Constitutional Law Lecture 1 PDF

jConstitutional law ------------------- ***Lecture 1*** **Grades** - Mid -- term -- 40% - Final exam -- 40% - Course paper \#1 -- 10% - Course paper \#2 -- 10% **Natural law** ***[Ius naturale]*** - Originated in Ancient Greece and Ancient Rome (Demokritos, Socrates, Plato), m...

jConstitutional law ------------------- ***Lecture 1*** **Grades** - Mid -- term -- 40% - Final exam -- 40% - Course paper \#1 -- 10% - Course paper \#2 -- 10% **Natural law** ***[Ius naturale]*** - Originated in Ancient Greece and Ancient Rome (Demokritos, Socrates, Plato), middle Ages -- Thomas Aquinas, new era - Grocius, Rousseau, Hobbes, Locke, Voltaire, Spinoza, Montesquieu, Kant) - Law originates from: nature, god, justice, reason, conscience **Features of natural law:** 1. **Natural and inalienable human rights** which exist in an unwritten form, regardless the state power 2. Determines the difference between the concepts of "law" and "justice", "natural law" and "positive law(law created by the legislator)" 3. Conceptually **connects law and morality** -- natural law is a legal norm as of its structure and a moral norm as of its content ***[Natural law, problems:]*** **Competence** -- who is the one saying what is the law of the nature - ***John Locke** -- natural law requires a democratic state order* - ***Sir Robert Filmer** -- a completely opposite opinion to the previous one -- nature cannot give the authority to somebody else* - ***Etienne-Gabriel Morelly**: "where no property exists, none of its pernicious consequences could exist"* - ***Richard Cumberland** -- natural law requires that private property should be protected* **Legal positivism** Developed as an opposition to the natural law doctrine (Austin, Hart, Bergbom) Law originates from the written texts of normative legal acts adopted by the state 1. Law is a system of written, positive legal norms adopted by the state -- it is a closed system 2. "Law" and "justice" is one and the same, as one can find law only in written normative acts 3. Impermissibly of moral assessment of the law **Legal positivism -- problems:** [Situations if:] - The state is despotic - The law offends morality - Reasons for being interested in protecting minorities **Basic norm -- the concept** *[An unwritten and abstract concept]* [H. Kelsen, The Pure Theory of Law] - Legal norms "ought to be" followed not because they are valid but because a higher norm says no - The highest norm could be God's will or Nature's law but see the previously identified problems - The highest norm is the Basic Norm (*Grundnorm*) **[The Basic Norm of a positive legal order]** -- essentially the subjective meaning of the constitution-creating act of will of the historically first constitution of a particular entity (usually a state) *[(it should be looked at the intentions of the people creating the first constitution (what they wanted to create) not what they created (the first constitution))]* !!! - The Basic Norm cannot be positive law (it cannot be man-made law) - The Basic Norm does not refer to the content of legal norms but rather to the process of creating such norms - Each legal system has its own Basic Norm **Basic Norm -- the effect** - The sovereign is the source of a Basic Norm, and its content represents the sovereign's will - Sovereign's will defines the content of the Basic Norm -- it speaks to the type of country in which the sovereign wishes to live. - Kelsen: *"the basic norm is a **hypothetical assumption** of the regulations which define the procedure for approving the initial constitution or a new constitution* ***Lecture 2*** - The basic norm is an unwritten norm -- the act of the sovereign's will, which later transforms into normative legal acts adopted by the state institutions which all comply with the will of the sovereign -- the Basic Norm. - The validity of the Basic Norm rests in the assumption of persons applying law - When the sovereign's will is formulated in a Basic Norm, the legal arrangement of the relevant country is governed by principles which emanate from that norm (e.g., Latvia is a democratic state based on the rule of law; Hungary is an "illiberal democracy") - The principles emanating from the Basic Norm guide the entire legal system -- in a democratic based on the rule of law those are general legal principles. **Basic Norm -- the criticism** - Kelsen himself has amended the theory of the Basic Norm a number of times, including regarding the issue of whether the Basic Norm is "created" or whether it has to be presumed. - Difficult to reconcile national and international legal systems. Is it a united legal system? Then what is the basic norm? Two legal systems that exist in parallel? - Subjectivity, since the Basic Norm is presumed (and believed in) by its user (who is also imaginary). **Direct democracy** **[Problems:]** - Number and nature of issues to be resolved - Cost - Who asks the question? - Who protects the minorities? **Legislative branch** ***Germany*** **[Two chambers]** *(because of the federal nature of the state)* 1. **Bundestag** -- elections every 4 years 2. **Bundesrat** -- members appointed by Landers (federal units of Germany) ***Latvia*** **[One chamber]** - Elections every 4 years ***United States*** **[Two chambers]** *(because of the federal nature of the state)* 1. **House of Representatives** -- elected every two years 2. **Senate** -- 1/3 of Senate members elected every 6 years (elections every 2 years but every elected person seats for 6 years) **Legislative process** - e.g., in Latvia everyone can propose laws on the internet **Promulgation of laws** - The promulgator can refuse to promulgate the law if they think that is unconstitutional, etc. - The promulgator usually has to state some reasons for that, however there are some states where no reasons have to be stated - In Latvia -- if president refuses to promulgate a law, they should argument it. The argumentation goes to the parliament, however if the majority of the parliament do not agree with the president, the president must promulgate the law. **Dismissal of the legislator** **[The dismissal of the legislator can be initiated by:]** - The president *(the referendum is organized automatically, no votes are needed. The president can be dismissed by the legislator as well);* - People (a certain number of signatures) **!!!** In Latvia the parliament cannot be dismissed during its first and the last year of their work. **!!!**Particular people cannot be dismissed (people vote for the whole party, therefore it is not possible to dismiss just one person) **Executive branch** ***Germany*** - Chancellor selected by the Bundestag, upon proposal of the Federal President - May only be removed by a **"constructive vote of no-confidence"** -- it cannot be voted against a chancellor, it should be voted for a different chancellor *(if there are enough votes, the chancellor is changed)* - The chancellor can step down, however the Bundestag has to agree with it (it is possible for the Bundestag not to agree) - Prime Minister selected by the Parliament, upon the proposal of President - Usually president, before proposing a candidate, discusses the potential candidates/this topic overall to understand which candidate would be better - Non-constructive vote of no-confidence is possible (but "technical government" remains) **United States** - President elected indirectly by the people - May not be removed from the office, save from impeachment - Congress or anyone else cannot remove the president (the only way is impeachment or death of the president) **What does the executive do** - A negative definition: *"that activity of the state which is neither legislation nor administration of justice"* (Constitutional Court of Latvia) - A positive definition: "The Cabinet shall deliberate on draft laws prepared by individual ministries as well as matters which pertain to the activities of more than one ministry, and issues of state policy raised by individual members of the Cabinet" (Art. 61 of Constitution of Latvia) - In Latvia the administration of the state is fully subordinated to the Cabinet (except for independent institutions, but effective supervision is mandatory) **[Legislative function:]** - When delegated by the Parliament - When ratifying international agreements (only the Parliament may ratify agreements in matters requiring the Parliament to legislate) - When implementing EU law in an area not covered by legislation (but no restriction of fundamental rights are permissible) - (former Art. 81 of the Constitution of Latvia -- Cabinet of Ministers legislated (can adopt laws) when the Parliament was not in session) **Election/appointment** - In Germany The Federal Chancellor is elected by the Bundestag on the proposal of the Federal President. If the candidate fails, Bundestag itself may choose someone else - In Latvia, the President is free to choose any candidate for the position of Prime Minister (a constitutional tradition is to hold consultations with the political parties represented in the Parliament) - In the US presidential candidates campaign for years and then are selected by an Electoral College **Political/other responsibility** - In Latvia, the constitutional basis for the activities of the Cabinet of Minister is the confidence of the Parliament (same in Germany) - Afet the coup of 1934 the Cabinet of Ministers also performed the legislative function - President of Latvia carries out some executive functions but they require a counter -- signature of the PM (same in Germany) - In the US the President has no discernible political accountability **Dismissal of the executive** - In Latvia the PM can ask for a fresh vote of confidence, while the Parliament can initiate a vote of no confidence - "technical" CoM before a new on ehas been confirmed - Constructive vote of no confidence in Germany (no technical Chancellor is required), except if the Chancellor requests a vote of confidence - Impeachment proceedings in the US (Vice President takes over) **Judiciary** **What do the judges do?** - Ordinary disputes - Disputes between constitutional organs - Judicial review (review by which courts resolve contradictions between differences between laws of different hierarchies) **Origins of judicial review** *Marbury v. Madison (US Supreme Court, 1803)* "it is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it." **Functioning of judicial review** - Constitutional court as a negative legislator (Kelsen) vs. Constitutional court as a judicial legislator with an added role of constitution-writing - **[Centralized v. decentralized types of judicial review]** - **Centralized:** Germany, Latvia, Austria - **Decentralized:** US, Argentina, Norway *(every court can say that the law is unconstitutional then the law becomes invalid in the whole country)* - **Hybrid:** lower courts can only refuse to apply unconstitutional law, but only the highest court has a right to invalidate it (Latin America) **[Abstract v. concrete judicial review]** - **Abstract:** Germany, Latvia *(it is looked at not how the provision has been applied to the particular person but it will be reviewed whether the law itself is constitutional)* - **Concrete:** US, Norway *(deals with the facts of the concrete case =\> whether the **application** of the provision was constitutional)* - **Special case of France** (a priori review but also parties to cases heard by ordinary may ask for the opinion of the Conseil Constitutionnel) *(they look at the newly released law and decide whether it is or not constitutional)* **Criticisms of judicial review** - A weird system when judges come into the legislative process and mess it up - "by giving the judges a power of annulling the law; and you transfer a portion of the supreme power from assembly which the people have had some share, at least, in \[choosing\], to a set of men in the choice of whom they have not he least imaginable share" (Jeremy Bentham) - "we \[judges\] are under a Constitution, but the Constitution is what the judges say it is" - "Decisions which can have a major bearing on the British constitution are \... too important to be learning exercise for barely qualifies judges or unelected un unaccountable court officials" (UK Government policy document) **Judicial system -- Germany** - The Constitution only provides for the Federal Constitutional Court and Supreme federal courts. Other courts are set up by the legislator - Lots of courts have been set up: 828 ordinary courts, 142 labour courts, 69 administrative courts, 20 tax courts, 86 social courts, and 17 constitutional courts (16 State constitutional courts, one Federal Constitutional Court) - Judges for the Supreme federal courts selected by Judicial Election Committee, consisting of representatives of states (*länder*) and representatives of *Bundestag*. Appointed for life but may be «impeached». - No formal eligibility criteria for courts other than the FCC; selection primarily based on exam results. **German Federal Constitutional Court** - Established in 1951 - 16 judges (a different selection procedure) - Abstract and concrete normative control, constitutional organ disputes, federalism disputes, impeachments; **banning political parties** - Individual constitutional complaint available since the start **Judicial system -- Latvia** - The constitution only provides for three levels of courts and the principal functions of the judiciary - Legislation has elaborated on these basic rules and has also set up new institutions, such as Land Register judges and investigative judges - Judges are confirmed by the Parliament for life. That confirmation is irrevocable (after the expiry of a probationary period). But judges may be "impeached". - Judges have to have a higher legal education, at least five years of experience in legal profession, and have to pass a training course and a complex exam. **Latvian Constitutional Court** - Establishes on 9 December 1996 - 7 judges *(a different selection procedure from the judges of ordinary courts. 3 judges are nominated by members of the parliament, some are nominated by Cabinet of Ministers,..., appointed for 10 years)* - Abstract normative control (only deals with unconstitutionality of law) - Individual constitutional complaint available since 2001 (everyone can apply, but only in respect of human rights) **Judicial system -- United States** - **Art. III of the Constitution:** "the judicial Power of the US, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior..." - No constitutional court - Federal system: 94 trial courts, 13 appellate courts and one Supreme Court - All federal judges appointed by the President and confirmed by the Senate for life (may be impeached by the Congress). Federal judges do not have any formally required qualifications (not even legal education -- last SC justice without law degree retired in 1957) - 1669 first -- instance state courts, Judges may be elected by the voters, appointed for some time, appointed for life, depending in the state. **Selection of judges** **Who selects?** US -- president (the decision may be politicized as the president will try to select judges with similar political views) **For how long?** If the judge is elected for life -- there is impartiality. They are not scared of dissatisfaction with their job. If the judge is selected for a limited time -- **What qualifications are required?** Sometimes formal education is required, sometimes -- not **Fairness of judges** - **Independence** - Money *(for example, in Singapore the judges of the supreme court have enormously big salaries)* - Stability - **Impartiality in each particular case** (they should not be connected to any of the parties, should not have personal interests in any of the particular cases. They have to step down by themselves if their judgement can be influenced) - **Qualifications** (e.g., in Japan -- a certain number of judges without a law degree (civilian judges) should be in court) - **Personal characteristics** (a strongly biased person, racist, etc. However, it cannot be objectively checked) - **Motivation of judges** (courts are required to do it, e.g., everyone can see a judgement, then every unobjective statement, decision will be seen) **Controlling judges** - The judges should not be removed easily (it should be clearly stated in law what behavior of judges is unacceptable) - Limited term of office - Direct responsibility before voters (less possibility of making unpopular decisions) - Constitution cannot protect judges infinitely ***Lecture 5 (02.12)*** **Separation of powers** Montesquieu: the laws are the eyed of the prince; by them he sees what would otherwise escape his observation. Should he attempt the function of a judge, he would not then labour for himself... **Montesquieu:** **De l'Esprit des Loix (1748)** - Main aim: an all-encompassing study of government with a focus on bounds to the exercise of arbitrary power - If the right sort of government were to be established, correct laws would "flow thence as from their source" **Montesquieu -- three "ideal" (ideas not ideal) types of government** - **Republican (people have the supreme power)** - The "people" in Montesquieu's understanding are actually aristocracy. In this model the legislative and executive branches are morphed (also true in modern day republics?) - A democracy where the "people" are in fact all of the people -- the danger of incompetent decision-making. This model would only be suitable for small societies - **Monarchical**: a single person governs by fixed and established laws. - **Despotic**: a single person directs everything by his own will and caprice. - kIn Montesquieu's view there are four (not three) functions of the government: legislative, judicial, executive (executing laws that are clear) and prerogative (also fulfilled by the executive branch where law cannot be laid down in detail). [The main contribution of Montesquieu to the doctrine of separations of powers is the separation between the legislative and the judiciary branch.] **What is the separation of powers?** - **Actual separation** -- different functions are in fact carried out by different institutions and different people - **Checks and balances between the different institutions** -- but not excessive ones, since that may result in a deadlock - **Equal footing of the three branches** **\ ** **Madison:** since the three branches *"perfectly coordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling boundaries between their respective powers"* **Constitutional law and international law** **The procedure -- Germany** **Article 59 of the German Federal Constitution** 1. The Federal President shall represent the Federation for the purposes of international law. He shall conclude treaties with foreign states on behalf of the Federation... 2. Treaties that regulate the political relations of the Federation or relate to subjects of federal legislation shall require the consent or participation, in the form of a federal law, of the bodies responsible in such a case for the enactment of federal law. **Article 24 of the German Federal Constitution** 1. The Federation may by a law transfer sovereign powers to international organizations 2. With a view to maintaining peace, the Federation may enter into a system of mutual collective security, in doing so it shall consent to such limitations upon its sovereign powers as a will bring about and secure a lasting peace in Europe and among the nations of the world. **The procedure -- Latvia** **Article 41 of the Satversme** - The President shall represent the State in international relations... The President shall implement the decisions of the Saeima concerning the ratification of international agreements. ***Lecture... (03.12)*** **Article 68 of the Satversme** - All international agreement, which settle matters that may be the legislative process, shall require ratification by the Saeima. - Upon entering into international agreements, Latvia, with the purpose of strengthening democracy, may delegate a part of its State institutions... **The US** **Article II, Section 2, Clause 2 of the US Constitution** - The President of the US shall have power, by and with the advice and consent of the senate, to make treaties provided two thirds of the Senators precent concur. **Article I, Section 10, Clause 1 of the US Constitution** - No State shall enter into any Treaty, Alliance or Confederation **The types of international obligations** **Article 38(1)(a)-(c) of the State of the International Court of Justice** - International convention, whether general or particular - International custom, as evidence of a general practice accepted as law - The general principles of law recognized by civilized nations **The effect - Germany** **Article 25 of the German Federal Constitution** - The general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory. - "Where international treaties have the rank of (ordinary) federal statutes, they may be superseded by subsequent contradicting federal statutes in accordance with the principle of *lex posterior*" **The effect -- Latvia** **Article 13 of the Law on International Treaties of the Republic of Latvia** - If an international treaty ratified by the Saeima contains different provisions than legal acts of the Republic of Latvia, the provisions of the international treaty shall apply. Article 16 of the Law on the Constitutional Court - The Constitutional Court of the Republic of Latvia adjudicated upon questions of...the... - "the aim of the legislator has not been to oppose norms of human rights included in the Satversme and the international ones. Quite to the contrary -- the aim has been to achieve a mutual harmony of the norms." **The effect -- the US** **Article VI, Clause 2 of the US Constitution** - The Constitution, and the Laws of the US which shall be made in Pursuance thereof, and all treaties made, or which shall be made, under the authority of the US, shall be the supreme Law of the Land; and the judges in every state shall be bound thereby, any thing is the Constitution of Laws of any state to the contrary notwithstanding. - "we are of opinion, that, so far as a treaty made by the US with any foreign nation can become the subject of judicial congnizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement..." **Article 27 of the Vienna Convention of the Law of the Treaties** - A party may not involve the provisions of its internal law as justification for its failure to perform a treaty **Justice Scalia in Thompson v. Oklahoma** - "where there is no \[...\] settled consensus among our own people, the views of other nations, however enlighted the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution." **Constitutional law and EU law** - **"**the EU treaties not only concern the international relations of the UK, they are a source of domestic law, and they are a source of domestic legal rights many of which are inextricably linked with domestic law from other sources.**"** **[EU law cannot be easily separated from domestic law (with international law it is the other way around)]** **Joining the EU -- Germany** **Article 24(1) of the German Federal Constitution** - The Federation may bey a law transfer sovereign powers to international organisations. *Legal basis for joining the ECSC* **Joining the EU -- Latvia** **Article 68 of the Satversme** - Membership of Latvia in the European Union shall be decided by a national referendum, which is proposed by the Saeima. *Referendum held on 20 Sept 2003, 71,5% of eligible voters participate, 67% of those voted in favour of joining the EU* *\ * **Joining the EU - UK** - Government ministers signed a treaty of accession which provided that the UK would become a member of the EEC. - As with most international treaties, the Accession... **Creeping of the EU -- Germany** **Article 23(1) of the German Federal Constitution**... ***[Germany had both substantive and procedural requirements. The main thing: human rights should not be affected]*** **Creeping of the EU -- Latvia** **Article 68 of the Satversme** - Substantial changes in the terms regarding the membership of Latvia in the EU shall be decided by a national referendum if such referendum is requested by at least one-half of the members of the Saeima. **Creeping of the EU -- the UK** Future treaties which were concerned with changing the membership or referending the rules of the EEC could only obtain effect in UK law as such by... **Controlling the powers of the EU -- EU (national identities)** **TEU, Article 4 (2)** "The Union shall respect the equality of Member States before the treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential state functions, including ensuring the territorial integrity of the state, maintaining law and their and safeguarding national security. In particular, national security remains the sole responsibility of each Member State." ***Lecture 6*** **Controlling the powers of the EU -- EU (subsidiary)** **TEU, Article 5(3)** "Under the principle of subsidiary, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level" **Controlling the powers of the EU -- EU (proportionality)** **TEU, Article 5(4)** "Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties." - Subsidiarity + proportionality = obligation to demonstrate this indispensability of Community action **Controlling the powers of the EU -- Germany** **Article 23(1a) of the German Federal Constitution** The Bundestag and the Bundesrat shall have the right to bring an action before the Court of Justice of the EU to challenge a legislative act of the EU for infringing the principle of subsidiarity. The Bundestag is obliged to initiate such an action the request of one fourth of its Members. **Article 23(3) of the German Federal Constituiton** Before participating in legislative acts of the EU, the Federal Government shall provide the Bundestag with an opportunity to state its position. The Federal Government shall take the position of the Bundestag into account during the negotiations. **Exiting the EU** **Article 50 of the TEU** 1. Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements. 2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with the State, setting out the arrangements for its withdrawal, taking account of the framework for is future relationship with the Union 3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in the ember State concerned tan Coul in agree with this period. **Human rights** **Article 1 of the German Federal Constitution** 1. Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. 2. The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world. **Case study of the failing students** You have to decide which three students will fail the course. If you can reach a decision on the procedure of how the three will be selected, everyone else will receive a passing grade. You are free to select any criteria for failing, as long as you receive the support of the majority of the class. **Development of HRs -- judges' law** "We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution." *Charles Evan Hughes, Chief Justice of the US* **Development of HR's -- living instrument** "the \[European\] Convention \[for the Protection of Human Rights and Fundamental Freedoms\] is a living instrument which... must be interpreted in the light of present-day conditions." (European Court of Human Rights, *Tyrer v. the UK*) **Human rights in practice** **Directions of HRs -- vertical** "the object of \[the European Convention of HRs\] is essentially that of protecting the individual against arbitrary interference..." **Directions of HRs -- horizontal** "The state shall recognize and protect fundamental rights in accordance with this Constitution, laws and international agreements binding upon Latvia." *(**Art. 89** of the Constitution of Latvia)* ***Lecture 7*** **Limitations of HRs** 1. Inherent in the nature of the rights themselves 2. Arising from conflicts between rights 3. Specifically listed **Definition of ill-treatment *(example for the first point)*** No one shall be subjected to torture or inhuman or degrading treatment or punishment (no exceptions) *(Article 3, European Convention on HR)* **If there is any ill-treatment it goes under Article 3 of European Convention on HR** - Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (Bouyid v. Belgium) **Limitations of HRs - inherent** **[Absolute rights ]** - Freedom from torture (Art. 3 ECHR) - Freedom from slavery (Art. 4(1) ECHR) - Prohibition of debt imprisonment (Art. 1 of Protocol No. 4 ECHR) - Right not to be expelled from and the right to return to the country of which one is a national (Art. 3 of Protocol No. 4 ECHR) **Limitation of HRs -- conflicts between rights *(example for the second point)*** - "the \[fact that Article 5(3)\[I\] of the Constitution (right of artistic liberty)\] contains no limiting proviso means that only the Constitution itself can determine limits on artistic freedom... \[We\] must resolve conflicts relating to the guarantee of artistic freedom according to... the unity of \[the\] fundamental system of values \[of the Basic Law\]" *The decision of the Federal Constitutional Court of Germany in the Mephisto case (a man wrote a book about his father-in-law, who was a nazi collaborator, including his name. the father was dead, but his relatives went to the court)* **!!!** [The dead father-in-law won the case because human dignity is the **BASIS of ALL** fundamental rights so it prevails each of the fundamental rights *(artistic liberty in this case)*] **\ ** **Limitations of HRs -- specifically listed** - Everyone has the right to own property. Property shall not be used contrary to the interests of the public. Property rights may be restricted only in accordance with law. Expropriation of property for public purposes shall be allowed only in exceptional cases on the basis... - Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:... the lawful detention of persons for the prevention of the spreading of infectious diseases, of person of unsound mind, alcoholics or drug addicts or vagrants - **European Convention on Human Rights -- Article 8 Right to respect for private and family life** Everyone has the right to respect for his private and... The court reiterates that any interference can only be justified under Article 8 2 if it is in accordance with the law, pursues one or more of the legitimate aims to which paragraph 2 of Article 8 refers \[national security, public safety... **The list of questions that have to be answered when assessing a case about private life rights, etc. WILL BE GIVEN IN THE EXAM** 1. Is there a right? 2. Is there a restriction/interference *(restriction does not have to be direct, e.g. if you do not vaccinate, you cannot attend school*)? 3. Is the restriction *(smb can restrict you only if the law says you cannot do smth)* in accordance with the law? **!!! It should be looked at whether the legal norm is formulated clearly** 4. Does it have a legitimate aim (they should be picked from the list, not invented)? **[!!! Should be interpreted narrowly ]** - The interests of national security - The interests of public safety - The interests of economic well-being of the country - Prevention of disorder or crime - The protection of health - The protection of morals - The protection of the rights and freedoms of others 5. Is it "necessary in a democratic society" *(describe why it was bad, why it was beneficial and how the society benefits from that)*? **From „Day 1": Bullet Points** - **Introduction to Constitutionalism; ** - Why do we need the constitutional system?  - *Stability; * - *Certainty; * - *Protection; * **Constitutionalism at first glance;** - It could be a formal framework of society coexisting, however...  ***Day 2 *** **Constitutionalism beyond the legal and formal framework** ***Elements determinating his argumentation: *** -  **Law**  - as a normative system affecting societies - **[Economy]**  - as for market relations between societies members  - **[Society] ** - as a collection of individuals who tries somehow to deal with each other - **Constitutionalism** -  *'Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal (\...) this nation, under God, shall have * *a new birth of freedom---and that government of the people, by the people, for the people * - November 19 1863  **Before the main topic... (p. 1) ** - *Modern constitutions: * - The constitution is not a thing in a name only, but in fact;  - It is not ideal, but a real existence;  - Whenever it cannot be produced in a visible form, there is none; - It is not an act of the government, but the act of the people constituting the government;     **Before the main topic... (p. 2) ** - *Civil Society* - What is its role in the constitutional processes?  - Possible answers:  - Healthy civil society supports constitutionalism;  - Affects to powerholders, as an organised entity;  - The processes of political community creation could be enriched by an organised group of people who can articulate their demands.  -    **Rule of Law** =============== 1. Rule of Law „is one of a number of overlapping ideas, including constitutionalism, due process, legality, justice and sovereignty, that make claims for the proper character and role of law in well-ordered states and societies" (p. 233);  2.  Rule of Law „is lauded by international agencies, pressed upon conflictual, post-conflict, and transitional societies, and of course talked up by politicians and lawyers, particularly judges all over the world" (p. 233);  3.  'Thus, as long we adopt a sufficiently flexible notion of 'rule', a necessary condition of the rule of law is that law MUST RULE' (p. 234).  **Martin's Krygier Rule of Law "Holly Trinity"** 1. \* Institutions; * *We can not have a good rule of law , without good institutions* *What is institutions -- government , court , president,* 2. \* Rules; * 3. \* Procedures. * **Institutions** ---------------- **The role of the institutional order in the rule of law is coming from the Common Law perspective on the constitutional processes (triple „C"), however, is typical for the argumentation used by EU institutions.  ** - **Firstly**, the system of government which excludes the exercise by the person in authority of broad, arbitrary or discretionary powers of constraint is necessary.   - **Secondly**, universal subjection to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals is needed.  - **Thirdly**, a system whereby the general principles of the constitution are developed as (among others) the result of judicial decisions determining different life branches is also necessary.   Rules =====  The internal morality of law requires being expressed in general rules  *(L. Fuller's concept of internal morality of law and the catalogue of rules coming from the essay on King Rex suffers with the legal system reforms) * -  publicly available to affected parties -  prospective, not retrospective   -  comprehensible  -  not contradictory  -  not requiring the impossible  -  not so changeable that they; cannot provide guides to action  - *(normative and imperative character of the legal norms)   * -  be administrated in ways that confirm their terms      Procedures ========== - Rule of Law as a way of proceeding (\"the way of society's life\")  - The critical element is the quality of the legal message sent all around the societies by the law executors; - Rule of Law as a way of proceeding can be linked with Fuller's general rules of law;  - The most important in the proper functioning of the rule of law is the respect for the freedom, dignity and rights of those who are law subjects.  The CEE constitutional courts character: ======================================== 1.  Centralised and concentrated constitutional review: - The only bodies -- both abstract and concrete cases review  (in practice, formally each judge can do the direct reference to the constitution text); - Some differences in the catalogue of the subjects which can submit the abstract complaint;  - *Actio popularis*: different formal requirements in the different countries, but in general it is possible;  2. ** The general rule: [the ex-post review of laws already enacted]. ** Role of the past in 'New (CEE) Democracies' crisis ================================================== What the memory is? =================== 1. It is an ability to collect and keep information;  1. Different kinds of individual memory exist, but for us, the most important is the autobiographical one;  1. It is a special kind of individual memory based on personal interpretations and feelings (emotional relation to the event from the past determines the story about it).  **Collective memory** ===================== - Contra wise to the individual memory, it is a social construct;  - Appears when the personal memories are reproduced inside the social groups;  - Collective memory is always a kind of compromise between the members of the social group; - Collective memory posses presentist character; it means that the members of the several social groups are aware of the long-distance consequences of the event from the past. Presentist character is crucial in understanding collective memory from state perspective Three perspectives of the collective memories creation ====================================================== ***Inventors of the tradition *** States           memory narratives          society  ***Popular memory *** States              memory narratives             society  ***Dynamic memory *** states              memory narratives              society  Role of the past in the transitional periods ============================================ - The references to the future can entirely fulfil democratic transition or any other political shift;  - Nevertheless, in the case when the need for community reconstruction appears, necessary is the creation of links with the past (historical roots of several societies).   Latvian Declaration on the Restoration of Independence ====================================================== - *„The independent State of Latvia founded on November 18, 1918, was granted international recognition in 1920 and became a member of the League of Nations in 1921";  * - *„The Latvian Nation's right to self-determination was implemented in 1920"* \[Constitutional Assembly fair elections\];  - *„The elections of June 14 and 15, 1940, to the Parliament of occupied Latvia were held in the conditions of political terror an illegal and unconstitutional election law has been adopted"; * - *„Thus the illegally and fraudulently formed parliament did not represent the will of the Latvian people"; * - *„Observing the will of the inhabitants of Latvia which was unmistakably expressed by the election to the Supreme Latvian Soviet"* \[majority supporting state restoration\].  Role of the past in the democratic CEE transitions ================================================== - Presented examples show clearly that the decision about the adoption of the references to the past in the constituting acts of political communities are the autonomous will of the several power holders;  - Nevertheless, the references to the past located in the legal acts are not a reproduction of facts, but the collective memories crucial for the political communities;  - Collective memories could be created in different ways, but always they are the reflection of the several societies historical experience;  - The CEE transitional memory policies are an inherent part of the constitutionalization processes in the region after the fall of communism.   Already identified areas of conflict ==================================== - Transition period;  - Societal demands; - Efectivness;  - Transitional demands;  - External demands;   - Judicial policy;  - Different uderstanding of the role of law;  - Conflicts around the past.