Constitutional law: creates the institutions of the state and provides the power to fulfil their
functions, either making laws or executing and enforcing those laws or deciding conflicts
Written constitution: black-letter law
Working constitution: entirety of rules and perceptions regarding subjects in society
The Constitution is a body of law that:
● Attributes power to public authorities
● Regulates the fundamental relations between public authorities and;
● Regulates the fundemental relations between the public authorities and the individual
Narrow sense: a written document that is produced in a special way that outlines the supreme
law of the state and the most important rules of the state. One single written text that outlines
how the state functions
Broad sense: the whole set of legal rules that organise the state and its powers, which
includes the written constitution (narrow) and other laws outlined by parliament (such as how
elections work) also includes customary laws and unwritten laws
1) Institutional law: governs the way in which the state and its institutions functioj
2) Human rights: protects citizens against the state and regulates relations between
public authority and the individual
Abstract sense: focuses on the function of the constitution rather than the written document,
Heringa “entire body of fundamental rules that govern a socio-political entity”
Constitutionalism: not comparing the constitution but is a series of substantive elements that
focuses on what the constitution should be, as guidelines for the constitution
Constitutional triad: constitutive and material elements that should be included
Idea of limited government: essential for democracy and the rule of law
Modern constitutionalism: following the liberal resolution which focuses heavily on human
rights and individual protection from an abuse of political power
Rigid constitutions/ entrenched constitutions: constitutions that are harder to change than
ordinary legislation, which may refer to either/both the procedure and the scope
Flexible constitutions: constitutions that do not prescribe any special amendment
procedures, and follow the course of any ordinary legislative process
- Organises and structures the state: president, parliament, congress
- Is about how the state functions, is organised, its institutions and what they do
- Human rights protection
- Constitutions were born as an answer to specific questions in history about the structure
and formation of society and laws-> historical product and baggage
- Connection between national legal and international legal systems
- Limits the powers of state institutions and how political power is exercised
- National constitutions have differences
, - Usually, constitutions are harder to change than ordinary laws-> as they are the most
important laws that limit power
- Constitutional power should be durable and somewhat rigid with some form of flexibility
to keep the Constitution up to changes in the world
Amending the constitution: could work by:
a) Super majorities: a two-thirds majority in parliament voting on a change
b) Referendum: involving citizens in the amendment of the constitution
c) New parliamentary readings of the amendments and new elections in between these
readings
d) Ratification of amendments
- But clauses in the constitution could include ‘forever clauses’, which are clauses that
cannot be changed
States should be organised in which the power is divided across various institutions, and not all
granted to one individual or institution to avoid a dictatorship
All constitutions are expected to achieve the rule of law and are stated
Rule of Law: a set of founding principles, that focuses on individual liberty
1) Separation of power: across legislative (parliament and congress), executive (presidents
and ministries), and judicial (courts and lawyers) powers
2) Legality: all decisions that state institutions make need to be based on a law or a general
rule that is binding to the state and its citizens
3) Fundamental rights: protecting the minority against a ruling majority in decisions made
by the legislature parliament or congress, provides limits to what the state and
parliament can do
4) Judicial control: an institution that resolves conflicts and ensures that all remaining
institutions stick to their functions and limited power that they have
Judges are appointed to be independent by being selected by several institutions to maintain
independence and fairness. They are also appointed for life or a specific period to ensure that
the government won’t fire them based on the resolution formed by the judge
5) Democracy: ensuring that the law reflects the will of the people, the parliament should be
elected by the people possibly through votes and elections
Content of Constitutions:
Form of state: organisation of the state, its institutions and how state power is divided across
the institutions, division of state authority across central government, federal entities, provinces,
regions, local authorities
System of government: how parliaments and governments cooperate
Legal systems: types of courts, their functions, how judges are appointed and their
independence, fundamental right protection
- Could include: the history of the state, flag and language, elements of the identity of the
state
Non-written constitutions: such as the United Kingdom
, - Include namely a body of constitutional law
- Rules are laid down by: judge-made case law, statutes, laws made by parliament,
customs, conventions or gentlemen’s agreements
Historical aspects:
● Sovereign state: modern states are based on the notion of sovereignty
- Middle Ages were based on Feudalism and fragmented society into several lordships
that were independent of the King
- The state controls society, no longer controlled by religion and the divinity
- Birth of unified all-encompassing political power, centralisation of power to the sovereign
● Liberalism: control over the immense power created in a sovereign state to guarantee
peace, expressed in the general notions of equality and freedom
- Individuals have rights that cannot be interfered with by political powers
- Political power is to be used as an exercise of autonomy, and is confronted with limits
and should be bound by the goal of guaranteeing the freedom and rights of citizens to
keep peace
Modern constitutions:
- Separate powers: executive, legislative and judiciary
- Enabling and limiting power: concentrates political power within a political community
and also constrains the exercising of power for it to abide by the constitution
- The constitution is superior to any other legal rule in the state
Forms of State:
1) Unitary State:
A single state with one central government, that has no other autonomous parts, includes a
constitution (most of the time is written), which will outline all the final powers of legislation,
executive and judicial powers at the centre
- This doesn’t mean that they are only governed by the centre level: regional and local
authorities have regulatory powers, powers to execute national or regional laws
Difference: the central legislation decides the powers of the local and regional authorities, no
, constitutional guarantees on what the regional authorities are
- Example: Egypt
2) Confederation State:
Based on cooperation between autonomous states, single states that form a new union are not
based on a written constitution but rather on a treaty which then organises a union government
and grants it limited powers to perform functions that are vital for all single states, such as
foreign affairs. This means that decision-making requires unanimous decision-making as each
state has its own autonomy within the confederation, and can only be bound by decisions it
agrees to. Retains a lot of their own sovereignty
- Confederations are used as an alliance for trade and protection
- States retain sovereignty; the union government has limited powers
- Confederations in practice are unstable: they disintegrate or form into federations
- Only true examples are historical: such as the Republic of the Netherlands up to the 18th
century
3) Federation State:
A single state with relatively autonomous parts. Based on one written constitution as a single
document given by the people to the union that is governing, is one state that has relatively
autonomous parts (not entirely like a confederation). The Constitution decides which powers are
at the federal level and what powers the governmental level has, and they are therefore
entrenched because the power division cannot be changed easily. A federation would have a
house of parliament/ senate that represents the single states of the federation on a federal level.
A constitutional or supreme court is also needed to decide on conflicts over the power division
between the federal and state authorities
- Example: United States
- Federal states may have two separate chambers in the parliament: one for the national
interest and another for the regional power to represent the local government. An
example is the US: the House of Representatives (national) and the Senate (division of
States)
- All types of states have the same level of competencies and the same level of regional
authority compared to each other
Federalism: refers to a system of governance where power is divided between a central
authority and constituent units (e.g., states or provinces)
A federal state: consists of multiple levels of government, each having its own jurisdiction and
authority defined by a constitution
- The division of power is meant to balance unity and diversity, allowing local governments
to address regional needs while maintaining national integrity
- Federalism is a promoter of democracy: allows for greater representation, protects
minority and regional interests
- Federalism threatens democracy: can create inefficiencies or unequal representation
Types of federal systems:
1) Dual Federalism: Clear separation between the roles and powers of the national and
regional governments.
2) Cooperative Federalism: The national and regional governments share powers and
responsibilities in certain areas, often working collaboratively on policies.
3) Asymmetrical Federalism: Different constituent units within the same federation may
have varying degrees of power and autonomy, reflecting regional diversity.
Advantages of Federalism:
functions, either making laws or executing and enforcing those laws or deciding conflicts
Written constitution: black-letter law
Working constitution: entirety of rules and perceptions regarding subjects in society
The Constitution is a body of law that:
● Attributes power to public authorities
● Regulates the fundamental relations between public authorities and;
● Regulates the fundemental relations between the public authorities and the individual
Narrow sense: a written document that is produced in a special way that outlines the supreme
law of the state and the most important rules of the state. One single written text that outlines
how the state functions
Broad sense: the whole set of legal rules that organise the state and its powers, which
includes the written constitution (narrow) and other laws outlined by parliament (such as how
elections work) also includes customary laws and unwritten laws
1) Institutional law: governs the way in which the state and its institutions functioj
2) Human rights: protects citizens against the state and regulates relations between
public authority and the individual
Abstract sense: focuses on the function of the constitution rather than the written document,
Heringa “entire body of fundamental rules that govern a socio-political entity”
Constitutionalism: not comparing the constitution but is a series of substantive elements that
focuses on what the constitution should be, as guidelines for the constitution
Constitutional triad: constitutive and material elements that should be included
Idea of limited government: essential for democracy and the rule of law
Modern constitutionalism: following the liberal resolution which focuses heavily on human
rights and individual protection from an abuse of political power
Rigid constitutions/ entrenched constitutions: constitutions that are harder to change than
ordinary legislation, which may refer to either/both the procedure and the scope
Flexible constitutions: constitutions that do not prescribe any special amendment
procedures, and follow the course of any ordinary legislative process
- Organises and structures the state: president, parliament, congress
- Is about how the state functions, is organised, its institutions and what they do
- Human rights protection
- Constitutions were born as an answer to specific questions in history about the structure
and formation of society and laws-> historical product and baggage
- Connection between national legal and international legal systems
- Limits the powers of state institutions and how political power is exercised
- National constitutions have differences
, - Usually, constitutions are harder to change than ordinary laws-> as they are the most
important laws that limit power
- Constitutional power should be durable and somewhat rigid with some form of flexibility
to keep the Constitution up to changes in the world
Amending the constitution: could work by:
a) Super majorities: a two-thirds majority in parliament voting on a change
b) Referendum: involving citizens in the amendment of the constitution
c) New parliamentary readings of the amendments and new elections in between these
readings
d) Ratification of amendments
- But clauses in the constitution could include ‘forever clauses’, which are clauses that
cannot be changed
States should be organised in which the power is divided across various institutions, and not all
granted to one individual or institution to avoid a dictatorship
All constitutions are expected to achieve the rule of law and are stated
Rule of Law: a set of founding principles, that focuses on individual liberty
1) Separation of power: across legislative (parliament and congress), executive (presidents
and ministries), and judicial (courts and lawyers) powers
2) Legality: all decisions that state institutions make need to be based on a law or a general
rule that is binding to the state and its citizens
3) Fundamental rights: protecting the minority against a ruling majority in decisions made
by the legislature parliament or congress, provides limits to what the state and
parliament can do
4) Judicial control: an institution that resolves conflicts and ensures that all remaining
institutions stick to their functions and limited power that they have
Judges are appointed to be independent by being selected by several institutions to maintain
independence and fairness. They are also appointed for life or a specific period to ensure that
the government won’t fire them based on the resolution formed by the judge
5) Democracy: ensuring that the law reflects the will of the people, the parliament should be
elected by the people possibly through votes and elections
Content of Constitutions:
Form of state: organisation of the state, its institutions and how state power is divided across
the institutions, division of state authority across central government, federal entities, provinces,
regions, local authorities
System of government: how parliaments and governments cooperate
Legal systems: types of courts, their functions, how judges are appointed and their
independence, fundamental right protection
- Could include: the history of the state, flag and language, elements of the identity of the
state
Non-written constitutions: such as the United Kingdom
, - Include namely a body of constitutional law
- Rules are laid down by: judge-made case law, statutes, laws made by parliament,
customs, conventions or gentlemen’s agreements
Historical aspects:
● Sovereign state: modern states are based on the notion of sovereignty
- Middle Ages were based on Feudalism and fragmented society into several lordships
that were independent of the King
- The state controls society, no longer controlled by religion and the divinity
- Birth of unified all-encompassing political power, centralisation of power to the sovereign
● Liberalism: control over the immense power created in a sovereign state to guarantee
peace, expressed in the general notions of equality and freedom
- Individuals have rights that cannot be interfered with by political powers
- Political power is to be used as an exercise of autonomy, and is confronted with limits
and should be bound by the goal of guaranteeing the freedom and rights of citizens to
keep peace
Modern constitutions:
- Separate powers: executive, legislative and judiciary
- Enabling and limiting power: concentrates political power within a political community
and also constrains the exercising of power for it to abide by the constitution
- The constitution is superior to any other legal rule in the state
Forms of State:
1) Unitary State:
A single state with one central government, that has no other autonomous parts, includes a
constitution (most of the time is written), which will outline all the final powers of legislation,
executive and judicial powers at the centre
- This doesn’t mean that they are only governed by the centre level: regional and local
authorities have regulatory powers, powers to execute national or regional laws
Difference: the central legislation decides the powers of the local and regional authorities, no
, constitutional guarantees on what the regional authorities are
- Example: Egypt
2) Confederation State:
Based on cooperation between autonomous states, single states that form a new union are not
based on a written constitution but rather on a treaty which then organises a union government
and grants it limited powers to perform functions that are vital for all single states, such as
foreign affairs. This means that decision-making requires unanimous decision-making as each
state has its own autonomy within the confederation, and can only be bound by decisions it
agrees to. Retains a lot of their own sovereignty
- Confederations are used as an alliance for trade and protection
- States retain sovereignty; the union government has limited powers
- Confederations in practice are unstable: they disintegrate or form into federations
- Only true examples are historical: such as the Republic of the Netherlands up to the 18th
century
3) Federation State:
A single state with relatively autonomous parts. Based on one written constitution as a single
document given by the people to the union that is governing, is one state that has relatively
autonomous parts (not entirely like a confederation). The Constitution decides which powers are
at the federal level and what powers the governmental level has, and they are therefore
entrenched because the power division cannot be changed easily. A federation would have a
house of parliament/ senate that represents the single states of the federation on a federal level.
A constitutional or supreme court is also needed to decide on conflicts over the power division
between the federal and state authorities
- Example: United States
- Federal states may have two separate chambers in the parliament: one for the national
interest and another for the regional power to represent the local government. An
example is the US: the House of Representatives (national) and the Senate (division of
States)
- All types of states have the same level of competencies and the same level of regional
authority compared to each other
Federalism: refers to a system of governance where power is divided between a central
authority and constituent units (e.g., states or provinces)
A federal state: consists of multiple levels of government, each having its own jurisdiction and
authority defined by a constitution
- The division of power is meant to balance unity and diversity, allowing local governments
to address regional needs while maintaining national integrity
- Federalism is a promoter of democracy: allows for greater representation, protects
minority and regional interests
- Federalism threatens democracy: can create inefficiencies or unequal representation
Types of federal systems:
1) Dual Federalism: Clear separation between the roles and powers of the national and
regional governments.
2) Cooperative Federalism: The national and regional governments share powers and
responsibilities in certain areas, often working collaboratively on policies.
3) Asymmetrical Federalism: Different constituent units within the same federation may
have varying degrees of power and autonomy, reflecting regional diversity.
Advantages of Federalism:
