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Summary Comparative Constitutional Law (Constitutions Compared by Heringa & Kiiver all lectures by Carla Zoethout IRAC of cases)€3,98
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Constitutions Compared: An Introduction to Comparative Constitutional Law
This is a threefold summary of the course Comparative Constitutional Law at the University of Amsterdam (3802COQPVY). It consists of three parts:
a) ANSWERS TO TUTORIAL QUESTIONS that guide you through the entire 7-week material, including material from Heringa & Kiiver's "Constitutions Compared" ...
Part 1: Comparative Constitutional Law, Tutorial Questions
Tutorial Question Answer
1 Why is it important to 1. To appreciate and understand one’s own system better, while
1A compare broadening one’s world view.
Heringa 1; constitutions/constitutional 2. To provide helpful material for constitutional building and engineering.
Hirschl systems? Give three 3. To aid in creation and development of international organisations,
reasons. such as the EU.
2 What is the difference Formal: the central written document that sets out basic rules applying to
between a formal and a the government of socio-political entities.
substantive constitution? Substantive: comprising the entire body of fundamental rules that govern
these socio-political entities: can also be customary rather than laid down
in only one central written document.
3 What is the meaning of a. Constitutionalism: idea of limited government. Exercise of public
the following terms? power constrained by constitution and rule of law. Political actors will obey
a. Constitutionalism legal norms in how, and to what extent, they govern.
b. Democracy b. Democracy: people bestow the power upon government through
c. Limited government elections (representation) and have an opportunity to participate in
referenda (direct democracy)
c. Limited government: government is bound by the rule of law and the
Constitution, and by no means may it exercise absolute power.
4 Is the German Basic Law The German Basic Law is a rigid constitution, because it is hard to
a rigid or flexible amend: it is contained in a central document, and super-majority is
constitution? And the UK required in Parliament. The UK Constitution, however, is a flexible
Constitution? constitution: it may be changed by an ordinary legislative process, or
because of new case-law, because no special amendment procedures
are prescribed by no any central document. Flexibility mustn’t be
confused with arbitrariness.
5 According to Hirschl, Since the 1980s, constitutional courts have used the comparison of
there is a true renaissance constitutions across countries in matters before the courts, visible in:
of comparative 1. Constitutional rights jurisprudence, such as discourse about human
constitutional law. Explain. rights. Example: interdiction of death penalty.
2. Generic constitutional law: universal discourse on constitutional
adjudication and reasoning, when it comes to core civil rights and liberties,
linked to ‘proportionality’ – pragmatic balancing of competing claims, rights
and considerations.
6 Which scenarios of Constitutionalisation may be stemming from…
constitutionalisation does 1. Political reconstruction after an existential political crisis: post-World
Hirschl distinguish? War II, France.
2. Process of de-colonisation: India.
3. Transition from authoritarian to democratic: Southern Europe.
4. Dual transition: to both Western democracy and market economy:
several post-Soviet countries.
5. Incorporation of international/supranational legal standards into
domestic law: Britain incorporating ECHR into British law.
7 Which provisions are part Provisions that…
of the majority of 1. Establish principal institutions of government.
constitutions? 2. Establish distribution of governmental powers over polity’s territory.
3. Catalogue of protected rights and liberties of citizens and residents.
4. Establish a formula of amendment of the Constitution, stating
conditions to amend;
5. Establish relatively independent judiciary with the authority to
constitutionally review executive and legislative branch
1 How has the principle of The first three articles all define the different branches of power with the
1B separation of powers been institutions belonging to it. Checks and balances are installed, so that:
US Const.; guaranteed in the US - the executive has veto power over legislative
USSR Constitution? - the legislative may override the veto in the House
Const. - the legislative may only issue Declaration of War
- the judiciary may declare laws unconstitutional
…
2 Are human rights being Yes, in the Bill of Rights. It protects, amongst others, the freedom of
protected in the US conscience, freedom of assembly, freedom of speech, right to bear arms.
Constitution? If so, how?
3 Write down three striking 1. Reference to the working class as power entity in the system.
characteristics of the USSR 2. Mentioning of the supreme goal, the Marxist creation of a classless
constitution, when society.
compared to those of 3. Very little mentioning of private property and emphasis on state
Western constitutional property: all property is Soviet property.
democracies.
4 Which elements of this 1. One-party state, the Communist Party of the Soviet Union.
constitution refer to the 2. The emphasis on socialist government, laying down the ideology and
authoritarian character of goal for the state.
the USSR? 3. Emphasis on a strong defence policy through the mentioning of
supplying the USSR Army with “everything that it needs”.
5 What strikes you about The emphasis on collective rights, not individual. Rights are worded in
the way human rights were such a way that it goes about “the People’s rights” or “the Working Class’s
expressed in this rights”, there is no mention of individuals.
constitution?
1 What is the meaning of Cf. Dicey: “Sovereignty of Parliament means neither more nor less than
2A the doctrine of the this, namely, that Parliament thus defined has, under the English
Heringa 2; ‘sovereignty of Parliament’? constitution, the right to make and unmake any law whatever, and further,
Koopmans that no person or body is recognised by the law of England as having a
right to override or set aside the legislation of Parliament.”
The legislation adopted by Parliament is supreme and must remain
unchallenged. No court may question the validity of a statute; therefore,
no infringement of procedural requirements can be submitted for judicial
review. Only Parliament has the right to make or unmake a law. The
sovereignty of Parliament lies with the King-in-Parliament.
2 What is ‘the British There is no central written document in the UK; however, the rules that
Constitution’? make up the British Constitution in a broad sense are found in:
a) statutes as Acts of Parliament, specific statutes include the Magna
Charta, Bill of Rights and European Community Act
b) case-law, court decisions
c) constitutional conventions / unwritten customs that are not judicially
enforceable yet authoritative
3 Explain why Dicey’s Dicey’s theory was originally descriptive, not normative. However,
description could become Koopmans argues theories are deceptive; and that people misinterpreted
‘the very keystone of the Dicey’s theory as an instruction on how the British Constitution could only
British constitution’. work when it would be in accordance with the doctrine of parliamentary
sovereignty.
4 Explain why the doctrine - English intellectuals had little influence of natural, Catholic or
fitted perfectly in the English Roman law.
philosophical traditions. - Legal craftsmanship was perceived as practice-oriented rather than
as to be learned at universities.
- Common law courts were very faithful to the doctrine of precedent:
only sought solutions in case-law.
- The theory of parliamentary sovereignty was non-speculative and
empirical, which fitted well with the rising technical administration of
justice.
- The popularity of the legal analytical school (Austin), that all
positive law is to be deducted from an identifiable and sovereign law-
giver, which fits well with the doctrine of parliamentary sovereignty.
5 For what reasons is the United Kingdom United States
British constitution FORM: Uncodified and flexible FORM: Codified (written, defined) and
considered to be the rigid
opposite of the American RANK: Ordinary, to be repealed by RANK: Supreme, may only be
constitution? ordinary statutes amended by special procedure
TRADITION: Essentially positivist TRADITION: Constitution is based in
(precedents, statutes, …) an overarching natural law
POWER DISTRIBUTION: Fusion POWER DISTRIBUTION:
Separation, checks & bal.
SOVEREIGNTY: King-in-Parliament SOVEREIGNTY: the People
6 What has been the An inspiring combination of slowly evolving democracy with a lack of
impact of the British revolutionary violence.
constitution outside the
United Kingdom? Belgium: wrote Constitution by codifying British framework, the Dutch
followed suit after. However, one important clash between Belgian and
British Constitution: the fact that the Constitution consisted of a higher law,
binding on legislature.
France, 3rd Republic: three statutes that established the creation of
Senate, organised powers of the authorities and governed relations
between institutions.
Former British colonies: legislative powers initially as free as in Britain,
but more recently, also defined under federal and constitutionally
protected rights and freedoms.
1 What is ‘the American American model
2B model’ and what has been Horizontal separation of powers. Montesquieuan system of
Smith & its impact abroad? independent legislative, executive and judicial branches, with checks and
Spaeth; balances in place.
Federalist Vertical separation of powers. Distinction between the federal republic
Papers 51
and several states.
Rule of Law. Everyone is bound by the Rule of Law and the Constitution
as the highest law of the land.
Impact
Post-colonial countries have adopted constitutions that were similar to the
American; also, France was during its revolution inspired by the same
ideal of separation of powers.
2 In what respects does the Locke’s treatise on civil government was written when men lived in
Declaration of isolated lives during the ‘state of nature’, after which they entered social
Independence reflect the contracts, creating society and government. In a social contract, one
ideas of John Locke? would suffer part of his natural rights to be rewarded with security by
government and the advantages of public welfare.
In the US Constitution visible by:
- self-evident natural rights to be protected, hereby especially important
are the principles of life, liberty and property
- protection from government, with ample sovereignty still in place
belonging to the States rather than the federal government
3 Describe the main 1. Popular sovereignty: the source of governmental authority lies within
features of the Constitution the people.
of the United States. 2. Clear separation of three powers, with a system of checks and
balances to ensure that none of the powers becomes too powerful.
3. Legislative supremacy: the legislature, as successor to the
Parliament, elects the governor, judges and justices (=supreme court
judges); and determines the policy of the country.
4. Limited government: the government is to be bound as well by the
Government, linked back to the separation of powers.
5. Bill of Rights: special protections of individual liberties and rights
4 Compare the US Constitution of the Soviet Union Constitution of the United States
Constitution to the (USSR)
Constitution of the USSR Authoritarian, glorifying the goal of Individualistic
(week 1B). What are the classless society
similarities and differences? Focus on collective rights and also Focus on individual rights and also
collective property individual property
Greater role for the federal Federal government delegates ample
government power to states
Lengthy description of role of the Lengthy description of role of the
President Parliament (Congress)
In spheres of federal authority, the federal government enjoys supremacy
Popular sovereignty: power lies within the people
Certain rights as granted in the Bill of Rights are also reflected in the USSR
Constitution
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