Law, Constitution & Federalism (2016)Resumen Inglés
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LAW AND POLITICS
“Law-bounded state” → decisions of the ruler(s) have to be codified and published so as to impose
limits on the exercises of arbitrary power and to provide predictability in public affairs. It was the main
Western innovation in the theory of the state. (Late 19th century).
■ Constitutional liberalism → it was what made governments in Europe and North America different from the rest of the world. The “Western model” was characterized by impartial judge.
Previously, in traditional societies in other parts of the world, authoritative rule-making wasn’t seen as the exclusive domain of political rulers. Although those rules weren’t called “laws” they had the same function.
However, traditional societies in Africa and Asia were made to achieve order and harmony and self-regulation, rather than formal legal adjudication.
Later, as legislatures became more common, law-making became their primary function and gradually these practices spread around the world. This was associated with the civilizing mission that Western states set for themselves. This monopoly on legislative activity is another essential feature of the modern state.
■ Legal positivism → Legitimacy of binding rules for society depends upon approval by legislature, i.e, law is what the state says it is.
■ Secularism → the civil state authorities assert their precedence over all competing sources of rulemaking authority, especially religious ones. (France).
■ Ataturk was influenced by this example in the reforms he introduced (1920) which asserted Turkish state supremacy over Islamic religious authorities.
■ Countries such as India, Pakistan and Bangladesh allow legal pluralism and different religious communities the right to establish their own rules to regulate matters of faith and family rules.
■ Legal pluralism does exist and it may spread further in the future as a result of globalization.
Creating laws to regulate human conduct (legislation) has been one of the most basic functions performed by the states since earliest times. This is “rule of law”. For laws to be legitimate (accepted by citizens) states have established rules of procedure which are themselves legitimate and have to be followed. They have to be approved in legislatures.
But there is a second function performed by law: it determines what criminal behaviour is, it prescribes punishments for criminals and it provides impartial rules for binding adjudication in disputes. → “rule of law”.
It means that everyone in a society is expected to obey the law and everyone is equal before it. There are 8 elements in the rule of law: i.
The law must be accessible, intelligible, clear and predictable.
The laws should apply equally to all.
Public officials should exercise their functions fairly, not unreasonably, and for the purpose originally intended.
The law must adequately protect fundamental human rights.
Means must be provided to settle civil disputes without prohibitive cost or inordinate delay.
Trial procedures should be fair.
States must comply with international legal obligations.
The rule of law is one of the essential elements of what Western states call good governance → standards for the process of decision-making in society.
!1 Legal system → check upon the exercise of power by the executive. Requisite: Independence from the state (the state accepts that judges are free to determine the merits of legal cases irrespective of the consequences for state administration).
CONSTITUTIONS The term “constitution” can be used in different ways: ■ Broad sense → it denotes the overall structure of a state’s political system. It covers a nation’s political culture. (Pattern of rule) ■ Narrower sense → Specific document that lays down the basic institutions of state and procedures for changing them, as well as the basic rights and obligations of its citizens. It also serves as the basic source of national law. It is the core of the legal system. (Legal document) ■ Only 3 states no do not have a specific constitution: UK, New Zealand and Israel.
The term “constitutionalism” can mean two things: i.
It can encapsulate a normative outlook on the political values embodied in a particular country’s constitution (doing things according to its “spirit”).
Broader normative standpoint: making the observance of constitutions the most fundamental principle of political life. This could mean that constitutions should remain inviolate once codified. (In practice, no state makes this an absolute principle).
FUNDAMENTAL RIGHTS One of the basics features of constitutions is that they usually contain a list of fundamental rights of citizens.
The first list of civil rights were contained in the American constitution and the list of the Rights of Man from the French Rev. In 1948, the UN adopted the Universal Declaration of Human Rights.
RIGHTS OF MAN UNIVERSAL DECLARATION OF HUMAN RIGHTS Concentrate upon the establishment of a It is not only about political rights but also social rights. It was a legal basis for the relations between the trend that started in the 20th century.
citizen and the state, so they deal with due process.
Freedom apart from what the law specifically forbids (Articles 4,5).
Freedom of expression (Article 11).
Right both to determine the people’s contributions that are made to the state and to expect an account from the state of how those resources have been used (Articles 14, 15).
Every individual has the rights to freedom of thought, conscience, and religion, including the right to change them (Article 18).
The right to freedom of opinion and expression, including the freedom to receive and impart information and ideas through any media and regardless of frontiers (Article 19).
The right to freedom of peaceful assembly and association (Article 20).
To social security (Article 21).
To work and equal pay for equal work (Article 23).
To rest and leisure with reasonable limits on working hours (Article 24).
To a standard of living “adequate for the heald and well-being of himself and of his family” (Article 25).
To education (Article 26).
To participation in the cultural life of the community (Article 27).
!2 There has been a trend that has emerged especially in the USA and Catholic states, which is support for the “right to life” → citizens can take up the right of someone else, in this case the unborn, and so prevent abortions.
However, this leave open the question of amount or degree (what level of education? Of healthcare?) and sometimes it can be difficult to balance two rights (freedom of expression may have to be weighed against the right to public security). All of this explains why in democracies, perhaps even more than in authoritarian regimes, the court system is increasingly limiting the freedom of manoeuvre of elected governments.
CONSTITUTIONAL COURTS AND JUDICIAL REVIEW All states have a constitutional court of some kind. In most countries, those who serve on these courts are either trained and experienced lawyers, or academic lawyers. (France is an exception). One trend that has become more evident in recent years has been the readiness of courts in the USA and the UK to challenge government decisions through judicial review, on the grounds that fundamental rights have been infringed, or that administrators have failed to observe due process.
States establish special courts, or legal arrangements, to safeguard constitutions.
There is an increasing tendency to appeal for executive policy-making to be subject to standards laid down by judicial review.
LEGAL ADJUDICATION OF POLITICAL PROBLEMS The concern on “justice” seems universal, but in reality there are many different views on what it means: i.
Justice as a kind of legal positivism → the law of a particular country is neither more nor less than the sum of the laws which it has established. The wording of each individual law as approved by parliament, as well as the whole legal code, is sacrosanct. This approach is found in France’s former colonies and pre-modern China.
The social function of law typified by communists states → the function of law was subordinated to some higher, non-legal goal: communism itself. Universal human rights were of lesser concern. This approach is also found in China still to this day. Although in China here is increasing talk of “rule of law” replacing “rule of men”, there is still a long way to go, at least by Western standards.
Approach to law and societies in Islamic states → “rule of law” exists but because of reality and practice, rather than because of the explicit separation of the powers of rulers and judges as in the West: it was because both rulers and judges were supposed to defer to the revealed law of the shariah.
In general, rules appointed and could dismiss judges. Laws were mainly formulated by legal scholars, not by rulers. Therefore, traditionally in Islamic societies there was a tendency for political monism but legal pluralism, whereas in the West we find the opposite: a greater tendency towards political pluralism and legal monism, with legal systems expected to deliver consistent authoritative verdicts.
The fourth approach to legal justice focuses on procedural justice → makes sure that verdicts are similar and more consistent in similar sets of circumstances. It requires a greater legal bureaucracy to ensure consistency of verdicts, with one or two higher layers of appeal courts, as well as ministries of justice to administer them. It also risks delivering verdicts that are less well tailored to individual !3 circumstances. However, it does provide better predictability about possible outcomes to court cases.
Japan and Turkey.
Although the Western legal practices and norms have spread around the world, this does not mean that they become universal and fully consistent. There has been a much stronger movement to pursue rights-related cases in North America, with Canada in particular undergoing “a vibrant rights revolution” since 1960. There is a close connection between a country’s legal system and the evolution of its political system. The two interact with and impact each other.
In conclusion, a whole range of factors contribute to a variety of interpretations of the rule of law in the practice of legal systems in different regions of the world.
FEDERALISM, CONSOCIATIONAL DEMOCRACY, AND ASYMMETRICAL DECENTRALIZATION The American Constitution was explicitly designed to restrain the power of state. Two ways: i.
Through the establishment of checks and balances, with the division of power between executive, legislature, and judiciary.
Through the establishment of a federal system. Ever since then, federalism has been praised as the solution to the risks of potential dictatorship.
Robertson’s definition of federalism emphasizes the equality between the national government and the federal units for responsibility for performing particular functions. To provide substance for protection, federal systems usually establish two institutions.
A two-chamber parliament, with the upper chamber composed of representatives from the states, and the second one given specific powers to ensure that their constitutional prerogatives cannot be legislated away without their concern.
A constitutional court to rule upon the constitutionality of legislative proposals, again to reassure the states that they cannot be forced into submission.
However, federalism has been called upon to provide a constitutional framework for states facing two other challenges.
Territorial size. Most federal states occupy a large area and yet, in most cases, federalism has been proposed to provide guarantees for minority communities that they will be able to preserve their particular way of life, their culture, their language, religion, etc.
Not capable by their very existence of preventing violent conflict and/or dissolution, or of providing effective government. Yet, it can be argued that a prime cause of the collapse of the USSR and Yugoslavia was the lack of the legal support and the rule of law without which constitutional provisions are more vulnerable.
1970’s → the idea that federalism was the naturally most appropriate solution to the problems of division in divided societies was challenged by the theory of consociationalism → a few small states with deep multiethnic and multi-confessional cleavages had achieved intercommunal harmony and cooperation without a formal federal system. (Netherlands).
Features of consociationalism: !4 ■ Government by grand coalition → governments included deputies from the parties representing all of the main communities, which usually required that they held far more than a bare majority of seats in parliament.
■ Segmental or subcultural autonomy → each ethnic or confessional community was responsible for administering policies in specific policy areas that affected them.
■ Proportional representation in the electoral system, which made simple majoritarian rule very unlikely and proportionate representation in the distribution of posts in government bureaucracies, the distribution of public funds and so on.
■ Agreement on minority vetoes for certain types of legislation.
However, consociationalism, no more than federalism, is no automatic guarantee of social harmony. Yet, the model may be more appropriate as a temporary solution to societies that have recently suffered from major division or conflict.
Lijphart (1999) → Democracies regularly governed by coalitions that were much larger than a simple majority in parliament achieved better political and economic results because their policies were “owned” by much broader sections of society. He claimed that more consensual methods of government are more effective in the long run in bringing substantial improvements in the living conditions for their citizens.
Asymmetric decentralization / asymmetric federalism → when states no longer feel that they have to make an exclusive choice between either unitary or federal systems. (Spain, UK). Nowadays, there is an increasing use of asymmetric arrangements to handle diversity in both federal and unitary political systems, which erodes the differences between them.
The old distinction between federal and unitary states has disappeared, as similar kinds of asymmetrical relationships are introduced into both of them.
CONCLUSION: GROWING LEGALIZATION OF POLITICAL LIFE i.
The importance of constitutions as fundamental institutions that structure political systems. By establishing the basic principles for political life, they channel the political behavior of all the inhabitants of a state in various directions, and at the same time, prevent some other forms of political behavior. They help provide better transparency about the ways that the public decisions are made.
Constitutions need a developed legal system to give life to the provisions that they contain. Without some kind of accompanying rule of law, constitutions may be disregarded by government, or undermined.
There are different approaches by which legal systems attempt to achieve justice and different interpretations of universal human rights.
Federalism as a form of government does help to prevent excessive concentration of powers in a nation’s capital. It can also help to provide reassurance to some minorities that their interests will not be overridden by larger communities.
Consociationalism offers an alternative approach to the same challenge, although it has tended to succeed only in smaller states, and then over a more limited period of time.
The extent to which law plays a central role in the political process varies considerably from one state to another. There are two dimensions of this trend: i.
Growing tendency to devise legal frameworks to regulate an increasing number of dimensions of social behavior within individual states.
Expansion of international legal activity to support globalization.
This trend does make for greater checks upon the power of the state and the executive branch of government; but it also makes politics more complicated and difficult to understand for non-lawyers.