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Constitutional Law

  • Aalt Willem HeringaEmail author
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Abstract

This Chapter on Constitutional Law provides a brief introduction into what constitutional law is and its main doctrines and concepts. The focus will be on what constitutes a state, a nation and a nation state, and what is sovereignty, as well as on the different forms of states (unitary, federal) as well as on various systems of government (such as parliamentary and presidential). Furthermore we will go into such fundamental constitutional concepts as democracy (direct and indirect), separation of powers and checks and balances, the rule of law, courts and judicial review and protection of fundamental rights. Also we will describe the role of states in international relations (treaty making) and the impact international law and international organizations (specifically a state like organization such as the European Union with its far ranging powers) may have on domestic (constitutional) law and policy.

1 Introduction

Law and State

Law is closely connected to the State, on one hand because the State creates most of the law and on the other hand because the State itself is regulated by the law. From a historical point of view, it was the increasingly effective and tightly organized State—whether it was a city-state, a principality, a kingdom, or an empire—that succeeded in imposing law upon its citizens. This trend is illustrated by the development of criminal law as a separate branch of law, next to private law. States started to monopolize violence and the suppression of crimes, and to prosecute crimes as offenses against the State, rather than as offenses against the victims. In this way States drastically reduced the rates of violence between individual people, clans, and tribes. Through this monopolization of law enforcement, States promoted pacification, improved legal certainty, boosted productivity, and facilitated peaceful commerce between people.

Constitutional Law

As a counterpart to this State monopolization of law enforcement, we expect that the State itself be organized and regulated by the law and that rulers exercise their power in accordance with legal norms, rather than arbitrarily. The branch of law that regulates the State is called constitutional law. Constitutional law contains rules on the organization of a State, on the powers that State organs possess, and on the relations between these organs (institutional law). Moreover, it provides fundamental rights that protect the legal position of the individual against the State: human rights law, judicial review, and—as an offshoot—administrative law.

What Do States Do

The primary role and rationale of States is to provide peace, order, and stability (foreign affairs, defense, police). Gradually States have expanded in what kind of activities they undertake such as in infrastructure and education. In this way, since the introduction of the universal suffrage, expectations of the State have increased. For instance, many of us expect the State to provide protection for the needy, young, and elderly and to provide for a clean environment, roads, jobs, decent working conditions and proper wages, a sewage system, schools, culture, health care, and (sustainable) energy. In response to these increased expectations, States have expanded their activities and out of necessity expanded powers and budgets. How and to which extent States have expanded their activities and have intervened in society is a matter of policy, or politics. Obviously, some choices have to be made with regard to the activities States undertake and with regard to the powers and budgets—and therefore also taxes—that States need for these tasks. How these choices are being made, by whom, and through what procedures are the primary domain of constitutional law; yet the outcome of the decision-making processes is politics.

However, constitutional law sometimes restricts politics from making specific choices. For instance, clauses in some European constitutions restrict the powers of parliaments from creating a budget deficit that is too big or a State debt too large. These constitutions include those of Germany, Switzerland, Poland, and Spain. In Italy and Austria, proposals have been launched to this effect, and under the new 2012 Fiscal compact between most EU Member States, they have even agreed to introduce a (constitutional) provision to that effect.

Example

Other examples are that:
  • 5 The European Convention of Human Rights, Protocol 1, Article 1, in protecting the right of free enjoyment of property, limits the conditions under which States can nationalize properties.

  • 5 EU law imposes economic choices such as free competition, upon the Member States.

  • 5 The rules of the World Trade Organization do not permit the inhibition of trade or the financial support of exporting industries.

1.1 Sources of Constitutional law

The Constitution

In most States, the most important constitutional rules have been laid down in a central written document. This document is typically called a constitution, but it may also carry different names, such as basic law, charter, or regulation of State. Because of their fundamental nature, written constitutional documents almost always provide that they can only be amended through difficult, special procedures often involving special majorities. This feature is called «entrenchment», and an entrenched constitution is generally called «rigid». Entrenchment is meant to make changes in the constitution harder to accomplish than changes in ordinary law. As a result, a constitution will reflect a larger majority and be more protective of minorities or minority interests. Some constitutions even define some parts of the constitution as non-amendable!

An amendment of the Polish Constitution, for example, requires a two-third majority in the lower chamber of parliament and an absolute majority in the Senate, and in some cases a referendum may be prescribed to confirm the amendment afterwards. Normal laws, by contrast, in principle require a simple majority in the lower chamber, and the senate may usually be overruled if it objects to a law.

All States have a constitution in the sense of a set of rules that govern the State, but some States—with the UK as the best example—do without an official document, a written constitution. They do however have a constitution. The constitutional rules are then exclusively found in ordinary laws, customs, and case law. If a State does not have a written constitution, its constitution will typically not be entrenched, but rather «flexible». The constitutional norms may be changed by «ordinary» laws.

Other Constitutional Legislation

However, even if a State has an official written constitution, constitutionally relevant rules are often also found in ordinary laws, in case law, or in customs.

Ordinary laws that tend to have constitutional significance are, for example, election laws, rules of procedure of parliaments, laws on the organization of the court system, or laws stipulating the establishment and powers of regional or local governments.

Case Law

Case law may be constitutionally relevant where courts lay down rules with a «constitutional» relevance, such as the UK doctrine of parliamentary sovereignty or the US doctrine of judicial review, or when courts are called upon to interpret the meaning of the constitution or when they establish fundamental rules and principles with constitutional significance in practical cases.

Customs

Customs often play a role in the internal proceedings of parliaments, such as the composition of parliamentary committees or the panel of parliamentary chairmen. They may also play a role in the process of government formation. Of course, customary rules differ significantly between States; what is a custom in one State is explicitly regulated in another and may simply not exist in a third.

Treaties

In quite a few States, international law, specifically treaties, can also be considered to be an important part of national law, more so when a State has adopted a monist system in recognizing treaties as part of domestic law (France, the Netherlands). But also in dualist systems (UK, Germany), in which international law must be transformed into domestic law before it can be applied, international treaties do play an important role. We can point here to the European Union treaties (see ► Chap.  10) and to the European Convention on Human Rights. The importance of the former is self-evident; the latter has strongly influenced the national protection of human rights and has served as an instrument for national courts to exercise judicial review (see ► Sect. 3.8).

1.2 Three Themes

In this chapter, several topics of constitutional law will be addressed. They will be structured in three major themes. The first theme, «State Power Established», discusses in ► Sect. 2 the State and the source of its sovereignty or authority to rule. The second theme, «State Power Constrained», considers the ways in which the power of the state is limited. This includes the division of the State’s power among its organs (or between branches of government) and among its territorial entities, the limits on State action as they result from the protection of human rights, and the power of the judge to determine whether State action is lawful or unlawful. This theme is dealt with in ► Sect. 3. The third theme, «State Power Democratized», relates to the ways in which the power of the State is exercised or controlled by the people. It is the topic of ► Sect. 4.

2 State Power Established

In this section we discuss three issues that are related to the powers of a State. ► Sect. 2.1 deals with two conditions for statehood. These conditions are elaborated in ► Sect. 2.2 about sovereignty. ► Sect. 2.3 finally deals with the relation between a State and the people that inhabit its territory.

2.1 Statehood

Two Conditions

A State is an organization that is able to control a certain territory and the people living in it. This control is both in the sense of exercising powers and maintaining law and order inside its own borders and in the sense of defending it against the outside world. Statehood is not an all-or-nothing matter: not all States meet the two conditions to the same extent. Some States are internally weak and have their authority disputed. Some States provide a low protection to their citizens or do not (or hardly) provide for internal security or the general interest. Sometimes this even goes so far that we can conclude that there is a situation of anarchy, civil unrest, or even civil war.

The ongoing Libyan civil war which initially led to the end of the Gaddafi regime and is still prevalent would be a case in point. The civil war in Syria is another example.

Some States simply do not manage to exercise effective internal control and the monopoly of force. Strictly speaking, they do not meet the criteria of statehood: they are called «failed States».

An example would be Somalia in its current situation.

Recognition

One possible criterion for statehood is whether a potential State is recognized by the «international community» of States. This would mean that most or all other States engage in diplomatic relations with the State in question and that the potential State is accepted as a member of an international organization, such as the United Nations. However, we have to be careful here. Sometimes a State can function as a State and exhibit many, if not most, of a State’s features but still not be recognized as part of the international community.

An example would be the island of Taiwan, which is not recognized as a separate State because of pressure from China, which claims that Taiwan is part of that country. Kosovo also lacks recognition by quite a few other States. It is not a member of the UN, though it was accepted to participate in the 2016 Olympic Games.

Secession

A major problem in connection with statehood is how to cope with parts of a State that wish to secede and become an independent State of their own. Examples in recent history are Kosovo, the Crimea, and South Sudan. Given internal sovereignty as a prerequisite of a State, a State must exercise internal domestic control and possess the power to stop or prevent civil unrest or secessionist and revolutionary movements. This demand is obviously not met if secession is ongoing. In such cases, it depends on the extent and proportionality of the power used by the seceding «State», the legitimacy of the secessionist movement, and possibly also other arguments of international politics, if and how the international community will deal with the recognition of the new State entity. A right to secession may not exist under the domestic law of the land, but secession may eventually still be the effective outcome with international recognition as the result. When a State does not appear to be able to enforce its national constitutional claims to unity and non-secession, secession and the birth of a new State may be the consequence. We may then say that a (new) people has legitimized the birth of a new State.

Some civil wars do not lead to the effectuation of secession (the nineteenth-century American civil war); some secessions do appear rapidly and without devastating force (the Crimea). The latter secession is highly disputed in the international community, however.

2.2 Sovereignty

The two features related to statehood (the capability to exercise domestic control and the capability to defend its territory against foreign intrusions) are considered to be two aspects of sovereignty, namely, internal sovereignty and external sovereignty. The consequences of sovereignty are normative, relating to competences, powers, and in general the authority possessed by the State. However, the conditions for sovereignty are also factual, relating to control over a territory.

A State may have sovereign powers but still be hindered from exercising them for reasons of international politics, trade relations, (financial) resources, the role of financial markets, or lack of military powers.

The word «sovereignty» is also used to denote the source of a State’s coming into being or legitimacy, as in the phrase: the sovereignty of the people. Finally it is used to indicate the highest internal power within a State where ultimate internal power resides, as in the UK: the sovereignty of parliament. All these different meanings may sometimes be confusing and call for the careful use of the concept.

Internal Sovereignty

A State’s internal sovereignty is foremost a constitutional issue, as the ultimate authority in a State is defined by constitutional law. Sovereignty in that sense is the ultimate source of authority in a particular territory, and it is where the authority of the State originates. If an official is able to lawfully impose obligations upon citizens, for example, the obligation to pay a tax or to perform military service, there must be something that distinguishes the official imposing the obligation from the citizen receiving it. The official must have a right or entitlement to rule. Lower ranking officials such as tax inspectors or policemen will cite the authority they received from their superiors. These superiors act on the basis of regulations, which in turn are enacted on the basis of laws. At some point, there must be an ultimate superior, the source from which all State authorities trace their own power to rule: the sovereign.

The tax inspector’s individual order to pay a tax may, for instance, be based on an administrative regulation on how to issue such orders; the regulation in turn is based on the tax code, which is a general law regulating tax rates; the tax code has been adopted because the constitution allows the lawmaker to impose taxes. Who, then, made the constitution, and what gave the creator of the constitution the right to empower the lawmaker to impose taxes?

The People

Monarchs, such as emperors or kings, may argue that they derive their authority from God, including the power to make constitutions if they so decide. An enlightened audience will find such claims implausible, however. In modern times, the idea has gained ground that the ultimate legitimization of State authority lies with the people. In many Western constitutions, reference is explicitly made to the people as the origin of the written constitution and as the source of the powers of the State.

Often the preamble, which is a declaratory introductory statement, makes clear on whose authority a constitution is enacted. The US Constitution’s preamble famously starts out with the words: «We, the People…». The French Constitution’s preamble also makes explicit that the text is written from the point of view of the people. Other constitutions, such as the one of Bulgaria, contain an article in the text itself which proclaims that all public power emanates from the people.

As a result, in systems that are based on popular sovereignty, the people are bound by laws that are made on the basis of a constitution that was enacted in the name of («by») the people itself.

External Sovereignty

The external aspect of sovereignty relates to the mutual relations between States. The basic idea is that a sovereign State is independent of other States and that other States are forbidden to meddle into the internal affairs of a sovereign State. The idea that States are sovereign in this sense has been anchored in Article 2, Section 1 of the United Nations Charter, which states:

Legal Text

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.

The Organization is based on the principle of the sovereign equality of all its Members […].

Several facts and recent developments have jeopardized the classical notion of external sovereignty of States. We will deal with these in ► Sect. 2.3.

2.3 Nation States

Nations

Some States have a very long history; others are a more recent invention. When it is said that some States have existed for many centuries, this does not mean that their government structures have existed that long. However, when people share some common characteristics, such as skin color, language, physical build, etc., and have a (long) common history, it gives them a feeling of a shared past and a common identity. Such a group of people is called a nation, and a State that is inhabited by such a nation is called a nation-state.

Where such unifying factors do not exist spontaneously, States can make an effort to create more unity. A national flag, a national anthem, or a national currency can play a role in this connection. Sometimes States find unity in a hereditary monarchy. In the international sports arena, States are represented by national teams.

Here we can spot differences. The UK, for instance, has a national anthem and flag and had a combined Great Britain team for the recent Olympic Games. However, in other sports competitions, teams represent each of the four participating State entities: Northern Ireland, Scotland, Wales, and England.

The European Union

Many (19) European countries have surrendered their former national currency in favor of the euro. Yet the European Union (EU) is not a State, and neither is the European Monetary Union. These are international organizations, established on the basis of international treaties between the Member States. The EU displays many features of a State, such as the exercise of internal and external powers. The EU has a diplomatic service and the High Representative for Foreign Affairs, and the EU can conclude treaties with other (non-EU) States and international organizations. Internally, the EU has many powers, which have been transferred to it by the Member States. Most significantly, what the EU is lacking are defense powers and police powers. Moreover, international affairs must be agreed unanimously. State-like features such as a national anthem and a flag do exist but are not laid down in the foundational treaties.

Many feel that the EU cannot be a nation-state since the EU is not founded upon one people. They claim that far-ranging powers and their democratic exercise can best (or only) be organized in the setting of a true State with an identifiable people/nation. Can the EU in itself even be called a sovereign entity? No, since it is not the master of its own constitutional development: it is not the master of the treaties. This role is kept by the 28 Member States (27 after the effectuation of the Brexit). The EU’s powers have been transferred to it by these States and can ultimately, by amending the treaties or by leaving the EU, be taken back. However, it is accepted that the Member States by transferring to the EU parts of their sovereign powers, some of them even exclusively, now share the exercise of their sovereign rights with the EU. Some would therefore argue that the sovereignty of the Member States is now, and in some domains, severely restricted.

Globalization and International Integration

Sovereignty is an important concept that underpins national constitutional systems, but in reality (de facto) it may also become something of a fiction in the real life of the modern world. This is to mean that sovereignty formally exists but that the exercise of sovereign rights is factually restricted. A State may be externally sovereign, but its internal policy making may in fact be controlled, for instance, by a dominant neighboring State or in order to obtain trade benefits or energy or access to transport corridors. Yet even apart from such cases, international cooperation and integration between States make it difficult to argue that all public power emanates from the people or another internal source of sovereignty. International cooperation, and the creation of permanent international organizations that comprise several States, is increasingly necessary. Technological progress in the area of transportation and communication has made it more and more irrelevant where goods and services are produced, a trend captured by the term globalization. Private actors operate increasingly on an international scale (financial institutions, Apple, Google, Starbucks) and require joint international efforts for regulation.

Treaties

In order to permit the undertaking of rights and obligations with foreign States (the exercise of external sovereignty), a national constitution may allow the government to sign international agreements, while providing that, before they can enter into force, the national parliament must vote on them or the people must approve them in a referendum. If an international agreement would be in conflict with the constitution, the constitution may have to be changed before the approval for such an agreement is given. Unanimity among States usually governs the conclusion of international agreements; however, as we witness in the context of the EU, the subsequent application may be the subject of majority decision-making. As a whole, States accept the binding nature of international commitments against their will because they benefit from being a part of a greater territorial scope.

Power Differences

There are many power differences between small, weak, or poor States, on one hand, and large powerful, or rich States, on the other hand. Whether we like it or not, the USA and China have a greater impact on international politics because of their sheer economic size and military power than small, poor, and less-developed States. Apparently some States are more sovereign than others.

3 State Power Constrained

Traditional functions of States include the provision of external defense and an internal police force that can maintain the law. In order to exercise sovereignty effectively, a State must be powerful. It must be able to keep a grip on the use of violence within its territory. It must have what the German sociologist Max Weber (1864–1920) called the monopoly on violence: only the State may use coercion against individuals. Other organizations may not, and they can be prosecuted as criminal gangs if they do; individuals seeking self-justice to avenge crimes are prosecuted themselves.

Absolutism

An absolute ruler, or despot, may succeed in imposing law upon his citizens but is essentially lawless himself. In fact, this is the origin of the expression «absolutism»: an absolute ruler is legibus absolutus, which is Latin for «free from laws». There are no legal constraints upon the absolute ruler, who may regulate, tax, prosecute, torture, and kill his subjects as he pleases: from on-the-spot executions on a whim to veritable genocides. This is still largely true for dictatorships today, and it was certainly true for early States that were able to impose laws but that were themselves not bound by law.

The influential English philosopher Thomas Hobbes (1588–1679) famously argued that it takes a Leviathan—a centralized government authority appearing like a terrifying giant—to keep people from inflicting misery upon each other (see also ► Chap.  15, Sect. 6). However, nowadays, we expect the State itself to be organized and regulated by the law as well. This is an aspect Hobbes did not emphasize, but later scholars of liberal humanism and the Enlightenment stressed this point forcefully and successfully.

Limitations on State Power

Constitutional law subjects the State itself to constraints. Its power may be distributed between different territorial subunits, such as regions, so that the central authority does not have an exclusive grip on all State power. Its power may be distributed among various organs, so that it does not wholly rest in any one organ. It is even possible that when an organ does possess power to make choices, some choices may simply be prohibited by constitutional law.

3.1 Territorial Division of State Power

One way for constitutional law to curb State power and to prevent its concentration is to spread it over smaller territorial units and to create regional and local governments that exercise State power for their respective units. At the local level, the typical territorial subunit would be the municipalities: towns and cities. The more prominent entities are found at regional level: districts, provinces, or— somewhat confusingly—individual States within a larger federal State.

The USA comprises, as the name suggests, «States»; Mexico and Brazil also comprise States as regional entities. Germany is made up of Länder, a term which is also translated as «States». Yet, federal systems may also use other names for their subunits: Cantons in Switzerland, Provinces in Canada, Gemeenschappen and Gewesten in Belgium; Australia comprises both States and somewhat less powerful territories.

The major distinction between States in terms of their internal territorial distribution of power revolves around the question of whether they are unitary States or federations.

Unitary States

In a unitary State, all State powers ultimately reside in one central government authority. There may be local or regional authorities, but in a unitary State any such local and regional decision-making powers are granted by central laws. This means that the central government authority may again retract these powers without institutionalized involvement, let alone consent, of the local or regional governments themselves.

In the Netherlands, which is a decentralized but unitary State, provinces and municipalities have their own local regulatory and executive powers. Their autonomy in local affairs is protected by the constitution, but the exact extent of provincial and local powers is laid down in national laws. If the State wants to retract these powers, and give them to its central organs instead, it can do so by changing the relevant laws or by deleting local autonomy from the constitution. The provinces and municipalities themselves will have no formal say in either of these changes.

Federations

In a federation, State powers are divided between the organs of the central State (the federal level) and the organs of the subunits (the regional level). This division is enshrined in the constitution itself, not in ordinary central laws. The involvement of the regions in any changes of this division of powers, if even allowed under the constitution, is highly relevant as this protects the regions against possible restrictions of their powers.

The regions in a federation can exercise the powers that they have in their own right. Even where the federal level is competent to make laws that cover the entire national territory, in many federal States the regions are involved in the federal law making process as well.

The most common way for regions to be involved in federal lawmaking is through an upper chamber in a two-chamber federal parliament. Such a senate would represent the regions as such, as fully or largely equal parts of the federation. In the US Senate each state has the same number of members, namely, two, whereas the States’ representation in the House of Representatives depends on their population size.

Regional participation in federal lawmaking would also be guaranteed in the constitution, as would be the region’s involvement in any change to that constitution.

The USA and Germany are federal States, and in both cases the federal constitution can only be changed with the involvement of the regions. In Germany the States are involved through an upper chamber which must act by a supermajority of two-thirds; and some amendments of the constitution, for example, the abolishment of the federal character of the State, are expressly forbidden. In the US, constitutional amendments must in addition be approved by a supermajority of the States themselves. This makes it difficult to redistribute regional and federal powers especially with the goal to centralize powers, and it makes it impossible to sideline the regions in such an endeavor.

To summarize: we speak of federalism (1) when a State is divided in territorial subunits, (2) which possess constitutionally protected powers, (3) which do participate in constitutional amendments, (4) are represented on the federal level, wherein (5) an independent arbiter decides on conflicts of federal-State competences, and (6) finally federal laws do prevail over State laws and must be applied in all subunits.

Confederations

In a confederal structure, the participating entities effectively remain sovereign States in their own right. One or more of the features of federalism is then missing, such as the supremacy of federal law, or the presence of a constitutional court. The decision-making process in a confederation typically requires unanimity and is restricted to limited issues. A confederation may in fact be so loose that it would not actually be called a State.

The Confederation of 1781, the construction that preceded the modern Union of the USA, was based on a looser association of the individual States, and on a greater preservation of the States’ sovereign rights.

While the juxtaposition between the unitary State and the federation is convenient, it should be noted that unitary States can feature different degrees of centralization of power. Federations can preserve the prerogatives of their regions to a larger extent (USA) or to a lesser extent (Austria). Unitary States can become federations (Belgium), and federations can also centralize and become less federal and more unitary (Russia, when regional governors were centrally appointed rather than locally elected). The result is a sliding scale, as depicted in ◘ Fig. 8.1.
Fig. 8.1

From centralized State to strict federation

3.2 Functional Division of State Power

The same State power that is beneficial when used in a proper way can also be threatening for the people who are the State’s subjects. As famously stated by the English politician Lord Acton, in 1887: «Power tends to corrupt, and absolute power corrupts absolutely».

As noted above, Thomas Hobbes advocated a strong central government with unified powers in order to effectively pacify the population. However, several theorists, including John Locke (1632–1704) and Montesquieu (1689–1755), have proposed functional divisions of State power.

State Functions
Here we will focus on the idea put forward by Montesquieu, who distinguished three functions of the State, namely:
  1. 1.

    The creation of general legal rules by means of legislation

     
  2. 2.

    The practical implementation and execution of these rules: administration

     
  3. 3.

    The application of rules to decide disputes in individual cases: adjudication

     

Montesquieu argued that these three functions ought to be kept apart and should be assigned to three separate branches of the State: the legislature, the executive, and the judiciary. Moreover, each branch would have to stay within its domain. Thus, the courts must only decide in actual cases and should not make general rules; the legislature must not execute the law or rule in individual cases; and the executive has only to execute the laws made by the legislature and must abide by decisions made by the courts.

A law passed by parliament, acting as the legislature, may, for example, provide that heirs can inherit the property of a deceased person and be issued an inheritance certificate (a provision in the civil code) and also that they must pay an inheritance tax (a provision in the tax code). The government, acting as the executive, then goes on to actually issue the certificates (through the civil registrar) and to collect the tax (through the tax inspector). If several heirs argue over their entitlement to the inheritance, the issue may be resolved by a civil court; if an heir argues that he or she should be exempt from the inheritance tax, the issue may be resolved by an administrative court.

Trias Politica

This view of Montesquieu has become known as the Trias Politica, after the three bodies that fulfill the three separate State functions. In many States, we find these three branches of government, albeit in different shapes and forms and with slightly different definitions of their respective powers.

Example

The US Constitution provides a clear example of a Montesquieuvian separation of powers model:
  • 5 Article I stipulates that Congress is the legislature.

  • 5 Article II defines the President as (the head of) the executive power.

  • 5 Article III establishes the Supreme Court and enables the establishment of subordinate federal courts.

Many other constitutions, such as the one of Iceland, are less doctrinal in their numbering but still refer explicitly to legislative, executive, and judicial tasks as distinct functions.

Even the constitution of the Vatican acknowledges that these three functions can be distinguished, even though all three of them are in fact exercised by the Pope.

In Western democracies, the legislative function is typically assigned to the directly elected parliament, although not necessarily on an exclusive basis.

Sometimes the legislature is defined as parliament and the Head of State acting together, such as in Iceland or the UK. Legislative powers may be exercised by regional authorities in federal systems, or international organizations of which a State is member, or by the people themselves in a referendum. Even where legislative power lies with parliament proper, the executive typically takes the initiative to introduce new laws and secure their adoption. Sometimes even the institutional separation between the parliament and the government is blurred: in France, government members cannot be parliament members at the same time, whereas in the UK government members actually have to be members of parliament, and they sit on benches in the parliamentary plenary hall among the other members.

3.3 Independent Courts

The aspect of the separation of powers that is probably the easiest to imagine, much more so than the separation between parliament and government, is the independence of the courts and of the judges sitting in the courts. The guiding principle, which is also enshrined in Article 6 of the European Convention on Human Rights, is in particular to ensure that trials are conducted fairly and that neither a court nor its judges can be abolished at whim or be dismissed. Appointment for life may be one of such mechanisms to ensure that the government cannot put pressure on judges to decide one way or another or otherwise interfere with the administration of justice.

Elected Judges

Another way of trying to secure this principle is the election of judges by popular vote so that they are answerable to the community and do not depend on the government for appointment or reappointment.

The majority of US States feature elected judges, even though US federal judges are appointed rather than elected.

In Europe, the notion of elected judges is usually met with distrust since the emphasis is put on the judiciary’s professionalism rather than on popularity. As a matter of fact, election campaigns for judgeships tend to stress the candidates’ strict stance on crime, which in the long run can drive up incarceration rates (the number of prisoners per 100,000 inhabitants) to excessive levels. However, there is no fundamental reason to object to the election of judges, and it may well be seen as a strong democratic and anti-paternalistic safeguard.

Appointed Judges

Where judges are appointed, independence can be ensured in a number of ways: judges may be appointed for life, which means that they cannot be removed very easily and will not need to cater to the interests of the incumbent government, or they may be appointed for a limited but long period of time and without the possibility of a second term, which is again designed to remove incentives to please those who may reappoint the judges.

The judges at the European Court of Human Rights used to serve renewable 6-year terms; since 2010 they have been serving nonrenewable 9-year terms.

Impartiality

Apart from being independent, courts and judges must also be impartial in two senses. First, they should not have any interests in the outcome of a case, not be related to any party in the case, and not have had an earlier involvement in the issue at hand (objective impartiality). Second, they must have an open mind and not be (or be seen as) more favorable to one party than to the other (subjective impartiality).

Finality

All court decisions (apart from appeal to a higher court) may not be ignored or set aside by the legislature or executive and therefore are binding upon the parties and are loyally executed.

3.4 Parliaments and Governments

Compared with the independence of the judiciary, the separation of the legislature and the executive, i.e., typically parliament and government, is less straightforward. According to the doctrine formulated by Montesquieu, the legislature creates laws, while the administration executes them. In this view, the executive would be the servant, or agent, of the legislature. In reality, the issue is more complicated. In lawmaking in parliamentary systems (see below), the parliament generally follows the agenda of the government where policy and proposals for laws are concerned.

The actual tasks of the administration go beyond mere execution of the laws created by the legislature. Administrations are also prominent in formulating and drafting legislative proposals. In Western democracies, most (if not all) policy making is carried out by the government. In doing so, the government relies on the expertise of its civil service. For the realization of its policies, the government actively seeks the approval of desired legislation in parliament. Policies are implemented and executed not only by means of legislation but also in many other ways: by taxation, by subventions and subsidies, by market supervision, or by the building of roads, harbors, and schools.

Doctrinally it may be true that the legislature creates a tax law and the government goes on to collect the tax. In fact the usual scenario would be that the government calculates how much revenue is needed to finance desired spending and may decide that rather than cutting spending or incurring debt it is necessary to raise taxes. Depending on the national system, it then requests the adoption of a new tax by parliament or directly submits a new draft tax law to the parliament.

Parliamentary Systems

A crucial factor affecting the form of government–parliament relations is whether the system is parliamentary or presidential in nature. In a parliamentary system, the head of the executive (administration)—usually a prime minister—comes to office (or at least stays in office) as long as he is supported (or at least tolerated and not voted out of office) by parliament (or at least the lower chamber of parliament). The effect is that the government is accountable to parliament rather than to the Head of State. In a monarchy the King or Queen, or in a republic the president, may appoint a prime minister. In this case, they do so either after the prime minister has already been elected by parliament or, again, with a view to the creation of a stable government, with enough support in parliament.

However, while the government depends on the parliament to stay in office, the modern reality in parliamentary systems is that a prime minister who enjoys majority support in parliament is able to not only guide the executive but also to demand loyalty from the majority (party/parties) that keep him in office when he puts forward a legislative proposal.

Presidential Systems

In contrast, in a presidential system, the head of the executive (whether he is called President or something else, such as Governor) has his or her own mandate, which is independent from parliament, and is usually based on elections. In such a case, the head of the executive does not rely on parliamentary confidence to stay in office. Furthermore, members of parliament—who are directly elected as well—are not compelled to support the head of the executive. Their fates are not entwined or at least to a much lesser extent.

For example, US governors, the government leaders in the US States, are directly elected. The US President is elected formally by indirect popular vote via an electoral college, but this has de facto all the features of a direct election and ensuing mandate.

Semi-presidential Systems

France and also other States such as Romania or Russia feature a semi-presidential system. They have a directly elected Head of State who has executive powers (the presidential aspect), as well as a Prime Minister who is accountable to parliament and can only remain in office with parliamentary support (the parliamentary aspect).

Other republics may have presidents and prime ministers too; if these presidents have only ceremonial roles and no executive powers, the system is still considered parliamentary. Examples of such systems are Germany, Italy, or Israel, where executive power is held by the respective Chancellor or Prime Minister. South Africa has a mixed system: the president also relies on parliament.

Main Forms of Government

  • Parliamentary systems5
    • The head of the executive relies on the confidence or tolerance of parliament to enter or stay in office.

  • Presidential systems5
    • The head of the executive is elected independently from parliament and may not be dismissed for reasons of lack of confidence.

  • Semi-presidential systems5
    • A directly elected Head of State and a Prime Minister who is accountable to parliament share executive power.

3.5 Checks and balances

Forced Cooperation

In its pure form, the Trias Politica doctrine envisages separation of powers. An added feature to prevent the abuse of power and to prevent a concentration State powers is to build in mutual checks and controls. This is called checks and balances.

Under the US Constitution, federal judges are appointed by the President, but this appointment is subject to the approval of the Senate. In the lawmaking process, the Senate and the House of Representatives jointly adopt legislation but the President may veto it, which may in turn be overruled by supermajorities in the House and the Senate.

Another possibility to ensure the prevention of the abuse of power, and a situation where all power is concentrated in one hand, is to spread the decision-making process over different actors (organs/institutions). An example is the ordinary legislative procedure of the European Union. If European laws are to be made, a proposal must be submitted by the Commission which has the sole right of initiative. This proposal must then be voted upon by both the Council of Ministers and the European Parliament (see also ► Chap.  10, Sect. 4). This requires the making of compromises and the impossibility for one institution to push through its will.

Obvious advantage of the systems of checks and balances and the requirement to cooperate is the need to seek the other organs’ approval and find compromises; an obvious downside is the possible delay and slowing down of policies and deadlocks.

Judicial Review

A very important check on the political institutions of parliament and government is judicial review, whereby courts check the legality of acts created by these institutions.

A court exercising judicial review might rule that the collection of a tax by the government was not covered by the tax code, for example, because the tax code provided for a tax exemption in a particular case under which the applicant falls, and that the tax has therefore been collected unlawfully.

Arguably, the ultimate power of judicial review is constitutional review, whereby a court checks whether legislation adopted by parliament itself is lawful in the light of what the constitution provides.

A court carrying out constitutional review, if it is competent to do so, might rule that the tax code itself is unconstitutional, for example, because it imposes a higher tax on women than on men, whereas the constitution prohibits discrimination based on sex. Thus, even if the collection of the tax took place in accordance with the law, it would still be unlawful because its legal basis was unlawful, and in this case unconstitutional.

3.6 The Rule of Law

The overarching constraint from constitutional law on the State is the rule of law itself. It is hard to define what exactly the rule of law means because interpretations differ. In a broad sense, the rule of law may include such sweeping notions as fairness, inclusiveness, independent adjudication, accountability, or transparency. It also has the qualitative meaning that the law must not only be legal but also reasonable, compatible with human rights, and fair. In a narrow sense however, it means that:
  • The State rules through law.

  • The State itself is ruled by law.

The first aspect means that the exercise of power must be performed by methods that comply with minimum standards to prevent arbitrariness. For example, laws that are enforced against citizens should at the very least be published before they are enforced. It also means that the proper procedures have been followed in making the law and that the law was made or executed by the competent authorities.

Legality

The second aspect means that the State and its organs are only allowed to perform particular tasks if they have been given the power to do so by law and to the extent that these tasks are allowed by law. Thus, State action requires a legal basis: the State may not legally act unless it is authorized by written law; an idea known as the principle of legality.

This principle plays an important role in both criminal law and administrative law. As the requirement of a legal basis, it also functions in European Union law.

The opposite is true for private citizens: they may do everything unless it is prohibited by law. Even where the State is authorized to act, it remains bound by the law in the performance of the action itself.

A policeman cannot stop vehicles on the road unless he is authorized to do so by law. Further, this policeman cannot open citizens’ private letters as this would violate the fundamental right to freedom of correspondence.

And even where powers actually have been given, they can only be exercised in accordance with the purpose for which they have been given. This is called the prohibition of abuse (or misuse) of power, or of détournement de pouvoir.

The mayor of a town may decide on the granting of building permits, but he may not refuse a permit just because the applicant belongs to a political party which he opposes.

The notion of the rule of law is largely a common law notion. In civil law systems, reference is often made to the Rechtsstaat or État de Droit. This is a State «under the law», which generally means that the State is bound by legal norms, respects the separation of powers, abides by human rights, and has a full-fledged independent judiciary.

3.7 Fundamental Rights

A very important way to curb the State’s power, and to protect the individual against it, is to commit the State to respect fundamental human rights.

National Instruments

The codification of fundamental rights goes back many centuries. An important historic example—even though we have to acknowledge that this document did not cover all human beings—was the Magna Carta (1215), a document in which King John of England accepted limitations to his arbitrary power.

It contained, for instance, the rule that no «freeman» could be punished except through the law of the land.

The English Parliament again insisted on the codification of individual rights in the Bill of Rights 1689. Two other more recent historical documents are of particular importance. One is the revolutionary 1789 French Declaration des droits de l’homme et du citoyen, which heralded the overthrow of the absolute power of monarchs on the European continent. The other is the Bill of Rights, which was added in 1791 to the US Constitution. Subsequent modern constitutions, particularly in the twentieth century, also reserved prominent chapters for human rights catalogues. Combined with the power of courts to strike down laws that conflict with the constitution and its human rights catalogue, where such power exists, these bills of rights proved to have a great political and legal significance.

International Instruments

In addition to national codifications of fundamental rights, international instruments protecting human rights have been adopted as well, including the Universal Declaration of Human Rights of 1948, and regional instruments such as the European Convention on Human Rights of 1950, or the European Union’s very own bill of rights, the Charter of Fundamental Rights of 2000, which became legally binding in 2009. These and many other international human rights instruments underline the importance attached by the international community to build mechanisms through which States may be held accountable for human rights violations.

Interpretation of Fundamental Rights

The actual interpretation of fundamental rights is not always easy. The rights are formulated in a necessarily broad manner so that it is up to the authorities, and often in the last resort to the judge, to determine what is allowed and what is not in real-life circumstances.

Consider in this respect the principle of equality or nondiscrimination, which prescribes the equal treatment of people in equal circumstances, and the difficult questions that can arise from its application:
  • Is the wearing of head scarves an infringement of the equality principle (where it is imposed on women only), or does banning head scarves from public life constitute an infringement of the equality principle (where other types of headgear are not banned)?

  • Is it a violation of the principle of equality to further the societal equality of minority groups by according them preferential treatment over majority groups via so-called affirmative action?

Or consider the possible reversals of recognized fundamental rights:
  • Does the freedom of religion only entail the right to freely practice one’s religion, or does it also include the right not to be bothered by other people’s religion, in cases where crucifixes are displayed in schools?

  • Does the right to life only entail protection from unlawful killing by the State, or does it also include the right to end one’s own life and to seek the assistance of a physician for that purpose (euthanasia), in cases where the law prohibits assistance to suicide?

Even where the scope of a fundamental right as such is relatively clear, it may still be that the right has to be balanced against a public interest:
  • How to balance the right to privacy (which may include the right to have private conversations on the phone and to keep personal genetic information out of the State’s hands) against the public interest of fighting crime, including terrorism (which may require phone tapping and the establishment and use of DNA databases)

  • How to balance the right to family life (which may include the right to not be forcibly separated from family members) and the public interest to implement immigration policies, in case one family member is to be expelled from the country for being an illegal immigrant?

Fundamental rights are found in many legal systems, but the interpretation and application of the rights often differ between the systems.

For example, in some systems free speech is upheld even in cases where the speech is intemperate, because the right as such is linked to the open and unimpeded political process and is perceived to require the most far-reaching protection in a democracy. In other systems, certain expressions such as hateful propaganda are deemed to be a threat to the functioning of the democratic system itself, including its human rights values, and are excluded from the protection that freedom of speech otherwise accords.

The successful invocation of fundamental rights in court may trump democratically legitimized public choices, which makes the issue relatively sensitive. Constitutional and treaty human rights can therefore be seen to facilitate courts in exercising checks on legislatures and executives. Furthermore, a tendency can be observed, where more and more claims are phrased as human rights arguments. Where classical civil and political rights focused on preventing the State from interfering with individual liberties, for example, by not torturing people or by not exercising censorship, more recent social and economic rights are phrased in a way that calls for State action to pursue certain goals. Thus, the right to education or health care would require the State to provide for schools and hospitals. Even more recent third-generation rights include legal claims to things like a clean environment. This certainly does not make the task of public authorities, especially judges, any easier. Human rights issues, in many instances, make for quite complex and sensitive issues, as we noted above.

3.8 Judicial Review

Problematic Nature

Constitutional review of legislation by courts, where it exists, means that judges have the power to check whether a law is in compliance with the constitution. This exercise, which is for reasons of brevity usually referred to simply as judicial review, is not entirely unproblematic. After all, it means that judges overrule the will of the lawmaker and impose policy choices on society through their own interpretation of what the constitution supposedly means. Judges enjoy neither the proper legislative power nor the democratic legitimacy of an elected parliament. And yet, a case can be made that judicial review is a necessary, or at least a useful, institution to have.

Reasons for Judicial Review of Legislation

Checks and Balances

First, judicial review of legislation can be an element in the checks and balances between State organs. The judiciary then acts as a check upon the legislature. The idea that courts must check upon the legislature has not remained undisputed, however.

Background Information

In the UK, the notion of the supremacy of parliament implies that the will of the legislature cannot be questioned by the courts.

In the Netherlands, it is the lawmaker who is entrusted with respecting the Constitution when making laws, not the judge.

In France, judicial review was not possible until 2008, when the Constitution was changed to allow judges to refer questions of constitutionality to a special organ, the Constitutional Council. Before that, the separation of powers was taken to imply that judges should be separated from lawmaking and therefore should not question the validity of laws.

Will of the People

A second rationale for judicial review is that it upholds the supremacy of the constitution and thereby, in systems based on popular sovereignty, protects the will of the people itself, as is expressed in that constitution.

This was the reasoning in the 1803 US Supreme Court decision in the famous case Marbury v. Madison: it is clear that the Constitution is higher in rank with respect to ordinary laws and that judges are obligated to let the Constitution prevail over such ordinary laws if the two are in conflict, due to the fact that Congress had passed a law that violates the Constitution.

Protection of Minorities

A third argument is based on the assumption that courts, situated at a certain distance from politics, are more inclined to protect individuals and minorities against majorities that control lawmaking institutions and that a democracy must also protect such minorities.

Decentralized Systems

A very fundamental organizational distinction regarding judicial review is whether any court in the system can carry out the review, or if it is the domain of one special constitutional court. In a decentralized system, the constitution is a norm that all judges must uphold whenever they are asked to apply a law whose validity they doubt. The power of judicial review is that it is linked to the regular jurisdiction of all courts, which must resolve conflicts of norms before resolving disputes between parties.

Background Information

The judicial review system in the USA is strictly decentralized: there is nothing special about the Supreme Court, other than the fact that it is the highest in the federal judicial hierarchy.

The Nordic countries in Europe also have a decentralized system of judicial review, although courts there tend to be more restrained and to yield to the preferences of parliament.

In a decentralized system, assessing the validity of a law vis-à-vis the constitution is not perceived as fundamentally different from deciding on a conflict between two laws or between a law and lower regulation.

Centralized Systems

In centralized systems, as they apply in most of Southern, Central, and Eastern Europe and beyond, ordinary judges must refer questions regarding the constitutionality of laws to a constitutional court, which then has the sole power to quash them. This model allows for a concentration of constitutional expertise and for the imposition of specific requirements and procedures for the appointment of constitutional judges who are, after all, entrusted with a delicate task.

In Germany, each of the two legislative chambers—the Bundestag and the Bundesrat—elects half of the judges at the Federal Constitutional Court. That is different from the appointment procedure for judges at all other federal courts. In Belgium, a fixed number of judges at the Constitutional Court must be former members of parliament.

Types of Review

The power of constitutional courts can go far beyond judicial review in cases referred to them by ordinary courts. For next to this concrete review, which arises from actual adversarial court proceedings between parties, some constitutional courts may also engage in abstract review. In that case, officeholders such as the government or members of parliament may claim that a law is unconstitutional even though it is not being applied in a concrete case. If judicial review is considered sensitive or controversial, it is surely abstract review that will attract most controversy. After all, here it cannot be said that judicial review is an inherently judicial task. Unlike the resolution of any other conflict of norms, here a court is expected to pronounce itself in a context that normal judges are not confronted with and to rule in the abstract. Nevertheless, where judicial review is cherished as a powerful counter-majoritarian instrument for checking on the lawmaker and for upholding the constitution, abstract review is certainly not misplaced.

European Union

Judicial review also exists in the European Union. It is exercised by the Court of Justice of the European Union (CJEU): a centralized system. The domestic courts must refer legal disputes that raise questions about the interpretation and validity of EU rules to the CJEU for a binding ruling. For EU Member States, EU law is supranational law, which must be applied by the domestic courts even when this implies setting aside domestic law. This has certainly had a large impact on domestic perspectives on the inviolability of domestic law.

Judicial Review by Specialized Courts

Constitutional judicial review can have many features when put in the hands of special courts: we draw attention to four of them:
  1. 1.

    When a question arises about the unconstitutionality of a statute in a case pending before a court, the court may/must refer the case to the constitutional court and await its ruling on the constitutionality of the statute [France (since 2008) and Germany].

     
  2. 2.

    Members of parliament may refer a statute to the constitutional court to check for its constitutional validity even after it has been adopted. The court has to rule on the constitutionality of a statute in the abstract without the statute having been applied in a concrete case (France—this review only takes place before a law adopted by Parliament entered into force—and Germany).

     
  3. 3.

    Individual citizens may file a complaint with the constitutional court, arguing that their individual rights have been violated by State organs (Germany).

     
  4. 4.

    Constitutions or statutes may empower a constitutional court to rule on «other» constitutionally important issues such as election disputes (France, Germany), the prohibition of political parties (Germany), or conflicts between political agents, such as between the chambers of parliament or between a minority in parliament and the majority/government (Germany).

     
Judicial review is a potentially powerful instrument. In many States, it has led constitutional courts to deal with far-reaching issues, such as whether social security or tax laws should be set aside because of discriminatory aspects. Judicial review has also tackled several moral issues in relation to constitutions, such as the right to an abortion, the possibility for homosexuals to get married, and the protection of the rights of citizens to peacefully demonstrate and associate. As a result, there is an ongoing debate about the scope of the powers of constitutional courts, which addresses issues such as
  • How does a constitutional court interpret the constitution?

  • To what extent should the constitutional court accept the judgment of Parliament?

  • How does a constitutional court cope with judgments that might have a huge financial impact (as might be the case in the domain of taxation)?

  • How does the court deal with politically sensitive issues, such as the constitutionality of the health-care system (decided in 2012 in the USA) or the constitutionality of the European rescue fund for the euro (Germany)?

4 State Power Democratized

«Democracy» means «rule by the people». Historically, the term had some negative connotations, as it sometimes implied anarchy or mob rule. Today, however, the term «democracy» has universally a positive connotation. Democracy implies also that:
  • The government is installed to rule the people because it is in the interest of the people to have a government in the first place.

  • This government pursues the interests of the people rather than its own.

Under a democracy, the idea is that the government rules with the consent of the governed, or at least that the government is established with the support of the people and has regular confirmation of that support, or else should not be in power. As a form of government, democracy is endorsed around the world. States are either democratic or if they are not, they usually claim to be democratic. In the latter case, they may argue that the regime actually represents the interests of the people even if it did not get elected or if elections were not free and fair.

One should always be suspicious if a republic advertises its democratic character by calling itself «Democratic Republic» or «People’s Republic».

Effects of Democracy

The case for democracy is indeed compelling because one might think that it helps in aligning government choices with the citizens’ preferences, which then maximizes the well-being of the greatest number of people. Or at least it helps in conveying the message that the government is based on collective choice and promotes policies that serve the general interest. Also, regular elections ensure that the government remains accountable to the people and that the risk of abuse of power is minimized because rascals can be voted out of office. Further, the transition of power is bloodless because it is regulated in a universally accepted peaceful procedure.

4.1 Direct and Indirect Democracies

Democracy is a system of government where public power lies with, or emanates from, the people. If the democracy is direct (lies with the people), the State power is actually exercised by the people themselves. If the democracy is indirect (emanates from the people), the power is exercised by the people’s representatives.

Direct Democracy

In hunter-gatherer societies, the members of a band could easily assemble around a campfire to discuss public affairs, such as where to move next or how to deal with individual misbehavior. Communal decision-making was very immediate. In constitutional terms, it is a form of direct democracy as the constituents who make up a society decide by themselves and for themselves. Later, urban societies, notably the Athenian democracy, also reserved crucial decision-making powers to the general assembly of citizens. This still occurs in Swiss villages and cantons.

Complex Decisions

There are two major problems with the practicality of direct democracy. One has to do with the complexity of the decisions that need to be taken. In organized societies, gains in productivity are achieved by division of labor, which in turn compartmentalizes society. Meanwhile, the reduced rates of violence between people, and the rising living standards resulting from productivity gain, facilitate population growth. In turn, this growth increases the complexity of society. In increasingly large and complex societies, assuming they are still to be organized according to democratic principles, decisions also become more complex. This may extend to the point where ordinary citizens cannot grasp the full extent of the implications that every particular decision could have.

Logistics

This leads to the other problem: the logistical organization of democratic decision-making in societies made up of millions of people is complicated. This is especially the case if such decision-making is not supposed to be limited to casting a vote but should also include collective consultation and an exchange of opinions.

Furthermore, one would need rules to prevent the abuse of powers by direct democratic majorities and human rights violations, as well as definitions of who participates, in what procedures, and under what criteria, as well as about the execution of policies and possibilities of redress, judicial review, etc. These issues however do also apply to representative democracy.

Representative Democracy

To deal with the increasing size and complexity of decision-making, representative or indirect democracy becomes a viable alternative to direct democracy. In a pure representative democracy, public power is exercised by a ruler, or group of rulers, who have been elected or appointed by the ruled. For the duration of their term of office, the rulers are not subject to dismissal by the ruled, and their decisions may not be overturned by the ruled themselves. As the French scholar Montesquieu wrote in 1748:

As in a country of liberty, every man who is supposed a free agent ought to be his own governor; the legislative power should reside in the whole body of the people. But since this is impossible in large States, and in small ones is subject to inconvenience, it is fitting that the people should transact through their representatives what they cannot transact by themselves.

Challenges
The implementation of a representative democracy creates a number of challenges that are addressed by means of constitutional law:
  • It should be decided how the rulers are elected or appointed.

  • A system needs to be devised to regulate how powers are distributed among various rulers and how the offices relate to one another.

  • Fundamental consideration should be devoted to the question of how to prevent abuses of power by the rulers. After all, there is no guarantee that those in power will not seek to perpetuate their power, at which point the system becomes neither representative nor democratic.

Controls against the abuse of power are indeed vital. As the American revolutionary and drafter of the US Constitution James Madison observed in 1788:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

Recall

A powerful check on the government in a representative democracy is the introduction of elements that are taken from direct democracy. In an otherwise representative democracy, direct democratic elements can take two main forms: the recall election and the referendum. A recall is a popular vote to dismiss an already elected officeholder before the term of office has expired.

In Western systems, recalls are typically found at regional and local levels rather than at national level.

Famously, Arnold Schwarzenegger became governor of the US State of California in a recall election to oust the incumbent governor Gray Davis in 2003.

Referendum

A recall is a deviation from the principle of representative democracy in that powers are delegated for a fixed term and that the electoral sanction is the refusal to reelect an officeholder. A referendum, however, deviates from the principle that decisions are taken by the rulers or representatives on behalf of the governed. Instead, the approval or continued effect of a certain decision is subjected to a popular vote.

Sometimes a referendum vote is used not only to correct decisions taken by the legislature (asking for a yes or no of a legislative decision—corrective referendum) but also to enable the people to adopt a new and original proposal to become law, bypassing the legislature. States may opt for both possibilities or pick one of them.

Evidently, referenda need to be subject to procedural checks, such as the circumstances in which a proposal is considered to be adopted or rejected (e.g., whether it is because a majority of the votes have been cast or there is a majority of the people in favor, defining the threshold needed to table a referendum, what subjects may be excluded from a referendum, etc.).

The modern use of «referendum» derives from a Swiss practice to adopt agreements between the cantons, or constituent regions, whereby the agreements would be subject to a referral (‘ad referendum’) to the people of the cantons themselves before they could enter into force. To this day Switzerland is the Western system most famous for its frequent reliance on referendums.

To some, referendums constitute the purest form of the democratic legitimation of a decision, guaranteeing the explicit consent of the governed and forcing rulers to align their own preferences with the preferences of the population they represent. Others might point out that most decisions are too complex to be determined in a simple «yes or no» fashion and that populations tend to be generally change-averse so that necessary reforms are made more difficult.

Forms of Referendum

  • Mandatory referendum5
    • For certain types of decisions, a referendum is required. Examples include constitutional amendments, which in some States must be approved by referendum.

  • Optional referendum5
    • For certain types of decisions, a referendum can be, but does not have to be called. Examples may include a popular vote on whether or not to join an international organization.

  • Binding referendum5
    • The outcome is binding: a rejected proposal cannot enter into force; it has to be approved.

  • Consultative referendum5
    • The outcome indicates the preferences of the voting population, but the government may deviate from it nonetheless.

  • Initiating referendum5
    • The referendum initiates a new bill or proposal.

  • Corrective referendum5
    • The referendum is held to support or block a law already adopted by parliament.

4.2 Election Systems

A representative democracy is not the only form of democracy, and in fact it may not even be the fairest one. Montesquieu himself saw the merit of the Athenian way of appointing certain (though not all) magistrates by lot from among those who would volunteer to put their names in a lottery drum. Election-based systems were seen as having an aristocratic tendency as rich and influential elites would monopolize power, whereas lots would ensure a healthy rotation in office. Nevertheless, in the Enlightenment-inspired eighteenth-century revolutions in America and France, the lot was discarded; both because it was impracticable and because a higher value was accorded to the idea of consent of the governed, which cannot truly be expressed via lot but which is expressed well through elections.

Franchise
Who is allowed to vote? Throughout history, several restrictions have been applied on the franchise, that is, the right to vote. In Western democracies, the franchise is in principle universal, as the most important limitations of the franchise have been overcome, namely:
  • The exclusion of women’s right to vote

  • The exclusion of the right to vote for slaves or serfs

  • The exclusion of the right to vote for persons not fulfilling certain property or taxation requirements

However, in the contemporary world, certain limitations do exist or persist, notably the exclusion of minors through a minimum age limit, the exclusion of soldiers, the exclusion of convicted prisoners or persons with a prior conviction, the exclusion of foreigners, and the exclusion of nationals living abroad.

Majority Systems

The translation of votes into seats in a representative assembly generally follows one of two possible models, although hybrids do exist. One model is the majoritarian system, where a candidate is elected if he receives a defined majority of votes. A country may, for instance, be divided into many small districts, each of which elects one parliamentarian.

Plurality Systems

In a plurality system, the candidate with the most votes (more than any of the other candidates) is elected.

Absolute Majority Systems

In an absolute majority system, a candidate will need more than half the votes.

If only one person is to be elected nationwide, such as in presidential elections, the system is necessarily majoritarian, but even then a plurality or an absolute majority or even higher supermajorities may be required.

Background Information

The French President is elected with an absolute majority of votes, and if no candidate achieves this in the first round then a run-off between the two strongest candidates determines the winner.

The German President is elected (by an electoral college rather than by the people) by absolute majority, but if after two rounds no one musters an absolute majority, then in the third round a plurality suffices.

The US president is elected by an absolute majority of members of the Electoral College (not necessarily equaling an absolute majority of the votes), and if no one reaches that threshold, then the fallback procedure is a special election by the House of Representatives.

Benefits

Generally, a major benefit of the majoritarian systems is the link between members of parliament and the constituency where they are elected. This is thought to give citizens access to their representatives and makes them directly accountable to the district.

Also, it is mostly majoritarian systems that have the tendency to lead to clear and workable majorities after elections (because of voting behavior that favors two big parties, who alternate in size). This enables a distinct government and a majority in parliament and allows for effective governing because it makes cumbersome coalition negotiations after elections less likely.

Proportional Representation

The other main model for election systems is proportional representation (PR), whereby the share of seats in the assembly is proportional to the share of the votes. Thus, roughly speaking, 20% of votes will translate into 20% of seats for a political party. In a purely list-based system, political parties then go on to fill their seats with candidates from the lists that they had established before the elections.

Benefit

Generally, the benefit of a PR system is the representation of many political sentiments in society; the idea of parliament here is to mirror the composition of the population in parliament.

Downside

The downside, however, is that the parliament may be fragmented into too many political parties, which may make the formation of stable government coalitions more difficult. The imposition of a threshold will limit the fragmentation of the parliament, as only parties obtaining a minimum share of the vote (such as 5%) are entitled to seats, yet this is at the cost of the parliamentary representation, as it leaves a share of the voting population unrepresented. Some countries have opted for a system of bonuses: extra seats for the largest party in order to create a workable majority and coalition government.

The choice, as authors have put it, is therefore between certainty and clear and effective governing, on one hand, and a representative parliament with negotiations between majority-seeking parties, on the other hand. In practice, many States have sought variations of the two systems in order to try to benefit from the advantages of both approaches, such as multimember districts or alternative voting, wherein voters number candidates according to their preference.

5 Final Comment

In practice, electoral systems show the narrow link between politics, political parties, and constitutional law. We have noted before that politicians and politics decide the many choices left open by constitutional law. Here we note that political parties are very much involved in elections and the effects and outcome of elections. Constitutional law cannot be fully understood without a comprehension of politics, the political situation, and history. Similar constitutional systems may have different effects and lead to different outcomes and stability or success than others. Legal instruments may be copied, but political practice, political parties, political culture, customs and the interplay with other legal and constitutional institutions, and (legal) education are a lot more difficult, if not impossible to copy, and yet these other aspects codetermine the success or failure rate of a constitutional model. In time, a constitutional model may have to change in its political and factual modus operandi due to changed circumstances. Sometimes institutions remain the same in name but change drastically in how they operate.

The British Queen may be the Head of State and possess a variety of prerogative powers, but this description does not do justice to constitutional law and politics in the UK, which sets out that the Queen operates as the Queen in Parliament and that she may only act upon the recommendation of the Prime Minister.

The study of constitutional law therefore shows, as have the many examples given in this chapter, that what is required is a comprehension of constitutional law in action and an understanding of the mechanisms of power, control, accountability, personality, and non-state agents such as political parties.

Recommended Literature

  1. Ginsburg T, Dixon R (eds) (2011) Comparative constitutional law. Elgar, CheltenhamGoogle Scholar
  2. Heringa AW (2016) Constitutions compared, 4th edn. Intersentia, AntwerpenGoogle Scholar

Copyright information

© Springer International Publishing Switzerland 2017

Authors and Affiliations

  1. 1.Faculty of Law and Maastricht Montesquieu Institute, Maastricht UniversityMaastrichtThe Netherlands

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