Law Methodology and Culture Lectures PDF

LAW METHODOLOGY AND CULTURE LECTURES 11/9/22 The Overall concept of Democracy Democracy— Rule by the People through free and fair elections and other forms of participation - Popular sovereignty—the idea that the People are the ultimate authority and the source of the authority of government—is a fundamental principle of democracy. - The political equality of all citizens is an essential principle of democracy. - In a democracy, the just powers of government are based upon the consent of the governed. - Free elections and other forms of civic participation are essential to democracy. - the People must also monitor and inﬂuence o cials’ behavior while in o ce. - Political parties are vital organizations in a democracy, and democracy is stronger when citizens become active members of political parties. - Pluralism: Democracy depends on citizen participation in all these ways. But participation must be peaceful, respectful of the law, and tolerant of the di erent views of other groups and individuals - Elections in themselves do not fulﬁll the requirement of modern democracies; they must be free, fair, and su ciently frequent if the People’s will is to have e ect. - “Free elections” means all adult citizens can vote in elections and stand for o ce. Candidates for o ce are not in any way blocked from addressing the electorate. - “Fair elections” means elections that are fundamentally honest. Voters must not be stopped from voting and all votes must be accurately counted. - “Frequent elections” means that elections must be held often enough to enable the People to exercise their control of government. - As overseers of government, the People must have alternative sources of information. - No single source, especially an o cial government source, is su cient. - Freedom of the press is therefore an essential aspect of democratic government. Constitutionalism—The use of constitutions to limit government by law - The People do not give power to the government to oppress or abuse, but rather to protect their fundamental and human rights, interests, and welfare. Therefore they limit government power by authoritative fundamental laws called “constitutions.” In every democracy, with three exceptions (Britain, Israel, and New Zealand), the constitution is a written document. - Constitutions are the means used to state what powers government shall have. In deﬁning these powers, constitutions limit them. This is so because governments may exercise only the powers deﬁned in the constitution. - Constitutional government is a government that as a practical matter is limited both in what it does and how it acts. - Government is limited to acting within the law and cannot make up rules to suit its convenience. The law applies to everyone, including those who govern. No one is above the law. - An essential means of limiting government is establishing a rule of law, beginning with the constitution itself, which is a fundamental law. Thus the rule of law is a primary element of constitutionalism. It implies that no one is above the law and requires that all citizens observe the law and are held accountable if they break it. - The due process of law requires that the law should be equally, fairly and consistently enforced. The rule of law ensures law and order and the protection of citizens as they enjoy their rights. - All citizens are equal under the law. No one may be discriminated against on the basis of their race, religion, ethnic group, or gender. - No one may be arrested, imprisoned, or exiled arbitrarily. - Anyone charged with a crime has the right to a fair, speedy, and public trial by an impartial court. - The separation of powers between the legislature, the executive and the judiciary. - The law is made by representatives of the people in an open and transparent way. - The law and its administration is subject to open and free criticism by the people, who may assemble without fear. - The law is applied equally and fairly, so that no one is above the law. - The law is capable of being known to everyone, so that everyone can comply. - No one is subject to any action by any government agency other than in accordance with the law and the model litigant rules, no one is subject to any torture. - The judicial system is independent, impartial, open and transparent and provides a fair and prompt trial. - All people are presumed to be innocent until proven otherwise and are entitled to remain silent and are not required to incriminate themselves. - No one can be prosecuted, civilly or criminally, for any o ence not known to the law when committed. - No one is subject adversely to a retrospective change of the law. - The judiciary in political systems such as Germany and the United States has the power of judicial review in order to enforce constitutionalism. - “Judicial review” refers to the power of the courts to declare laws passed by legislatures to be null and void if they contradict the nation’s constitution. - In these judicial systems, the rule of law begins with the rule of the most fundamental law, the constitution. - Some legal systems employ further means to establish limited, “constitutional,” government. A “bill of rights” in constitutions, which, combined with judicial review, ensure that the legislation, legal decisions, and acts of government o cials do not violate basic rights. Liberalism—Freedom, equality, and dignity of the individual Liberal democracy recognizes the moral primacy of the individual and that all persons have certain fundamental rights. A central purpose of democracy is to protect these rights in the practical world of everyday life. Examples of these fundamental rights are - Freedom of religion/conscience—the right to practice any religion or none. - Political freedom—the equal right, for example, of all citizens to participate in choosing those who govern and to remove them at will through elections. - Freedom of the press. - Freedom of individual expression—orally, in writing, and symbolically. Right to privacy and to a private sphere of life free from governmental interference. - Right to freedom of association in public and private. SOURCE OF LAW AND DEMOCRACY Types: 1) Direct Democracy: is a political system where the citizens participate in the decisionmaking personally. Citizens, without the intermediary of elected or appointed o cials, can participate in making public decisions. Citizens put forth initiatives, referendums and suggestions for laws. Direct democracy is most clearly practicable with relatively small numbers of people – in a community organization, tribal council, or the local unit of a labour union, for example – where members can meet in a single room to discuss issues and arrive at decisions by consensus or majority vote. 2) Representative Democracy involves the election of government o cials by the people being represented - Parliamentary Democracy - Presidential Democracy This type of democracy is limited and indirect. It is limited in the sense that popular participation in government is infrequent and brief, being restricted to the act of voting every few years. It is indirect in that the public do not exercise power themselves; they merely select those who will rule on their behalf. 3) Hybrid (Direct and Representative) Example: In the United States, no mechanisms of direct democracy exists at the federal level, but over half of the states and many localities provide for citizen-sponsored ballot initiatives (also called "ballot measures", "ballot questions" or "propositions"), and the vast majority of states allow for referendums DEMOCRATIC INSTITUTIONS Legislature: Assemblies (Parliament, Congress, etc…) Legislation: As representatives of the people, the legislators are vested with the power to make laws on behalf of the citizens. This makes the laws binding because legislators execute this function on behalf of the people, meaning that the people themselves make their laws. It is in parliament that discussion and debate of proposed laws take place. Assemblies play a representative role providing a link between government and the people. Because we cannot all sit in parliament, the elected members of parliament thus serve a delegated function. The Executive branch of government is charged with the function of implementing or executing the law. This is the core of government. In the broadest sense, the executive is the branch of government responsible for the implementation of laws and policies made by the legislature. The executive branch extends from the head of government to members of the enforcement agencies such as the police and the military and includes both ministers and civil servants. More commonly, the term is used in a narrow sense to describe the smaller body of decision-makers who take overall responsibility for the direction and coordination of government policy. The third arm of government is the Judiciary that is empowered to decide legal disputes. The central function of judges is to adjudicate on the meaning of law, in the sense that they interpret or construct law. This function arises because the makers of law, i.e. the legislators are very often lay people as concerns matters of law. In countries with written/codiﬁed constitutions, the function of the judges also involves the interpretation of the constitution itself and this allows judges to arbitrate in disputes between major institutions of government or in disputes between the state and the individual. Judges are strictly independent and non-political actors. This, however, remains a very controversial and debatable issue in many countries. To ensure the impartiality of court rulings judges, whether appointed or elected, must have job security or tenure guaranteed by law, so that they can make decisions without concern over pressure or attack by those in positions of authority. The other democratic institutions and actors include the media, civil society, political parties and, especially, a strong opposition in parliament. ESSENTIAL ELEMENTS OF DEMOCRACY 1. THE SEPARATION AND BALANCE OF POWER The terms ´separation of power ‘and ´balance of power ‘mean that the power of the 3 branches of democratic government (legislative, executive and judiciary) should not be concentrated in one branch but should be distributed such that each branch can independently carry out its own respective functions. It has 2 principles: the competencies of the 3 branches of governmental power must be clearly delimited and deﬁned; and all branches of government are bound by the rule of law. The idea of separation of powers has a goal of protect against tyranny. This is also reﬂected in contemporary human rights instruments, such as the ICCPR, and other sources such as the Latimer House Principles. The separation of power is most clearly deﬁned with respect to the judiciary, which must be independent from the other branches. In contrast, the separation of power is more complex in terms of the distinction between the executive and legislative branches of power. - Executive-legislative relations The independence of judiciary power is usually accepted, but it´s not always respected. The separation or balance of power between these 2 branches of government depends on the given political system that is in place. Presidential systems (US) have a clearer separation of legislative-executive powers than other political systems: directly elected presidents do not depend on the conﬁdence of the legislature; their term in o ce is independent of the legislature. In semi-presidential systems (France, Portugal) the government is answerable both a directly elected president and to the legislature. In parliamentary systems, the separation of powers is less marked because the government, including the executive, is elected from a parliamentary majority the executive depends on a parliamentary approval: a prime minister requires the support of parliament to govern. From the perspective of international consensus, parliamentary and presidential systems are equally acceptable, but the issue is whether elected legislators have su cient powers. Do elected representatives actually have the competencies they need to exercise power? Are they able to hold government accountable? Can parliament fulﬁl its legislative role? It is in this sense that the separation of powers should be understood within the context of executive-legislative relations. That is, it deﬁnes a standard that requires each branch of government to have the capacity to play a meaningful and su ciently independent role in governance, whatever the political system is. ICCPR UN Human Rights Committee says that parliaments with little de jure or de facto power do not satisfy the requirements of article 25 of ICCPR ´Where citizens participate in the conduct of public a airs through freely chosen representatives, it is implicit in Art. 25 that those representatives do in fact exercise governmental power and that they are accountable through the electoral process for the exercise of that power´. We can summarize the article in these points: No-over concentration of power in the executive branch of government: Even if there is a direct election for the head of state, this should not serve as a justiﬁcation for sidelining a directly elected legislature. The right of heads of state to refer bills back to the legislature: Independent of the political system, some states give their head of state the right to refer legislation back to parliament for consideration. Civilian control of the security sector: ´The military remains accountable to democratically elected civilian Government. - The role of the legislature A properly functioning and directly elected legislature is very important to democratic government. The rule of law requires that all important legislation be adopted by the legislature. A pluralistic system of a political parties is based on competition over legislative interests. And transparency results from genuine, widespread, and inclusive public consultation on draft legislation and debates on public a airs in the legislature. The 3 main functions of the legislative branch are: passing laws, maintaining oversight of the executive, and serving as a forum for public debate and deliberation of citizens interests. - The set up and rules of the legislature Legislatures can be unicameral or bi-cameral. There are 2 important principles for bi-cameral legislatures: All seats in at least one legislature chamber or house should be freely contested: To ensure that democratic accountability of a legislature is non diluted, at least one chamber should be entirely composed of representatives freely chosen in direct elections A second legislative chamber or house should either be accountable through elections, or not be able to impact signiﬁcantly on the powers of the directly elected chamber or house: When a non-elected upper chamber or house has powers that are similar to those of a directly elected lower chamber or house, the principle of democratic accountability is weakened. - Legislative autonomy Given the legislatures represent the people, they must be free to autonomously organize their work. This is understood in 2 ways: The legislature should be free to adopt and amend its own rules of procedure on an independent basis, or the legislature should be free to schedule its sessions, set the pace for organizing its own activities and have the right to determine how much time is required to draft, review, or amend proposed legislation. - Legislative power The power of legislation is the most essential for legislature´s prerogatives and it should have the competence and authority to undertake this role. Although the executive branch it must be entitled to do so by the constitution of through law adopted by the legislature. As the Venice Commission asserts, a general shift of competences from the legislative to the executive is not acceptable in a democratic constitutional state´. 2. INDEPENDENCE OF THE JUDICIARY Art. 14 ICCPR: In the determinations of any criminal charges against him/her, or of his rights and obligations in a suit of law, everybody shall be entitled to a fair and public hearing by a competent, independent, and impartial court established by law´. So, there is an international obligation to establish an independent judiciary. The Un Human Rights Committee made clear that ICCPR stipulates judicial independence beyond the realm of criminal law such that it also comes to bear on administrative law and the organization of the state. This pertains to both legal and de facto separation of the judicial and executive branches of government the courts can play a vital role. 3. A PLURALIST SYSTEM OF POLITICAL PARTIES AND ORGANISATIONS - Political parties The need for a pluralistic system of political parties follows logically from the protection of freedom of association. There is now international consensus that the existence of a one-party state or the prohibition of political parties is not consistent with freedom of association and related freedoms. As paragraph 17 of General Comment states, ´The right of persons to stand for elections should not be limited unreasonably by requiring candidates to be members of parties or speciﬁc parties´+ Paragraph 26: ´Political parties and membership in parties plays a signiﬁcant role in the conduct of public a airs and the election process´. A pluralistic system of political parties implies that states should not hinder the development of political parties but have an obligation to favor political pluralism based on parties. Pluralism indicates that a party system should not only consist of a multitude of parties, it should also include parties that represent genuinely alternative policy choices. E ective opposition both inside and outside the parliament, is a key condition of a functioning democracy. The rights of opposition in parliament should be codiﬁed in parliamentary rules of procedures and partly in constitutions. In many democracies, it includes a guarantee of participation, rights to supervise and scrutinize government, the right of delay or block majority decisions… In terms of fostering a system deﬁned by political pluralism, states have a concrete obligation: A legal framework for the operation of political parties should be in place: The UN Human Rights Committees indicates that the absence of regulation or legislation governing the creation and registration of political parties ´runs counter to the provisions of Art.22 of the ICCPR, as it may adversely a ect the rights of citizens to participate in the conduct of public a airs through freely chosen representatives´. Restrictions to the right to register a political party should be narrowly constructed: In the context of international human rights, it its recognized rule to adopt a narrow interpretation of restrictions. Art.22 of the ICCPR says that stating that if restrictions are necessary in a democratic state, these should be in the interests of national security, or public safety, public order… Political party membership should not be mandatory. - Civil society organizations They serve to organize and mediate political, economic, social, and other interests vis-à-vis the state and the government. Is reﬂected in the wide and varied range of organizations and groups that constitute Trade unions, professional associations, religion groups… 4. RULE OF LAW The rule of law commits all public authorities to comply with independently and impartially administers legal and justice systems, it also indicates that the will of the majority has clear and certain limits, not only in the form of universal human rights, but also in relation to the constitutional framework of a state. - State of emergency The rule of law is organically linked to the other essential elements of democracy, including the separation and balance of power, especially an independent judiciary, transparency, and accountability. The convergence of these elements can be made in a state of emergency. During a state of emergency, democratic governance tends to be diminished. The executive branch of government is temporarily empowered at the expense of the legislative branch, and possible the judiciary. Human rights, including political rights, may also be suspended or severely restricted. International and regional instruments (ICCPR) provide information for what we can do in these situations: Must be declared by a constitutionally lawful body; usually is the head of state or government. Should be declared o cially, publicly and within the law Should be approved by the legislature, which should continue to function Should be temporally and geographically limited Should be managed transparently. Should require that legal guarantees remain in place and derogations from fundamental rights should be as limited as possible. 5. ACCOUNTABILITY AND TRANSPARENCY These elements are essential in a democracy. - Accountability It implies answerability (the obligation to provide information and explanation, the right to ask questions and expect reasonable answers) and enforcement (capacity to hold those who are responsible to account for their actions, including punishment). Basically, accountability is related to the rule of law. One important thing is that separation and balance of power is necessary to the good functioning of accountability. International consensus has a minimum requirement to determine who is accountable to whom: The executive is accountable to the legislature: legislature has the right to ask questions that the executive must answer. However, the right of sanction depends on the political system that is in place. In presidential systems, the electorate has the primary right of sanction. On the other hand, legislature in parliamentary systems can punish the government by passing a no-conﬁdence vote, forcing the resignation of the government. The executive is accountable to the judiciary: The executive is bound by the rule of law. So, actions undertaken by the executive can be reviewed by the judiciary. - Transparency Without transparency, there can be no accountability. Every person shall have the right to freedom of expression, and this right shall include freedom to seek, receive and impart information and ideas of all kinds. - Independent institutions Independent institutions play an important role in relation to governmental accountability and transparency. They provide oversight for speciﬁc areas of executive and judiciary branch activity, or they have responsibility for making policy recommendations to the government, which requires a degree of distance from the parliamentary majorities of the day. 6. FREEDOM OF THE MEDIA It contributes to creating plural, open societies and accountable, transparent systems of government, as well as safeguards to human rights and fundamental freedoms. A free media sector plays an essential role in guaranteeing the freedom of expression and freedom of information, that is necessary for facilitating the e ective participation of citizens in democratic processes. Freedom of expression therefore includes an obligation on states to prevent excessive media concentration and control. 7. RESPECT FOR POLITICAL RIGHTS Freedoms of assembly and expression are essential political rights. Freedom of expression is deﬁned like freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. - Participation in public a airs, the right to stand and vote in elections Participation in public a airs can take place directly (by referenda) or indirect (voting for elected representatives). More generally, participation can refer to being politically active. Article 25 of the ICCPR further stipulates that these rights should be granted to citizens ‘without any of the distinctions mentioned in article 2’, which prohibits discrimination of ‘any kind such as race, color, sex, language and political or other opinion’ CONCEPTS AND PRINCIPLES OF DEMOCRATIC GOVERNMENT AND ACCOUNTABILITY - POLITICAL PLURALISM The broader deﬁnition is a commitment to diversity (party competition and variety of ethnic and cultural values). This diversity is called pluralism, and it assumes organized groups in a democratic society do not depend on the government for their existence and authority. Many of these organizations serve a mediating role between individuals and society´s complex social and governmental institutions, ﬁlling roles of the government and giving us the opportunity to become part of the society. In local governments, political pluralism entails two basic aspects: political leaders may be elected on a political party ticket or as independent candidates, and that stakeholders (like civic society) are involved in the decision-making process (including the views of minorities and di erent groups). - DEMOCRATIC PARTICIPATION It refers to the process in which people connect themselves to government and thus become self-governing. It can occur in two ways: People can participate through established structures of democracy People can participate through civil associations. Participation in such associations is important as they help to protect group interests and eliminates individual isolation and strengthens the people´s position in engaging leaders. Participation can occur in di erent forms, in all spheres of life. In the social sphere, people are participating in community matters (which can become part of the political sphere); in the political sphere, people in a democratic system have opportunities to participate through di erent mechanisms like voting in the elections: in the economic sphere through income generating activities. It can also occur in alternative forms of proactive initiative by the citizens which can be institutionalized like lobbies and in the media. - REPRESENTATION Representation is deﬁned as the process by which political power and inﬂuence which the entire citizenry or a part of it might have upon governmental action, with their express or implied approval, is exercised on its behalf by a small number among them, with a binding e ect upon the whole community thus represented. Similarly, a representative government is understood to stand for the whole people, or some numerous portions of it. There are 5 essential principles of representation in a liberal democracy: Ultimate power lies in people (popular sovereignty) Power is exercised by a selected few on behalf of many Deputies are mandated by the people through periodical elections (deputy principal) Decisions made by these deputies have a binding e ect (popular consent principle) The people remain the ﬁnal judge of performance (accountability principle) In the modern world, most people tend to view a representative in Burkean terms: a person with discretion and inclined to act in response to local, national and personal exigencies. Main functions of representatives can be located at three levels: national (passing laws), constituency (solving problems among constituents) and personal-level function (self-advertising). - ELECTIONS It is fundamental for democracy as it empowers citizens with the right to choose their leaders and. These elements of democratic elections include: Competitive (opposition parties may enjoy the same rights importance to develop democracy) Periodical (risk of being voted out, general will) Inclusive (no discrimination) Deﬁnitive (losers should accept the judgment of voters) Fair and free Vote privately and counting votes must be transparent and public. - RULE OF LAW A central element of the rule of law is equality under the law, which means that no individual is above the law and defends its citizens from tyranny, citizens living in democracies are willing to obey the laws of their society because they are submitting to their own rules, this again emphasizes the necessity of self-governance. Due process protects the individual against arbitrary laws an if it is violated, they are violating the rule of law. Every state must have the power to maintain order and punish criminal acts, but the rules and procedures by which the state enforces its laws must be public, explicit, and equal for everyone. In order to ensure the due process of law, the following rules have been established by constitutional democracies: No one´s home can be searched by police without court order No person should be arrested without charges and must be released if the courts ﬁnd the innocent. Everyone is entitled to a fast and public trial. Authorities are required to grant bail if there is little suspect that the suspect will escape People cannot be compelled to self-incriminate People cannot be charged with the same crime Law is prospective not retrospective Cruel punishment is illegal - HUMAN RIGHTS AND INDIVIDUAL FREEDOMS IN DEMOCRACY They are universal equal legal guarantees that protect the fundamental freedoms and human dignity of every individual. These rights a rm that every human being is entitled to equal treatment and opportunities. They can be civil, cultural, social, economic, or political. Human rights and fundamental freedoms are enumerated in the Universal Declaration of Human rights (right to life and freedom of expression). Soft law Human rights combine the two sides of positive (use our rights as long as they do not interfere in other rights) and negative (blocks certain actions which interfere with another person’s rights) freedom. The fundamental freedoms like freedom of expression are fundamental for democracy as people can take part in political activities, express their concerns, and promote their interests. - GOOD GOVERNANCE AND ACCOUNTABILITY Governance is the process of decision-making and of implementing these decisions, and actors in governance are government and civic society. Characteristics of good governance: Participatory Seeks consensus Accountable and transparent E ective and e cient Equitable and inclusive Follows the rule of law Accountability requires that public o cials have an obligation to explain their decisions and actions to the citizens. It can be achieved through the following ways: Conducting free and fair elections (if voters aren’t satisﬁed and opponents can o er di erent policies). Political accountability (how often they are reelected) Legal accountability (instruments like the constitution against o cials) Moreover, there are 3 main mechanisms to achieve accountability: Political, legal (independent judiciary, ethical codes, providing access to the press to records, conﬂicts of interests and judicial review) or administrative (o ces to ensure that decisions conform to interests of citizens independent auditors, agency ombudsman, administrative courts and ethical rules). POPULAR SOVEREIGNITY Popular sovereignty is a basic idea of democracy. Popular sovereignty means that the People are the ultimate source of the authority of their government. - Popular sovereignty includes the idea that democratic government is by the People and for the People—for the beneﬁt of the People, not for the beneﬁt of those who govern in their name. - When the People mutually consent to form a government, they perform an act of popular sovereignty. - Government in a democracy is the servant of the People; it is not their master. Therefore, those who govern are public servants— they hold public o ce only to serve the People, not to serve themselves. - The People are the highest political authority in a democracy; they are the ultimate rulers. · In a democracy, political authority ﬂows from the People to the state (the polity or country)—not from the state to the People. Thus, all citizens ought to obey laws made by a legislature because the People themselves have authorized the legislature to do so, not because the legislature, or the formal political order (the state) of which it is a part, is the source of authority. · Popular sovereignty means that the government can only exercise authority if the People have given it. Therefore, popular sovereignty limits the powers of government. - In a democracy the People delegate their authority to government only for the purposes set forth in their constitution. - The People delegate to the state only as much authority as is necessary to fulﬁll the purposes for which states are established. - The only legitimate power that government has in a democracy comes from the consent of the People. In the real world, however, a variety of problems exist regarding the matter of “the consent of the governed.” · Every democracy a ords its citizens the opportunity to consent to the political system by participating in elections and in a variety of other ways. But many citizens—in some instances large numbers— fail to vote or participate in other ways that express their consent. This sign of alienation of individuals and groups from the political system represents a widespread problem in modern democracies. · Modern societies tend to lack the cohesion and intimacy of traditional societies; when such circumstances give rise to widespread alienation from political membership and the responsibilities of citizens, democracies ﬁnd themselves with signiﬁcant numbers who can hardly be said to “consent” to the political system. Such persons, citizens in name only, may be easy prey for a variety of extremists, such as cults, dangerous religious splinter groups, and political groups teaching violence and intolerance. · How to deal with those who, for a variety of reasons, do not consent to the democratic political order is a considerable problem that democracies ignore at their peril. - It is an abuse of power for a democratic government to claim more powers than the People have delegated to it. Government may not assign itself new powers. - In a democracy the People own the government. It is theirs and they have the right to change it by lawful, constitutional methods if it does not perform to their satisfaction. - The sovereignty of the People under democratic rule is not absolute, however: · Democracy conceives certain fundamental rights of individuals to lie beyond the power even of the sovereign People to violate. It is, after all, the primary purpose of democracy to protect and preserve these rights. · These rights therefore lay beyond the reach either of majorities or of the People as a whole. 22/9/23 “The People” in a Democracy Democracy means “rule by the People,” individuals and groups who agree to form themselves into a single whole. They do so for the purpose of living together in a state established by a constitution that they have created and hold in common thereby establishing themselves as a politically united people or “political people.” The free consent of those who are to live under a constitution is essential if the state they create is to be legitimate and not an agent of oppression. For example, Scots, Welsh, and English, while separately identiﬁable “peoples” (even at times having their own national assemblies), remain part of a larger “political People”—the British people. “The People” who agree together to form a democratic state may be, and often are, of varying ethnic, religious, national and/or racial backgrounds. These ethnic groups (minorities) willingly choose to be part of this larger political community and at the same time can retain its identity. Modern societies, however, often su er from social fragmentation in which these groups do not accept their minority status and can cause marginalization, political extremism (terrorism) and minority impoverishment. What do you think? 1 What might be the advantages of diverse peoples or ethnic groups who are living in a common area agreeing to form a single “political people” with a common constitution and a common civic identity? They will receive more money from the State through taxes than if they were an independent people. This is beneﬁcial only if their rights as a minority are respected. Nature of Law - Functions of Law They can vary in each nation as it’s the result of political action: In a nation, the law can serve to (1) keep the peace, (2) maintain the status quo (the existing political order), (3) preserve individual rights, (4) protect minorities against majorities, (5) promote social justice, and (6) provide for orderly social change. - Schools of Law -Natural law Defends the existence of universal/eternal moral principles (or principles of justice) which contents rest on religious conceptions about good / justice. They’re valid everywhere and every time (moral objectivism) and we have the possibility to know them through human reason. It is not created by man but is found through nature, there is a higher law based on morality against which the moral or legal validity of human law can be measured. The law is not simply what is enacted in statutes, and if legislation is not moral, then it is not law. Exponents of natural law: St Thomas Aquinas Natural law in its new form is value-oriented and value conscious. It is neither permanent nor everlasting in character and it is relative, not absolute in nature. Generally, the 'rule of law' and 'due process of law' are considered as new incarnations of it, as well as the modern philosophy of human rights. -Analytical/Positive School: Aims to create a scientiﬁcally valid system of law, by analyzing legal concepts and ideas on the basis of empirical or scientiﬁc methods. It emphasizes the separation of law and morality. According to the exponents of this school, law is man-made, or enacted by the legislature. Natural law thinkers proposed that if a law is not moral, no one is under any duty to obey it, while positivists believe that a duly enacted law, until changed, remains law and should be obeyed. Positivist law scholars: Bentham (propounded the Utilitarian Principle whereby the law should aim at "the greatest happiness of the greatest number"), John Austin propounded that law is the command of the sovereign, backed by threat of punishment). The most powerful criticism about legal positivism revolves around the premise that it fails to give morality its due importance. -Historical School Laws are the creation of interactions between the local, current situation and conditions of the people, it should conform to the local needs and feelings of the society. Scholars: von Savigny (He propounded that the nature of any particular system of law was a reﬂection of the spirit of the people. It’s not universal, or static) and Sir Henry James Sumner Maine. The historical approach is not free from criticism, it was rejected on the ground for its vague, parochial and unscientiﬁc explanation of the law. -Sociological School Exponents of this school consider law as a social phenomenon, as the perceptions of people in the society. This approach emphasizes on the function of law rather than its content, on balancing the conﬂicting interests in society and it considers law as a tool for social change (ex. gay marriage). Followers of this school insist on the fact that law exists for the needs of the society. Scholars: Léon Duguit (law = tool for enhancing social solidarity), D. Rudolf von Ihering (social utilitarianism that emphasized on the needs of society), Eugene Ehrlich (law as a social institution created to satisfy individual and social wants). The main criticisms against the sociological school are: the terms 'social solidarity' and 'social engineering' are vague and create confusion. Men and society can be compared with a machine. -Realists School Realists consider laws made by judges as the real law. They give less importance to the traditional rules and concepts as real sources of law. It is a combination of analytical positivism and sociological jurisprudence. Realists do not give much importance to laws enacted by legislative bodies and consider the judge-made laws as the actual law. They believe that the social, economic and psychological background of a judge plays an important part in his decision-making. Realists place great emphasis on the role of judges in the implementation, interpretation and development of law. It can be divided into two parts: American Realism and Scandinavian Realism. Scholars: Karl Llewellyn Main features of the realist school: - Law is not static as it keeps on changing - Law is a means to a social end - Society changes faster than the law - Law cannot be certain (Decisions of the courts depend on many factors like the psychological, social and economic background of the judges). Major Criticisms: - It ignores the importance of legal rules and enactments which can lead to confusion - It is incorrect to think that law evolves and develops only through courts - Unwarranted emphasis on judge's behavior in judicial decisions. -Classiﬁcation of law 1. International law It deals with those rules and regulations of nations which are recognized and are binding upon each other through reciprocity. Many jurists however, do not give much importance to this branch. In recent times, this branch of law has acquired increasing importance on account of globalization and other related factors. It has been further classiﬁed as follows: - Public International Law: This branch of law relates to the body of rules and regulations which governs the relationship between nations. Countries mutually recognize these sets of rules which are binding on them in their transactions on a reciprocal basis. - Private international law is the part of law of the State, which deals with cases having a foreign element. Private international law relates to the rights of private citizens of di erent countries. (Marriages and adoption of individuals belonging to di erent nations fall within its domain. 2. National Law National or domestic laws regulate the relationship between the State and its citizens and determine the relationship among citizens. Municipal law can be further classiﬁed into two segments: - Public law Public law regulates the relationship between the State and its subjects. It also provides the structure and functioning of the organs of States. The three important branches of public law are: - Constitutional Law: It’s considered to be the supreme law of the country. The nature of any State is basically determined by its Constitution. It also provides the structure of the government. All the organs of states derive their powers from the Constitution. Some countries have a written Constitution, while countries such as the United Kingdom have an 'uncodiﬁed Constitution'. - Administrative Law: It deals with the extent of powers and functions of administrative authorities - government departments, authorities, bodies etc. It deals with the mechanism whereby their actions can be controlled. It also provides for legal remedies in case of any violation of the rights of the people. - Criminal Law: It generally deals with acts which are prohibited by law. It also prescribes punishments and reeducation for criminal o enses. Criminal law is very important for maintaining order in the society, and for maintaining peace. It is considered a part of public law, as crime is not only against the individual but against the whole society. - Private/Civil law This branch of law deﬁnes, regulates, governs and enforces relationships between individuals, associations and corporations. In other words, this branch of law deals with the deﬁnition, regulation and enforcement of mutual rights and duties of individuals. The state intervenes through its judicial organs (e.g. courts) to settle the dispute between the parties. It confers civil rights which are administered and adjudicated by civil courts. - Personal Law: It is a branch of law related to marriage, divorce and succession (inheritance). These laws are based on religion, ritual and customs of marriage, divorce, and inheritance. In such matters, people are mostly governed by the personal laws laid down by their religions. - Property Law: This branch of law deals with the ownership of immovable and movable properties. - Law of Obligations: This branch of the law pertains to an area where a person is required to do something because of his promise, contract or law. If someone violates his promise, that promise may be enforced in a court of law. (Ex. car accident: if someone is responsible they have the obligation to pay for damages). - Law of Contracts. A contract is an agreement which is enforceable by law. In other words, a contract is an agreement with speciﬁc terms between two or more persons in which there is a promise to do something for a valuable proﬁt which is known as consideration. (Ex. paying rent) A valid contract should have the following elements: a) An o er b) An acceptance of that o er c) A promise to perform d) A valuable and legal consideration (which can be a promise or payment in some form) e) A time or event when performance must be made (meet commitments) f) Terms and conditions for performance, including fulﬁlling promises g) Performance (e) Law of Torts (civil wrong). Remedies for civil wrongs that do not arise out of contractual duties. A tort deals with negligence cases as well as intentional wrongs which cause harm. An aggrieved person may use Law of Tort to claim damages from someone who has caused the wrong or legal injury to him/ her. Torts cover intentional acts and accidents. For instance, if 'A' throws a stone and it hits another person namely 'B' on the head, 'B' may sue 'A" for the injury caused by the accident. 2/10/23 Common Law vs. Civil Law Civil Law Legal system based on a civil code. The civil law system is the oldest and most dominant legal system in the world, and originates from the ancient Roman system. Governments create complete codes of law. These are continuously updated to keep a recent account of matters that can and cannot come before courts. Therefore, government legislation is the primary source of law in a civil law system. The role of judges and juries. - Because of the focus on formal, written laws, judges decide cases primarily based on the applicable code. Judges may refer to prior court decisions, but they do so only to achieve consistency, and not because of a legal requirement to follow other judicial decisions. - Juries are not generally involved. In place of juries, civil courts allow a very inquisitorial style by their judges. The judges question witnesses and are much more involved in the development of the evidence. Characteristics - Civil Law is codiﬁed. Countries with civil law systems have comprehensive, continuously updated legal codes that specify all matters capable of being brought before a court, the applicable procedure, and the appropriate punishment for each o ense. - Such codes distinguish between di erent categories of law: substantive law establishes which acts are subject to criminal or civil prosecution, procedural law establishes how to determine whether a particular action constitutes a criminal act, and penal law establishes the appropriate penalty. - The judge’s role is to establish the facts of the case and to apply the provisions of the applicable code. The judge’s decision is consequently less crucial in shaping civil law than the decisions of legislators and legal scholars who draft and interpret the codes. Common Law The role of judges and juries The common law system may involve both judges and juries in trials. - Judges play the role of a legal advisor, instructing the jury as to relevant laws and ensuring that the trial is run fairly. When the arguments have been completed, the judge advises the jury as to the laws it must consider and how to treat the evidence it has heard. - The jury (ordinary people without legal training task) is to assess the evidence and arguments and make decisions about the facts of the case. The jury then makes the ultimate verdict as to guilty or not guilty, and liable or not liable. The judge then determines the appropriate sentence based on the jury’s verdict. - Common Law characteristics - Is generally uncodiﬁed (England, not US). This means that there is no comprehensive compilation of legal rules and statutes. - A “precedent” is “an adjudged case or decision of a court, considered as furnishing an example or authority for an identical or similar case afterwards arising or a similar question of law”. Stare Decisis is a principle that requires a judge to follow previously established precedents. This applies to precedents established by higher courts. A higher court will not be bound to follow the precedent of a lower court even where the facts are identical (although the higher court may choose to). These precedents are maintained over time through the records of the courts as well as historically documented in collections of case law known as year books and reports. The precedents to be applied in the decision of each new case are determined by the presiding judge. - Supreme courts pick the cases, not in civil law. Lawyers must appeal to the S.C for them to take the case. - Lawyers can negotiate so a case isn’t taken to court. In civil law, the State in certain cases has the obligation to do so. Constitutional Law A constitution is based on tradition, culture and history. A constitution of a state is a set of rules deﬁning the structure and working of the organization. The constitution of a state will deﬁne the principal institutions (the executive, legislature and judiciary) and the nature and scope of their powers. In addition, a constitution will usually deﬁne the rights and freedom of citizens, rights with which the government cannot lawfully interfere and can’t change easily. One of its most important functions is that it regulates or governs the government. Classifying constitutions: 1) Written or unwritten; A written constitution is one contained within a single document or a series of documents deﬁning the basic rules of the state. (origins of written constitutions: US constitution and the French Revolution of 1789). More recently, written constitutions have been drafted in the process of dismantling a colonial relationship and restoring independence to a country. The feature that is common to all countries with a written constitution is that at some point in time there has been a clear break from former constitutional arrangements, providing the opportunity for a fresh start. 2) Republican or monarchical: A republican state is one having as its ﬁgurehead a (usually) democratically elected president. By contrast, a monarchical state is one having as its head of state a king or queen. Example: Spanish constitution, article 56: “1. he King is the Head of State, the symbol of its unity and permanence. He arbitrates 2 and moderates the regular functioning of the institutions, assumes the highest representation of the Spanish State in international relations, especially with the nations of its historical community, and exercises the functions expressly conferred on him by the Constitution and the laws. 2. His title is that of King of Spain, and he may use the other titles pertaining to the Crown. 3. The person of the King is inviolable and shall not be held accountable. His acts shall always be countersigned in the manner established in section 64” 3) Flexible or rigid: A ﬂexible constitution is one that may be amended with ease (US). A rigid constitution, by contrast, is one where there are stringent procedures to be followed before reform can take place. 4) Unitary or federal: A unitary state is one with a highly centralized government and legislature, which enacts laws governing the whole state. A federal state is one where the power is divided between the central government and more localized state governments. The constitution will deﬁne the allocation of power between central and state governments. Example: Spanish constitution, article 143, “in the exercise of the right to self government recognized in Article 2 of the Constitution, bordering provinces with common historic, cultural and economic characteristics, island territories and provinces with historic regional status may accede to self-government and form Autonomous Communities in conformity with the provisions contained in this Title and in the respective Statutes”. 5) Supreme or subordinate: A supreme constitution is one that is not controlled by any higher source of power. On the other hand, a subordinate constitution is one that has (usually) been conferred by a higher power, with that higher power being able to extend or restrict the degree of autonomy enjoyed by the subordinate state. Subordinate constitutions are usually the product of colonialism subordinate to another country's law (Gibraltar). 6) Clearly separated powers or fused powers: Separation of powers requires that the personnel, functions and powers of the principal institutions of the state (the executive, legislature and judiciary) are separate. The purpose of the separation of powers is to avoid the concentration of power in one “pair of hands” which could lead to the abuse of power. A state with a poor, or nonexistent, separation of powers is likely to be a dictatorship, with no system of checks and balances to avoid the abuse of power. Constitution-As-Function versus Constitution-As-Form - Constitution-As-Form: Three conditions to assess a law’s status as a “Constitution”: 1. The document is identiﬁed explicitly as the Constitution, Fundamental Law, or Basic Law of a country. 2. The document contains explicit provisions that establish it as the highest law, either through entrenchment or limits on future law. 3. The document deﬁnes the basic pattern of authority by establishing or suspending an executive or legislative branch of government. The ﬁrst condition is su cient to qualify a document as a constitution, whereas the others are applied as supplementary tests if the ﬁrst is not met. - Constitution-as-function: 1. Limitation of government power (a contract). - Constitutions generate a set of inviolable principles and more speciﬁc provisions to which future law and government activity more generally must conform. - This function is vital to the functioning of democracy. Without a commitment to higher law, the state can operate for the short-term beneﬁt of those in power or the current majority. Those who ﬁnd themselves out of power may ﬁnd that they are virtually unprotected, which in turn may make them more likely to resort to extra constitutional means of securing power. 2. A second function that constitutions serve is the symbolic one of deﬁning the nation and its goals. In this conception, the constitution functions not so much as a set of rules as an ongoing set of practices that deﬁne the political unit, facilitating, under some circumstances, the emergence of constitutional identity. 3. Constitutions deﬁne patterns of authority and set up government institutions. This function di ers from the constitutionalism function of limiting government. Although the mere process of deﬁning an institution involves some constraints on its behavior, these organizational maps are conceptually distinct, albeit subtly, from the substantive and entrenched limits on government action incorporated into the notion of constitutionalism. DEMOCRACY AND EQUALITY The political, legal, and moral equality of every citizen is a fundamental value of democracy. These aspects of equality are summarized in the idea that there can be no second-class citizens in a democracy. Thus, according to an adage, “each is to count for one and for no more than one.” The democratic principle of political equality is that no one is born with the right to rule others; and no one is born with the obligation to political obedience. Because of this elemental political equality, the only way that legitimate political authority can be established is through the consent of the governed. - Equality in democracy may be said to have the following dimensions: · Political equality means that each citizen is to be able to vote in elections and to stand for o ce. No one is to have more than one vote, and electoral districts are to have approximately the same population so that each vote counts roughly the same. · Legal equality means that all persons (noncitizens as well as citizens) are to enjoy the equal protection of the laws. That is, no one is to be discriminated against by law on account of accidents of birth such as race, ethnicity, gender, or ancestry; nor on account of personal choices such as religion, group membership, or occupation. · Moral equality means that each citizen (in most circumstances noncitizens as well) is to be given equal concern and respect in the eyes of the law and in the policies of governments. - Among the most important forms of democratic equality to be guaranteed by the equal protection of the laws is “equality of opportunity.” This means that law must not unfairly disadvantage anyone in their opportunity to seek a variety of social goods such as education, employment, housing, and political rights. · Policies among democracies vary widely with respect to promoting equality of condition (“equality of result” as opposed to “equality of opportunity”) among citizens. “Equality of result,” of wealth or condition, however, is not inherent in the idea of democracy. · Democracy tends not to work well, however, in societies in which there are vast disparities of wealth, in the absence of a substantial middle class. - Beyond the formal equality of each citizen in a democracy, there can be said to be an informal “spirit of equality” that is manifested in democracies. As democracy deepens in a society, the idea of equality generally spreads to social habits and mores. These aspects of a mature democracy may take a considerable period to develop. Examples of informal equality include the following: · Citizens treat each other with equal respect, despite di erences in wealth and social status. · Individual merit counts more in the estimation of society than accidents of birth, such as race, gender, and ancestry. · Consciousness of social hierarchy and class resentment declines. As the result of a prolonged period of equality of opportunity and the freedoms that promote economic prosperity, a middle class grows between rich and poor, adding to political stability. A substantial “middle class” is among the most important characteristics of a stable democratic state. 16/10/23 What is a Constitution? Principles and concepts A Constitution is a set of fundamental legal-political rules that: 1. are binding on everyone in the state, including ordinary law-making institutions; 2. concern the structure and operation of the institutions of government, political principles and the rights of citizens; 3. are based on widespread public legitimacy; 4. are harder to change than ordinary laws (e.g. a two-thirds majority vote ora referendum is needed) 5. as a minimum, meet the internationally recognized criteria for a democratic system in terms of representation and human rights. - Fundamentals of Constitutions: The functions of a constitution 1. Constitutions can declare and deﬁne the boundaries of the political community. These boundaries can be territorial (the geographical borders of a state, as well as its claims to any other territory or extraterritorial rights) and personal (the deﬁnition of citizenship). Thus, a constitution often distinguishes between those inside and outside the polity. 2. Constitutions can declare and deﬁne the nature and authority of the political community. They often declare the state’s fundamentals, principles and assumptions, as well as where its sovereignty lies. For Example, the French Constitution declares that ‘France is an indivisible,secular, democratic and social Republic’ and that ‘National sovereignty belongs to the people, who exercise it through their representatives and by means of referendums’. The Constitution of Ghana (1992) states that ‘TheSovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised’. 3. Constitutions can express the identity and values of a national community. As nation-building instruments, constitutions may deﬁne the national ﬂag, anthem and other symbols, and may make proclamations about the values, history and identity of the nation. 4. Constitutions can declare and deﬁne the rights and duties of citizens. Most constitutions include a declaration of fundamental rights applicable to citizens. At a minimum, these will include the basic civil liberties that are necessary for an open and democratic society (e.g. the freedoms of thought, speech, association and assembly; due process of law and freedom from arbitrary arrest or unlawful punishment). Many constitutions go beyond this minimum to include social, economic and cultural rights or the speciﬁc collective rights of minority communities. And some rights may apply to both citizens and non-citizens, such as the right to be free from torture or physical abuse. 5. Constitutions can establish and regulate the political institutions of the community. Constitutions deﬁne the various institutions of government; prescribe their composition, powers and functions; and regulate relations between them. Almost all constitutions establish legislative, executive and judicial branches of government. In addition, there may be a symbolic head of state, institutions to ensure the integrity of the political process (e.g. an electoral commission), and institutions to ensure the accountability and transparency of those in power (e.g. an ombudsman). The institutional provisions typically provide mechanisms for the democratic allocation and peaceful transfer of power (e.g. elections) and for the restraint and removal of those who abuse power or who have lost the conﬁdence of the people (e.g. impeachment procedures). 6. Constitutions can divide or share power between di erent layers of government or sub-state communities. Many constitutions establish federal, quasi-federal or decentralized processes for the sharing of power between provinces, regions or other sub-state communities. These may be geographically deﬁned (as in most federations, such as Argentina, Canada Or India), or they may be deﬁned by cultural or linguistic communities. 7. Constitutions can declare the o cial religious identity of the state and demarcate relationships between sacred and secular authorities. This is particularly important in societies where religious and national identities are interrelated, or where religious law has traditionally determined matters of personal status or the arbitration of disputes between citizens. 8. Constitutions can commit states to particular social, economic or developmental goals. This may take the form of judicially enforceable socio-economic rights, directive principles that are politically binding on the government, or other expressions of commitment or intent. - THE CONSTITUTION AT THE INTERSECTION OF LEGAL, SOCIAL AND POLITICAL LIFE · Constitutions as legal instruments A constitution makes the operation of power predictable and places limits on the arbitrariness of power. Is the supreme law and provides the standards that ordinary statutes must comply with. · Constitutions as social declarations Constitutions reﬂect and shape society (by expressing the common identity and aspirations of the people, proclaiming shared values and ideals…). These can be found in preambles and opening declarations but also can be found in other symbols that are deﬁned by the constitution. · Constitution as political instruments The constitution prescribes a country´s decision-making institutions: they identify the supreme power, distribute power in a way that leads to an e ective decision making and provide a framework for continuing political struggle. - Two constitutional archetypes The di erences between these two types of constitutions relate to the nature and purposes of the document itself. 1. Procedural constitutions: HETEROGENEOUS COMMUNITIES It deﬁnes the legal and political structures of public institutions and sets out the legal limits of government power in order to protect democratic processes and fundamental human rights. It may be appropriate in cases where it is di cult to arrive at a common agreement over issues of values or identity, but where it is possible to reach a more limited and pragmatic consensus on using democratic procedures to resolve these di erences. The Canadian (1867/1982) and Dutch (1848/1983) constitutions closely reﬂect the procedural archetype. Also Spain, it recognizes the autonomy of the di erent identities of regions and the solidarity among them all (Art. 2). 2. Prescriptive constitutions: HOMOGENEOUS COMMUNITIES It emphasizes the foundational function of the constitution, which plays a key role in representing the ultimate goals and shared values that underpin the state’, the common values and aspirations of a homogeneous community. In addition to describing how the government functions, the constitution assumes a broad consensus on common societal goals that public authorities must strive to achieve. This is reﬂected in the emphasis placed on the constitution’s social content and in the ideological shape of its legal and political content. It may be appropriate in cases where a society wishes to re-establish itself on a shared ethical basis that is both symbolically proclaimed by, and practically embedded in, its supreme law. Most constitutions contain, to varying degrees, both features. - ELEMENTS THAT A CONSTITUTION CONTAIN · Divisions: In title, chapters, articles… · Arrangement: Constitutions vary in the arrangement of their provisions. Principles and rights provisions are placed in a separate section near the beginning of the text; the institutional provisions are placed in the middle of the text and independent, amendments and other provisions are placed near the end of the text. · Size and length: New constitutions tend to be longer than older ones and federal constitutions longer than unitary ones. - THE CONSTITUTION AND THE CONSTITUTIONAL ORDER A constitutional order represents a fundamental commitment to the norms and procedures of the constitution, manifest in behavior, practice, and internalization of norms. It can include customs, conventions, norms, traditions… and any judicial decisions that are integral to the practical workings of the constitution. But, building a constitutional order is a long-term process (drafting the constitutional text, establish institutions procedures and rules for constitution-making, give legal e ect to the constitution and ensure that the spirit and the letter of the constitution are faithfully implemented). 1. CONSTITUTIONS AND DEMOCRACY - WHY IS IMPORTANT TO HAVE A CONSTITUTION? Historically, countries that have succeeded in establishing and maintaining constitutional government have usually been very developed countries in a general view, in contrast, those states that have failed to maintain constitutional government have often a short development potential. Constitutionalism empowers legitimate authorities to act for the public good in the management of common concerns while protecting people against the arbitrary power of rulers whose powers would otherwise be used for their own beneﬁt and not for the public good. The constitution, brieﬂy, ensures that the government does not own the state; it simply manages the state, under the authority of higher laws, on behalf of citizens. Constitutionalism is the opposite of despotism, which is a system of government in which the governing authorities are a law unto themselves. But not all despotic governments are intolerably oppressive. - DEMOCRATIC CONSTITUTIONALISM AS A GLOBAL NORM Modern democratic constitutionalism is based in two principles: · Representative government: It enables citizens to participate in public a airs and hold their government to account. · Protection of rights: With this, citizens are insulated from abuses of power. Modern democratic constitutionalism has spread around the world in subsequent waves of democratization. Now, it is embedded in the most widely recognized international declarations and conventions (Universal Declaration of Human Rights…) and now, it’s also a universal value, and its beneﬁts can be shared by all of humanity. - ELITE ACCOMMODATION In every human society, there are two groups of “elites”: one is a small elite that possess both wealth and power in abundance, and the other is the non-elite group, that does not have those powers. What distinguish these two groups (in constitution terms) is the access to economic and political power: elites’ rule, non-elites are ruled. So, by establishing a constitutional order, society is trying to impose rules on rulers, and to allow non-elites to constrain elites and hold them accountable. In the process of establishing a constitutional order, there is one problem: the resistance of the elites. To avoid this resistance, elites might have to be appeased in several areas that concern their vital interests (immunity, f.e). but, excessive appeasement of this interests, could be a real problem to achieving a democratic constitutional order, and an oligarchic system could be produced. - INCLUSIVE BARGAINS AND PRECOMMITMENTS Constitutionalism makes the state a public entity (a public possession of all citizens, not only of one person or party). However, many constitutions have failed to establish a democratic constitutional order, instead, they represented an imposition of values by one side. These are the one side constitutions, which exclude those citizens who do not belong to that section of society or those who disagree with this vision, from full and equal participation in the state. Sometimes, this constitution emerges from a selﬁsh attempt of one person or party to maintain power to enjoy the beneﬁts alone. And sometimes have been promoted by people that have a better vision of society, the problem is that di erent people have di erent visions of a better society. So, in a creation of a constitution, procedural and prescriptive approaches have their place, and constitution-builders must concentrate in those areas where consensus can be achieved and to make the constitutional bargain as inclusive as possible. In practical terms, the precommitments of constitutionalism can be seen as a form of collective self-binding by which the participants in a political system bind themselves to fundamental rules so that incumbent holders of government o ce cannot dominate or manipulate the state. Adherence to the precommitments is a self-defense mechanism for democracy, preventing people from easily voting democracy away. - CONSTITUTIONS, CORRUPTION AND GOOD CITIZENSHIP Corruption covers all actions that put private interests above public interests in relation to legislation, policy, and administration. Is important to highlight that constitution-makers must pay attention to the nurturing of social, economic, and cultural institutions that disperse power in society and that equip citizens morally, intellectually, and practically for citizenship. Basically, we have to say that a constitutional text must reﬂect and embody democratic values, but these values must themselves exist among the people, if they are absent, it is unlikely that the constitutional text will be able to inculcate them. Nations wishing to embrace a democratic constitutional order might have to begin with soul-searching. In such circumstances, one way of proceeding might be to embrace on a pre-constitutional phase of national dialogue to bring together the political forces in society in an attempt to reach agreement on the basic principles of a democratic constitutional order and on the process of constitution-building. 16/10/23 The Fundamentals of Constitutional Courts 1. WHAT ARE CONSTITUTIONAL COURTS If a constitution is intended to be binding there must be some means of enforcing it by deciding when an act or decision is contrary to the constitution and providing some remedy where this occurs (Constitutional review). A constitutional court is a special type of court that exercises the power of constitutional review. Its role is to review laws and executive acts and decisions to decide whether they are constitutionally valid and provide a remedy if they are not. It´s important to know that no other court can engage in constitutional review. Since constitutional courts exercise exclusive jurisdiction over constitutional matters, this is called the centralized system of constitutional review. This system, contrasts with systems in which it’s carried out by a court with general jurisdiction, in which any court can engage in constitutional review; this is called the di used or American system. Constitutional courts do not preside over civil or criminal litigation, and they are often empowered to decide abstract questions that do not arise as a set of facts giving rise to a speciﬁc or concrete legal dispute between parties. The constitutional court is an essential mechanism to achieve and entrench democratic reforms. In general, constitutional courts have decided cases in such a way as to encourage democratic politics and dialogue between di erent organs of the state. The main motivation in establishing constitutional courts is to create a strong and specialized judicial-type body capable of enforcing a new constitution or a new constitutional deal. 2. WHAT ARE THE POWERS OF CONSTITUTIONAL COURTS? Contemporary constitutional courts posses the following types of power: - Constitution-drafting jurisdiction (controlling the constitution itself): · Adjudicating issues arising in the constitution-making process · Reviewing the constitutionality of constitutional amendments - Judicial review of legislative acts (controlling the legislature): · Reviewing the constitutionality of laws in advance of legislation (ante factum) · Reviewing the constitutionality of laws after legislation (ex post facto) · Reviewing the constitutionality of decisions by the legislature · Initiating or requiring legislation - Jurisdiction over o cials and agencies (controlling the executive) · Reviewing the constitutionality of executive actions and decisions · Hearing impeachment proceedings against holders of public o ce · Consideration of criminal or civil cases in respect of o cial corruption · Consideration of qualiﬁcations of individuals to hold or continue to hold public o ce · Adjudication of appointment of o ceholders under the constitution · Adjudication of disputes as to the competence of organs of state · Adjudication of disputes between organs of state. - Jurisdiction over political parties and elections (controlling elections): · Adjudication of the dissolution of political parties and control over constitutionality of their actions · Examining the legality of elections and election results at any level · Hearing electoral petitions. Is important to say that no constitutional court possesses all four of these powers. 3. HOW ARE CONSTITUTIONAL COURT JUDGES SELECTED? We can divide selection mechanisms into four categories: - Selection by the executive and the legislature: this process involves nomination by the president, but appointment requires approval from the legislature. - Selection by the legislature: it also requires the ﬁnal selection of the legislature. Nominations here will often require approval by a “supermajority” because this ensures that opposition parties have some say in selections. - Selection by the executive, the legislature, and the judiciary: There is a danger here, because it could be a situation in which judges may be sympathetic to the institutional interest that selected them. But this model also has a big merit because it can prevent the possibility of one branch of the state dominating the selection process. - Selection by a special commission: This model has an obvious problem, which is deciding who should be qualiﬁed to sit on the commission and what method of selection would prevent this body becoming a forum for elected politicians. - Appointment by the executive: Is not recommended, as it gives the executive the power to control the constitutional court through the appointment system. 4. WHO CAN BRING A CASE TO A CONSTITUTIONAL COURT? - O cial reference: The constitutional court hears a case referred directly by a named o cial or agency such as the speaker. - Legislative reference: A member or a proportion of members of the legislature may bring a petition to the court. - Judicial reference: A court that hears a civil or criminal case refers an issue of constitutional interpretation to the constitutional court. - Individual direct petition: Here, every citizen has standing to raise a constitutional question before the constitutional court. 5. RELATIONSHIP BETWEEN THE CONSTITUTIONAL COURT AND THE ORDINARY COURTS Some systems incorporate a judicial discretion to refer a case to the constitutional court, while others make such reference mandatory. Conﬂict between the constitutional court and the ordinary judiciary is not unheard of. Often the ordinary judiciary considers that it should have been given the power of constitutional review and may asserts its powers in an unhelpful manner. 6. WHAT SORT OF PROCEDURE IS TO BE E.g.PECTED AND WHAT ACTUAL VEREDICTS AND REMEDIES DO CONSTITUTIONAL COURTS HAVE AT THEIR DISPOSAL? Process in constitutional courts is rendered relatively simple by the fact that there is usually neither a trial of facts nor an appeal process. Practice also varies regarding the delivery of judgments because some systems allow individual and even dissenting judgments, while others allow only a decision of the court. Finally, remedies stem from a ﬁnding of unconstitutionality. 7. WHAT ARE THE ADVANTAGES AND DISADVANTAGES OF HAVING A CONSTITUTIONAL COURT? - ADVANTAGES · A constitutional court is typically set up to provide a strong enforcer for a new constitution. · Is the easiest way to achieve ﬁnality and uniformity in constitutional interpretation. · A constitutional court allows for the selection of judges who are either specialized in constitutional law or are thought to bring more general expertise or representative capacity to the bench. - DISADVANTAGES · There is a danger that it might be threatened with retaliatory action such as reduction or abolition of its powers or even dismissal or might be subject to its independence being compromised via the appointment process. · In common-law countries constitutional questions are seen as paradigmatically legal questions, and there is on this view no case for a specialized court or a specialized form of judiciary. · Judicial independence can be compromised, and judicial appointments politicized. 8. WHAT IS THE INTERNATIONAL EXPERIENCE OF CONSTITUTIONAL COURTS? HOW CAN CONSTITUTIONAL COURTS CONTRIBUTE TO DEMOCRATIZATION? Alec Stone Sweet´s vision: - Constitutional review can be said to be e ective to the extent that the important constitutional disputes arising in a polity are brought to the constitutional court on a regular basis, that the judges who resolve these disputes, give reasons for their ﬁndings and that those who are governed by the constitutional law accept that the court´s rulings. - One cannot know in advance how the constitutional court´s case load will turn out. We can learn that the dangers of compromised independence are always present, and that the constitutional courts must be aware of the public perception of their decisions. We can learn also that if constitutional court´s decisions are not carefully reasoned they may be seen as arbitrary. Above all, the constitutional court must be consistent. 30/10/23 EUROPEAN UNION LAW What is the European Union? The EU is a unique economic and political partnership between 27 European countries that together cover much of the continent, created in the aftermath of the Second World War. The ﬁrst step was to foster economic cooperation: the idea being that countries that trade with one another become economically interdependent and so more likely to avoid conﬂict. The result was the European Economic Community (EEC), created in 1958, and initially increasing economic cooperation between six countries: Belgium, Germany, France, Italy, Luxembourg and the Netherlands. Since then, a huge single market has been created and continues to develop towards its full potential. EU borders From economic to political union What began as a purely economic union has evolved into an organization spanning policy areas, from development aid to the environment. A name change from the EEC to the European Union (EU) in 1993 reﬂected this. The EU is based on the rule of law: everything that it does is founded on treaties, voluntarily and democratically agreed by all member countries. These binding agreements set out the EU's goals in its many areas of activity. Mobility, growth, stability and a single currency The EU has delivered half a century of peace, stability and prosperity, helped raise living standards, and launched a single European currency, the euro. Thanks to the abolition of border controls between EU countries, people can travel freely throughout most of the continent. The single or 'internal' market is the EU's main economic engine, enabling most goods, services, money and people to move freely. Another key objective is to develop this huge resource to ensure that Europeans can draw the maximum beneﬁt from it. Law-making There are 3 main institutions involved in EU legislation: 1) The European Parliament, which represents the EU’s citizens and is directly elected by them; 2) The Council of the European Union, which represents the governments of the individual member countries. The Presidency of the Council is shared by the member states on a rotating basis. 3) The European Commission, which represents the interests of the Union as a whole. Together, these three institutions produce through the "Ordinary Legislative Procedure" the policies and laws that apply throughout the EU. In principle, the Commission proposes new laws, and the Parliament and Council adopt them. The Commission and the member countries then implement them, and the Commission ensures that the laws are properly applied and implemented. Institutions: - EUROPEAN COMMISSION Composition: 27 Commissioners, one from each EU country, provide the Commission’s political leadership during their 5-year term. Each Commissioner is assigned responsibility for speciﬁc policy areas by the President. It drafts proposals for new European laws. It manages the day-to-day business of implementing EU policies and spending EU funds. It oversees and implements EU policies by: 1) Proposing new laws to Parliament and the Council The Commission can propose new laws to protect the interests of the EU and its citizens. It does this only on issues that cannot be dealt with e ectively at the national, regional, or local level (subsidiarity principle). The Commission’s departments produce a draft of the proposed new law. If at least half of the 27 Commissioners agree with it, the draft is then sent to the Council and Parliament. After debating and amending the draft, they decide whether to adopt it as a law. 2) Managing the EU's budget and allocating funding With the Council and Parliament, the Commission sets broad long-term spending priorities for the EU. It also draws up an annual budget for approval by Parliament and the Council, and supervises how EU funds are spent. The Commission’s management of the budget is scrutinized by the Court of Auditors. 3) Enforcing EU law (together with the Court of Justice) As 'guardian of the Treaties', the Commission checks that each member country is applying EU law properly. If it thinks a national government is failing to apply EU law, the Commission ﬁrst sends an o cial letter asking it to correct the problem. As a last resort, the Commission refers the issue to the Court of Justice. The Court can impose penalties, and its decisions are binding on EU countries and institutions. 4) Representing the EU internationally For example, by negotiating agreements between the EU and other countries. It also negotiates international agreements for the EU. - COUNCIL OF THE EUROPEAN UNION This is where national ministers from each EU country meet to adopt laws and coordinate policies. What does it do? 1. Passes EU laws. 2. Coordinates the broad economic policies of EU member countries. 3. Signs agreements between the EU and other countries. 4. Approves the annual EU budget 5. Develops the EU's foreign and defence policies. 6. Coordinates cooperation between courts and police forces of member countries. A further objective is to create more jobs and improve education, healthcare and welfare systems. Although each country is responsible for its own policy, they can agree on common goals and learn from each other’s experience. Who are the members of the Council? There are no ﬁxed members as such. At each Council meeting, each country sends the minister for the policy ﬁeld being discussed – e.g. the environment minister for the meeting dealing with environmental matters. That meeting will then be known as the "Environment Council". Voting Decisions in the Council of the EU are taken by a qualiﬁed majority as a general rule. The bigger a country’s population, the more votes it has, but in fact, the numbers are weighted in favor of the less populous countries: TOTAL: 352. A qualiﬁed majority is reached when: a majority (sometimes even 2/3) of the 27 EU countries vote in favour, at least 260 of the possible 352 votes are cast. Furthermore, a member country can ask for a check to see whether the majority represents a minimum of 62% of the total population. If this is not the case, the proposal cannot be adopted. In votes concerning sensitive topics - like security and external a airs and taxation - decisions by the Council have to be unanimous. This means that one single country can veto a decision. From 2014 a system known as 'double majority voting' was introduced. For a proposal to go through, it will need the support of 2 types of majority: a majority of countries and a majority of the total EU population (the countries in favor must represent at least 65% of the EU population). - EUROPEAN PARLIAMENT Directly elected by EU voters every 5 years, members of the European Parliament (MEPs) represent the people. Parliament is one of the EU’s main law-making institutions, along with the Council of the European Union ('the Council'). The European Parliament has three main roles: debating and passing European laws, with the Council scrutinizing other EU institutions, particularly the Commission, to make sure they are working democratically debating and adopting the EU's budget, with the Council. The 750 and the President MEPs are grouped by political a liation, not by nationality. EU Treaties The European Union is based on the rule of law. This means that every action taken by the EU is founded on treaties that have been approved voluntarily and democratically by all EU member countries. The Treaty of Lisbon increased the number of policy areas where 'Ordinary Legislative Procedure' is used. The European Parliament also has more power to block a proposal if it disagrees with the Council. Regulations, Directives and other acts The aims set out in the EU treaties are achieved by several types of legal acts. These legislative acts include regulations, directives, recommendations and opinions. Some are binding, others are not. Some apply to all EU countries, others to just a few. Application of EU law EU law - which has equal force with national law - rights and obligations on the authorities in each member country, as well as individuals and businesses. EU legislation takes the form of: 1) Treaties establishing the European Union and governing the way it works. The powers and responsibilities of all of these institutions are laid down in the Treaties, which are the foundation of everything the EU does. They also lay down the rules and procedures that the EU institutions must follow. The Treaties are agreed by the presidents and/or prime ministers of all the EU countries, and ratiﬁed by their parliaments. 2) EU regulations, directives and decisions - with a direct or indirect e ect on EU member states. 3) EU case law is made up of judgments from the European Union's Court of Justice, which interprets EU legislation. Other EU institutions: Court of Justice of the EU: upholds the rule of European law Court of Auditors: checks the ﬁnancing of the EU’s activities. The European Union: Questions and Answers The Lisbon Treaty The Lisbon Treaty, in force since December 1, 2009, is the result of a 2002 e ort to reform the EU's governing institutions. It amends core treaties, aiming to make the EU function more e ectively, enhance its foreign policy role, and increase transparency and democracy. It introduced new leadership positions—the President of the European Council and the High Representative of the Union for Foreign A airs and Security Policy. The treaty also simpliﬁed voting systems, increased the power of the European Parliament, and introduced an exit clause (Article 50) outlining procedures for a member state to leave the EU. The UK invoked Article 50 in 2017, initiating its withdrawal process. What Is the Euro and the Eurozone? Nineteen EU member states use the euro, collectively known as the eurozone. The euro's gradual introduction began in 1999, with notes and coins replacing national currencies in 2002. The eurozone shares a central bank (ECB) and monetary policy but lacks a common ﬁscal policy. In 2009-2010, a crisis emerged, starting with Greece's high debt. Bail-out loans, austerity measures, and policy mechanisms were implemented to address the crisis. By late 2012, the situation stabilized, but economic challenges persisted. Greece's potential exit (Grexit) was averted in 2015, but tensions lingered. In 2018, Greece received debt relief, o cially exiting its ﬁnancial assistance plan. The eurozone crisis exposed structural weaknesses, prompting discussions on ﬁscal integration. Despite challenges, EU leaders remain committed to the euro and the broader project, with recent economic recovery attributed to e orts to strengthen the eurozone. Why and How Is the EU Enlarging? EU enlargement is viewed as an opportunity to promote stability and prosperity. Since 2004, the EU has grown from 15 to 28 countries, mainly from Central and Eastern Europe. The enlargement process, starting in 1952, involves candidates meeting criteria like democracy and a market economy. Accession negotiations are complex, requiring adoption of EU laws. The process is a powerful tool transforming countries into democratic and a uent societies. Current candidate countries include Albania, Macedonia, Montenegro, Serbia, and Turkey, each at di erent stages. Bosnia-Herzegovina and Kosovo are potential future candidates. The EU remains open to any European country meeting criteria, but concerns about migrant labor and the impact on institutions and identity, especially with countries like Turkey, raise caution. Brexit may also inﬂuence prospects for further EU enlargement. Does the EU Have a Foreign Policy? the EU has a Common Foreign and Security Policy (CFSP) established in 1993, aiming to adopt common policies and pursue coordinated strategies when consensus is reached. CFSP decision-making involves unanimous agreement of member states, with a focus on aligning national policies with agreed EU positions. It does not prevent individual member states from conducting their own foreign policies. CFSP has made progress in forming common policies on international issues, but challenges persist due to di ering member state perspectives. The Lisbon Treaty seeks to strengthen CFSP by establishing a High Representative for Foreign A airs and Security Policy, consolidating diplomatic responsibilities and creating the European External Action Service to support the High Representative. Does the EU Have a Defense Policy? Yes, the EU has been working on developing a Common Security and Defense Policy (CSDP) since 1999. The aim is to enhance the EU's ability to respond to security crises and improve European military capabilities. CSDP involves three defense decision-making bodies, a rapid reaction force, and multinational battlegroups. While not a standing "EU army," these forces are troops and assets from existing national forces at appropriate readiness levels. CSDP missions focus on peacekeeping, crisis management, and humanitarian assistance. European military capabilities face challenges due to ﬂat or declining defense budgets, capability gaps, and limited deployable forces. E orts to remedy these shortfalls include pooling assets, developing niche capabilities, and establishing the European Defense Agency. Recent initiatives include increased defense spending, EU defense integration, and measures like the European Defense Fund and Permanent Structured Cooperation (PESCO) to enhance military capabilities and interoperability. EU leaders emphasize that these e orts do not signify the creation of an EU army, and member states retain control over national military assets and procurement decisions. The EU also seeks a robust partnership with NATO to improve European defense capabilities and security cooperation. What Is the Relationship of the EU to NATO? The EU has emphasized that the Common Security and Defense Policy (CSDP) is meant for military operations where NATO as a whole is not engaged and is not intended to replace NATO's collective defense role. The U.S. supports EU e orts to develop CSDP as long as it remains tied to NATO and doesn't duplicate NATO structures or resources. The Berlin Plus arrangement, established in 2003, allows EU-led military missions access to NATO planning capabilities and common assets to prevent duplication of European defense resources. Despite this, NATO-EU relations have faced strains due to political tensions, especially with Turkey and the Cyprus dispute. However, recent security threats have led to progress in NATO-EU cooperation, focusing on countering hybrid threats, addressing migration, and strengthening cybersecurity. Some concerns persist about potential EU e orts to build a more independent defense arm, especially with the UK's departure potentially inﬂuencing EU defense identity. U.S. o cials support the EU's defense pact (PESCO) but emphasize the importance of not diverting European allies from their NATO commitments. Does the EU Have a Trade Policy and Process? The EU has an exclusive and integrated common external trade policy, preventing member states from negotiating individual international trade agreements. The policy covers goods, services, intellectual property rights, and foreign direct investment. The European Commission and the Council of Ministers collaboratively set the common customs tari , guide export policy, and decide on trade protection measures. While the Council can make trade decisions with qualiﬁed majority voting, it typically seeks consensus. What Is the Schengen Area? The Schengen area of free movement encompasses 22 EU member states plus four non-EU countries. Within the Schengen area, internal border controls have been eliminated, and individuals may travel without passport checks among participating countries. What is judicial review? Judicial review is a legal process for challenging the decisions of public bodies if

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