Federal Constitutions
-
Upload
khayisbels -
Category
Documents
-
view
228 -
download
0
Transcript of Federal Constitutions
-
8/12/2019 Federal Constitutions
1/47
LAW, SOVEREIGNTYAND THE STATE
-
8/12/2019 Federal Constitutions
2/47
-
8/12/2019 Federal Constitutions
3/47
Federal Constitutions
Legislative power is distributed between a
central legislature and a number of provincial
legislatures
USApower between the federal and thestate organs
-
8/12/2019 Federal Constitutions
4/47
Federal Constitutions
-
8/12/2019 Federal Constitutions
5/47
Federal Constitution
Where does the power lie?
Among the combined electorates of the state
legislatures
Reductio ad absurdum = reduction to absurdity later Austinians preferred to treat the ultimate
sovereign as the body empowered to amend the
constitution
-
8/12/2019 Federal Constitutions
6/47
Federal Constitution
American Constitution does not really set-up a
legislative body
Federal Constitution -> incapable in certain
respects of being amended at all or not w/o theconsent of a particular body
-
8/12/2019 Federal Constitutions
7/47
Federal Constitution
Unlimited sovereignty not applicable
Overriding limitations
Bill of Rightscontrol and limit legislation
Courtspower to treat legislation as void
-
8/12/2019 Federal Constitutions
8/47
Constitutional changes
UNABIA, MILCAH
-
8/12/2019 Federal Constitutions
9/47
Problem of constitutional change in the
structure of the sovereign
Power Politics
i.e. What if the House of Lords was abolished?
Transfer of power to House of Commons
Would the transfer be final and irrevocable?
Would the sovereign retain some authority and re-
assume power surrendered?
-
8/12/2019 Federal Constitutions
10/47
Power Politics
Stage where it is almost impossible to
distinguish between prescriptions of law and
uses of power
NOTan endorsement of Austinian theory (lawbased on power)
To understand legal systems, need: identify what is legally valid
structure that identifies constitutional patterns of
the states and the legal relations inter se
-
8/12/2019 Federal Constitutions
11/47
Recall:Austinian concept of habitual
obedience to A (old) rather than B (new)
Explains possibility of transfer of legal authority
imperative that an operative (new) legal system
has regular obedience to an existing system
Revolutionary/civil wars: necessary that there be
actual obedience to the prevailing power during
transition
-
8/12/2019 Federal Constitutions
12/47
Upon completion of transition (period wherelaw and power are merged), no longer relevant
to identify the de factopower in the state
REASON: system will be stable enough to
recommence its usual manner of interpreting its
rules according to own norms of validity
-
8/12/2019 Federal Constitutions
13/47
Power, Force and Sanctions
BELO, CLARISA
-
8/12/2019 Federal Constitutions
14/47
Power, Force and Sanctions
Lawcommand of the sovereign
Laid down by sovereign to which obedience could
be enforced
Legal Sanctionpenalty for failure to obey Coerciononly necessary here to try and
clear up a few misunderstandings on point of
detail
-
8/12/2019 Federal Constitutions
15/47
Power, Force and Sanctions
Not necessarily involve in the form of
punishment
Punishment may be inflicted as a non-criminal
matters
Civil mattersnot so much imposition of
penalties as the enforcement of order against
the property of defendants
-
8/12/2019 Federal Constitutions
16/47
-
8/12/2019 Federal Constitutions
17/47
Power, Force and Sanctions
Legal rules but no specific coercive procedure
or penalty is provided for non compliance
Marriages, Making a will
Nullificationa kind of sanction
Courts taking account of this nullity will be
enforceable
-
8/12/2019 Federal Constitutions
18/47
Power, Force and Sanctions
Public bodiesduties are imposed but have
no sanctions or penalties
Provision for actions to be brought against the
state, any result is not enforceable as wouldbe the case were it obtained against a private
citizen
Bodies and state the state if sued will be just asany party to a legal duty to determine the scope
of duty and liability
-
8/12/2019 Federal Constitutions
19/47
Power, Force and Sanctions
Judgment holding the state legally liable vs
State merely making an ex gratia payment
where no liability is or can be established
Austin mistaken that a sanction being annexedto ever command of the sovereign for it to
constitute a legal duty
-
8/12/2019 Federal Constitutions
20/47
-
8/12/2019 Federal Constitutions
21/47
State sovereignty and theinternational sphere
UNABIA, MILCAH
-
8/12/2019 Federal Constitutions
22/47
INTERNAL SOVEREIGNTY
As discussed, nothing in legal logic that
compels a state to consider its sovereignty as
unlimited or indivisible
Does not mean that any legislation can be
enacted at the whim of the sovereign
-
8/12/2019 Federal Constitutions
23/47
Means of expressing the States
independence
Existence of supreme legislature/s which do
not acknowledge superiors
can enact legislation within the scope of their
constitution
-
8/12/2019 Federal Constitutions
24/47
-
8/12/2019 Federal Constitutions
25/47
Means of expressing the Statesindependence
Existence of supreme legislature/s which donot acknowledge superiors
can enact legislation within the scope of theirconstitution
Some states even grant power freedom to enactany legislation they want (England)
May also impose legal limits on power of supreme
legislature
-
8/12/2019 Federal Constitutions
26/47
INTERNATIONAL LAW
If existent:
a law higher than national/state law
binding and limiting sovereigns of states subject
to it
Austin contradicts by declaring that
international law was not really law... but nomore than positive morality.
-
8/12/2019 Federal Constitutions
27/47
Upon determining limitability of internal
sovereignty, two questions arise:
1. What is the position of the State which regards
itself as having unlimited internal sovereignty?
2. How can a state remain independent whenmade subject to external system of law?
-
8/12/2019 Federal Constitutions
28/47
1. Position of state with unlimited
sovereignty
Must distinguish between legal duty to national
law and international law
try to put limits on statutes in order to keep withinternational laws
BUT: if wording is vague, national laws still
enacted despite being against international laws
-
8/12/2019 Federal Constitutions
29/47
(2) approaches the State may
adopt
Option A:
Treat internationallaws as part ofits
own laws directly binding
Abrogate a
domestic law if itgoes against aninternational law
Option B:
Treat internationallaw as
inferior/subordinateto national law
Still relevant for
interpreting locallaws that impinge oninternational laws
-
8/12/2019 Federal Constitutions
30/47
2. How can the state remain
independent
International law is not a super-state
not superior over the independent national states
Subordination to international law means
recognition of legal rules binding on states
themselves notmerging of state sovereignty with higher
entity
-
8/12/2019 Federal Constitutions
31/47
Example: Rule to grant diplomatic immunity
Failure of state to grant = breachof
international law
Does not automatically mean that I.L.
Automatically recognized by state, but makeadjustments to accommodate.
However, breach still remains = state is liable
-
8/12/2019 Federal Constitutions
32/47
I.L. does not have a regular coercive procedure
to ensure enforcement of majority of its laws
Universal acceptance that duty to uphold
international law = duty to uphold national law
What a state ought to do morally is differentfrom its legal duty.
-
8/12/2019 Federal Constitutions
33/47
-
8/12/2019 Federal Constitutions
34/47
-
8/12/2019 Federal Constitutions
35/47
The Treaty of Rome andNational Sovereignty
ROMANO, KENCZAR
Th T t f R d N ti l
-
8/12/2019 Federal Constitutions
36/47
The Treaty of Rome and National
Sovereignty
The Treaty of Rome, which established the
European Economic Community(EEC) is a
permanent arrangement with no provisions for
withdrawal. It set up the Council and Commission with
power in wide range of matters.
It likewise created a Court of Justice of theCommunity- the final Court of Appeal, in
matters concerning the treaty.
-
8/12/2019 Federal Constitutions
37/47
In theory, since the point of view of their
national laws, the provisions of the treaty can
be disregarded. Regardless of the
consequences this might provoke in theinternational law.
However, the practical result is thatthe
signatory states will regard the treaty asinvolving very solemn legal obligations and will
naturally exert every effort to bring their
national law into line with the requirements of
the treaty.
-
8/12/2019 Federal Constitutions
38/47
This might lead to a time where lawyers will
recognize that a change had imperceptibly
been wrought in the actual law itself and that
the Parliament could not, even if it wished, andeven as a matter of strict law, legislate in
defiance of such overriding matters.
-
8/12/2019 Federal Constitutions
39/47
KelsensPure Theory of Law
ROMANO, KENCZAR
CALIWARA, LESTER
-
8/12/2019 Federal Constitutions
40/47
KelsensPure Theory of Law
Law is entirely autonomous and self-contained
Its validity therefore has to be conceived in
legal terms and not in terms of morals or of
any other extraneous system of norms orvalues (such as that of treaties)
-
8/12/2019 Federal Constitutions
41/47
-
8/12/2019 Federal Constitutions
42/47
What id the highest norm?
Kelsensanswer is that this norm is the
Grundnorm, the basic norm and ultimate
premiss of the whole system, and that for legalpurposes we cannot go behind it.
-
8/12/2019 Federal Constitutions
43/47
In any normative system there must come to
a point beyond which you cannot go because
you have come to the outer edge of the wholesystem and any further inquiry you make is
really an extraneous inquiry not within the terms
of the system itself.
The Basic Norm
-
8/12/2019 Federal Constitutions
44/47
How to decide what is the basic norm?
We must trace back the existing
Constitution to a historical first Constitutionthat was either laid down as a result of a
revolution or for a terr i tory no t previously
possess ing a Cons t i tu t ion .
The Basic Norm
-
8/12/2019 Federal Constitutions
45/47
-
8/12/2019 Federal Constitutions
46/47
Monistic System
The basic norm of every state is a rule
imposing obedience to the rules customarilyaccepted as binding by states inter se.
(inter se- a rule which covers treaties, since it is already a customarilyestablished international rule the treaties shall be observed by theparties thereto)
The Basic Norm of International Law
-
8/12/2019 Federal Constitutions
47/47
Legal validity cannot be reposed on purely
de facto considerations such as obedience,
but must be explained in normative terms.
Solution to the Problems of Sovereignty