Transcript of Private v. Public Law The distinction between private and public law is considered to be very...
- Slide 1
- Private v. Public Law The distinction between private and
public law is considered to be very important in civil law
countries. The distinction is recognized in common law countries,
but not considered to be of much practical importance.
- Slide 2
- Public Law Private Law Rules regulating relations between
private individuals and the state. Operation of government. Extent
of state authority, relationship between state organs and public.
Relationships between private persons. person can be natural or
legal: Example: A corporation is a legal person.
- Slide 3
- Constitutional Law
- Slide 4
- Different Kinds of Constitutions
- Slide 5
- Written vs. Unwritten The oldest constitution in existence
today is the UK constitution. It is often said to be unwritten. The
oldest written constitution in existence today is that of the
US.
- Slide 6
- Constitution of the United Kingdom: Not written in a single
document An accumulation of traditions, customs, acts of parliament
and legal precedents. Flexible, in that it can be changed by simply
passing an Act of Parliament. Unitary system of government, not
federal. Fusion of power executive elected from legislature.
- Slide 7
- United States Constitution: Written Can be changed, but
changing (amending) the constitution is much more difficult than
changing the law. Provides for separation of powers between 3
independent branches of government: executive, legislative, and
judicial. Separation of powers between federal government and state
governments.
- Slide 8
- Actually, of course, the UK constitution is written down it is
just not written in one document. Perhaps the key difference
between these two types of constitutions is that one is entrenched
and the other is not.
- Slide 9
- An entrenched document is created in a manner that imposes
certain obstacles, even upon a general expression of the sovereign
will, and its amendment or replacement is made equally difficult.
Generally, an indication of some form of broad consensus is
required to create or alter an entrenched constitutional document,
thus raising its status above all other law within a society. James
T. McHugh, Comparative Constitutional Traditions (2002)
- Slide 10
- An unentrenched constitution, like that of the UK (or that of
New Zealand or Israel, the other two nations with such
constitutions) can be changed just like ordinary legislation at
least in theory. In fact, there is a strong shared sensibility
among elites about what may be change and what may not be. This may
be the case with some elements of entrenched constitutions as
well.
- Slide 11
- Length Constitutions vary considerably in length. The US
Constitution, the worlds oldest written constitution, is also one
of the shortest, with 7 articles and 26 amendments.
- Slide 12
- The longest is the Indian Constitution, with its 395 articles,
10 schedules, and 3 appendices. Ter Ellingson, The Nepal
Constitution of 1990: Preliminary Considerations Himalayan Res.
Bull. (1991), http://inic.utexas. edu/asnic/ countries/nepal/
nepconst analysis.html. From Landsberg and Jacobs, Global Issues in
Constitutional Law.
- Slide 13
- The Turkish Constitution is relatively long, with 177
articles.
- Slide 14
- Some believe that a short, general constitution like that of
the US is better, because it is more flexible. They point to the
fact that it has lasted more than 200 years as proof.
- Slide 15
- However, it is not clear that a short constitution is the best
option for an emerging democracy.
- Slide 16
- The US has developed a very large body of Constitutional law
through 2 centuries of US Supreme Court decisions. It is really
here, in these decisions, that most of US Constitutional law is
found.
- Slide 17
- Compare the way the Turkish and US Constitutions deal with
freedom of speech and religion:
- Slide 18
- What does a constitution do? 1. Structure the government and
the state. 2. Establish a means of constitutional review by the
judiciary. 3. Provide for the protection of human rights.
- Slide 19
- 1. Structures the government and the state. Presidential or
parliamentary system Unicameral or bicameral assembly Federal or
unitary state
- Slide 20
- Parliamentary system As in Turkey, government by a group of
ministers, chosen by the party that wins the most votes for the
legislature. Executive branch chosen from legislative branch. There
is a head of state (monarch, president) but he/she has little
actual power. The real head of the executive is the prime
minister.
- Slide 21
- Presidential System As in the US, where the President is
elected separately from the legislature. Ministers (secretaries)
chosen by President, not members of the legislature. In theory, the
executive and legislative branches are equal.
- Slide 22
- Bicameral vs. Unicameral 2 houses: As in the US (where the
Congress is made up of the Senate and the House of
Representatives.) 1 house: As in Turkey.
- Slide 23
- Federal vs. Unitary A unitary state is one in which there is a
single supreme government authority. All local government authority
is delegated from the top. It is generally entirely up to the
national government which powers local officials may exercise.
Turkey and the UK are examples of this kind of state.
- Slide 24
- A federal state is one created when a number of self- governing
entities come together to form one country. Generally, the national
government and the self- governing entities will have clearly
defined powers, which will be enshrined in the constitution. The US
and Germany are examples of federal states.
- Slide 25
- Question: Over the last few years, the UK has devolved power
from the central government to Scotland, Northern Ireland and
Wales. These now have regional parliaments which have limited law
making powers. So why is the UK considered to be a unitary state,
rather than a federal one?
- Slide 26
- Question: There has been a lot of debate recently about the
idea of changing the form of government in Turkey from a
parliamentary to a presidential system. What possible advantages
and disadvantages are there to each system?
- Slide 27
- Parliamentary system fusion of power between executive and
legislature. Pro When a ruling party has a strong majority, it can
get laws enacted effectively. Strong protection for the
majoritarian principle that is so important in democracy the party
voted for by the majority gets to rule the country.
- Slide 28
- Con All power is in the hands of the leaders of one party few
checks on their power. Pure majority rule means that the minority
has no voice in government at all while their parties are out of
power.
- Slide 29
- Presidential System separate legislative and executive
branches. Pro It is difficult for one party to make radical changes
unless they can capture both the executive and the legislative,
and, even in that case, the leadership of the legislative branch is
theoretically equal to that of the executive. The minority who
voted for other parties have more of a voice in government.
- Slide 30
- Con When one party controls the executive branch and another
controls the legislative branch, government may not function
effectively until the next election. Unlike in parliamentary
systems, there is usually no possibility of a vote of no confidence
in the government.
- Slide 31
- 2. Establishes a means of constitutional review (judicial
review) by the judiciary.
- Slide 32
- Constitutional review is: The power of courts to review the
constitutional validity of statutes passed by parliament and to
reject those that violate the constitution.
- Slide 33
- 1) Constitutional Review in Turkish Constitutional Law: 1. The
fundamental source of law. 2. Article 11 of the Turkish
Constitution (1982) states: 1. Laws shall not be in conflict with
the Constitution. 2. The provisions of the Constitution shall be
the fundamental legal principles binding the legislative, executive
and judicial organs, administrative authorities and
individuals.
- Slide 34
- In Turkey, access to the Constitutional Court is available
through an action for annulment, a constitutional objection, or a
constitutional complaint. Laws, decrees and parliamentary rules all
within jurisdiction of Constitutional Court.
- Slide 35
- Action for annulment Abstract review of legislation before
Constitutional Court. Law may be challenged directly, without
waiting for a case. (different than US) Only certain individuals
and groups can use this action: President, party in power and main
opposition party, 1/5 of the members of parliament. (Article
150.)
- Slide 36
- Constitutional Objection Ordinary courts can raise this
objection. Party must convince the court that the objection is
serious. When a court certifies a constitutional issue, it suspends
the case in question until issue is settled.
- Slide 37
- Constitutional Complaint A new form of action that was added by
amendment to the constitution during the referendum of September
12, 2010. Using this form of action, any person who thinks that his
fundamental rights under the European Convention on Human Rights
have been violated may apply directly to the Constitutional
Court.
- Slide 38
- Individuals are required to exhaust domestic judicial remedies
prior to filing a petition with the Constitutional Court.
Petitioners must pay 150TL to file a complaint.
http://www.non-discrimination.net/content/media/TR-10-
The%20individual%20constitutional%20complaint%20procedure%20enters%20into%
20force%20in%20Turkey.pdf. Retrieved on Nov. 1, 2012.
- Slide 39
- 2) Judicial (Constitutional) Review in the US The need for
Judicial review was understood by those who wrote the US
constitution (the first modern written constitution.) The power of
judicial review was firmly established in 1803. Marbury v. Madison,
5 U.S. 137 (1803)
- Slide 40
- In the US system of judicial review, any court may find a state
or federal law to be unconstitutional. However, unlike the
constitutional review systems of most European countries, the US
does not allow abstract review.
- Slide 41
- No one can ask a court to give its opinion on the
constitutionality of a law, except within the context of a
particular case.
- Slide 42
- Imagine the US Congress or a state legislature had passed a law
allowing public figures to recover damages for intentional
infliction of emotional distress. Could the President, or some
private person ask the Supreme Court to examine the
constitutionality of this law?
- Slide 43
- The answer is no, because the US courts have no power to review
a law in the abstract.
- Slide 44
- 3) Judicial Review in England England, which has an unwritten
constitution, has very weak judicial review.
- Slide 45
- No court can declare a law unconstitutional that has been
passed by parliament. Because there is no written constitution,
there is no standard by which the constitutionality of a law, or
actions of government, can be measured.
- Slide 46
- Courts can only can only decide whether the executive branch
has acted beyond its powers (ultra vires.)