Legal Systems Reaction Papers PDF

Reaction paper 2 Nation Concept of the nation French revolution ○ Sieyes rebelled against power being within the monarchy, 3rd estate was the nation, and sovereignty was in the country not with the king ○ The nation was the source of the law,...

Reaction paper 2 Nation Concept of the nation French revolution ○ Sieyes rebelled against power being within the monarchy, 3rd estate was the nation, and sovereignty was in the country not with the king ○ The nation was the source of the law, laws should not be based on the will of the king (common good) but on the will of the people (national will) this went against the ancien regime. ○ There was a declaration of the general will (volonteé général), the general will could be understood through the process of the general assembly. ○ During the French Revolution, it was a nation-state where the power was in the people's hands, whereas now there is a separation of the meaning of the two words. The modern concept of nation ○ Today, a nation is often defined not only by political boundaries but also by shared culture, language, history, and identity. What is a nation ○ Organic entities shaped historical experiences, traditions, and inherited institutions. ○ The nation is a “daily referendum,” stressing the idea of the nation as a living, voluntary association based on shared values and collective memory of a group of people Constitution During French Revolution Political state text, focused on the source of law and separation of power ○ Pre-revolution, power was in the hands of the clergy ○ Article 16th; Declaration of Rights of Man Fundamental norm: law ○ Declaration of the general will In the preamble of the french constitution, it says it needs to abolish institutions that does not allow them to have liberty and equality ○ Equality can only be achieved with nobility 19th Century Constitution as the relation of forces in society Normative and sociological documents Expression of political decision ○ About the identity and order of the state As the supreme norm Today Fundamental political decisions about the identity Written normative document ○ Can be written and unwritten constitutions ○ Codified or uncodified constitutions Act of self-determination by the political community ○ Core decisions and higher values and structural principles that express the essence of the nation Establish separation of power and guarantee fundamental rights ○ Horizontal Legislative, executive, and judicial branches ○ Vertical Supreme norm ○ Source of sources (of law) 1  ○ Rigidity ○ Constitutional justice Carta Magna (1215) - the first time a group tried to limit the king’s power ○ King John (unfavorable king) highly taxed civilians, nobles frustrated, rebelled, negotiations ○ Overall, limited royal power (king not above the law; could not impose rules or taxes w/o barons), Due Process and Habeas Corpus (right to a fair trial → became the legal concept of the right to not be detained w/o cause), protection of Church right (freedom and rights of the church, rights of barons (protection from excessive fines) Rule of law concept; ○ Common law tradition (equality under the law; AV. Dicey) ○ Civil law tradition Rechtsstaat (german concept) Material protection of human rights, combined with culture Etat de droit (french) Common law Procedural law The rule of law today is a mix of the three State: State to a politically defined, territorially bounded community subject to a centralized power. The origin of the state: Machiavelli, Hobbes, Locke, and Rousseau. Machiavelli: (focused more on government and power) - The purpose of the state is to maintain order & security. Legitimacy comes from the ability to secure & maintain these, not from morality or ethics. Use of force & deceit fine. three ways of controlling previously free states: reducing them to rubble, living there, and letting the state go on as usual but with added tax and government. Hobbes: (Leviathan) - Humans establish a social contract to create a State for order and security. - The Leviathan must hold absolute and undivided power to maintain peace. - The sovereign has the authority to make laws, judge disputes, punish transgressions, and defend against external threats. - The State is created to avoid living in the state of nature. A social contract to give up natural rights for security and protection must be agreed upon by humans. The power to legislate, judge, and execute laws lies in a single, sovereign authority. Locke: (Limited power) - Individuals are naturally free and equal, endowed with inalienable rights to life, liberty, and property. These rights are inherent and cannot be given up or taken away, even by the State. - The state of nature is governed by the law of nature, which dictates that no one should harm another in their life, health, liberty, or possessions. - “social contract,” based on the concept that individuals willingly form a government to escape the inconveniences of the state of nature. - The government is a trustee for the people, created to serve their interests and protect their rights. legitimacy of the State comes from the consent of the governed - The government in Locke's idea of a state is not an absolute power but more of a fiduciary one (it acts in the best interests of the state). - The State’s main responsibilities are to protect life, liberty, and property, and to ensure impartial justice. Rousseau: (General will) - Created the social contract. - Emphasized general will as the basis of the State’s sovereignty and the idea that the State's power derives from the people. - True freedom comes from obeying laws that one has helped to create as part of the collective. - Government where sovereignty does not rest in a monarch or a governing elite, but in the collective body of citizens 2  - Laws are legitimate only if they express the general will and are directed toward the common good. Forms of State: Liberal, Social, Democratic: Liberal: Legitimacy based on national sovereignty and the rule of law, limiting State power. Legislative power, held by a segment of the population, replaced the monarch's absolute authority to create laws. Laws were seen as instruments of reason, freedom, and equality, expressing the general will. Early liberal States focused on limiting State power rather than directly providing rights. Guarantee of rights achieved indirectly through the subjection of State power to law. Efforts to guarantee rights through law aimed at achieving equality among citizens. Constitutions in the Liberal State: constitutions were political declarations with the same normative rank as laws, Key rights, like property and personal liberty, were protected by laws, not constitutions. Crisis and Evolution of the Liberal State: The 1848 revolution in France Demands shifted from State intervention to political and labor rights, reflecting the rise of the working class and their needs. Towards a Democratic and Social State: The short-lived 1848 French Constitution enshrined labor protection principles at the constitutional level The association of "social" with socialism, present during the 1848 revolution, ultimately focused on protecting workers and their labor conditions. The State was increasingly expected to protect rights related to work and social well-being. Emergence of the Rechtsstaat: The concept of the Rechtsstaat, meaning "Rule of Law", emerged in the late 18th century during the French and American revolutions. The Rechtsstaat represented a departure from the absolute monarchy, where the monarch's will was law. It instead established a system where all public powers were subordinate to the law. Early 19th-century German scholars further developed the concept of the Rechtsstaat, initially focusing on the State's substantive goals, such as achieving social order through law. Legal Positivism's Perspective: By the early 20th century, legal positivism equated the Rechtsstaat with the State itself. Kelsen argued that all state actions are inherently legal because they are based on a legal order. Thus, from a legal positivist perspective, every state is a Rechtsstaat. Venezuela Weak Separation of Powers: The executive branch holds excessive control over the judiciary and legislature, undermining the independence essential for the rule of law. Selective Application of Laws: Laws are applied unequally, often favoring the government and punishing its opponents, which violates the principle of fairness. Political Interference in Judiciary: Judges face political pressure, and those opposing the government are at risk, compromising the impartiality of the courts. Erosion of Civil Rights: Although the constitution guarantees rights, freedoms like speech and assembly are frequently suppressed in practice, weakening legal protections. 3  Summary: The rule of law in Venezuela’s constitution exists on paper, but in practice, it is often undermined by political interference, a lack of judicial independence, and selective enforcement of laws, making it significantly weaker compared to countries where the rule of law is upheld consistently. Ecuador Broad Executive Powers: The Ecuadorian Constitution grants the president significant authority, sometimes leading to concerns about overreach and an imbalance between the executive and other branches of government, which can undermine checks and balances essential to the rule of law. Independence of Judiciary: While the Constitution emphasizes judicial independence, in practice, the judiciary in Ecuador has historically faced political influence, which can affect fair legal proceedings and impartiality. Indigenous and Collective Rights: Ecuador's Constitution uniquely incorporates indigenous rights and collective rights, including the recognition of the environment (Pachamama) as a legal subject. This expands the traditional scope of the rule of law by integrating social and environmental justice. Frequent Constitutional Changes: The rule of law has been affected by frequent constitutional reforms and shifts in legal frameworks, which sometimes create instability and inconsistency in how laws are applied and interpreted. Summary: In short, while Ecuador's Constitution formally supports the rule of law, in practice, executive dominance, political interference in the judiciary, and frequent legal changes create challenges for the consistent and fair application of laws. State: Historical: The concept of the state has evolved over centuries. In ancient times, states were often embodied in monarchs or ruling elites. 1 Modern: Today, a state is generally defined as a political entity with a centralized government, a permanent population, a defined territory, and the capacity to enter into relations with other states. It's the primary unit of organization in international relations. Constitution: Historical: Constitutions have ancient roots, with early examples like the Magna Carta (1215). However, modern constitutionalism emerged in the late 18th century with documents like the U.S. Constitution (1787) and the French Declaration of the Rights of Man and of the Citizen (1789). Modern: A constitution is now typically a fundamental document or set of principles that establishes the basic framework of a state's government, outlines citizens' rights, and defines the distribution of power. Nation: Historical: The concept of a nation as a collective identity based on shared culture, language, or ethnicity developed primarily in the 18th and 19th centuries, often associated with the rise of nationalism. Modern: Today, a nation is understood as a large group of people with a common identity, often based on shared history, culture, language, or ethnicity. It may or may not align with state boundaries. Differences: 1. Scope: The state is a political and administrative entity, the constitution is a legal framework, and the nation is a social and cultural concept. 4  2. Tangibility: The state has physical manifestations (territory, institutions), the constitution is a tangible document or set of principles, while the nation is a more abstract concept. 3. Change: States can change through political processes, constitutions through amendments or rewrites, and nations through cultural shifts or demographic changes. Similarities: 1. Interrelation: These concepts often influence and shape each other. For example, a nation may push for statehood, or a state may create a constitution that reflects national values. 2. Sovereignty: All three concepts relate to the idea of sovereignty, though in different ways. States exercise sovereignty, constitutions often define it, and nations may aspire to it. 3. Identity: All three can contribute to individual and collective identity, though in different ways (citizenship, legal rights, cultural belonging). 4. Evolution: All three concepts have evolved significantly over time and continue to adapt to changing global circumstances. In modern legal systems, these three concepts often intersect. For example, many states define themselves as nation-states, attempting to align political boundaries with national identities. Constitutions often serve as the foundational legal document of states and may reference national identities or values. # The Rule of Law Key Elements of the Rule of Law Today 1. Legality, including a transparent, accountable and democratic process for enacting law 2. Legal certainty 3. Prohibition of arbitrariness 4. Access to justice before independent and impartial courts, including judicial review of administrative acts 5. Respect for human rights 6. Non-discrimination and equality before the law Challenges and Distortions - "Rule by law" and other distortions of the original concept - Examples from recent constitutions: - Venezuela (1999) - Ecuador (1998 and 2008) - Bolivia (2009) Rule by law, is about using law as a tool for political power; law is used by the State to control its citizens, not to control the State. Associated with “debasement of legality by authoritarian regimes” (ex. China CCP). 1. Differences between Rule of Law, Rechtsstaat, and État de droit: - Rule of Law (Anglo-Saxon): Emphasizes the supremacy of law over arbitrary power. It includes principles like equality before the law, due process, and judicial review. - Rechtsstaat (German): Literally "legal state" or "state of law." It focuses on the state's actions being bound by law and the protection of individual rights. - État de droit (French): Similar to Rechtsstaat, it emphasizes that the state is subject to law and respects individual rights. 2. Rule of law as a core principle of the European Union: 5 The EU has made the Rule of Law one of its foundational values, enshrined in Article 2 of the Treaty on European Union. It's a prerequisite for EU membership and ongoing compliance is expected of all member states. 3. Thomas Bingham's definition of the Rule of Law: Lord Bingham, a prominent British judge, provided an influential modern definition of the Rule of Law in his 2010 book. He outlined eight principles, including that the law must be accessible, intelligible, clear, and predictable; questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion; and the law should apply equally to all. Accessibility of law - intelligible, clear, predictable Decide legal questions by law not discretion Equality before the law Power must be exercised lawfully, fairly and reasonably Human rights protected Resolve disputes w/o undue cost or delay Fair trials State complies with national + international law Consensus on necessary elements of rule of law + rechtsstaat Legality including transparent + democratic process (no person can be punished except for breach of law) Legal certainty Prohibit arbitrariness discretion but not arbitrarily Access to justice (independent+impartial courts); including the judicial review of administrative acts (ability to appeal to court) Respect of human rights (i.e innocent until proven guilty) Non-discrimination and equality before the rule of law 4. Impact of the fall of the Berlin Wall: The collapse of communist regimes in Eastern Europe led to a renewed focus on establishing Rule of Law in transitioning countries. The Venice Commission, officially known as the European Commission for Democracy through Law, was established in 1990 to assist in this process by providing legal advice to countries reforming their constitutional and legal structures. 5. Key Elements of the Rule of Law Today: These six elements represent a modern consensus on what constitutes the Rule of Law: - Legality: Laws should be adopted through a transparent and democratic process. - Legal certainty: Laws should be clear, consistent, and their consequences foreseeable. - Prohibition of arbitrariness: Government actions must be justified and not capricious. - Access to justice: Independent courts must be available to resolve disputes and review government actions. - Respect for human rights: The law should protect fundamental rights. - Non-discrimination and equality: The law should apply equally to all persons. 6. Challenges and Distortions: The document mentions "rule by law" as a distortion of the Rule of Law. This typically refers to regimes that use law as a tool of governance but without the constraints and protections associated with true Rule of Law. The constitutions of Venezuela, Ecuador, and Bolivia are cited as examples, likely because they've been criticized for weakening institutional checks and balances while maintaining a facade of legality. (RULE AND LAW AS “RULE BY LAWS” AND OTHER DISTORTS OF THE ORIGINAL FORMULA) 6 Reaction paper 3 midterm (18.10.2024) - Mickel Carl Schmitt's View of the Constitution: ○ Fundamentally an expression of political decison ○ argued that it represents a fundamental political decision about the identity and structure of a political community. ○ connects the concept of the constitution with the concept of sovereignty – the power to make decisions, especially in times of crisis. ○ argued that the sovereignty ultimately holds the authority over the constitution itself. Distinction Between "Constitution" and "Constitutional Laws": ○ The "Constitution" embodies the fundamental political decision shaping a state's identity and order. ○ Constitutional laws, while important for the functioning of the state, hold a secondary status and stem from the fundamental decisions stated in the "Constitution". The Concept of Constitution Today: ○ Konrad Hesse defined the Constitution as the foundational legal order of a political community, highlighting its inseparable link with the State. ○ The Constitution can be understood as: A written normative document, setting out rules and principles. An act of self-determination by a political community, reflecting the will of the people. ○ Constitutions can be: Codified: Contained within a single document. Uncodified: Spread across various laws and documents. Saudi Arabia has basic law from 1992, but Quran has constitutional rank ○ The UK's constitution exemplifies a partially unwritten and partially codified system, incorporating acts of Parliament, judicial decisions, and unwritten conventions. ○ Other examples of countries with uncodified or partially codified constitutions include Israel, Canada, New Zealand, Saudi Arabia, and San Marino. Key Characteristics of Modern Constitutions: ○ Constitutions are centered around core decisions and principles that define the essence of the political community and the form of the State. ○ They serve a dual purpose: preserving the original intent of the founding principles while also guiding adaptation to evolving circumstances. ○ Constitutions function as political agreements or pacts that are open to interpretation and evolution. ○ They contain a mix of norms, including principles, values, and compromises. ○ The "open" nature of constitutions allows them to accommodate changing social and legal contexts. ○ constitutions still require interpretation within the framework of their fundamental principles. Form of state refers to ways in which the state power is organized ○ 2 forms of government: the republic and the monarchy Liberal State: The sources associate the liberal state with Enlightenment ideals and 18th-century liberalism. A key development in this era was the establishment of a legal system where the Constitution holds supreme authority, leading to the concept of the constitutional state. ○ Was driven by the industrial revolution, where the increasing number of jobs attracted people in rural areas → pressure on ruling classes to recognize them as actors in political arena ○ Attention was brought to improvement in material quality of life, etc… State as an organized political community presupposes the existence of a constitution, which provides the legal order of the State. Therefore, every State should be a constitutional State (and, according to Kelsen, also subject to the rule of law). Democratic State: expanding political rights, particularly universal male suffrage. This shift placed power in the hands of the people, or at least those eligible to vote, signifying a change in the legitimization of power. 7  ○ the gradual inclusion of previously excluded groups in political decision-making. examples like the requirements for voting in France in 1789 (men, 25 years or older, French citizens paying voting tax). ○ countries granting universal suffrage to both men and women, emphasizing the evolution of political participation. Social State: The social state emerged in response to the social and economic challenges brought about by industrialization and urbanization. It marked an increased role of the state in addressing social inequalities and providing public services, guaranteeing social rights. Most Western constitutions today, particularly those established after World War II, implicitly or explicitly embody both democratic and social state principles. constitutions of France, Italy, Germany, and Spain, highlighting the inclusion of terms like "democratic," "social," and "rule of law" in their foundational articles. Any organized political community with a constitution is inherently a constitutional state, subject to the rule of law. They reference a quote by Sir Thomas Bingham, which defines the core principle of the rule of law as the binding of all individuals and authorities within a state to publicly established laws, applied consistently and administered by courts. After WWII Written rule of law is not enough, needed a social aspect to see how it works Karl Loewenstein Soviet Union using constitution in a different way (documents called constitution), argued that more than explicit written law, constitutions are about power (limiting power) Now constitution is different, only trying to legitimate state’s power Classification of Constitutions ○ Normative constitution: effectively enforced and regulate ○ Nominal constitution: Exists on paper, but is only partially enforced or largely ignored. In this case the constitution only reflect the ideal structure of government and likely does not correspond with reality ○ Example: Venezuela’s constitution still does not separate the powers (Nominal) Defined by its ineffectiveness to stop the abuse of power (ie. Venezuela’s broad and simple constitution) Semantic constitution: Used as a tool by the ruling elite to maintain and justify their control over the state. Here, the constitution serves to legitimize the existing power structure. (North Korea and Cuba)(not straight-forward) Impact of the fall of the Berlin Wall: ○ The reform made sure countries included ‘rule of law’ in their constitution ○ Does a ‘rule of law’ state have to be a democracy? Modern ‘rule of law’, yes Populist and authoritarian movements tend to reduce the scope of the rule of law to mere minimal formal guarantees of security and legal certainty. However, they neglect both the substantive dimension and a broader vision of the rule of law, which involves the guarantee of fundamental political freedoms and the separation of powers. Loewenstein emphasized that constitutions should be "living" documents that adapt to changing social and political conditions, rather than rigid, unchanging texts. Militant democracy: He developed the concept of "militant democracy," arguing that democracies should have legal mechanisms to defend themselves against anti-democratic forces that might exploit democratic freedoms to undermine the system. Power analysis: Loewenstein focused on the real distribution of political power in society, arguing that understanding this was crucial for assessing the true nature and effectiveness of a constitution. Criticism of judicial review: He was skeptical of the American-style judicial review, arguing that it could lead to an undue concentration of power in the judiciary. Judiciary are being elected by people are elected by the people (meaning they must campaign) due to an amendment in the constitution 8  Preambles and Their Importance: preambles articulate the core values, principles, and goals that underpin a constitution. While generally not legally binding, they provide valuable insights into the framers' intentions and offer a framework for understanding the constitution's broader context and purpose. Expression of Foundational Values: often declare aspirations such as liberty, justice, equality, democracy, and national unity, shaping the identity and direction of a constitutional order Historical and Political Context: illuminate the circumstances leading to the constitution's drafting, often referencing events like revolutions, independence movements Interpretative Value: Courts may refer to preambles to resolve ambiguities in the constitution's text or to grasp the underlying intent of specific provisions. Source of Sovereignty: Many preambles assert the sovereignty of the people or the nation, establishing the source of legitimate authority. Fundamental Objectives: Preambles frequently introduce key goals, such as the common good, peace, liberty, prosperity, and unity, setting the overarching aims of the constitutional order. ○ "Constitutional texts are political agreements or pacts of an open nature. In this way, the content of a Constitution includes norms such as principles, values, and dilatory compromises. In this sense, constitutions are 'unfinished' norms." Dilatory compromises are elements within a constitution that are intentionally left open-ended or ambiguous. They represent areas where the drafters of the constitution could not reach a definitive agreement or chose to postpone a decision on a particular issue. These compromises are "dilatory" because they delay a final resolution, leaving the interpretation and implementation of these provisions to future generations. Changes to Mexico’s Rule of Law On September 15, 2024, Mexican President López Obrador signed into law a judicial reform that makes Mexico one of the few countries in the world to elect its judiciary, including Supreme Court justices, by popular vote Key Features and Impacts of the Reform: Election of Judges by Popular Vote: Supreme Court justices, Circuit Court magistrates, and District Court judges will be elected by popular vote, requiring prior candidacy selections by the Executive, Legislative, and Judicial branches. Approximately 1,600 judges will have to run for office, with elections taking place in 2025 and 2027. New Judicial Administration Body and Discipline Tribunal: The reform replaces the Federal Judiciary Council (CJF) with a new Judicial Administration Body and a Judicial Discipline Tribunal (JDT). The JDT will have the authority to impose sanctions on judges, including suspension, fines, dismissal, and disqualification. Erosion of Checks and Balances: Concerns have been raised by international organizations, including the International Bar Association (IBA) and the Inter-American Commission on Human Rights, regarding the potential erosion of judicial independence due to the election process and the structure of the JDT. The Mexican reform allowing the judiciary to be elected by popular vote goes against the Rule of Law because it undermines judicial independence, a cornerstone of this principle. By requiring judges and justices to run electoral campaigns, the judiciary becomes susceptible to political and populist influences, potentially compromising impartiality and fairness. Furthermore, it risks exposing judicial candidates to external pressures, including from political parties and organized crime. Critics argue that this reform disrupts the system of checks and balances and erodes confidence in the judiciary's ability to act autonomously and protect rights effectively. Rule of Law is not the same as Estado Derechos. ○ Rule of Law and Estado de Derechos share a commitment to legal fairness and protecting rights but differ in focus. Rule of Law emphasizes limiting government power and procedural fairness, rooted in common law. Estado de Derechos highlights the state's role in ensuring rights and social justice, tied to civil law traditions. EGYPT CONSTITUTION ARTICLE 1: SUNNAH, SHARIAH (CONSTITUTION), CONSTITUTION Article (1) 9 The Arab Republic of Egypt is a sovereign, united, indivisible State, where no part may be given up, having a democratic republican system that is based on citizenship and rule of law. The Egyptian people are part of the Arab nation seeking to enhance its integration and unity. Egypt is part of the Islamic world, belongs to the African continent, cherishes its Asian dimension, and contributes to building human civilization. Article (2) Islam is the religion of the State and Arabic is its official language. The principles of Islamic Sharia are the main source of legislation. Constitutional supremacy: identify the issue Concept of constitution and supremacy, why article 1 doesnt fit, how can we interpret the article in our system Essentially, the Egyptian constitution conflicts with the idea of constitutional supremacy on 2 fronts: Judicial interpretation is limited: Judges cannot interpret a law according to the constitutional principles if it conflicts with the principles of sharia law Limit to scope of principles mentioned in article 1: If sharia law comes in conflict with the modern understanding of equality, gender rights, or freedom of expression under the rule of law, than article one may not necessarily be guaranteed fully as sharia law trumps constitutional law Sharia Law> Constitution In contrast with the Western “Secular legal systems”. 10 Reaction paper 4 In France today- the most important principles are the 1958 preamble, 1946, 1789 fundamental principles In Italian constitution, labor is used as more of a value than a way to address poor people Principles are included in the preambles of conditions ○ But they can also be found in the forms of state ○ Preamble of Switzerland mentions the Cantons (differentiated from Swiss) Form a confederation “Cantons are sovereign” Form of state (always contains rule of law and democracy in the western states) Implicit/Explicit principles and values ○ Unwritten: emanate from other provisions of the constitution, typically interpreted together by constitutional courts ○ May be found in constitutional text, or it may refer to a different document ○ Problem: courts using principles to adjudicate The only one that can satisfy democratic standards; courts not deciding things, but through the legislature, understand that principles cannot decide specific instruments or specific effects of an interpretation (otherwise judges are parliament) Principles cannot make rights but you can interpret a right; a specific right cannot be created through the interpretation of a principle ○ Le principle of liberty can be interpreted as the right to self-determination which can give you the right to die ○ From a general provision, a right can be interpreted Why was what Hitler did completely legal? ○ Adolf Hitler's actions were made to appear legal within Nazi Germany because he manipulated the legal system to serve his regime's goals. The Enabling Act of 1933 gave him dictatorial powers, allowing him to pass laws without parliamentary approval, and courts were purged of dissenting judges to ensure compliance. The Nazi regime redefined laws, such as the Nuremberg Laws, to institutionalize discrimination and criminalize opposition. While these actions were "legal" under Nazi law, they were fundamentally immoral and later deemed crimes against humanity during the Nuremberg Trials, which established that unjust laws do not absolve individuals of responsibility for universal crimes. The constitution protects democratic state ○ Through the separation of power ○ You need a law to apply a principle, a principle cannot be applied directly Right to housing, doesn’t mean you can go to court and say your right is not satisfied ○ Spain is a social (duty of the state to secure the wellness of citizens)state, am I entitled to a pension? No, because you can't use the principle of the social state, to directly give you a material benefit Can principle be a guide to pass a law through parliament? Yes Fundamental rights 2 (29.10.2024) Rights are a relationship where one person is entitled to something that the other person must fulfill ○ In a private relationship, the person having the duty needs to respect the right Rights against the state (the first example was the Magna Carta) ○ Relationships between states and individuals not equal, more hierarchical ○ Concept of rights as material provisions, public services, different rights (not just as limits of the state) Ius cogen- law of the people ○ universally accepted international law. No need for recognition by constitutions (unwritten) 11  ○ Principles (last in the hierarchy of source of law in civil law systems), derived from the interpretation of the whole legal system ○ Jus cogens is above the constitution Public rights are limits to the state Legal rights are a fundamental concept developed in germany in 1848 Human rights: rights of human nature ○ Can be included in a constitution as a fundamental right ○ If a human right is denied in the constitution, it is a still right because you are human ○ Right to dignity, equality, respect ○ Human rights are superior to positivist law ○ Right to go on strike in Spain is a fundamental law ○ Human rights are fundamental rights, but not all fundamental rights are human rights Penumbra O.W Holmes ○ concept of "penumbra" to describe the gray areas around explicit legal rules, where judicial interpretation helps clarify rights or principles that aren’t directly stated in the law. ○ This is from the common law tradition ○ In civil law rights are derived from the interpretation of constitutional rights e.g article 56 spanish constitution; marriage - derived the right to gay marriage Why do constitutions include rights ○ French revolution: political declaration to reduce state power ○ US constitution: Enumeration of rights is unnecessary ○ After WW2 To give rigidity (normativity) Symbolic effect General clauses International declarations 12 Reaction Paper 5 Constitutional Rights and Multilevel Protection (territorial protection) Relevance of territorial organization of the States Ius cogens principles (peremptory norms) International level (UN declarations - other international human rights instruments) ○ 1948: Universal Declaration of Human rights ○ 1966: International Covenant on Civil and Political Rights Regional Level ○ Europe 1950: European Convention on Human Rights (ECHR) - European court of Human Rights 2000: EU charter of fundamental rights ○ These institutions create international courts to utilize and protect these instruments; an organism to secure human rights, in cases of international treaties ○ Americas 1978: American convention on human rights National Level (unitary and composite States) ○ Constitutions and legislation Territorial level (composite states) → Federal states for example ○ state made of multiple territories, for example switzerland made of cantons ○ Importance of federal or national constitutions on the national level but also on those specific units of the territory Federal National level constitution or local constitution In federal states, they create layers of protection ○ Germany (federal state): Constitutions of Länder NATIONAL CONSTITUTION, BUT SOME HAVE DIFFERENT CONSTITUTION WITHIN THE STATES LIKE IN THE US (California constitution) In Germany there is the federal constitution, then the ländes constitution ○ France: different units of territory with autonomy to pass legislation you can find other instruments used Territorial organization of the State refers to the way political power and administrative functions are organized within the territory Autonomy opposes sovereignty because autonomy grants a region or group limited self-governance within a larger sovereign state, whereas sovereignty entails full, independent control over territory without external authority. Political autonomy: The power of a federal or regional state to govern itself and make its own legislative decisions while being under the sovereignty of the larger state ○ Political autonomy: the power to pass legislation, local legislation but the same power as national legislation ○ Local law in Catalonia holds the same importance as Spanish law, the difference is the scope (in this case the location) Unitary state: Regarding the state as a whole (e.g US federal constitution applies to the whole country) ○ Concentrates legislative power over the entire country National Assembly, Congress, One judiciary, one executive power ○ France ○ A unitary state comes from an attempt to avoid privileges, promote unity and integration ○ Diff b/w this and composite state is that in the latter territories have the power to pass legislation Composite state: federal state divides power between a central government and regional or state governments (e.g states in the US also have state constitutions) ○ Includes terrestrial and political units sharing common characteristics among these state ○ You need elections to create legislation but judicious power as well, therefore it is a duplicate of the legislation at the national level ○ Federal states (US, Switzerland, Austria, Belgium) 13  Federal state powers are restrained Autonomy is self-determined Each federal state has its local constitution ○ Local constitutions do not require the cooperation or intervention of the central government for amendments or revision ○ Confederations There is no state, it's just an agreement b/w two sovereign states Has the greatest level of decentralization compared to other state forms Confederation → A union between sovereign states International agreements ○ Regional states (Italy, Brazil, Colombia, Peru) Middleground b/w federal and unitary state Administrative division in regions, but each region only has administrative autonomy not political (or minimized political autonomy) ○ Purpose: Address local issues ○ Autonomous communities State (Spain) (middle ground b/w regional and federal state) Decentralizes power to let local communities to create legislation, but to pass legislation you need to have political autonomy No need to design a form of state if there is no sovereignty ○ If there is no sovereignty, autonomy is crucial Difference between federal and regional state: A regional state allows limited autonomy to regions under a dominant central government, while a federal state constitutionally shares power equally between the central and regional governments. “Fuero” (foral) territories (navarra and país vasco) ○ Territories with self-governing rights (fueros) under a larger sovereign authority, allowing them to operate with distinct legal and administrative systems. Subsidiary Principle ○ Rooted in political-legal tradition but also the Catholic Church ○ The idea is that decisions and actions should be handled by the smallest, most local competent authority, rather than by a central authority, to ensure more efficient, effective, and responsive governance. Higher authority should intervene only when the lower unit is unable to fulfill its responsibilities ○ The higher the authority, the further from the problem ○ The Treaty on European Union was added in 1992 Article 5, #3 decisions are made as closely as possible to citizens and only taken at the EU level if they are more effective than at the national or local level. Territorial organization in Spain ○ Spain divided into 17 autonomous communities and 2 autonomous cities (Ceuta and Melilla) ○ Each AC has its own government, parliament and set of powers, defined by the statute of autonomy Café para todos - offering the same treatment to all parties involved in an issue in order to please (or displease) everyone equally. ○ Coined by Secretary of State Manul Calver The UK has three parliaments but one national one ○ Wales, N. Ireland, and Scotland have their own parliament, but England has the one for the whole UK ○ There are local and national legislation 14  No difference in the hierarchy of norms Difference in the scope of the legislation ○ Supreme courts asked if they need to asked local parliaments (scotland) if they want to withdraw from the union But no, sovereignty is within the parliament for the whole UK Nation and state are not synonymous ○ Today, the nation is a group of people with a shared culture, tradition, and territory Spain ○ Nation ○ Nationalities ○ An institution to solve agreements between national and regional levels; is called an institution. The use of the word nation in article 2 is used in a legal sense is the one entitled to sovereignty and nationalities with capital n is cultural concept The more nations in a state, the higher the centripetal force (the force pulling these nations apart) Forms of Government Exceptions to majority rule ○ Constitutional rights: a way to preserve certain rights that cannot be overridden ○ Protecting minorities from the tyranny of majorities. ○ Pass legislation to support super majority rule (more than 50%+1) Constitutional amendments, changes to electoral SYSTEMS, or impeachments ○ Constitutional supremacy needs to be exercised by an institution constitution is the supreme norm;l but to be the supreme norm there must be a procedure declared (judicial review; one organ that can declare that a certain act/legislation is against constitutional provisions) ○ Checks and balances: veto process, the power of different branch of govt to veto (avoid) certain legislation to be passed ○ Independent institutions or agencies: central banks, electoral commissions, regulatory agencies ○ International Human rights standards: responsibility of I.O (EUCHRE) ○ Referenda: decision can be decided by entire population plus a super majority to be decided Taxation cannot be regulated by referenda Direct democracy: citizens directly participate in decision-making (often seen in referendums or initiatives) ○ Referenda: direct vote on specific proposals that can be: mandatory: required by law to make certain decisions such as constitutional amendments or major national issues Optional: Held when enough citizen vote to have a referendum Advisory ○ Initiatives process that allows citizens to propose new legislation or constitutional amendments Direct initiative: once a proposal reaches the required number of signatures it goes directly to public vote Representative democracy: an instrument to elect public officers to make decisions on their behalf (common in larger states like the US, and Germany) Forms of Government ○ Democracy Indirect Citizens elect representatives to make decisions on their behalf Direct citizens participate directly in decision-making and lawmaking, often through referendums or popular assemblies. ○ Monarchy The whole power of the state is in one person or institution and is passed on by blood (divinity) Absolute monarchy: The monarch has unrestricted powers 15  Constitutional monarchy: monarchs are limited by a constitution or laws, with governance largely in the hands of elected individuals For example, the king of Spain is a national symbol, who essentially propagates the ideal values of the nation The difference b/w a monarchy and a republic is the head of govt is separate from the head of the form of state Head of state in a monarchy or in a republic In a republic, you can vote for the head, and there are elections ○ Republic A republic is a form of government where the head of state is elected, and political power resides with the people and their representatives, rather than being inherited or held by a monarch (there is no MONARCHY). Presidential republic: the president is both head of state and govt (the US, Brazil) Parliamentary Republic: The head of govt (prime minister) is separate from the head of state, often with the latter role being ceremonial (Germany, Italy) ○ Head of state vs head of govt Head of state The ceremonial and symbolic leader of a country or other polity. Represents the nation and its people, both domestically and internationally. Often has limited political powers, focused more on ceremonial duties. Examples: The Queen of the United Kingdom, the President of Germany, and the Emperor of Japan. The ‘head of the people’; figure to lead the nation Head of govt The actual executive and administrative leader of a country or polity. Responsible for day-to-day governance and policy implementation. Holds significant political power and leads the ruling party or coalition. Examples: The Prime Minister of the United Kingdom, the Chancellor of Germany, and the Prime Minister of Japan. ○ Parliamentary system The executive branch derives its legitimacy from and is accountable to the legislature The head of govt is named as president, not of the republic, but the president of the govt (like in Spain, Sr. Pedro Sanchez) ○ Presidential system The executive branch is separate from the legislature with the president independently elected Presidents are more involved in international affairs as they're heads of state, whereas prime ministers are more involved with domestic affairs Types of legislature ○ Bilateral legislature Has 2 chambers/houses (upper and lower house). Each house has distinct roles, powers, and methods of election, which serve as a check on each other to prevent rushed legislation ○ Unilateral Parliament with 1 chamber responsible for decisions and making legislation Usually seen in smaller more centralized countries such as New Zealand and Denmark where there is less of a need for a second house to represent diverse interests ○ Symmetrical Both chambers of parliament hold equal legislative power Example: United States, where each senate has 2 senators that all have equal power. Ensuring a robust system of checks and balances Both chambers have the same power to pass legislation and decide certain matters ○ Asymmetrical One chamber holds more powers in the legislative process and also when making certain decisions. Usually lower house takes the lead in legislation while the upper house plays an advisory role 16 Constitutional Review Constitutional control (or review) Process through which courts or specialized constitutional bodies evaluate the constitutionality of laws, executive actions, and sometimes certain policies Ensures government actions and legislation comply with constitution (maintaining supreme norm) Reasons: ○ Preserving constitutional supremacy ○ Protection of fundamental rights ○ Protecting minority rights ○ Mechanism for conflict resolution Preserve relationship b/w institutions Institutions have the power mentioned in the text of the constitution Therefore mechanism to solving internal, interpretation conflict Types of control ○ Procedural and substantive Procedural: Asses whether the correct rules and regulations were taken to implement or create a law (Ones that were included in the constitution) Does not necessarily look at the law content about constitutional principles or rights Substantive: examines actual content of law or action to determine whether it aligns with the constitution's principles, values, and rights Involves evaluating if a law provisions violate specific constitutional rights, exceed govt powers, or go against constitutional norms and principles ○ Hard because no exact definition of principles (they are open, and vague) ○ Centralized and decentralized Decentralized control (judicial review) - any court can review a law's constitutionality, and a final decision might reach the highest court More common in common-law traditions This means the power to declare that a specific provision is against the Constitution is in the hands of any court or judge (state, federal judges, supreme court) Centralized control - Only specialized constitutional courts have the authority to determine the constitutionality of laws and government actions Mainly in civil law countries: ○ Germany, Austria, Spain, Italy, Portugal ○ Abstract and complete control Abstract control (Ex ante- Before the event) - A law’s constitutionality gets determined without the law being applied in a specific case If a theoretical provision of legislation can be against the Constitution. Requested by legislators. Ex. In Spain, the right-wing parties challenged abortion laws before the constitutional court (recruso de amparo) to be against the constitution. There did not need to be a specific case of abortion to evaluate the constitutionality of the law Concrete control - used when a specific legal case raises constitutional questions A law may be called unconstitutional in a certain case ○ Ex ante (preventive) and ex-post (reactive) Constitutional Amendments and Replacement Reasons for amending: ○ Origin of the Constitution: Fundamental political decisions need to be agreements or broad consensus. Decisions enacted by regimes 17  ○ Age of Constitution: Subject to changes when the text of the constitution does not give enough space for current decisions ○ Level of detail The more detailed → more prone to amendments Japanese constitution: Article 98- Stating that the constitution is the supreme law of the nation and article 99: Stating that the Emperor and ministers of state must uphold and follow the constitution (limiting their power) ○ Justiciability The more used it is in constitutional cases, the more prone it is to amendments Examples of not needing to amend the constitution ○ Japan article 9 “No war clause” Main hurdles for amendments ○ Absolute entrenchments (provisions that are hard to amend, used to safeguard basic principles, fundamental rights, constitutions) Entrenched provisions Harder to amend, thus needed an increased qualified majority in the parliament, referendum ○ These entrenched clauses are enacted to protect basic/fundamental rights ○ Some provisions are harder to change and may require an increased qualified majority in parliament, a referendum, the dissolution of a parliament or the convening of an assembly to adopt the amendment Spain 1978- Article 168 1. If a total revision of the Constitution is proposed, or a partial revision thereof, affecting the Introductory Part, Chapter II, Division 1 of Part I, or Part II, the principle of the proposed reform shall be approved by a two -thirds majority of the members of each House, and the Cortes Generales shall immediately be dissolved. 2. The Houses elected thereupon must ratify the decision and proceed to examine the new constitutional text, which must be passed by a two -thirds majority of the members of each House. 3. Once the amendment has been passed by the Cortes Generales, it shall be submitted to ratification by referendum(decision by the public) Human dignity must be inviolable (Basic law in Germany, Article 79) “An amendment of this Basic Law affecting the division of the Federation into Laender, the participation in principle of the Laender in legislation, or the basic principles laid down in Articles 1 and 20, is inadmissible.” Right to resist in Germany Inadmissible parts of the constitution can be amended, but an entirely new constitutions will need to be made ○ Adoption by a qualified majority in parliament ○ Some constitutions forbid changing specific provisions, while most protect principles, allowing changes as long as the core idea remains intact. Germany article 79 (1949)- 1.This Basic Law may be amended only by a law expressly amending or supplementing its text. In the case of an international treaty regarding a peace settlement, the preparation of a peace settlement, or the phasing out of an occupation regime, or designed to promote the defense of the Federal Republic, it shall be sufficient, for the purpose of making clear that the provisions of this Basic Law do not preclude the conclusion and entry into force of the treaty, to add language to the Basic Law that merely makes this clarification. (provisions can be changed by adding in order to clarify the provision) 2. Any such law shall be carried by two thirds of the Members of the Bundestag and two thirds of the votes of the Bundesrat. 18  3. Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible. ○ Time delay Can last between 3-12 months, and sometimes even between terms of elections of government, meaning that the amendment will need consent from both parliaments Try to design a In Sweden you need to approve amendments, and then decisions ○ Time limits Constitutional amendments can face time-based restrictions, especially during emergencies like war. Another type of restriction sets a specific time period during which the constitution cannot be altered, to prevent frequent changes. Some constitutions also prohibit resubmitting a rejected amendment proposal within the same legislature or for a set period. Spain: Article 169- The process of constitutional amendment may not be initiated in time of war or under any of the states contemplated in article 116 (states of emergency) ○ State ratification (in federal systems) ○ Ratification via popular referendum Constitutional amendments in written constitutions Who can begin an amendment process? ○ They need a strong consensus, strong majority Time delays and time periods ○ Constitutional amendments take time before being enacted, the amendment requires readings that could take 1-12 months. ○ The purpose of that time delays is to cool down and let the people to reconsider the case with a cool head Referendums ○ In some countries there referendums may be mandatory before the amendment procedure ○ Appreciate you bro Amendments in unwritten constitutions ○ Changes in the constitutional frameworks Amendements non uncodified ○ Amendments can be made by passing or repeating legislation. The UK parliament can alter constitution principles by enacting different legislations. The principle of parliamentary sovereignty allows for these laws to have constitutional significance ○ Uncodified constitutions are governed by conventions–unwritten, that are binding due to tradition/historical acceptance. These conventions may evolve over time and create new informal amendments An example, the PM must be a member of the House of Commons, rather than the HofL ○ Conventions appear through political practices and acceptance Article 50(1) EU ○ Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements How did the UK leave if they were uncodified? The UK was able to leave by using general principles (Sovereignty is decided by the people), thus they used the parliament. ○ The Supreme Court ruled that they did not need to ask the other parliaments for their opinion, because sovereignty is in people and thus the ruling took place in the British Parliament. ○ 19  Initiative ○ Head of state France: ARTICLE 89 The President of the Republic, on the recommendation of the Prime Minister, and Members of Parliament alike shall have the right to initiate amendments to the Constitution. A Government or a Private Member's Bill to amend the Constitution must be considered within the time limits set down in the third paragraph of article 42 and be passed by the two Houses in identical terms. The amendment shall take effect after approval by referendum. However, a Government Bill to amend the Constitution shall not be submitted to referendum where the President of the Republic decides to submit it to Parliament convened in Congress; the Government Bill to amend the Constitution shall then be approved only if it is passed by a three-fifths majority of the votes cast. Parliament ○ Government Super Organisations (like EU) can limit spending, as they did with Spain, this took 2 weeks for this amendment to be passed. As this protects the value of the euro, which is highly linked with the debt of the EU ○ Parliament The requirement of a qualified parliamentary majority can vary with 2/3 as the most widely used in Europe. Serves to ensure broad political census, and thereby strengthen the legitimacy and durability of the amendment, gives a minority (of a certain size) a veto on constitutional amendment Secure constitutional and political stability ○ Local authorities ○ Popular initiative (50+1 rule) In some countries, constitutional amendments need a referendum, either mandatory or optional, with some requiring minimum voter turnout. While this can boost legitimacy by involving the people, it can also make the constitution too rigid and risk political instability, as referendums may be used to support leaders or justify authoritarian rule. Liechtenstein: Article 4. A petition submitted under the right of initiative and concerning the Constitution may only be brought by not less than 1,500 citizens entitled to vote or by at least four communes. Slovenia (30.000 voters) Switzerland (100.000 voters) Spain (⅗) article 167 1. Bills on constitutional amendments must be approved by a majority of three-fifths of members of each House. If there is no agreement between the Houses, an effort to reach it shall be made by setting up a Joint Committee of an equal number of Members of Congress and Senators which shall submit a text to be voted on by the Congress and the Senate. 2. If approval is not obtained by means of the procedure outlined in the foregoing subsection, and provided that the text has been passed by the overall majority of the members of the Senate, the Congress may pass the amendment by a two -thirds vote in favor. 3. Once the amendment has been passed by the Cortes Generales, it shall be submitted to ratification by referendum, if so requested by one tenth of the members of either House within fifteen days after its passage. Serbia (150.000 voters) 20  Romania (500.000, under certain conditions) Latvia (not less than one tenth of the electorate) Constitutional amendments in countries with unwritten constitutions ○ In countries with an uncodified constitution, amendments can often be made by passing or repealing legislation. For example, the U.K. Parliament can alter constitutional principles simply by enacting new laws or repealing existing ones. The principle of parliamentary sovereignty allows for these laws to have constitutional significance. ○ Ex. Uk: Courts influence and shape the constitution through their rulings, creating precedents that adjust its interpretation. For example, in Miller v. Secretary of State for Exiting the European Union (2017), the UK Supreme Court established new constitutional principles about the need for parliamentary consent in the Brexit process. The R (Miller) v. Secretary of State for Exiting the European Union (2017) case was about whether the UK government could trigger Article 50 (Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.) without getting approval from Parliament. The Supreme Court ruled that Parliament must give its consent because leaving the EU would change UK laws and people's rights, which requires parliamentary approval under the constitution. This decision reinforced the principle that major constitutional changes need Parliament's involvement. Due to sovereignty being in the parliament (via the constitution), the decision to leave the EU was made by the parliament ○ Uncodified constitutions rely on conventions—unwritten rules that become binding through tradition and practice, evolving over time to create informal amendments. For example, it is now a convention that the Prime Minister must come from the House of Commons, not the House of Lords, without any formal amendment. Ivor Jennings explains that a convention exists if there are precedents, if those involved felt bound by a rule, and if there is a reason for the rule. ○ Constitutional conventions: Agreements b/w political system that we are complying with constitutional duty Conduct has been commanded by an unwritten rule (but is part of legislation) El-Salvador ( Role of courts in constitutional Amendments Courts are given the responsibility to review amendments and ensure they comply with established amendment procedures and adhere to substantive limits ( → amendment review) ○ Court may review if a court met supermajority votes or public referenda (ensuring it aligns with democratic principles) May also check if amendments conform to ○ Eternity clauses: specific, unamendable provisions Germany Basic Law, 1973: no amendments that affect federal structure, principles of democracy, rule of law, and fundamental human rights India Basic Structure Doctrine: protection for democracy, secularism, and judicial independence France (Constitution of the Fifth Republic, Article 1): Prohibits amendments that would alter the republican form of government. ○ Detailed Example of amendment review in Colombia: Aspects: Procedural review: ensure that constitutional Amendments follow procedural rules (outlined in the const) ○ Required majority vote ○ Public participation (or referenda if mandated) Substantive review: if the amendment violates essential constitution identity ○ Democracy, human rights, separation of powers, territorial integrity and federalism, rule of law Doctrine of substitution of the constitution 21  ○ An amendment proposing a change that undermines Colombia's democratic framework or human rights protections would be invalidated, even if procedurally compliant RWE Term Limits for Presidents (2010) ○ Constitutional amendment that president Alvaro Uribe should be able to run for a third term ○ Court ruled that this proved a threat to democratic principles and protections of victims rights therefore it was invalid Similar case in El-Salvador Presidential re-elections are part of democratic principle. Dobbs v Jackson women's health organization vs roe v wade Dobbs v Jackson established that the right to abortion cannot be inferred from the US constitution. This decision overturned both Roe v Wade (1973) and planned parenthood (1992) and gave the power to decide if abortion is legal or not back to the federal states. Today, abortion is illegal in almost half of the states after 12-13 or 15-18 weeks. ○ The case was about a 2018 Mississippi law, which made abortions illegal after 15 weeks of pregnancy, which was allowed under the Constitution. The only abortion clinic in Mississippi, Jackson Women's Health Organization, filed a lawsuit against Thomas E. Dobbs, a state health official, in March 2018. Amendments and the progressive principle ○ During crises like the European debt crisis, austerity measures in countries like Greece and Spain faced criticism for limiting social rights, violating the "progressivity" principle, which requires that constitutional changes expand, not restrict, human rights. Ex. Amendment in Mexico September 2024 mandating election of judges at all levels (including supreme court). In aim to democratize the judiciary and align the judiciary more closely with public sentiment. by letting citizens elect 7,000 judges. Judges previously appointed by institutional processes Opposition challenged the constitutionality of this process and challenged it in supreme court, leading to a new constitutional amendment preventing judiciary from reviewing or challenging amendments passed by the Congress (modifying articles 105 & 107). By doing this, it grants legislative (congress) more autonomy as the enacting of constitutional changes can be done without judicial intervention. Judicial Interpretations and Constitutional Mutations Not all judicial interpretations or constitutional provisions = mutations ○ Some provisions are open therefore interpretation is welcome (liked for fundamental rights) Constitutional mutation refers to informal change in interpretation, understanding, or application of a constitution without any formal amendment to the text ○ Evolve organically over time through shifts in judicial interpretation, political practices, customs, societal values ○ Examples United Kingdom:The UK has an unwritten constitution that evolves through conventions and practices. For example, the increasing reliance on referenda for major decisions (e.g., Brexit) represents a mutation in constitutional practice. India:The role of the Governor has mutated beyond its original constitutional framework due to political interference, altering its intended neutrality. United States:The Electoral College system has experienced mutations in practice, with states adopting "winner-takes-all" approaches not specified in the Constitution. France:The shift of the French President's role from ceremonial to a powerful executive post in the Fifth Republic reflects a constitutional mutation driven by political practice. 22  Aspect Judicial Interpretations Constitutional Mutations Nature Formal, through court rulings Informal, through evolving practices Source Judiciary Political, societal, or institutional behaviors Mechanism Legal reasoning and case law Custom, convention, or political norms Impact on Constitution Refines or expands textual meaning Alters how the constitution functions Examples Court decisions on fundamental rights Changes in executive-legislative relations Constitutional change or replacement Reasons: ○ Political transformation: countries typically replace constitutions during major political shifts Spain constitution (1978) (1975–1978): After Franco's death, King Juan Carlos I led Spain's peaceful shift to democracy, culminating in the drafting of the 1978 Constitution 1978 Constitution: It established a parliamentary monarchy, recognized regional autonomy for areas like Catalonia and the Basque Country, and enshrined fundamental rights and freedoms. Consensus and Stability: The constitution, approved by referendum, united diverse political factions and laid the foundation for Spain's enduring democratic framework, despite ongoing regional tensions. ○ Response to crisis: Severe national crises may lead to new constitutions Colombia's 1991 constitution Citizens felt that the drug cartels and violence were not addressed by the 1886 constitution 7th ballot in the election boxes, signifying desire for reform ○ Social and economic reforms: When existing constitutions fail to address pressing social or economic issues, a new constitution might be proposed to promote social justice or economic restructuring. South Africa’s 1996 Constitution, for example, sought to remedy the rights violations of apartheid and move beyond that legacy. Constitution of Iceland (2011-2013) Iceland parliament (the Althingi) formed a national forum of 950 citizens to discuss key values and ideas for a new constitution. ○ Directly from this decision a constitutional council was formed including 25 members who were democratically elected They maintained an open attitude towards this new constitution posting amendments online for feedback. Once the Constitutional Council completed its draft, which included progressive ideas such as environment protections, checks on political power, and provisions for increased citizen engagement. ○ Was never adopted as it faced opposition in the parliament 23 Substantive limits to constitutional replacement Refers to the amendment, limit and or replacement of a value, right, principle or provision of the constitution. This approach was taken on by Chile when drafting their constitution in 2019 as a “blank slate” where the drafters were not required to keep any rights, principles or provisions from the previous constitution FINAL Public International Law Public I.L covers relations b/w states and other subjects ○ Regulations b/w states, i.o, individuals, and other subjects Form of legal system Origin: related to origin of legal systems ○ Legal systems based on natural law traditions; deriving principles of human nature Don't need to comply because they’re mandatory, but because its human nature ○ Legal systems may be based on moral decisions Ius gentium: the law of the people ○ Attempt to identify principles relevant for mankind ○ Use to create principles that can be applied to international relationships International law began regulating the conduct among different subjects → international relations ○ Specific conduct shows that behavior of diff subjects creates regulation ○ In a specific situation do you accept the conduct of another subject 1st part of building history on international was moral principles (natural law) ○ Ius gentium related to natural law War crimes, don’t hurt diplomats, press, etc… Important subjects of intl law ○ States: entity that meets the criteria outlined in the montevideo convention. They are also legal fictions; not physical content (can’t touch Spain) Permanent population Defined territory Government Capacity to enter relations with other states Creation of sovereignty ○ German school of public aimed to make states accountable of ○ rights ○ Now, sovereignty is not to a specific person (emperor, king) The king can be kicked out of the state, but the state is STILL the state, separate from a physical person ○ Only way that state can have capacity to sign treaties, is because govt is separated from a person STATES ARE SOVEREIGN Sovereignty as an element, is in the state not in the monarch ○ Sovereignty is the idea that creates a horizontal community (no hierarchy) → also for treaties and negotiation Internal legal systems are vertical → hierarchy of norms ○ Is every subject of public intl law sovereign There was an expectation of reciprocity before international law ○ Don't always need to sign a treaty, in a horizontal treaty, restraint from poor conduct ○ Now there is a treaty, for things like diplomatic immunity 24  Genocide has been an international war crime since 1948 (treaty for punishment) ○ Can you be subject to a trial of genocide before 1948? No, you have to identify certain conducts which protects certain minorities, states Nuremberg trials The Nuremberg trials were held by the Allies against representatives of the defeated Nazi Germany for plotting and carrying out invasions of other countries across Europe and atrocities against their citizens in World War II. How do we gain sovereignty? ○ Internal (power to make decisions in my territory, power to enact legal systems) and external (power to avoid that other states can make decisions or intervene in your territory) Palestine recognized by all other states except israel, but they can still enact public international law You don’t need every country to recognize X as a sovereign independent state, just the majority ○ Article 38 of ICJ says the court will apply 5 sources of law (instruments where relationships b/w states are regulated Every country part of the treaty of Rome is subject to the provisions by the ICCJ International conventions; Effect of importance of agreements in international law (treaties and conventions) (formal source of law; instrument derived from conduct of states and also agreements Signed by member states, different states, or subjects of intl law International custom As evidence of a general practice accepted as law There is much less written international law so it's much more important Diplomatic immunity was custom before 1961 (before treaty was signed) General principles of law recognized by civilized nations (material source, not direct legal effect on legal system) Good faith (internal legislation and international law) “No one should be judged in their own case” Judicial decisions, and teachings of the most highly qualified publicists Scholar works (material source) Judicial decisions: Decisions by international courts and tribunals that provide clarity on how laws Not binding, but considered persuasive, aim to maintain I.O highly qualified publicists: Opinions of scholars, guidance but not binding ○ Material sources of law (value of the source, not the definition of the source) ○ Decision are legally binding for subjects involved in the case, but not the rest of the legal system International Conventions ○ Vienna convention on law of treaties (1969) Treaty means international agreement b/w states In a written form, and governed by international law ○ If there is a treaty b/w two countries, they may have different legal definitions for things, therefore less words because it is hard to see over on an internal provisional level Customs ○ Two elements State practice: constant and uniform usage practiced by the states in question Opinio juris: belief that start practicing this custom is legally required to apply that custom ○ Examples: prevention of genocide (used to be), diplomatic immunity Judicial decisions ○ Decisions by international courts and tribunals that provide clarity on how laws Not binding, but considered persuasive, aim to maintain I.O Is international law really a legal system if it's not enforceable? ○ Not legally binding, no system of court (besides ICJ, but it can only decide if both parties agree on the case (come to a conclusion) ○ UN S.C constrained by veto powers ○ No binding jurisdiction, no legal burden, is it really law? ○ It is law but in a different model, its a legal system of horizontal agreements Don't need to qualify importance of international law (because its horizontal way) 25  Vertical way international law is not relevant ○ The flaws needs to be balanced with the benefits Regulation of war: intl law creates self-restraint, the use of force is not holding the empower of legal system (unlike vertical), but the expectation of reciprocity Im putting myself at risk if i have poor conduct System is based on good faith 26