Lectures 1&2: Introduction & Rechtsstaat Flashcards
(31 cards)
What is a Constitution? Definition
A constitution is a set of fundamental principles and rules according to which a state is governed. These basic principles and rules make up i.e. constitute, the state.
Constitutional law therefore refers to a set of basic legal principles and rules that define the nature, function and organization of a state.
What is the formal sense?
The Constitution in the formal sense encompasses all legal provisions enacted in the special enactment procedure of the constitution.
What is the substantive sense?
The Constitution in the substantive sense encompasses all essential legal principles concerning the nature of the state and its relation to individuals.
A rule is a part of Swiss customary law if three conditions are fulfilled. Which 3?
1) Evidence of a continuous, uninterrupted and coherent practice
2) An opinio iuris, i.e. a belief that the practice is a legal obligation
3) A lacuna in the written law.
What is meant by the term “flexibility of constitutions”?
- The term “flexibility of constitutions” refers to how hard or easy it is to change the constitution in the formal sense.
- Constitutions are harder to change than ordinary legislation are called rigid constitutions. Constitution that are easy to change are called flexible constitutions.
What are three functions of a constitution?
- Order and organization
- Limits of power and guarantee of freedom
- Creation and direction
Which constitutional principles is the legal system in Switzerland based upon?
- Principle of the Rechtsstaat
- Principle of federalism
- Principle of democracy
- Principle of social justice
What is the principle of the Rechtsstaat?
The main idea behind the Rechtsstaat (the law-based-state) principle is to limit the power of the state by law in order to protect individuals from the arbitrary exercise of authority.
What are formal elements of the Rechtsstaat?
- Principle of legality
- Division of powers
- Independent judiciary
What are substantive elements of the Rechtsstaat?
- Fundamental Rights
- Social guarantees
What do Rechtsstaat and the Rule of Law have in common?
They have a common main idea.
Both concepts concern the problem of imposing effective limits on the exercise of public authority in order to safeguard the rights and liberties of the citizens.
What are the differences of the Rechtsstaat and the Rule of law in terms of main sources of law?
Rechtsstaat: Written law
Rule of Law: Case law
What are the differences of the Rechtsstaat and the Rule of law in terms of Understanding of law?
Rechtsstaat: Static understanding of law as general and abstract rules in a legal system.
Rule of Law: Dynamic understanding of law as answers to a specific problem developed by courts.
What are the differences of the Rechtsstaat and the Rule of law in terms of Basic role of the courts?
Rechtsstaat: Application of the legislative acts.
Rule of Law: Development of law, guarantees of due process
What are the differences of the Rechtsstaat and the Rule of law in terms of Limits on power
Rechtsstaat: Written legal (constitutional) rules of a general and abstract nature.
Rule of Law: Uniform application of ordinary rules by the courts in fair processes.
What is the principle of legality?
The principle of legality is one of the core elements of the Rechtsstaat.
The principle of legality demands that all state action is to be based on and limited by law (Art. 5 para 1 Cst)
What are the eleemnts of the principle of legality?
Requirement of a legal rule
Sufficient precision
Requirement of an adequate legal form
Principle of legality: What does requirement of a legal rule mean?
A legal rule is generally applicable i.e. to an indeterminate number of individuals and abstract, i.e. to an indeterminate number of cases
==> equality before the law.
Principle of legality: What does Sufficient precision mean?
Legal rules must be formulated with sufficient precision to permit individuals to act in conformity with it
==> legal certainty
Principle of legality: What does requirement of an adequate legal form mean?
Important legal rules must be enacted in the form of a statute by the legislature (subject to a referendum)
==> democratic legitimacy
Hierarchy of norms
Federal law then cantonal law then communal regulation
What does “Lex posterior derogat legi priori” mean?
If legal norms on the same hierarchical level conflict, the most recent legal norm generally takes precedence over the older provision
What is the name for the concept that new legal norms generally take precedence over old ones?
“Lex posterior derogat legi priori”
What does “Lex specialis derogat legi generali” mean?
Where two laws govern the same situation, a law governing a specific subject matter overrides a law which only governs general matters.
