Samenvatting Introduction to Law - Comparative Constitutional Law (3802COQPVY)

CCL Lecture Summary

Lecture 1

 Introduction to Constitutions

o Definition and Dimensions of a State:
 Community (nation)
 Territory
 Government (focus of constitutional law)
1. Bureaucracy behind state is version of constitutional law
 State as the central government
1. As opposed to provinces, municipalities,…
o Requirements for Statehood (Montevideo Convention):
 Population
 Territory
 Government
 Authority
 Capacity for international relations
1. Majority of scholars says this is not required
o Effective Authority: Debates around its necessity and scope, illustrated by the case
of FIFA's authority.
 Fifa didn’t have monopoly of violence/ power
 Large amount of power but not legitimacy
 Sources of Legitimacy
o Weber's Theory: Legitimacy stems from tradition, charisma, legality/procedure,
and outcome.
o Constitutional Legitimacy: Constitutions gain legitimacy by setting procedures,
constituting institutions, limiting powers, and requiring recognition based on
democracy, rule of law, and outcome legitimacy.
 Constitutional dilemma: Constitution cannot legitimize itself
 Functions and Types of Constitutions
o Functions:
 Institutions
 Authority
 Citizen
o Constitutions beyond documents: Political community and narratives about such




o

, o Constitutional culture:
 Constitutions do their work in specific environments
1. Environment is political community itself
 Permanent process of conveying and securing basic patterns of political
arrangements
 Constitutions are symbol of identity of people
 How does this political notion translate to legal notion?

o Types of Constitutions:
 Political Dimension: Expression of political identity of state.
 Legal-Formal Dimension: The document itself.
 Legal-Substantive Dimension: Body of rules and (unwritten norms) aimed
at constituting and limiting governmental powers
 Comparative Constitutional Law (CCL)
o Importance: Understanding and designing legal frameworks, fostering a common
language for global challenges, and educational purposes.
 CCL provides useful materials for legal design
 CCL provides framework (common language to discuss common problems
in the struggle for freedom and security)
 CCL aids development of new (transnational) structures, such as the UN,
EU to set up their own structures (constitutional borrowing)
 Helps to better understand our own system (educational aim)
o Approaches:
 Classification: Categorizing legal systems.
 Expressivism: Constitutional identity and underlying values.
 Universalism: Shared global values.
1. Human dignity universal? Proportionality, why everywhere but
here?
 Functionalism: Solving common problems through 'constitutional
engineering.'
1. Looking at other systems in place and evaluating their effectiveness
 Bricolage (functionalism 2.0):
o Adapting solutions contextually, recognizing the contingent nature of
constitutional solutions.
o Legal transplants: transplanting specific solutions in legal system but it does not
work
o Assumption: if we have certain arrangement in another system, then this
arrangement was designed to tackle a problem
 Constitution are to large extent of historical process
 It is not like legislator has all options on table
1. Only limited amount and must fit political system
2. Solutions to problems are very coincidental
o Have to decontextualize solutions
 Be aware of fact that solutions weren’t the only available ones
o Borrowing from what is readily at hand; displaces emphasis on constitutional unity in
favour of constitutional compromise and contingency
o According to this account , framers and interpreters seek immediate solutions to
constitutional problems and so they will look to the surfeit of materials at hand, including
other constitutional regimes

 Normative Framework: Democracy & Rule of Law

, o Liberal democracy:
 Constitutions that are democratic
1. Government of the people, by the people, for the people
2. Substantive (thick) version of the rule of law
1. Separation of powers
2. Fundamental rights

o Democracy and Rule of Law as contested subjects.
 When rule of law and democracy are normative framework (measuring stick)
then you have to be clear about what these are and entail

 Concepts not entirely clear
o Waldron and Dahl on the ambiguity of democracy and rule of law.
 Waldron comment on case Bush v. Gore
1. Is the rule of law actually useful when both parties claim it in their
favour (same can be said about democracy)
 Dahl: ideas about democracy are not consistently agreed upon by everyone
despite year long discussions
o Rule of Law:
 Set of ideas: (classic legal approach)
1. Seperation of powers
2. Independence of courts
1. However, more tob e said about rule of law  problem with
comprehensive definition  not much agreement on what
this would be
 Classic Approach: Rule of law was work against arbitrariness.
1. It is hard for lawyers to work in a country where rule of law
formally exists but where the regime illegally and arbitrary detains
and abducts or even kills critics (Zimbabwe lawyers)
 Institutional Approach: Importance of judicial independence.
1. Substantive approach
1. E.g., Rechtsstaat and French rule of law
2. (judges called enemies of the people, Miller judgement)
 Liberal Approach: Emphasis on fundamental rights.
1. Parliaments, companies, journalists and publishers have increasingly
been targeted for surveillance. That represents a danger to our rule of
law
2. Importance of fundamental rights (e.g., freedom of speech, expression,
…)

 Progressive Approach: Inclusion of social rights.
1. Social rights read into rule of law
1. Not extremely controversial but some scholar disagree
2. Economic and social rights
 Good Governance Approach: Transparency and open governance.
1. Right to information
2. Moves away from classic definition
 Trump's Zero Tolerance Approach:
1. Trump criticizes Obama for not enforcing law against immigrants
2. New is that here rule of law is used against citizens

Tamanaha’s Taxonomy: Distinguishing thin and thick versions of rule of law.