UNIVERSITY OF GRONINGEN
PUBLIC LAW 2017/18
LECTURE NOTES
WEEK 1A 16/4-2018
History of Constitutionalism
Government should try to serve people, instead of people serving them. Leaders of countries
should be bound by fundamental rules: rule of law; everyone bound by law
—> “not bound by men but by measures”
—> everyone is equal
—> liberal democracy
- 16th century
- No country left that doesn't claim themselves democracy —> but sharia law is in conflict
with democracy (Saudi Arabia and Iran)
5-6 countries without written constitution
- Great Britain
5-6 countries that do not recognise sovereignty of people
- Netherlands
———
16th century
- Middle Ages ends —> Renaissance
- Our view of the world changed
- 15th century: Portuguese sail around finding end of Africa —> Columbus
- Technical breakthroughs: printing press
• Before: writing limited to limited group (clergy) —> Church controlled what was written
• After: censorship invented (anyone could print = new ideas), travelled fast
• New idea: Reformation = protestantism —> Martin Luther published = religious strife
• Monarch has to uphold true religion —> catholic vs protestant
• Do you obey your ruler despite him having a different religion? (Luther = Yes; Calvin = no you
revolt) = war
Religious Wars
- Germany lost 1/3 of pop in 30 Years war
- NL 18 years war: west of NL experienced less war = economically the strongest; before the
south was
- How can you end the wars?
• France: Jean Bodin (legal scholar and advisor to king) => Kings do not have enough power
to solve religious strife => abolish idea for State to bargain public powers; public powers are
public that belong only to State
- Private and Public law are two different things!
- Bodin invented word “Sovereign” to describe State => King is sovereign because he
acts on behalf of State = not bound by earlier kings decisions or limits set by foreign
powers
- French king was sovereign = Pope not superior => could implement religious
tolerance
Absolute Monarchy
• France => sovereignty (Bodin); Louis 14th = Sun King (everything rotates around it) => the king
wills it
• England: Parliament vs King = parliament won (is sovereign)
, UNIVERSITY OF GRONINGEN
PUBLIC LAW 2017/18
Peace of Westphalia: all States of Europe are sovereign States = equals
—> no ruler has the right to interfere in another State’s internal affairs
Thomas Hobbes: British philosopher
- Learned about sovereignty when exiled to France
- “Leviathan” : The Matter, Forme and Power of a Common-Wealth Ecclesiastical and Civil
• Human beings —> driven by fear because we know we’re mortal = in constant motion
—> humans want security
• We need someone to enforce contracts = the sovereign
• Sovereign gets power from the people
• BUT limits on sovereign power
• Sovereign is not bound by foreign religious power => cant force people to believe, can
only force them to follow => you cant control peoples’ conscience!! => Freedom of
Conscience = HUMAN RIGHTS
Decat: break stuff down to elementary elements to understand
- invented word “Individual”
———
Important things to know
• Reformation and effects (war)
• Jean Bodin (sovereignty)
• Thomas Hobbes
• Absolute monarchy: UK king vs parliament
• Peace of Westphalia = external sovereignty
WEK 1B 17/4-2018
Revolutions and Constitutions
Hobbes elaborated on sovereignty. Put limits on sovereign’s power.
—> State’s power:
• Law is not bound by religious truth
• Hobbes said you should obey sovereign even if he is a heretic
• “The authority, not the truth, makes the law”
—> Limits:
• State cannot kill you
• State does not control peoples’ conscience
—> Human beings are essentially pragmatic
State shouldn't with our life
John Locke:
• Human beings are less problematic
• Published 1689: no more religious strife
• Heavily influenced by Hobbes
• We should live in a State based on an agreement amongst ourselves
• We should give up some of our natural rights to live in the State
• The State should have powers but they shouldn't be unlimited (escape wolves by going into lion’s
den)
• Two Treatises of Government: the State should have powers, we should give up some of our
rights, but the State shouldn't involve itself in our life, liberty, and our possessions (estate) =
property
, UNIVERSITY OF GRONINGEN
PUBLIC LAW 2017/18
• State shouldn't interfere with our property : how?
1. Agreement amongst ourselves —> were going to build a State and establish a
government
2. Agreement between citizens and State —> powers and limits the government has;
fundamental norms —> citizens should have influence on State’s decisions =>
popular assembly (parliament elected by the people renewed regularly —>
legislative power)
Powers should be guaranteed
Powers should not be in the hand of one State organ —> separation of powers
1. Executive
2. Legislative
3. Federative
Clause in second agreement: the people have the right of rebellion
Absolute Monarchy
—> modern idea
FRANCE:
Montesquieu: Trias Politica
- 1742: “Spirit of the Laws” —> descriptions of most known societies —> causal link;
no one answer to ‘how should we live?’ —> comparative law
- On the government of England: legislative, executive, judicial
Rousseau:
- 1762: “Contrat Social”
- Previous thinking = If you want to live in a State you have to give up certain
freedoms (Hobbes said a lot, Locke said not so much); liberty means having
set no limits upon you BUT Rousseau: remain as free as we were before while
enjoying protection of laws
- Freedom is a moral (not natural); laws of nature are not limits upon our nature
but the structure within which freedom exists —> limitlessness is not freedom
- Even if there are no laws, there will still be laws (natural laws)
- Laws are the structure within which freedom can exist —> not a boundary but
an expression of freedom
- These laws need to confer to certain standards; must have the same character
as natural laws (as much as possible) = culture should be an imitation of nature
=> we are all equal
- Laws are binding only when they are supported by the general will of the
people
- Everyone should make the laws so they are equal for all of us —> need a
popular assembly => States should be small (so that everyone’s voices can
be heard)
- Sovereignty shouldn't be limited because we are all sovereign (everyone
makes the laws)
- You should be forced to be free
- Problem: you need virtuous laws to make virtuous people and virtuous
people to make virtuous laws
- He is the first since Boudin to claim that sovereignty is unlimited. He doesn't
place it in the hands of the King, but in the hands of the people! —> the
sovereign is us (can relate to Hobbes, because we install the sovereign)
, UNIVERSITY OF GRONINGEN
PUBLIC LAW 2017/18
Sieyes - You need something to express the opinion of the people
(Rousseau suggested small States)
- 1789: “What is the Third Estate” —> elected to Estates General
- We should have a parliament
- Sovereign knows no legal bounds —> is not part of the legal order, but precedes it and
creates legal order (is the source)
- The sovereign cannot act within the legal order because we have limits there =>
Sovereignty is limitlessness
- Representation: parliament —> the will of the parliament is the will of the nation!
- People should elect constitutive assembly who write constitution then is dissolved then
parliament is elected which presents the people within the legal order
- Nation(sovereign): constitutive powers —> created legal order
- All State organs: Constituted powers —> exists within legal order
France: Napoleon Bonaparte
• The French nation is sovereign but I am the representative —> the French nation speaks through
me => whenever making an important decision he held a referendum
• Popular sovereignty (can lead to people such as Napoleon) => after napoleon was removed,
much of Europe didn't like popular sovereignty => many kings claimed sovereignty but gave
citizens a constitution => royal sovereignty
18th century: value-driven
19th century constitutions: descriptive and some fundamental rights (ex dutch and danish)
20th century: value-driven (ex german 1949 —> all state power belongs to people)
PUBLIC LAW 2017/18
LECTURE NOTES
WEEK 1A 16/4-2018
History of Constitutionalism
Government should try to serve people, instead of people serving them. Leaders of countries
should be bound by fundamental rules: rule of law; everyone bound by law
—> “not bound by men but by measures”
—> everyone is equal
—> liberal democracy
- 16th century
- No country left that doesn't claim themselves democracy —> but sharia law is in conflict
with democracy (Saudi Arabia and Iran)
5-6 countries without written constitution
- Great Britain
5-6 countries that do not recognise sovereignty of people
- Netherlands
———
16th century
- Middle Ages ends —> Renaissance
- Our view of the world changed
- 15th century: Portuguese sail around finding end of Africa —> Columbus
- Technical breakthroughs: printing press
• Before: writing limited to limited group (clergy) —> Church controlled what was written
• After: censorship invented (anyone could print = new ideas), travelled fast
• New idea: Reformation = protestantism —> Martin Luther published = religious strife
• Monarch has to uphold true religion —> catholic vs protestant
• Do you obey your ruler despite him having a different religion? (Luther = Yes; Calvin = no you
revolt) = war
Religious Wars
- Germany lost 1/3 of pop in 30 Years war
- NL 18 years war: west of NL experienced less war = economically the strongest; before the
south was
- How can you end the wars?
• France: Jean Bodin (legal scholar and advisor to king) => Kings do not have enough power
to solve religious strife => abolish idea for State to bargain public powers; public powers are
public that belong only to State
- Private and Public law are two different things!
- Bodin invented word “Sovereign” to describe State => King is sovereign because he
acts on behalf of State = not bound by earlier kings decisions or limits set by foreign
powers
- French king was sovereign = Pope not superior => could implement religious
tolerance
Absolute Monarchy
• France => sovereignty (Bodin); Louis 14th = Sun King (everything rotates around it) => the king
wills it
• England: Parliament vs King = parliament won (is sovereign)
, UNIVERSITY OF GRONINGEN
PUBLIC LAW 2017/18
Peace of Westphalia: all States of Europe are sovereign States = equals
—> no ruler has the right to interfere in another State’s internal affairs
Thomas Hobbes: British philosopher
- Learned about sovereignty when exiled to France
- “Leviathan” : The Matter, Forme and Power of a Common-Wealth Ecclesiastical and Civil
• Human beings —> driven by fear because we know we’re mortal = in constant motion
—> humans want security
• We need someone to enforce contracts = the sovereign
• Sovereign gets power from the people
• BUT limits on sovereign power
• Sovereign is not bound by foreign religious power => cant force people to believe, can
only force them to follow => you cant control peoples’ conscience!! => Freedom of
Conscience = HUMAN RIGHTS
Decat: break stuff down to elementary elements to understand
- invented word “Individual”
———
Important things to know
• Reformation and effects (war)
• Jean Bodin (sovereignty)
• Thomas Hobbes
• Absolute monarchy: UK king vs parliament
• Peace of Westphalia = external sovereignty
WEK 1B 17/4-2018
Revolutions and Constitutions
Hobbes elaborated on sovereignty. Put limits on sovereign’s power.
—> State’s power:
• Law is not bound by religious truth
• Hobbes said you should obey sovereign even if he is a heretic
• “The authority, not the truth, makes the law”
—> Limits:
• State cannot kill you
• State does not control peoples’ conscience
—> Human beings are essentially pragmatic
State shouldn't with our life
John Locke:
• Human beings are less problematic
• Published 1689: no more religious strife
• Heavily influenced by Hobbes
• We should live in a State based on an agreement amongst ourselves
• We should give up some of our natural rights to live in the State
• The State should have powers but they shouldn't be unlimited (escape wolves by going into lion’s
den)
• Two Treatises of Government: the State should have powers, we should give up some of our
rights, but the State shouldn't involve itself in our life, liberty, and our possessions (estate) =
property
, UNIVERSITY OF GRONINGEN
PUBLIC LAW 2017/18
• State shouldn't interfere with our property : how?
1. Agreement amongst ourselves —> were going to build a State and establish a
government
2. Agreement between citizens and State —> powers and limits the government has;
fundamental norms —> citizens should have influence on State’s decisions =>
popular assembly (parliament elected by the people renewed regularly —>
legislative power)
Powers should be guaranteed
Powers should not be in the hand of one State organ —> separation of powers
1. Executive
2. Legislative
3. Federative
Clause in second agreement: the people have the right of rebellion
Absolute Monarchy
—> modern idea
FRANCE:
Montesquieu: Trias Politica
- 1742: “Spirit of the Laws” —> descriptions of most known societies —> causal link;
no one answer to ‘how should we live?’ —> comparative law
- On the government of England: legislative, executive, judicial
Rousseau:
- 1762: “Contrat Social”
- Previous thinking = If you want to live in a State you have to give up certain
freedoms (Hobbes said a lot, Locke said not so much); liberty means having
set no limits upon you BUT Rousseau: remain as free as we were before while
enjoying protection of laws
- Freedom is a moral (not natural); laws of nature are not limits upon our nature
but the structure within which freedom exists —> limitlessness is not freedom
- Even if there are no laws, there will still be laws (natural laws)
- Laws are the structure within which freedom can exist —> not a boundary but
an expression of freedom
- These laws need to confer to certain standards; must have the same character
as natural laws (as much as possible) = culture should be an imitation of nature
=> we are all equal
- Laws are binding only when they are supported by the general will of the
people
- Everyone should make the laws so they are equal for all of us —> need a
popular assembly => States should be small (so that everyone’s voices can
be heard)
- Sovereignty shouldn't be limited because we are all sovereign (everyone
makes the laws)
- You should be forced to be free
- Problem: you need virtuous laws to make virtuous people and virtuous
people to make virtuous laws
- He is the first since Boudin to claim that sovereignty is unlimited. He doesn't
place it in the hands of the King, but in the hands of the people! —> the
sovereign is us (can relate to Hobbes, because we install the sovereign)
, UNIVERSITY OF GRONINGEN
PUBLIC LAW 2017/18
Sieyes - You need something to express the opinion of the people
(Rousseau suggested small States)
- 1789: “What is the Third Estate” —> elected to Estates General
- We should have a parliament
- Sovereign knows no legal bounds —> is not part of the legal order, but precedes it and
creates legal order (is the source)
- The sovereign cannot act within the legal order because we have limits there =>
Sovereignty is limitlessness
- Representation: parliament —> the will of the parliament is the will of the nation!
- People should elect constitutive assembly who write constitution then is dissolved then
parliament is elected which presents the people within the legal order
- Nation(sovereign): constitutive powers —> created legal order
- All State organs: Constituted powers —> exists within legal order
France: Napoleon Bonaparte
• The French nation is sovereign but I am the representative —> the French nation speaks through
me => whenever making an important decision he held a referendum
• Popular sovereignty (can lead to people such as Napoleon) => after napoleon was removed,
much of Europe didn't like popular sovereignty => many kings claimed sovereignty but gave
citizens a constitution => royal sovereignty
18th century: value-driven
19th century constitutions: descriptive and some fundamental rights (ex dutch and danish)
20th century: value-driven (ex german 1949 —> all state power belongs to people)
