Law: Positive, Natural, and Constituent Power

• Set of legal rules regulating a society's behavior to maintain peace

Definition of Positive Law

• Current laws applied, approved by authorities, and made by governments
• Includes laws, regulations, and orders
• Enforced by organizations like parliaments and courts

Definition of Natural Law

• Inherent rules of right and wrong understood through thinking that apply to everyone
• Guide for making fair laws based on what nature has taught all animals ("Ius naturale est quod natura omnia animalia docuit")

Constituent Power

• Power to write and amend the constitution created 'AD HOC', for a single, temporary purpose
• Involves drafting by a constituent assembly, ratification via referendum, and amending if needed once created

Constitution in a Narrow Sense

• Formal, written one single document outlining government structure, powers, functions, and citizens' rights and duties
• Sets rules for governing and limits government power; considered the highest law

Constitution in a Broad Sense

• Entire body of rules regulating the government/state, also known as an unwritten constitution, which can include customary law, court decisions, and statutes
• How the government works, how power is used and citizens entitlements are protected is all covered

Written Constitutions

• Formal document including amendments, laying out basic rules and principles of government, citizen rights, and how laws are made/changed

Working Constitutions

• Constitution actively functioning in practice as decisions are made to explain and adapt the document
• Interpretations of the existing document by constitutional or supreme courts and made by trade unions, religious associations or lobbyists as well
• The article everyone must ensure everyone has the right to live is now accepted to mean everyone but a foetus as abortion is legal

Definition of Preamble

• Introductory Constitution statement explaining the goal and who is sovereign
• U.S. Constitution: "We the people," reflecting popular sovereignty
• Spanish Constitution: "The Spanish nation, desiring to establish justice...", showing national sovereignty

Definition of Sovereign

• Originated from Jean Bodin, and means the highest power/authority in the country.
• Sovereignty, which must be centralized and indivisible.
• Includes the ability to govern, make laws, and enforce them without external interference.
• Sovereignty is determined by the preamble, for example the US constitution which states "we the people"

Dimensions of Sovereignty

• AD Extra (externality): a country having power
• Three Ps: place (land), population, power (authority to protect) and is recognized by the UN or other organizations
• AD Intra (internal): distribution of internal power within a country, nowadays usually the people
• Royal Sovereignty: the monarch having all powers, justified by divine right or hereditary succession.
• Parliamentary Sovereignty: the parliament having unlimited power to make/change laws, the ultimate source of legal power
• State Sovereignty: the autonomy and powers of individual states in federal nations, subject to the federal government's broader sovereignty
• National Sovereignty (two interpretations): elected representatives are sovereign (institutional power) or the nation is sovereign (symbolic sense)
• Popular Sovereignty: the authority of a government comes from the consent of the people, who have the final say
• Absence of Sovereignty: when the constitution avoids explicitly stating who is sovereign to prevent conflict

Constitution Making in US

• Adopted in 1789, amended 27 times
• Originally 13 colonies, activists against the British Parliament
• The Continental Congress was held in Philadelphia when independence was declared.
• Ratified by 11 states initially with 3 founding documents being the 1776 Declaration of Independence, 1789 U.S. Constitution, and 1791 Bill of Rights

Constitution Making in France

• First constitution in 1791, has been remade many times since the adopted 15th constitution in 1958 (5th Republic)
• Founding fathers De Gaulle and Debre are responsible for the current setup, with approval from the French Parliament and ratification with 82% voting yes.
• Legitimacy comes from ratification by the people.

Constitution Making in the UK

• No codified documents; 'unwritten' with no specific document to be ratified
• The 3 main legal sources are statutes/written laws made by Parliament, consuetudinary law/unwritten documents based on traditions, and case-law/court decisions

Constitution Making in Germany

• The 1949 German Basic Law (Das Grundgestez), created after post-WWII.
• The split between Western (FDR) and Eastern (GDR), with the founding fathers being the 3 allied forces together with the 11 parliaments (FDR) drafted the first document.
• Only applied to the 11 states until the remaining 5 länder (GDR) reunified with the FDR (1949-1990) with no Federal Referendum.

Constitution Making in Spain

• Brought a parliamentary system, in 1978, and bought back a monarchy to Spain
• Post Franco's dictatorship in 1975, a transition to democracy occurred which took 3 years called 'the Spanish Transition' the constitution was drafted and signed after Juan Carlos brought democracy
• Approved/ratified by people via national referendum on December 6th, 1978, legitimacy is provided through the current constitution due to its rigid amendment process

Content of Constitutions

• Main points include: Preamble, institutional part, dogmatic part, vertical distribution of power, and procedural part.
• Institutional: Power divided in 2 ways (horizontally/vertically among territories in decentralized states) and articles to regulate the institutions and powers.
• Dogmatic: Rights and Liberties of the people and a charter to define the structure of the state: Legislative (Parliament), Executive (Government/Cabinet), and Judicial (Courts)
• Vertical distribution and distribution of power with Spain (17 Autonomous communities) and Germany (16 Lander)
• Procedural instructs on how the constitution is to be amended

Bill Of Rights

• 3 generations of rights are: Civil, political, due process, and social and economic rights

Amendments

• Rigid Constitutions: Strict amendment processes that ensures stability and protects core values
• Flexible Constitutions: Easy to amend which suits Adaptability and Changing Political Landscapes

Requirements that appear in Rigid Procedures

• Supermajority: voting bill approved by parliament with E.g., (3, 34 ...)
• There needs to be Quorum a minimum amount of people usually 50% before voting
• 2 Readings: The parliament will read the bill and vote with new elections held each time
• The people are asked to ratify the amendment or federal subunit requests to vote
• Time: period to spend reflecting

Eternity Clauses

• Designed unchangeable, even through the amendment process and are there to safeguard fundamental aspects of a nation's constitution from being altered or abolished; ensuring long-term stability.
• 2 types: material limitation (content immutable) and temporal limitation (time constraints)
• Enshrines democratic principles + human dignity
• France's Constitution: Article 89 states The republic form of government shall not be the object of any amendment (No monarchy ever again and material limitations)

Majorities

• Relative Majority: there are more yes than no votes
• Absolute Majority: requires 50% + 1 vote
• Supermajority: like ¼, ½, 3/5, 55% is required in constitutional amendments.
• all must vote the exact same way in order for there to be Unanimity

Votes/Ballots

• Legal Valid: Vote which complies with all the rules, gets counted as a vote and is therefore an election outcome (yes or no)
• Blank Votes: Voter chooses not and the vote is therfore empty or unmarked
• Vote is does not contribute to the election outcome, but is part of quorum
• Vote is still illegal by nature and is not counted in the vote as they are considered invalid
• Void/illegal Votes
• Does not count towards the Quorum
• Abstention
• Not when they don't vote or become part of the quorum
• Can express voting displeasure

Constitutional Amendment Procedure in US

• The hardest to amend with the number of limitations, however, there are no limitations to what can be amended.
• There have 27 amendments to the US constitution, the first 10 are The Bill of Rights.
• With initiative or proposal US Congress upon request where approval of all states, the most recent being Section 5

Constitutional Amendment Procedure in France

• Having Art. 29 FC has had 25 Amendments since the creation of the current constitution
• Having Initiative and proposal from the French president upon the recommendation of Any (Any MP) and The Prime Minister
• The Process: The MP request: Absolute Majority, both houses (national assembly & senate) (+referendum) and PMinisters request
• It includes Tempoeral and amterial limitations

Constitutional Amendment Procedure in Germany

Art. 79 BL makes sense as the German Basic Law was not approved by the people, with initiative or process starting from MP's The limitations are territorial division and participation of Federal Legislation with set basic principles/lists of fundamental rights

Constitutional Amendment Procedure in Spain

Starting with arts. 166-169 SC and having 2 admendments There is intitivate from Governemnt or Congress (Lower House) or Senate (Upper House) or Parliaments of The Autonomous Communities (The Process) The 1sr round ordinatry one is a ⅗ majority in both house (of that majority not given, there will only be a vote in that partifulcuar side (congress or senate) A referndum is optional Extraodry or Hard procedure incldues Amendments to Preliminary CHapters and crown, a full parliemnt dissolution and new elections witht new vote for a new majority

Constitutional Amendment Procedure in UK

• As it is flexible there an unlimited set of amendments to the constitution can be made with different routes like changing statutes (making new legislation which is what the parliamen) and making rulings

Constitutional Supremacy

The notion is the constitution is abive all with marbory vs adion precedent setting that article 3 is supremem

Parliamentary Supremacy

No constitution, statutes + conventions

Sources of UK Constitutional Law

Consisting of: Statues which are passed formally in parliament (highest form of law and most be in line with conventions) Conventions or rules that have simply just appeared Case law where court descisions set legal precedents

Advantages and Disadvantages in the UK constitutional

No codified in documents

• easy amends, with adaptation to society
• lacks clarity
• no codified consituttion leading to lack of trasparenvcy The people arent Sovreign and therefore leads to conflicts overall