Prof. Thomas Fleiner
Comparative
Constitutional
Legitimacy Discussion
Spring 2008
Discussion
1st question:
Who governs whom?
Two questions to ask:
Shared Rule
Self Rule
Shared Rule:
Constitution making:
Who has constitution making power?
Law making:
Parliament
Federal Jurisdiction
Executive power
Executive Structure
Election and Powers
Election Judiciary
Constitution Making
General Revision of Constitution
Special amendments
power to initiate,
power to adopt,
power o ratify,
power to interpret
Parliament
-
one / two chambers
election
party System
governmental system
parliamentary discipline
Powers of Law Maker
-Law making
- Law proposing (referendum)
- power of the purse (budget)
- spending power
- control of the executive
- election
Executive
- Governmental System
-Composition
- Election
- Administration incl. Police
- Power to control local Governments
- Spending power
Self- Rule
Power of Central Government
Power of Local Government
2nd question:
To whom belongs the state?
1. Definition of Nation
The Nation is a daily plebiscite
In many countries and languages, the word
“nation” is synonymous with “state” or the totality
of a state’s citizens.
The word “nationality” is used as a synonym
of “citizenship of a state”.
We the people (of USA)
The French conception of nation is that of the
“community of all citizens enjoying equal
rights”, a community of individuals enjoying
the same political rights, whatever their
origins.
the German concept of nation, that of Herder, a
kind of patriotic German reaction to French
domination. In this view, the nation was not a sum
of individuals but a collective entity with
a specific language and culture and
specific historical traditions.
Different Use of Nation
Nation and People:
In the sense of Civic Nation: France Turkey
Poland, Belgium, Slovakia
In the sense of ethnic nation: Croatia,
Lithuania, Ireland, Albania, Ukraine, Bosnia
Herzegovina
Nation as Entity and people as sovereign entity:
Spain, Italy, Hungary, Estonia, Slovenia, Greece
No mention of nation but only people: Andorra,
Czech Republic, Switzerland, Austria
Nor nation nor people: Bosnia and Herzegovina,
Macedonia, Netherlends, Norway
Nation and Structure of
State
No direct link: Belgium, Switzerland,
Germany
But Bosnia (the only genuinly multiEthnic state), Cyprus
Nation and National
Minorities
Recognition of Minorities:
No recognition: Andorra, Iceland, LiechtenStein, Denmark, France, Spain, Ireland,
Luxembourg and the Netherlands.
Special case of Cyprus
Explicit recognition of Minorities in ConstiTution: Albania, Austria, Estonia, Hungary,
Italy, Lithuania, Poland, Romania, Macedonia
Recognition of link with Kin-State: Romania,
Poland
National Minorities
National Minorities:
group of persons in a state who :
a.reside on the territory of that state and
are citizens thereof ;
b. maintain longstanding, firm and lasting
ties with that state ;
c. display distinctive ethnic, cultural,
religious or linguistic characteristics ;
d. are sufficiently representative, although
smaller in number than the rest of the
population ofthat state or of a region of
that state ;
e. are motivated by a concern to preserve
together that which constitutes their common
identity, including their culture, their traditions,
their religion or their language.”
New Minorities
Everyone has the right to freely express
affiliation with his nation or national community, to foster and give expression to his
culture and to use his language and script. “,
Or: “Everyone has the
right to use his language and script in
a manner provided by law in the exercise of
his rights and duties and in procedures before
state and other bodies performing
a public function.” Sweden Slovenia and
Czech Republic