Unit 2 Flashcards
Constitutions: definitions and classification
Define ‘constitution’ and ‘constitutionalism’.
Constitution is a set of fundamental principles, that give political power to public authorities; regulate fundamental relationships between public authorities and regulate fundamental relationships between public authorities and individuals.
Constitutionalism is an ideology that aims at establishing limits to public authorities with the objective to protect individual autonomy.
Some constitutions may include constitutionalism (e.g. US Constitution), then the two terms overlap. But not all constitutions connect all the principles os constitutionalism.
Illustrate the difference between ‘traditional’ and ‘modern’ constitutions.
Traditional constitutions are constitutions that were present mainly before the French and American Revolutions. They had a descriptive nature. They didn’t provide any principles to establish unified government, simply because something like a unified central power didn’t exist at that time. The term ‘constitution’ rather meant a description of historical, geographical, climate, cultural predispositions for a certain territory. Rather than centralised power, at that time everyone belonged to a certain social/political group and there was some ‘basic law’ that fulfilled the tasks of a constitution (in a modern-day sense).
Modern constitutions on the other hand are prescriptive. They aim at establishing a government and limiting its power. There’s a dualist conception of constitution which means that people make constitutional law to bind the government and government than creates law to bind the people. However the laws enacted by the government are limited and restricted by the constitution.
What is the difference between ‘written’ and ‘codified’ constitutions?
All modern constitutions are written, because there’s a symbolic meaning in writing down a document reflecting popular political mind. But even though all constitutions are written, not all are codified.
Codified constitutions are written in one document (‘Constitution’ with capitalisation, but sometimes it can also have a different name e.g. German ‘Fundamental Law’)
Define ‘normative’, ‘nominal’, and ‘semantic’ constitutions.
Karl Loewenstein classifies constitutions based on their effectiveness into 3 categories: normative, nominal and semantic constitutions.
Normative constitutions aim at shaping the legal and political reality and also succeeds in doing so.
Nominative constitutions aim at shaping the legal and political reality, but do not succeed, because there is some resistance in the society or in the political system.
Semantic constitutions don’t aim at shaping the legal and political reality. Their purpose is to reflect political reality without imposing any binding rules upon it.
What does it mean that a constitution is comprehensive? Is an open constitution also neutral constitution? Why can over-constitutionalisation be dangerous?
Comprehensive constitution means that all public authority derives from the constitutions and must be exercised within the limits, that the constitution has imposed on it.
Open constitutions is a constitution that is flexible and can be well adapted to changing social circumstances. Provisions are left rather vaguely formulated, so the constitutional provisions can be adapted without the need for a constitutional amendment. Neutral constitutions means, that no political party or ideology is favoured in the constitution. Therefore open and neutral constitutions aren’t the same things, even though they don’t rule each other out.
Over-constitutionalisation represents a situation where too many aspects of governance of the country are enshrined in the constitution. Constitution should offer only the fundamental framework for the working of the state, but other policies should be left to democratic decision in a political competition. Over-constitutionalisation might hinder evolution of the state or frequent amendments will be needed which might lead to a destabilisation.
Illustrate the difference between ‘rigid’ and ‘flexible’ constitutions.
Rigid constitutions are a ‘supreme source of law’ in the state. They cover all of the 3 branches of the government. Cannot be amended by ordinary legislation. To amend the constitution a special procedure is needed. These procedures are specific for each constitutional system. Typical are means of super-majorities or referenda. The aim of these procedures is to ensure, that the constitution is an expression of popular consensus. Within rigid constitution there can be an eternity clause/super-constitution which is a part of constitution that cannot be amended even by the specific procedures. Completely new constitution would have to be drafted in order to change the provisions included in the eternity clause.
Flexible constitutions can be changed by regular, ordinary law. They are therefore not the supreme law of the state.
What are the sources that may legitimate a constitution?
There are two main means by which a constitution can be legitimised.
Legitimacy by an absolute truth. This truth can be both religious and secular. Constitutions like these are created when one political party imposes its ideology on the whole society. Competing truth cannot be accepted and it’s seen as a heresy that needs to be suppressed. Other political parties therefore cannot compete for the direction of the government. The purpose of the constitution is to articulate and safeguard the absolute truth and provide instruments for the ruling political party to enforce this truth. Constitutions based on absolute truth doesn’t constrain the individuals that are regarded as having superior insight on the common good based on the absolute truth.
Legitimacy by a popular consensus. These constitutions don’t rely on a single ideology, but on the agreement between the main political forces in the society. The foundational packed that was based on popular consensus can be seen as playing the role of the absolute truth. The challenge of these constitutions to keep the popular consensus even with future generations of the society.
Illustrate the distinctive elements of ‘liberal democratic constitutions’; ‘liberal non democratic constitutions’; ‘non liberal democratic constitutions’; ‘social state constitutions’; ‘socialist constitutions’.
Liberal democratic constitutions mainly aim at establishing and constraining the government in order to protect individual liberty. These constitutions practice the dualist perception of democracy. That means that the popular power can be seen in two forms. People create the constitution and with it the government. Government binds the people, but in the margins that are defined in the constitution. Typical liberal democratic country is the USA, which inspired its constitution on the philosophy of John Locke. He says that people have natural right, e.g. rights to property and the government should protect these rights.
Liberal non-democratic constitutions aren’t the result of a popular political will. It is the monarch who decides that he will share his power with other social parties. This constitutions also doesn’t establish a new government, but only modifies the previous situation. Therefore tit misses the constituent character. Generally parliament is divided in to upper chamber to which only the bourgeoisie belongs and the lower chamber that is elected, but depending on a census so from a small franchise of population. This type of constitution was popular in Europe during the 19th century when monarchs wanted to calm people by means of small compromises to prevent revolutions.
Non-liberal democratic constitutions are those of radical democracies. Their main aims is to secure representation of a general will and not secure personal liberties. Often favour a monist conception of democracy, that means that people speak with one voice, the voice of majority. These constitutions are prone to the tyranny of the majority, that can rule and discriminate the minority.
Social state constitutions are not a single-class manifesto, but rather speak to a greater spectrum of the society. These constitutions pursue 2 main goals: institutionalise and mediate social and political conflicts; prevent the abuses of power by political rulers. Constitutions have to be inclusive and open (respected by all levels of society and flexible to adaptation depending on society changing). The role is to provide instruments for democratic competition and to set limits to legislative power. Social state constitutions can be legitimised by their popular genesis and/or by the implementation of the principles of Universal Declaration of Human Rights.
Socialist constitutions are those of states in which the social questions brings a break with the commitment to democracy and individual freedoms. It assigns the power to ‘Leninist avant-garde party”, but it doesn’t constrain the power of this party. Provides instruments for the party to implement is ideology (marxism) and to register the outcomes.
What is the ‘cosmopolitan’ constitution? Illustrate the relationship established with international and supranational institutions.
Cosmopolitan constitutions are national constitutions operating under conditions of international engagement. States commit to multilateral IO for 2 main reasons: it was a readmitting ticket for them after a period of international isolation or because of a lost war. Commitment to multilateralism is generally democracy-enhancing, but can also have a detrimental effect on the policy of a state.
For cosmopolitan constitutions international law is binding and is often supreme to their national constitutional system. Furthermore domestic law has to be amended to align with the international law obligations. The state delegates parts of his sovereignty to the supranational organisations and can no longer control this part of the sovereignty (apart from representation in the supranational institutions and the possibility to exit the organisation at any time).
