L9 - Judiciary & Federalism

Question 1

How are the powers state’s government separated into?

(trias politica)

Answer 1

• A legislative branch (makes laws and checks the government)
• An executive branch (puts laws and checks the government)
• A judicial branch (interpret laws)

Question 2

What is Judicial Activism? (def)

Answer 2

Judicial Activism: A process whereby Judges are more willing to enter the political arena and influence public decisions based on their political preferences
(opposite = judicial restraint)

→ Ex: (USA - abortion laws, Roe & Wade, famous for judicial activism) (NL - urgenda sues Dutch govt. - climate appeal was confirmed)

Question 3

What is the constitution? (def)

Answer 3

A body of meta-norms - a higher order legal rules - which specify how all other legal rules are to be produced, applied, enforced and interpreted (Sweet Stone 2000)

Question 4

What is difference between Codified & uncodified constitutions

Answer 4

Codified constitution: A written constitutional document which has been consolidated into a single text and formally adopted.

• Uncodified constitution: May have written documents, but which does not take the form of a single text.

Not all countries have a written (‘codified’) constitution. Some have ‘uncodified constitutions (e.g. the UK, Israel, they have constitutional laws).

Question 5

What is the Constitutional Rule (Rule of Law)

Answer 5

“Government by law”, a commitment of the political community to accept the legitimacy of, and obey the rules or, the constitution.

Question 6

Define: Enforcing Constitutions

Answer 6

The power of ordinary or special courts to give authoritative interpretation of the constitution and constitutional rights which is binding to all the parties concerned.

Question 7

Ordinary Judicial review

Answer 7

Decentralized (all judges)
The Supreme Court (general jurisdiction)
Concrete review

It is done by ordinary judges; all courts have the right to judge, decentralized, higher → lower; all judges (general court -> constitutional, and crime disputes. Activated during ordinary cases → then constitutional cases is activated; (abortion cases started in texas → ended in supreme court)

Question 8

Special Judicial Review

Answer 8

Centralized (special judges)
Constitutional Court (special jurisdiction)
Abstract review

Only those special judges can judge if something is constitutional or not; System is Centralized. For only Constitutional disputes (by the politicians, social group) (czech - 2021, two largest parties right & left, neither of them have enough electoral → decreases the district magnitude (lead to disproportionality of the system → political process)

Question 9

What influences the power of the judiciary?

Answer 9

1) Legal doctrine = Parliamentary/legislative
- Power of Constitution (or supreme) court

2) Control of Judicial Appointment: are (constitutional/Supreme Court) judges: appointed/elected/co-opted) for short/long/life period

Question 10

Federalism

Answer 10

Federal States: Legal sovereignty is shared between the federal government (matter of governance, finance) + the constituent states/regions (matters of education, culture, law enforcement).

Question 11

What are key features of Federal System:

Answer 11

• Dual and cooperative
• Symmetric & Asymmetric
• Bottom-up vs top-down
• Territorial vs. Non-territorial:

Question 12

Dual and cooperative:

Answer 12

• Dual federalism: A clear distinction between what the federalism and state government do (separation of powers - USA)
• Cooperative Federalism: They are of shared policies and competences in much larger (germany)

Question 13

Symmetric & Asymmetric

Answer 13

• Symmetric Federalism: Powers of different levels of government are more/less equal
• Asymmetric Federalism: A federation where different constituent states possess different powers, although they have the same constitutional states (e.g. Quebec in Canada; (french-speaking) having more rights than others)

Question 14

Bottom-up vs top-down:

Answer 14

• Bottom-up Federation: Come together from unification of former federal units
• Top down Federation: More recent, where federal states created from a central position to accommodate differences (e.g. belgium)

Question 15

Territorial vs. Non-territorial:

Answer 15

Territorial: based on territory
Non-territorial: Autonomy is granted on a non-territorial (e.g. cultural basis (sammies have advisory roles)

Question 16

Confederal and Unitary States:

Answer 16

Confederal State: Loose-knit cooperation between sovereign states.
In the contemporary world, there are very few examples

(e.g. the British Commonwealth, the European Union (started as a confederal → 6 years later changed to federal system)

Unitary States: Legal sovereignty rests exclusively with the central government
(normal structure, pure unitary states no longer exist → e.g. traditionally, Scandinavians countries, France, the Netherlands).

However there may be sub-national units, BUT they still depend on approval from central-level