chapter 7 - jurisdiction and courts Flashcards
constitution definition
= a document or set of documents that outlines the powers, institutions and structure of government, as well as expressing the rights of citizens and the limits on government
- democracy constitution -> predictability and security
- autocracies constitution ignored or interpreted to suit needs of ruling elite
*more than half of the countries have implemented a new constitution since the 90s
*Iceland almost had the first crowd-sourced institution, but before it was implemented the urge disappeared -> still have 1944 constitution
*length of constitutions is growing: they are being expanded
*constitutions often ambiguous and contradictory : are result of compromises
*sometimes constitutions don’t endow rulers with enough authority -> less effective gov. (e.g. Italy)
elements of constitutions
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preamble = declaration of principles, and sometimes a definition of the purposes of the state
*preamble seeks popular support - organization: sets out the powers and structures of gov. institutions
- rights: individual and group rights, incl access to legal redress
- amendment procedure: outlines procedure for revising the constitution
codified vs uncodified constitutions
codified = single document
uncodified = based on different sources
e.g. Britain uncodified constitution: it never won independence, so no big revolutionary change with one constitution doc. being drafted -> constitution spread over statute and common law, commentaries by experts, customs and traditions
role of constitutions in democratic regimes
- supreme of the land law: all other laws of the state are subsidiary
- structuring institutions: structure, powers and responsibilities
- supporting the rule of law: imposing order though laws to which all citizens are subject
- regulating power of the state (gov.)
why are new constitutions written?
- regime change (e.g. 2017 Thailand)
- wholesale change political (e.g. Bolivia 2009, Kenya 2010, Zimbabwe 2013, Tunisia 2014)
- post-reconstruction war (e.g. Japan 1945, Iraq 2005)
- independence (e.g. US, African countries 60s-70s, SU countries 1991)
measures of success constitutitons
- is there an aspirational gap? (what the constitution says vs what happens in practice, e.g. racism/sexism US)
- age and replacement: superficially are the oldest the best (many changes = sign difficulties in the country)
- amendment procedures and number of times amended (too many changes => instability)
entrenchment
- flexible
- rigid
- eternity clause
= the question of the legal procedures for amending a constitution
- flexible constitution = easy to change
- rigid constitution = more difficult (-> stable but no ready change)
- eternity clause = constitution that can’t be amended (e.g. Germany Basic Law has elements that can’t be changed, e.g. respect for human dignity)
*imp. = different roles legislatures: in some they decide over amendments, in some also referendum necessary
flexible vs rigid constitutions
flexible = easy to change
rigid = more difficult to change/amend (super- or concurrent majorities)->stable framework, but no ready adaptability
judiciary + judicial review + cassation
*courts have an increasingly important role : there is more room for judicial review
2 courts with authority over constitutions
supreme courts
- decentralized systems, ordinary courts can do judicial review, but supreme court acts as final court of appeal
- American model
- in some countries they have diff names (e.g. Australia and Hong Kong High Courts)
- some European countries have supreme courts whose decisions can be appealed to constitutional courts
- mainly use concrete review (there has to be a case where application is controversial)
- anyone with legal standing can bring a case
- appellate function
- e.g. Australia, Brazil, Canada, China, India, Japan, Mexico, Nigeria, Sweden, Turkey, US
constitutional courts
- in centralized systems: only constitutional court can engage in judicial review
- European model (found in most European states)
- more abstract review: without reference to specific case(s)
- no appellate function
- only specified institutions can bring cases
- e.g. Austria, Egypt, France, Germany, most of Eastern Europe, Russia, South Africa, UK
appelate
= the power of a court to review decisions reached by lower courts
*main role of the US Supreme Court
judicial restraint vs judicial activism
judicial restraint
= black-letter law following (Montesquieu: mouth of the law)
*e.g. France
judicial activism
= judges allow their personal values and ideological leanings influence their decisions
*US really far: decisions come down to if majority court is liberal or conservative
- problem = question of judicial independence (esp. when combined with lifetime appointments
in general over time movement restraint -> activism , because:
- increase reliance on social regulation encourages court intervention
- expansion of human rights
- international treaties give judges extra lever to move outside national law
- more authority judges as the standing of other institutions has declined
roles constitutions in authoritarian regimes
- operating manual (how gov. should function = some constrain on leaders)
- billboard (signalling intentions of rulers)
- blueprint (things as they might be, so as to help motivate people)
- window dressing (giving appearance of protecting rights)
(Melton and Ginsburg list of institutional features that can be used to measure judicial independence)
- statement about independence of judges in the constitution
- length of tenure
- selection procedure and bodies involved
- removal procedure for judges
- conditions under which judges can be removed
- protection of the salaries of judges
*only 4 countries have all features, US and Russia have 3, many diff. democracies only one (e.g. Canada, Cuba, Sweden, North Korea)
2 constitutional models
- democratic regime protected by a constitution and an independent judiciary with respect for the rule of law
- authoritarian regime where political opposition can be punished by death using a secretive procedure that is supported by the country’s highest court
