Constitutions are created through collective decisions and popular deliberation, reflecting the people’s political will.
Written and Constitutive: Modern constitutions are written documents that establish government structures and ensure the government’s subordination to the constitution as the higher law.
Dualist Structure: Distinguishes between constitutional politics (creating and regulating government institutions) and ordinary politics (laws enacted by government under constitutional limits).
Comprehensive and Supreme: Constitutions are comprehensive frameworks, serving as the highest law, binding both the government and its laws.
What is the difference between written and codified constitutions?
A written constitution is a formal document that clarifies the political will, but not all written constitutions are codified. A codified constitution consolidates all constitutional norms into a single document (e.g., Italy, Spain), while some countries, like Israel, have a constitution made up of several laws adopted over time.
Define a normative constitution
Normative constitutions aim and succeed into shaping the legal and political reality; they are meant to shape the legal reality and they succeed in doing so.
Define a nominal constitution
Nominal constitutions are meant to shape the legal and political reality but they fail to do it because of some resistances in the society or in the political system.
Define a semantic constitution
Semantic constitutions are not meant to shape the legal and political reality. They reflect the political reality without imposing binding rules on political institutions (for instance the socialist constitutions).
What does it mean that a constitution is comprehensive?
it sets the rules for all government power and authority. It provides a clear framework but leaves some areas, like economic policy, open for change and discussion.
Is an open constitution also a neutral constitution?
An open constitution allows flexibility, letting democratic processes decide issues like economic or social policies. It’s not always neutral, as it can still favor certain ideas, like free-market principles over others, but a truly neutral constitution would allow all systems equally.
Why can overconstitutionalization be dangerous?
Inflexibility: Difficult to amend.
Limits Debate: Locks policy decisions into the framework.
Judicial Overreach: Courts may assume roles meant for legislatures.
Illustrate the difference between rigid (entrenched) and flexible constitutions.
Rigid Constitutions: Hard to amend; require supermajorities or referenda.
Example: German Basic Law with unamendable clauses (e.g., Article 79(3)).
Flexible Constitutions: Amendable through ordinary legislation.
Example: UK’s evolving constitution.
What are the sources that may legitimate a constitution?
Absolute Truth: Based on ideology or religion.
Example: Iran’s theocratic constitution enforces Islamic principles.
Popular Consensus: Reflects broad social agreement.
Example: Italy’s post-WWII constitution.
Illustrate the distinctive elements of a liberal democratic constitutions
Focus: Protecting individual freedoms.
Features: Judicial review, separation of powers, and strong rights protection.
Example: US Constitution (inspired by Locke’s philosophy).
Illustrate the distinctive elements of a liberal non democratic constitution
Focus: Limiting power without popular will.
Features: Introduced by elites to appease unrest.
Example: 19th-century monarchies granting limited parliaments.
Illustrate the distinctive elements of a non liberal democratic constitution
Focus: Strong democracy, limited rights protection.
Risks: Tyranny of the majority.
Example: Constitutions prioritizing legislative power over courts.
Illustrate the distinctive elements of a social state constitution
Focus: Substantive equality and social justice.
Example: Post-WWII constitutions like Germany’s.
Illustrate the distinctive elements of a socialist constitution
Focus: Implementing Marxist ideology.
Features: Absolute party control, absence of individual freedoms.
Example: Soviet Union’s constitution.
What is the cosmopolitan constitution?
Constitutions aligned with international cooperation and treaties.
Examples: Germany and Italy’s post-war embrace of multilateralism.
Illustrate the relationships established with international and supranational institutions.
A cosmopolitan constitution links national laws to international cooperation, seen in countries like Italy, Germany, and Spain after conflicts. It can strengthen democracy by reinforcing rights and helping solve global issues but may limit national decision-making when international bodies like the EU impose rules.
