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Foundation of Comparative Constitutional Law

Explore concepts, principles, and political systems in constitutional law, including federalism, rights protection, and global constitutionalism. Learn about constitutions, sovereignty, democracy, and fundamental rights. Understand constitutional interpretation and rule of law.

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Foundation of 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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