Week 3 Flashcards
What are the aims of the Rule of Law
(according to Locke)
- Predictability - should have something establihsed, settled down as “Law”
- Arbitration - should be known and indifferent judge, with authority to determine all differences according to the estbalished law (preventing arbitrary exercice of power + you need neutral arbitration in case of differences) .
- Power to support a Judge’s verdict when right, and give it due execution (judges get to say what the law is ,it will be the government that executed it not the judge).
What are the elements of the Rule of Law?
- State-free sphere (fundamental rights)
- limited government
- limitations of fundamental rights accessible and foreseable - Independent Judiciary
- Independence and impartiality
- Appointment, disciplinary powers, dismissal
- Legislation is enforced - Separation of powers
- categorized by functions, institutions, persons - Principle of Legality
- The rule of (only) law
- rules equal for everyone
- NO disciplinary wide discretionary powers? (rules need to be clear enough that they guide government actions)
- Prohibition of retreoactive effect
- Law actually applies (principle of legality)
- Publicly available
What is Constitutional Efficacy?
The extent to which norms are respected and how to uphold them. All the requirements for the constitution to work well once it has been set in place.
Constitutional efficacy related to the difference between the “written constitution” and constitutional reality. The smaller the degree of difference, the more efficient.
What are the functions of a constitution?
A constitution is generally designes to create a network of prevention and control mechanisms (checks and balances) throughout all levels of the exercice of state authority
What is the difference between constitutional EFFICACY and constitutional EFFICIENCY
- Constitutional Efficacy describes and measures if these methods used to secure constitutional rights and rules are successful.
- Constitutional Efficiency describes how smoothly a government is able to function.
What are the tow main problems that obstruct constitutional efficacy?
- Parliamentary Sovereinghty –> Parliament can do ‘whatever it wants’ and act, or un-enact any rules it wants. Parliament holds immense power since nobody can ‘tell it off’. The risk is that no one is counterbalancing wht the parliament does, there is no limit.
- Judicial activism –> when a judge is accused of being a judicial activist, they are accused of inserting their own policy preferences in their rulings - rendering them practical. If the constitutional court is overly independent, who keeps them in check? Make sure the judges don’t create their own rules because then you can’t counter balance it)
What is Parliamentary efficacy?
Keeping the parliament efficient and in proper working order (there are these following elements which allow that) :
- Jugment call ; to be made by the legislator (you need to determine what teh rule is before it can be adhered to)
- Interpretation guidline (for judges to interpret the law to be constituent with the Bill of Rights)
- Awareness, statement of incompatibility (useful because it calls upon to reconsider the interpretation to the Attorney General if it is incompatible)
- Awareness ; not withstanding clause (give the Parliament the final power to determine what is constitutional law ; might require sepcial majority).
- Deference ; presumption of constitutionality (tries to assume that whatever the parliament produces is probably constitutional) ; (if you rule something unconstitutional, you must have clear evidence).
- Bicameralism (separation of power)
- Assessment by head of State (the greater the political desire, the greater the chances that the constitution will be disregarded. There needs to be assessment by the head of State.
Why do we need Non-Judicial Methods to Ensure Constitutional Efficacy?
In many countries, judicial countrol is a last resort to ensure efficacy. There are may other procedured through which state actors control themselves or others when exercising state powers. That is why we have Non 0 Judicial Methods to Ensure Constitutional Efficacy.
What are the Non-Judicial methods to ensure Constitutional Efficacy
- Preparing legislation = ensuring constitutional efficacy in the early stages of legislative procedure and allows for governmental self-control.
(- self control begins with consultations between ministries on governmental legislative proposals. There may even be specfic divisions of government charged with ensuring compliance with the constitution.
- Council of state : some states have separate, independent body to assist in t he preparation of legislation.
- These Councils and their powers are often explicitly provided for in the respective constitution.
- While these bodies often exercice judicial functions, their participations in elgislation is not judicial in nature.
- They issue opinions on proposed legislation and in this context can examine their constitutionality.
These opinions are not binding, but advisory.
- Such opinions contribute to public debate but also not effectively sanction any possible infringment of constitutional rights. - Parliament as Guardian of the Constitution = A system of checks and balances is essential to a modern democracy. Separation of powers assumes that parliament will make laws and supervise the executive. Both roles imply that parliament will aim to ensure the respect of the constitution (thereby contributing to constitutional efficacy). In Parliamentary democracies, howeer, the executive is often interwined with the legislative branch, since the executive is usually formes and elected by parliament’s majority and dependent on its continued confidence.
- Promulgation : Head of State as Co-guardian of the Constitution = Final examination and promulgation by the head of state could promote cons, efficacy, but can create tension with principles of democracy and the separation of pwoers.
- Presidential veto on constitutional grounds :
A presidential system where Head of State is the head of government and usually has more politicized veto powers. Here, a president’s refusal to sign a bill into law is much more part of the system of checks and balances than that of a constitutional guard. Even in such a system, the president’s veto is almost never aboslute and can be overridden by a qualified majority of Congress. This is another way the constitution estbalishes equalibrium between parliamentary sovereignty and constitutional review
- Referral of a bill to the constitutional court Here, the role as constitutional co-guardians is dependent on another state actor.
Constitutional Courts vs. Parliamentary Sovereignty.
Constitutional courts are considered the “guardians” of the constitution who ensure adherence to all constitutional rules by all state authorities. This ensures the efficacy of the constitution. Although many European countries and democracies around the world introduce a constitutional court into the judicial system, some countries opt for parliamentary sovereignty. They question the practice of judicial review and ‘whether the judicial safeguarding of those constitutional rights does not imply a failure of democractic institutions. In other words, ‘can we say that when judges protect our constitutional rights, it might mean out democratic systems aren’t working well?’
Judicial review and Constitutional Efficacy
- The power (given to judges) ot examine statutes and government actions for conformity with the constitution.
- Judicial review is a strong means of ensuring constitutional efficacy. It can help protect human and minority rights from majoritarian zeal (=dedication)
What are the different types of Constitutional Review?
- Abstract vs Concrete
- Abstract = focuses on general prinicples and broadrer implications. It examines constitutionality in hypothetical or theoretical terms. It’s purpose is to shape the legal doctrine and estbalish precedents.
- Concrete = focuses on specific cases. It analyses constitutionality in real-life situations. It’s purpose is to resolve disputes. - Concentrated vs Unconcentrated
- Concentrated = power is granted and centerd around one actor. It’s only a constitutional court (or another specialized court) is allowed to review the constitutionality of a peice of legislation
- Unconcentrated : power is distributed to multiple actors. Any court is allowed to review the constitutionality of a piece of legislation. - Specialized vs Ordinary Courts
- Specialized : Courts with specific tasks in mind, and which possess specific expertise on certain matters (ex constitutional courts)
- Ordinary : Courts with more general functions, without particular expertise on any specific topic (ex district court)
How does Judicial Review work?
It’s very existence entails anticipatory compliance (actors in the political process try to anticipate the possible outcome of judicial review and take those findings into account when drafting and applying legislation.
Judicial review can only function effectively in a system with a true separation of powers + independent judiciary. The efficacy of cons, justice depends on acceptance by the people + other branches of government.
