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Comparative Constitutional Law

Comparative Constitutional Law. Lecturers: Prof Dr Monica Claes Dr Maartje de Visser M.Jur Dr Lars Hoffmann. Themes. Concepts and principles Political systems and constitutions Constitutional interpretation and review Federalism Fundamental rights protection

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Comparative Constitutional Law

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  1. Comparative Constitutional Law

  2. Lecturers:Prof Dr Monica ClaesDr Maartje de Visser M.JurDr Lars Hoffmann

  3. Themes • Concepts and principles • Political systems and constitutions • Constitutional interpretation and review • Federalism • Fundamental rights protection • Constitutionalism beyond the State: European constitutional law and global constitutionalism

  4. Theme 1: concepts and principles

  5. Why comparative constitutional law? • understanding own system • drafting and interpreting constitutions • transposing? • formulation of common principles in regional organisations (e.g. EU) • source of inspiration for the development of global constitutional principles

  6. Key concepts • constitutions • constitutionalism and rule of law • sovereignty • democracy • separation of powers • horizontal between branches of government • vertical between territories: federalism, devolution and decentralisation • fundamental rights/human rights

  7. What is a constitution? Joseph Raz: • constitutes the legal and political structure • stable • often written (Constitution) • superior • justiciable • entrenched (difficult to amend - rigid) • expresses common ideology

  8. What is a constitution for? What does it do? constitute - attribute - organise - limit – protect - express • declare and confirm fundamental rights • constitute and establish public bodies • attribute competences • regulate the relations between these bodies • express the fundamental values and goals

  9. Where can constitutional rules and principles be found? • Constitution • conventions and unwritten rules and principles • statutes or organic laws • case law • treaties and international law • …

  10. Rule of law and constitutionalism • as opposed to mere power • as opposed to rule by law • no one stands above the law • the authority of government derives from and is limited by a body of fundamental law • the authority of government derives from the people, and is limited by a body of fundamental law

  11. Sovereignty • What is meant by ‘sovereignty’? • internal vs external • Where does sovereignty reside? • USA/Germany/France: people • Belgium: nation • The Netherlands: concept not used in internal system • The UK: sovereignty of parliament • sovereignty and the EU

  12. Democracy rule by the people (..) types: • indirect (representative) • direct • deliberative • participatory

  13. Separation of powers Montesquieu > trias politica the three branches of government: legislative, executive, judicial Separation of functions Separation of institutions Separation of persons Separation of powers vs checks and balances

  14. Fundamental rights / human rights What are fundamental or human rights? Classification: • classical liberal civil/political rights (negative obligation for the state) • modern socio-economic rights (positive obligation for the state) • ´third-generation´ rights

  15. US Constitution • Federal republic + presidential democracy (Art. 1 and 2(1) ). • 1776 – Independence from UK • 1789 – Entry into force of constitution • Articles + amendments; Bill of Rights • Article 5 – Amendment procedure • Initiative: 2/3 members present in both chambers • Ratification: 3/4 of the States

  16. German Basic Law / Grundgesetz • Federal republic + parliamentary democracy • 1949 – Basic law • 1990 – succession of states of the former DDR under old Art. 23 • Art. 79 – amendment procedure • 2/3 of the members of the Bundestag • 2/3 of the total votes of the Bundesrat • but: eternity clause

  17. UK Constitution • Constitutional monarchy; unitary state • No codification in one single document: • Statutes / Acts of Parliament • Case law • Customs • Sovereignty of parliament • constitutional change: • Statutes can change previous statutes • Emergence of new customs • Changing case law

  18. French Constitution • 1958 – V Republic • Unitary but partly centralized state; semi-presidential democracy • Art. 89 – amendment procedure: • Simple vote by both chambers + referendum or • 3/5 of votes cast in a joint session

  19. The Constitution of the Netherlands • 1815 Constitution – 1954 Charter • Kingdom = federation / country is unitary decentralized state • No preamble; human rights catalogue included • Art. 137 – amendment procedure: • 1st reading: simple majorities in both houses • new elections of 2nd Chamber • 2nd reading: 2/3 majorities of votes cast

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