Exam Flashcards
1: What is the main point when it comes to CPL and research design?
no one-size-fits-all research design in this field or magic bullet. Methodological pluralism is necessary
1: How can we distinguish between methodological designs?
The designs may be distinguished from one another based on their aimed level of abstraction and generalization.
1: What sets CPL apart from its older sibling ‘Constitutional law’
The comparative part. remember, here we compare.
1: How has CPL evolved as discipline?
Used to be a niche without practical goals. now a discipline that responds to some pressing needs posed by contemporary politics.
1: What are the two different world views on constitutions within CPL?
1) Constitutions are context-dependent and 2) constitutions should be similar
1: What are the practical and non-practical aims of CPL?
Non-practical:
– knowledge and understanding
Practical:
– single decisions (dispute-settlement and problem-solving approach) –>
by judges
– Policies (lawmaking) –> by lawmakers
1: What two types of comparison do we have in ‘time and space’?
Diachronic comparison
–>Fx the constitutional implications of the Great Depression and of the current financial crisis in the US
Synchronic comparison
–>Fx constitutional effects of the Eurozone crisis in Greece and Portugal
Quantative vs qualitative methodologies
2: Define ‘legal families’
A set of deeply rooted historically conditioned attitudes about the nature of law, the role of law in the society and the political ideology, the organisation and operation of a legal system.
2: What three types of legal families do we work with?
Civil law, Common law and Socialist law
2: What are the pros and cons on working with selection of a legal family?
Pros:
- allows macro-comparison among ‘similar’ systems
- explanatory function: helps us fill the gaps with the knowledge. knowing if a system belongs to a certain family helps us make assumptions about how a legal system works without the direct knowledge.
Cons:
- Based on Western legal prototypes (bias)
- Does not encompass all possible legal systems of the world
2: What is a constitution?
The main document of a state or organization - codified self contained text
Basic law that constitutes a state
2: What is the descriptive conception of a constitution?
Relates to a set of rules that organize the fundamental structures of a community. No necessarily the technical meaning
A way for a polity to organise itself through legal norms
No technical elements necessarily: fx seperation of powers
2: What is the normative conception of a constitution?
A legal text that imposes certain technical elements.
Social and economic distribution, protection of civil rights <– elements like these
A text that organises a political community and requires the community to ‘do something’
2: What two elements should a constitution provide in the modern notion?
- Separation of powers
- Protection of rights
2: On what parameters do we classify constitutions?
Written/unwritten
Short/long
Aprroved/not-approved
Based on a single doc./based on several founding docs
Flexible/rigid
2: Match different forms of states with constitutionalism
Liberal state: dision between state and society/individual. No tasks for the state, no economic re-distribution. About individual rights
Democratic state: focus on how laws are legitimized, dis-center individual rights and center the law-making proces. power to the people
Welfare state: focus on redistribution between individuals. social rights
Pluralistic state: different varieties of states depending on the legal situation
2: what is the difference between constituent and constitutive power?
Constituent: Constituent power is a legal concept, a legal thought, to make sense of the concept of political power. When the constitution is done, the constituent power is exhausted.
Constitutive: power that is exercised by the political body. The constitution can be legitimately amended only if the special procedure for this in the Constitution itself is respected (limited powers).
2: what does it mean to have a rigid constitution?
This concerns how easy or difficult it is to amend the constitution.
If a constituion allows for amendments by way of ordinary legislation that is without requiring a super-majority, its quality as higher law is seriously hampered.
If a simple majority can change the framework the function of the constitution is put at risk. It becomes a tool in the hands of the majority and ceases effectively to protect the minority of the opposition.
A rigid constitution is difficult to amend (fx requires a qualified majority in parliament, referendum, new election etc.)
2: what are the pros and cons of having a rigid constitution
pros: more effective to protect fundamental rights and separation of powers. protects the will of the minority. not as vulnerable to a new dictator fx
Cons: every generation should be the master of their own lives, but they inheret a constitution that is very hard to change.
2: what was the debates between Madison and Jefferson about?
Debates that lead to the constitution. Jefferson believed that the next generations should have power of the constitution as well. Madison valued Constitutional stability.
2: the US constitution and its evolvement and rigidity. how is it different from France?
The US constitution has endured for more than 220 years. Only 27 amendments since 1789.
It has evolved by means of interpretation by judges (fx Roe v Wade)
In France there have been 15 constitutions since 1791. Too rigid a constitution causes its death.
2: what is a constitutional amendment and how can they solve controversy?
Amendments are changes to the constitution. When the political actors within a given system reach a level of conflict or disagreement so that the inner stability of the constitution has been affected, it is common to amend the constitution instead of doing a civil war
2: Constitutional amendments under rigid Constitutions (ways of amending)
An ad hoc assembly, dissolution of Parliament and new election (two different parliaments (like DK)), time interval, larger parliament, referendum, particiption of member states/regions
2: what is an eternity clause?
Eternity clauses can be defined as constitutional provisions or constitutional principles that are immune from amendment.
1: civil law vs common law
:)
3: bonham’s case
Thomas Bonham studied medicine but practised without license. Not allowed according to parliamentary legislation. But common law says that practicing medicine requires only the consent of the patient.
One of the Justices concluded that common law will control Acts of parliament and sometimes adjudge them to be void.
–>Common law over parlimantary legislation.
3: what is the highest court in the US?
The Supreme Court. It prevails over the constitution and the law of any state.
3: what was the point of Alexander Hamilton regarding the role of Justices?
No legislative act, which is contrary to the Constitution can be valid. It is the job of the justices to declare acts contrary to the Constitution void.
3: explain the composition of the supreme court
9 justices (one chief justice and 8 associate justices)
Appointed for life time by the president with the advice and consent of the senate
Highest court in the US (jurisdiction also in civil and criminal matters at federal level)
Majority opinion
Concurring (agree with the outcome, but not the reasoning)
Disenting opinion (by those who disagree with the whole thing)
3: explain the case of Marbury v Madison
very important case
there is a period between election and entry to office. Jefferson had just won the election, but in the waiting period to enter office, the current president Adams appointed a huge amount of public officials (Marbury) with an opposite political stance of Jefferson.
When Jefferson entered office he did not let Marbury. Madison was the secretary of state of Jefferson. Marbury sues the new administration before the SC.
Decision: Yes madbury is right, but the SC cannot (=i don’t have the power as a SC) order public administration to appoint him, because it is against the constitution (the power to do this is unconstitutional)
3: explain the decentralised model of juridicial review. What country uses this model
Every judge, at any level of government can check the compliance of a law with the constitution.
Effects of the judgment:
- If something is declared unconstitutional: the law is not annulled but it is disapplied -> in the abstract still existing, until it is replaced or repelled by the Congress. review is performed after the act enter into legislation.
The US uses the decentralised model. all courts have authority to adjudicate constitutional issues in the course of deciding legal cases.
3: explain the centralised model of juridicial review. What countries uses this model
The power to do juridicial review is centralised with an organ, a special tribunal (a constitutional court)
Effects of the judgment:
- If something is declared unconstitutional: abstract and preventive judgement (before the act enter into place –> justified with the aim of eliminating legislation and practices before they can do harm).
Most European countries uses this model. special courts that are uniquely empowered to set aside.
4: how does the UK do review of legislation without a codified constitution?
Performed in the context of regulatory law.
The Human Rights act from 1998 changed the system. It introduced a specific procedure that resembles constitutional review of legislation. Following this act, domestic courts can find legislation in violation of the HRA and declare is incompatible => declaration of incompatibility.
4: what is political constitutional review of legislation?
The lack of judicial constitutional review of legislation does not imply that there is no control of compliance of legislation with the constitution
In most European countries Parliaments have established Committees on Constitutional Affairs that ensure the compliance of bills with the constitution before they are finally approved => political constitutional review.
In some countries the opinions of these Committees have binding effect, and they can force lawmakers to change the law or prevent the passing of the law.
