8. Law and political power (2016)Apunte Inglés
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8. Law and political power
• The government is seen as the “decision-maker” and is the most important part of the process of “law-making”. The
government is the administrative structure, implements laws and makes sure that private entities and individuals act in
accordance with laws.
• The courts are responsible for overseeing the application of laws whenever they are ambiguous, not straightforward, are wrongly applied or may conflict.
• Politics is about collective decision-making and how it takes place (preferences and demands of individuals and groups; their pressure on decision-makers; appointment and dismissals of officials; bargaining in policy-making,…) • Constitutions provide the framework within which the political activity is organized (expressing values; setting out decision-making procedures; creating the institutions that give shape to political action; or trying to constraint its tendency to conflict).
The importance of the cultural and social context when we consider how constitutional proceses influence politics.
Constitutional arrangements and frameworks that work in one context may fail or operate very differently in another context.
Governance Beyond the constitutional framework, beyond the formal rules, the governmental practice faces important changes arising from social, economic and technological developments.
Similar problems / constraints / solutions … regardless of the constitutional framework of the state (parliamentary or presidential system). This means that many states and many countries face the same kind of problems regardless their constitutions and they usually try to find the same kind of solutions.
Governance is a transnational phenomenon. There are regional courts and regional institutions with authority in a number of states.
Constraining the state’s constitutional and institutional choices and law-making through international and regional economic and security obligations and not only through international human rights obligations.
Comparative government An attempt to describe patterns of action in which actors and rules are constantly changing. There is a struggle to reduce that large variety of existing systems of Government to a small number of categories: ITS FAILINGS AND SHORTCOMINGS: - This attempt produces mere categories rather than developed explanations of how each régime actually operates.
- The different categories fit western liberal democracies well but they do not apply to many non-western political régimes.
The standard categorization: parliamentary government vs presidential government. Depends on how the separation of powers is transcribed into a set of institutions.
SEPARATION OF POWERS: • It is not straightforward constitutional principle.
• It is a core requirement to secure political liberty, which implies that all the powers of the state should not be devolved to a single institution.
THE ORIGIN OF THE CATEGORIES: A product of practice and history, included the struggles to contain power rather than a product of voluntary constitution-making.
Parliamentary government Legitimizing executives through a functional link between the executive and the elected chamber of Parliament. It satisfies the following criterion: • A collective executive is accountable to an elected legislative chamber.
• The accountability is expressed through expressions of ‘confidence’ by the chamber.
• Should this confidence be withdrawn (‘vote of no confidence’) a (written or unwritten) constitutional rule prescribes that the executive must resign.
It has some unnecessary features: • A head of the state separated from the head of the government.
• Executive’s power to dissolve Parliament and to call new elections.
How does it work? • After the parliamentary election, the larges party or largest coalition of parties forms a government.
• The leader of this group becomes the head of the executive and chooses a cabinet to govern collectively.
• Therefore, the executive usually commands the support of the Parliament with confidence (it is mostly a positive political relationship — parliamentary majority expresses its approval of the cabinet’s political intentions or mandate).
Who has the powerful role? • The requirements that make the executive retain the confidence of the Parliament do not mean that the Parliament is politically dominant.
• The function of the elected chambers is not to devise politics or make the ultimate political decisions but rather to advise and consent on politics devised by executives (which have more resources).
Who has the dominant role? • The executives make decisions that are examined and ultimately approved in legally authoritative form by democratic and deliberative elected chambers.
Presidential government There is a system of “checks and balances” between the three powers (executive, legislative and judicial) created by the Constitution, which makes them not absolute. Some examples of ‘checks and balances’ (US) • The legislative power is mitigated by the presidential power to veto laws.
• The executive power is mitigated by the involvement of the Senate in certain appointments to the executive and in approving international agreements • The judicial power is mitigated by the fact that judges are chosen by the other two powers.
The three branches of power are lacking in the means of institutional pressure that characterize parliamentary systems: • The separately elected President and Congress have independent legitimacy.
• Accordingly, the President cannot dissolve the House of Congress.
• In turn, neither the House of Representatives nor the Senate can force the President to resign by way of a vote of no confidence.
• The president can be removed from he office only through a deliberately complex process of impeachment by the Congress (in which it is established that the President has been guilty —or not— of Treason, Bribery or other eight crimes and misdemeanors [outrageous behavior which puts in danger the constitutional framework]) • The President cannot be removed merely because a majority int he Parliament disapprove of their policies or because of “maladministration”.
• Political disagreements between the congress and the President must be resolved by negotiation or at the next election.