federal constitutions

8/12/2019 Federal Constitutions

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LAW, SOVEREIGNTYAND THE STATE


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Federal Constitutions

Legislative power is distributed between a

central legislature and a number of provincial

legislatures

USApower between the federal and thestate organs


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Federal Constitutions


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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


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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


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Unlimited sovereignty not applicable

Overriding limitations

Bill of Rightscontrol and limit legislation

Courtspower to treat legislation as void


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Constitutional changes

UNABIA, MILCAH


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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?


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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


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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


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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


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Power, Force and Sanctions

BELO, CLARISA


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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


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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


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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


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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


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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


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State sovereignty and theinternational sphere

UNABIA, MILCAH


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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


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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


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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


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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.


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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?


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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


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(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


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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


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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


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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.


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The Treaty of Rome andNational Sovereignty

ROMANO, KENCZAR

Th T t f R d N ti l


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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.


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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.


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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.


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KelsensPure Theory of Law

ROMANO, KENCZAR

CALIWARA, LESTER


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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)


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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.


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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


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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


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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


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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

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