1. Comparative Constitutional Law

2. Lecturers: Prof Dr Monica Claes Dr Maartje de Visser M
Lecturers: Prof Dr Monica Claes Dr Maartje de Visser M.Jur Dr 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. 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

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?
conventions and unwritten rules and principles
statutes or organic laws
case law
treaties and international law …

11. 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

12. 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

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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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