Comparative Constitutional Law
Class 1 - correct answer-Overview
What distinguishes a constitution from other laws? - correct answer-- Probably adopted by
means distinct from the ordinary legislative process
- Normally harder to change than legislative amendments
What does one find in a constitution? - correct answer-- At minimum: the composition and
essential powers of the legislative, executive and judicial organs of government
- Maybe: regulate other agencies of state with impact on the political or legal process
- Almost always: individual rights against the state
- Possibly: characteristics of the state itself, e.g. its values, symbols, source of power etc.
It might be short - correct answer-Like the original American text with less than 4,500 words
It could be long - correct answer-Like the original Indian text with nearly 400 articles
Oldest constitution today - correct answer-- There are different definitions of a 'new
constitution' (is it any amendment or not even a rewrite?)
- Some constitutions comprise several documents, which would make the Six books of San
Marino (1600) the oldest
- Normally the oldest consolidated text still in force is regarded as the American one (1787)
- Only a few countries have got pre-WWII constitutions
How many tries does a country get at writing a new constitution? - correct answer-- The
French are compulsive constitution writers
- The average constitutional text has lasted only 17 years
- Dominican republic has had 32 constitutions since 1821
Who wants to compare constitutions? - correct answer-Lots of people!
- Scholars, to construct genealogies or taxonomies or to determine common principles
- National leaders, to find the best model or combination of models
- Judges, to learn from other jurisdictions
Why should constitutions be studied? - correct answer-Because educated people sometimes
repeat things that simply aren't true. For example:
- The American declaration of independence falsely states that the constitution promises life,
liberty and the pursuit of happiness
Is Comparative Constitutional law a real discipline? - correct answer-Tricky..
- It is subject to the same constraints as comparative subjects in general: there are different
methodologies which often will influence the conclusion
- Even more than in other areas of comparative law, there is a risk of not comparing like with
like
, Why is it, even more than in other areas of comparative law, a risk of not comparing like with
like within the field of Comparative Constitutional Law? - correct answer-See following slides
1. Not everyone has a written constitution - correct answer-Like the UK, New Zealand, Israel
2. A written constitution is never the whole story - correct answer-a) Many constitutions will
refer the reader to other documents:
- there can be a range of laws, jurisprudence and treaties alongside the constitution (Austria)
- the previous constitutions may still have a legal force (Germany and France)
- other countries constitutions may form part as a country's constitution (Francophone
countries)
- the constitution can give constitutional status to legislation (Sweden)
b) Many constitutions leave quite important details to legislation. - correct answer-For
example regarding:
the voting system (USA), creating Courts (Canada), parliamentary term (Ireland), right to
initiate referenda (Italy), exact legislative powers of the federal and regional governments
(Belgium)
c) Every written constitutional system develops unwritten conventions: - correct answer--
Swiss constitution is based on strict separation on powers but still the executive is a
perpetual coalition
- The Canadian and Australian says nothing about Prime Minister or Cabinet but still they
observe the British traditions
- The Lebanese constitution says almost nothing about religion, still the major offices of state
is reserved for certain confessional groups
- The French constitution doesn't say that the President may dismiss the Prime minister, still
it happens all the time
d) Some constitutional rights are only judicial interpretations (by the Courts) - correct
answer-- Freedom to obtain contraceptions and choose an abortion was derived from a right
of privacy (USA)
- The constitutional provision for parliamentary elections implied freedom of political
advertising (Australia)
- General rights to life and dignity forced the abolition of the death penalty (South Africa)
- A right of biometric privacy was discovered within the textual right to liberty (India)
e) Other judicial decisions may nullify the literal meaning of constitutional provisions - correct
answer-- The Supreme Court of Canada decided that the federal government may no longer
use the power to veto provincial laws
- The Supreme Court of Japan has reinterpreted the Constitutions ban on armed forces to
approve creation of self-defence forces.
- The Italian Constitutional Court has decided that the need for ministers to countersign
presidential acts doesn't apply to pardons
f) And it is not always clear where to look for the 'constitutional amendments' - correct
answer-- Some constitutions require the legislature to make detailed rules on institutions by
Class 1 - correct answer-Overview
What distinguishes a constitution from other laws? - correct answer-- Probably adopted by
means distinct from the ordinary legislative process
- Normally harder to change than legislative amendments
What does one find in a constitution? - correct answer-- At minimum: the composition and
essential powers of the legislative, executive and judicial organs of government
- Maybe: regulate other agencies of state with impact on the political or legal process
- Almost always: individual rights against the state
- Possibly: characteristics of the state itself, e.g. its values, symbols, source of power etc.
It might be short - correct answer-Like the original American text with less than 4,500 words
It could be long - correct answer-Like the original Indian text with nearly 400 articles
Oldest constitution today - correct answer-- There are different definitions of a 'new
constitution' (is it any amendment or not even a rewrite?)
- Some constitutions comprise several documents, which would make the Six books of San
Marino (1600) the oldest
- Normally the oldest consolidated text still in force is regarded as the American one (1787)
- Only a few countries have got pre-WWII constitutions
How many tries does a country get at writing a new constitution? - correct answer-- The
French are compulsive constitution writers
- The average constitutional text has lasted only 17 years
- Dominican republic has had 32 constitutions since 1821
Who wants to compare constitutions? - correct answer-Lots of people!
- Scholars, to construct genealogies or taxonomies or to determine common principles
- National leaders, to find the best model or combination of models
- Judges, to learn from other jurisdictions
Why should constitutions be studied? - correct answer-Because educated people sometimes
repeat things that simply aren't true. For example:
- The American declaration of independence falsely states that the constitution promises life,
liberty and the pursuit of happiness
Is Comparative Constitutional law a real discipline? - correct answer-Tricky..
- It is subject to the same constraints as comparative subjects in general: there are different
methodologies which often will influence the conclusion
- Even more than in other areas of comparative law, there is a risk of not comparing like with
like
, Why is it, even more than in other areas of comparative law, a risk of not comparing like with
like within the field of Comparative Constitutional Law? - correct answer-See following slides
1. Not everyone has a written constitution - correct answer-Like the UK, New Zealand, Israel
2. A written constitution is never the whole story - correct answer-a) Many constitutions will
refer the reader to other documents:
- there can be a range of laws, jurisprudence and treaties alongside the constitution (Austria)
- the previous constitutions may still have a legal force (Germany and France)
- other countries constitutions may form part as a country's constitution (Francophone
countries)
- the constitution can give constitutional status to legislation (Sweden)
b) Many constitutions leave quite important details to legislation. - correct answer-For
example regarding:
the voting system (USA), creating Courts (Canada), parliamentary term (Ireland), right to
initiate referenda (Italy), exact legislative powers of the federal and regional governments
(Belgium)
c) Every written constitutional system develops unwritten conventions: - correct answer--
Swiss constitution is based on strict separation on powers but still the executive is a
perpetual coalition
- The Canadian and Australian says nothing about Prime Minister or Cabinet but still they
observe the British traditions
- The Lebanese constitution says almost nothing about religion, still the major offices of state
is reserved for certain confessional groups
- The French constitution doesn't say that the President may dismiss the Prime minister, still
it happens all the time
d) Some constitutional rights are only judicial interpretations (by the Courts) - correct
answer-- Freedom to obtain contraceptions and choose an abortion was derived from a right
of privacy (USA)
- The constitutional provision for parliamentary elections implied freedom of political
advertising (Australia)
- General rights to life and dignity forced the abolition of the death penalty (South Africa)
- A right of biometric privacy was discovered within the textual right to liberty (India)
e) Other judicial decisions may nullify the literal meaning of constitutional provisions - correct
answer-- The Supreme Court of Canada decided that the federal government may no longer
use the power to veto provincial laws
- The Supreme Court of Japan has reinterpreted the Constitutions ban on armed forces to
approve creation of self-defence forces.
- The Italian Constitutional Court has decided that the need for ministers to countersign
presidential acts doesn't apply to pardons
f) And it is not always clear where to look for the 'constitutional amendments' - correct
answer-- Some constitutions require the legislature to make detailed rules on institutions by
