Comparative Constitutional Law

Lecturers: Prof Dr Monica Claes Dr Maartje de Visser M 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 Constitutionalism beyond the State: European constitutional law and global constitutionalism

Theme 1: concepts and principles

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

constitutionalism and rule of law sovereignty democracy 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

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

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

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

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

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

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

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

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

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

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

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

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

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