Week 1 Flashcards
What is the Rule of Law?
Constitutues a fundamental and common European standard to guide and constrain the exercice of democratic power
- State-free sphere (fundamental rights)
- the Principle of legality
- Separation of Power
- Independent judiciary
What is the difference between a Constitutive and a Programmative Constitution?
Both types of Constitutions establish the structure of government, a constitutive constitution focuses on the distribution of powers and fundamental rights, whereas, a programmatic constitution also includes goals and policies for social, economic and political change.
What is the difference between a Prescriptive or Descriptive Constitution
The main difference lies in thei approach to governance.
A Constitution that is Desciptive is pre-modern, it describes the actual structure and operation of the government. It is often unwritten and evolves over time based on historical practices, traditions, legal rulings..(ex UK)
A Prescriptive Constitution is more modern (less historically based), it prescribes how a government should function, it sets out ideal standards and procedures for a government to follow. It is usually written and codified in a single document (ex US)
What is the difference between Flexibe and Rigid?
Flexible has easier amenable mechanisms where rigid ones don’t and therefore are very difficult to amend. Interpreting the text of the consttution broadly means that there is no need to amend it that much.
There are different types of rigidity : substantive rigidity vs procedural entrenchment and constitutional courts vs ECHR
Exlain the different types of rigidity
First of all, we have substantive rigidity vs. procedural entrenchments. Substantive rigidity is about the meaning of the text, it can and it does change over time, it may be easy to interpret it differently by its national court, therefore it’s also about interpretation. Procedural entremchment is about how difficult it is to amend, it is about the procedure.
Then we can Constitutional Courts vs. ECHR. The difference between both when it comes to interpreting is that Constitutional Courts are bound by the countries constitution, theredore it is more rigid, whereas the ECHR interprets between two or more countries which means it has to have a more broad interpretation.
What was Bodin’s theory on sovereignty
His theory was that sovereignty was absolute, indivisible and inalienable and to transfer it from God to King. Bodin strongly believed that sovereignty is the most high, absolute and perpetual power over the subjects of the state and therefore it cannot be given away. The King holds that power and therefore everyone should obey him no matter if they think he is wrong or right.
Before Bodin, people believed that God was the sovereign and that the authority of the King is established by God (the catholics would only listen to the king if he was catholic and Protestants would only listen if he was Protestant)
+ Bodin also introduces the notion that states are sovereign in relations with other States and therefore you cannot interfere with them.
What is Hobbes’s theory on sovereignty
He believed in religious wars, state of nature, social contract (people will adhere to the authority in order to gain protection, representation and right to life).
People will submit themselves to the KIng meaning that when the King acts, then the people act (he represents the people). Whith Hobbes, there is a hint of fundamental rights because individuals are allowed to have the freedom of councience even when the King has the religous power (provides justification for absolute monarchy).
Therefore, according to Hobbes, sovereignty is derived from the social contract between individuals and the social contract entails subjecting to the sovereing.
Hobbes was more individualistic, meaning that people would enter into the social contract for themsleves (entering into a social contract because of survival, rejecting the state of war of men against men and gain protection from the Ling in exchange for complete obedience. )
What was Locke’s theory on sovereingty
Locke believes that the state of nature has happiness. The problrm ids that in modern society things get more complicated than they use to be because people get into conflicts. People usually have the natural right to proportionally retaliate but people can’t do that proportionally so there needs to be a government or an authority to govern. According to Locke, public authority is limited (=limited authority) because the sole purpose of it is to serve the people and therefore to protect life, liberty and property (according to him there is no absolute monarch).
He provides a justification to why there should be separation of powers. With him, there is also the Right to rebel with the social contract, however, the King is “stepping” on the people’s liberty, therefore the monarch needs to be replaces.
Therefore, he justifies the Glorious Revolution with a limited government (also with the social contract)
+People have natural rights regarding if they enter into a social contract or not. (you enter into society because you can preserve you natural rights better).
What is Rousseau’s theory on sovereinty?
He develops the concept of popular sovereignty (citizenship; direct democracy). Even more free in a State than in a state of nature (this is considered as a big promise of democracy).
Freedom is what you get when you enter into society and you get to rule yourselves. He justifies direct democracy because you enter into a social contract with other people in the society rather than with a King or a higher authority (=collective slelf-government). Only laws that are the expression of the general will should be considered as legitimate. This theory only works if the government is legitimate and you are able to set the rules yourself which should be for the common good.
Rousseau doesn’t need fundamental rights because all legislation is set by the people themselves, their general will and anyone who does not agree with them should be free (should not be part of society) but they won’t have liberty because liberty is guaranteed only if you adhere to the legislation.
Rousseau transfers sovereinty to the people (not the King) and he helps explain what the people are (= they are a community tha tis able to rule themselves)
+ Rousseau’s social contract entails a collective view, a form of self-governent, following the collective good
+Rousseau–> general will = moral compass guiding citizenz in politicla decisios
–> common good = voting as the ‘general will’ and not ‘yourself’ .
What is Emmanuel Sieyes’s theory on Sovereignty?
Sieyes takes what Rousseau develops one step forwards. He defines the words as follows:
- Pouvoir constituant = authority that is sovereign over the legal power.
- pouvoir constitue = authority that has established the constitution ( State organs are usually created by the constituted power)
- Representation = the Parliament is there to represent the people
- Free mandate = you need to have a free mandate to represent the people. The Parliament should speak and vote in the common interest of the people they represent and not there to represent their specific interest.
+ Sieyes doesn’t believe that people can represent themselves, he believes that those who are able should set the rules according to the common interest of everyone.
Therefore, Sieyes deals with Representative democracy meaning that Parliament and government are invisible and they are only visible when there are representatives which makes the representees (=the people) visible.
What is the difference between a Federalist and a Unitary State
To determine wether a State is a Federation or a unitary state one should look at the relations between the state’s central government and its sub-units.
In a Unitary State, the central government holds all the power. It has the ability to create or abolish sub-units (such as municipalities or provinces), and it can also dictate their powers and responsibilities. The sub-units in a unitary state do not haev any powers that are not conferred to them by the central government.
In a Federalist State, the power is devided between the central government and its sub-units (states, provinces..). Both central government and the sub-units have powers that are constituitionally guaranteed, and cannot be infringes upon by the others. The sub-units in a federalist state have their iwn set of laws and can exercice powers independendtly of the cnetral government.
