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Private v. Public Law

Private v. Public Law. The distinction between private and public law is considered to be very important in civil law countries. The distinction is recognized in common law countries, but not considered to be of much practical importance. Public Law. Private Law.

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Private v. Public Law

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  1. Private v. Public Law • The distinction between private and public law is considered to be very important in civil law countries. • The distinction is recognized in common law countries, but not considered to be of much practical importance.

  2. Public Law Private Law • Rules regulating relations between private individuals and the state. • Operation of government . • Extent of state authority, relationship between state organs and public. • Relationships between private persons. • “person” can be natural or legal: • Example: A corporation is a legal person.

  3. Constitutional Law

  4. Different Kinds of Constitutions

  5. Written vs. Unwritten • The oldest constitution in existence today is the UK constitution. It is often said to be “unwritten.” • The oldest written constitution in existence today is that of the US.

  6. Constitution of the United Kingdom: • Not written in a single document • An accumulation of traditions, customs, acts of parliament and legal precedents. • Flexible, in that it can be changed by simply passing an Act of Parliament. • Unitary system of government, not federal. • Fusion of power – executive elected from legislature.

  7. United States Constitution: • Written • Can be changed, but changing (amending) the constitution is much more difficult than changing the law. • Provides for separation of powers between 3 independent branches of government: executive, legislative, and judicial. • Separation of powers between federal government and state governments.

  8. Actually, of course, the UK constitution is written down – it is just not written in one document. • Perhaps the key difference between these two types of constitutions is that one is “entrenched” and the other is not.

  9. “An entrenched document is created in a manner that imposes certain obstacles, even upon a general expression of the sovereign will, and its amendment or replacement is made equally difficult. Generally, an indication of some form of broad consensus is required to create or alter an entrenched constitutional document, thus raising its status above all other law within a society.” • James T. McHugh, Comparative Constitutional Traditions (2002)

  10. An unentrenched constitution, like that of the UK (or that of New Zealand or Israel, the other two nations with such constitutions) can be changed just like ordinary legislation – at least in theory. • In fact, there is a strong shared sensibility among elites about what may be change and what may not be. • This may be the case with some elements of entrenched constitutions as well.

  11. Length • Constitutions vary considerably in length. • The US Constitution, the world’s oldest written constitution, is also one of the shortest, with 7 articles and 26 amendments.

  12. The longest is the Indian Constitution, with its 395 articles, 10 schedules, and 3 appendices. • TerEllingson, The Nepal Constitution of 1990: Preliminary Considerations Himalayan Res. Bull. (1991), http://inic.utexas. edu/asnic/ countries/nepal/ nepconst analysis.html. From Landsberg and Jacobs, Global Issues in Constitutional Law.

  13. The Turkish Constitution is relatively long, with 177 articles.

  14. Some believe that a short, general constitution like that of the US is better, because it is more flexible. They point to the fact that it has lasted more than 200 years as proof.

  15. However, it is not clear that a short constitution is the best option for an emerging democracy.

  16. The US has developed a very large body of Constitutional law through 2 centuries of US Supreme Court decisions. • It is really here, in these decisions, that most of US Constitutional law is found.

  17. Compare the way the Turkish and US Constitutions deal with freedom of speech and religion:

  18. What does a constitution do? • 1. Structure the government and the state. • 2. Establish a means of constitutional review by the judiciary. • 3. Provide for the protection of human rights.

  19. 1. Structures the government and the state. • Presidential or parliamentary system • Unicameral or bicameral assembly • Federal or unitary state

  20. Parliamentary system • As in Turkey, government by a group of ministers, chosen by the party that wins the most votes for the legislature. • Executive branch chosen from legislative branch. • There is a head of state (monarch, president) but he/she has little actual power. • The real head of the executive is the prime minister.

  21. Presidential System • As in the US, where the President is elected separately from the legislature. • Ministers (secretaries) chosen by President, not members of the legislature. • In theory, the executive and legislative branches are equal.

  22. Bicameral vs. Unicameral • 2 houses: • As in the US (where the Congress is made up of the Senate and the House of Representatives.) • 1 house: • As in Turkey.

  23. Federal vs. Unitary • A unitary state is one in which there is a single supreme government authority. All local government authority is delegated from the top. • It is generally entirely up to the national government which powers local officials may exercise. • Turkey and the UK are examples of this kind of state.

  24. A federal state is one created when a number of self-governing entities come together to form one country. • Generally, the national government and the self-governing entities will have clearly defined powers, which will be enshrined in the constitution. • The US and Germany are examples of federal states.

  25. Question: • Over the last few years, the UK has “devolved” power from the central government to Scotland, Northern Ireland and Wales. These now have regional parliaments which have limited law making powers. • So why is the UK considered to be a unitary state, rather than a federal one?

  26. Question: • There has been a lot of debate recently about the idea of changing the form of government in Turkey from a parliamentary to a presidential system. • What possible advantages and disadvantages are there to each system?

  27. Parliamentary system – fusion of power between executive and legislature. • Pro • When a ruling party has a strong majority, it can get laws enacted effectively. • Strong protection for the majoritarian principle that is so important in democracy – the party voted for by the majority gets to rule the country.

  28. Con • All power is in the hands of the leaders of one party – few checks on their power. • Pure majority rule means that the minority has no voice in government at all while their parties are out of power.

  29. Presidential System – separate legislative and executive branches. • Pro • It is difficult for one party to make radical changes unless they can capture both the executive and the legislative, and, even in that case, the leadership of the legislative branch is theoretically equal to that of the executive. • The minority who voted for other parties have more of a voice in government.

  30. Con • When one party controls the executive branch and another controls the legislative branch, government may not function effectively until the next election. • Unlike in parliamentary systems, there is usually no possibility of a vote of “no confidence” in the government.

  31. 2. Establishes a means of constitutional review (judicial review) by the judiciary.

  32. Constitutional review is: • The power of courts to review the constitutional validity of statutes passed by parliament and to reject those that violate the constitution.

  33. 1) Constitutional Review in Turkish Constitutional Law: • The fundamental source of law. • Article 11 of the Turkish Constitution (1982) states: • Laws shall not be in conflict with the Constitution.” • The provisions of the Constitution shall be the fundamental legal principles binding the legislative, executive and judicial organs, administrative authorities and individuals.”

  34. In Turkey, access to the Constitutional Court is available through an action for annulment, a constitutional objection, or a constitutional complaint. • Laws, decrees and parliamentary rules all within jurisdiction of Constitutional Court.

  35. Action for annulment • Abstract review of legislation before Constitutional Court. • Law may be challenged directly, without waiting for a case. (different than US) • Only certain individuals and groups can use this action: • President, party in power and main opposition party, 1/5 of the members of parliament. (Article 150.)

  36. Constitutional Objection • Ordinary courts can raise this objection. • Party must convince the court that the objection is serious. • When a court certifies a constitutional issue, it suspends the case in question until issue is settled.

  37. Constitutional Complaint • A new form of action that was added by amendment to the constitution during the referendum of September 12, 2010. • Using this form of action, any person who thinks that his fundamental rights under the European Convention on Human Rights have been violated may apply directly to the Constitutional Court.

  38. Individuals are required to exhaust domestic judicial remedies prior to filing a petition with the Constitutional Court. • Petitioners must pay 150TL to file a complaint. • http://www.non-discrimination.net/content/media/TR-10-The%20individual%20constitutional%20complaint%20procedure%20enters%20into%20force%20in%20Turkey.pdf. Retrieved on Nov. 1, 2012.

  39. 2) Judicial (Constitutional) Review in the US • The need for Judicial review was understood by those who wrote the US constitution (the first modern written constitution.) • The power of judicial review was firmly established in 1803. • Marbury v. Madison, 5 U.S. 137 (1803)

  40. In the US system of judicial review, any court may find a state or federal law to be unconstitutional. • However, unlike the constitutional review systems of most European countries, the US does not allow abstract review.

  41. No one can ask a court to give its opinion on the constitutionality of a law, except within the context of a particular case.

  42. Imagine the US Congress or a state legislature had passed a law allowing public figures to recover damages for intentional infliction of emotional distress. • Could the President, or some private person ask the Supreme Court to examine the constitutionality of this law?

  43. The answer is no, because the US courts have no power to review a law in the abstract.

  44. 3) Judicial Review in England • England, which has an unwritten constitution, has very weak judicial review.

  45. No court can declare a law unconstitutional that has been passed by parliament. • Because there is no written constitution, there is no standard by which the constitutionality of a law, or actions of government, can be measured.

  46. Courts can only can only decide whether the executive branch has acted beyond its powers (ultra vires.)

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