Public Law Notes BIEM Bocconi Second Year, Appunti di Legge

Scarica Public Law Notes BIEM Bocconi Second Year e più Appunti in PDF di Legge solo su Docsity! Public Law Public law deals with the State and how it exercises its public power. Constitutional State → state whose basic rules are set up in a Constitution. Key functions of Constitutions: • Division of power amongst kew branches • Rules about new law production • Protection of human rights Evolution and Characteristics of the State Legal system → set of rules that are mandatory and are applied within a jurisdiction or a certain group of people. Legal systems are the systems of rules emerging every time the humans enter into forms of cohabitation or coexistence — ubi societas, ubi ius. Constitutive elements of a legal system: • Plurality of individuals • Shared criteria to evaluate behavior: the rules are based on values that are shared among the members of the community • Mandatory rules: legal systems are characterized by legal rules. In particular, a legal rule is a rule that we perceive as mandatory and effective. These rules make some behaviors illicit while rewarding others. • Existence of an authority: there must be an authority within the group with some form of law-making power and the power to enforce rules. Different theories: • Normativist → emphasizes the formal and State element — Hans Kelsen, The Pure Theory of Law. According to this theory, there must be one rule from which all the other rules in the legal system can be derived. • Institutionalist → emphasizes the sociological element — Santi Romano, Plurality of Legal Systems. While normativists look at the hierarchy of legal rules, institutionalists look at relationship between the different bodies and the people. Classification of legal systems: • Fluid → there is no central authority (ex. International law). States are the ultimate actors of international law but no authority exists above them. Rules are made by those states that apply them and not by a central authority. In this type of legal system there is no hierarchy. • Concentrated → there is a strong central authority (ex. the state). In a concentrated legal system there is a hierarchy and a position of subjection. • Voluntary → people come together out of common will, interest, need or believe. Any individual may decided whether to be part or not of this legal system. This type of legal system is characterized by the freedom of association, a right according to which individuals can decide to join a legal system in order to pursue a common belief. (ex. university association, clubs, political parties). Voluntary legal systems are mostly non-territorial. • Necessary → people cannot opt out of the system. (ex. residents in a town, citizens in a nation state). Necessary legal systems are mostly territorial. • Specialist: characterized by rules that govern only specific sets of relations. (ex. The church, world trade organization). These legal systems do not address the generality of human life, they address only specific parts of it. • General → characterized by rules that pursue general aims. This legal system is characterized by the aspiration to govern all spheres of life (ex. the state, the European Union). The EU has an ambition of universality, but it cannot be really considered a general legal system. • Non-sovereign → in oder to exercise power, these legal system require authorization and legitimation by a sovereign. It cannot be considered a system that exists irrespective of other systems. (ex. local councils, government agencies, the EU). These legal systems cannot be considered sovereign because they derive from the State. In fact, in order to exercise power they must be authorized by the State. • Sovereign → sovereign power is self-sufficient, in other words it does not need external legitimation to exercise its power. (ex. the state). We can consider federal states as sovereign systems. The State The State is a legal system having general ends and objectives which exercises sovereign power over a specific territory, to which the subjects or participants belonging to such system are necessarily subject and subordinated. To sum up, the State is a concentrated, necessary, territorial, general and sovereign legal system. The State is defined by three key attributes: 1. Sovereignty → is the ultimate form of political authority and it is characterized by two dimensions: - External dimension: each sovereign state has equal rights and recognizes no superior authority (superiors non recognoscens). The State is not subject to other authorities. - Internal dimension: the State has supreme authority over subjects or citizens or legal systems that may claim authority within it. In other words, its power is not limited and is chiefly exercised through law. The idea of State can be dated back in 1648, when the peace of Westphalia was signed and the war of the thirty years ended. The concept of sovereignty profoundly changes with Constitutionalism and International Law. The idea of State, as well as the idea of sovereignty, hasn’t always been the same. Different theories of sovereignty attempt to justify the supreme authority of the State: • Theocratic theory: the sovereignty of the State comes from the will of God. In fact, omnis potestas a Deo, which means that all the power belongs to God. Forms of State • Form of State → the relationship between the State and its citizens. Here we consider the State as a general entity holding power and we look at the vertical relationship between the holder of power and the subjects of that power. This relationship can be seen as the relationship between authority and liberty. • Form of Government → the distribution of power among different branches of government. Here we look at the horizontal relationship between constitutional bodies, organs with the same level of sovereignty and independence. E.g. parliament, head of state, head of government. We use the comparative method in order to classify the different forms of state and government. The comparative method can be divided in: • diachronic method → used to classify forms of State • synchronic method → used to classify forms of Government and the territorial organization of the State. Classifying Forms of State Diachronically 1. 8th - 12th century → Feudal State 2. 14th - 17th century → Absolutist State 3. 17th - 19th century → Liberal State 4. 20th → Democratic Pluralistic State (Welfare State) Alternatives to the Democratic pluralistic State: 5. 20th → Totalitarian and Authoritarian State 6. 20th → Socialist State Feudal State It was not a State as we would consider it nowadays. It was characterized by relationships based on private law between the different holders of power. • Total identification of the feudal lord (or the King) with the land. • The king exercised power over vast territories through private contracts with feudal lords, which were called vassals. Feudal lords have the power to collect taxes and administer justice and must defend the lord during war. NB: under feudalism taxes were not paid with money, but they were paid in products and services and they were given to the lords by their vassals. • Patrimonial State → its aim was not to fulfill the general interests of the people but to meet the needs of the lord. • Role of public power → to protect the land and the possessions of the lord (including peasants) from external attacks. [Feudalism was the process by which individuals gave up their personal liberties in return for protection. With feudalism, all the land in a kingdom was the king's. However, the king would give some of the land to the lords or nobles who fought for him. These gifts of land were called manors]. Absolutist State The Absolutist State comes from the evolution of the feudal state it and it was formalized through the Westphalia and the establishment of strict borders. It is characterized by the unification of territories under the power of a single ruler, which is the result of the gradual consolidation of dynastic states. Also, it is characterized by two main shifts in power: • From the feudal lords to the king → stabilization of monarchial authority • From land to money → seeds for the emergence of urban bourgeois The king has supreme authority without any legal limit (L’État, c’est moi- Louis XIV) and the State has an aspiration to to fulfill the general interest of the people. The State becomes more interventionist, growing its involvement in the economy (for example, protectionism), and public functions are exercised through large centralized bureaucracies. This form of State is also characterized by the tendency towards territorial expansion and this required large staging economies. An example of this is Mercantilism under Louis XIV → a command economy and protectionism. Other characteristics: • Growing public functions exercised through large centralized bureaucracies • Growing colonial aspirations required large standing armies, which are financed with growingly complex tax systems Financial problems (overextension of armies and bureaucracies), socio-economic transformations (Industrial revolution and middle class asking for better representation of their interests) and country-specific political development lead to the crisis of the absolutist state (England → English Civil War and Glorious Revolution, France → French revolution 1789, US → American Revolution, Italy and Germany → top-down unification). Enlightened Absolutism 
 Enlightened absolutism is a slightly different form of absolutism because it is characterized by royal rule inspired by the principles of enlightenment: there is an effort to improve the life of their subjects through education and moral campaigns and limited recognition of rights (freedom of speech, right to property, religious toleration). However, monarchs still believe they have the right to govern by birth. This means that no permeant constitutions are granted and all the rights can be revoked. For example, Frederick II of Prussia (1740-1786), Maria Theresa (1745-1765), and her eldest son Joseph II of Austria (1764-1790). Liberal State Liberal State → has to do with the idea of individualism and the protection of rights and freedoms, which are called first generation rights. With negative rights or liberties we underline the fact that the State refrains from intervening in the life of citizens, which must be free to live their lives in the way they find appropriate. This type of State is characterized by the permanent limitation of power of the sovereign through constitutions. There is a representative government but still mono-class representation and census- based (this means that only people with a certain education or income are allowed to vote). As we can see, in this type of State there is equality in terms of negative rights and freedoms but not in terms of democratic and representation rights. Also, there is no government’s intervention in the economic sphere (end of mercantilism and market economy and free trade). • The Democratic Pluralistic State → emerges as a result of the gradual transformation of the liberal state. It is not a parallel process in Europe and all over the world since this transformation happens at different times and to different degrees in the different countries. The State is not representative of a single class and this type of State is characterized by the passage from mono to multi-class representation. Mass political parties are address to the whole population and as we can see suffrage is becoming universal. There is the recognition not only of liberal, first generation rights, but also second generation social and economic rights. Here we start to recognize the idea of a State intervening in a positive way in the lives of citizens by proving services (for example, education and healthcare). This State is defined as pluralistic because it recognizes and protects a plurality of groups, interests, ideas and values that are allowed to coexist in society and are represented in Parliament. The Welfare State is a particular form of the democratic Pluralistic State. The State provides supports to individuals through social security, healthcare and education. In some countries, the crisis of the Liberal State did not lead to the Democratic Pluralistic Sate but to Totalitarian or Authoritarian State and Socialist State. • Totalitarian or Authoritarian State → this model is characterized by the absence of checks and balance with regard to the command structure of the State and usually the power is in the hands of a ruling party. This type of State is characterized by the widespread use of force, intimidating actions and significant limitations of the basic individual rights. In particular, totalitarian states have strong one-party systems and they aspire to establish complete political, social and cultural control over subjects; authoritarian states have weak party systems and are driven by lust for power of individual leaders or juntas. Transitions from non-democratic to democratic regimes were not homogenous, they came in three waves: • First wave: from early 19th century until the 1920s. • Second wave: right after World War II. • Third wave: from the mid 1970s till the break up of the Soviet Union. ratio of the sum allocated in the same designated areas by the Westminster parliament for England. This ratio is calculated on the bases of the population. Scottish Referendum on Independence Edinburg agreement → 15 October 2012 (government of the UK and government of Scotland) – temporary transfer of power to legislate on referendum Scottish Independence Referendum Act 2013 Results → yes = 44.7%, no = 55.3% Devolution Forms of Government The term form of government refers to the distribution of power among branches of government. Here wet talk about an horizontal relationship since we analyze the relationship between constitutional bodies of equal independence. We classify forms of governments synchronically, within the Liberal or Democratic Pluralistic State. You need separation of power and checks and balances. What we do → we look at the various democratic political regimes present in the world. Classifying means to put order by assuming different names to different forms of governments. This allows us to focus on the advantages and disadvantages of specific institutional configurations. E.g. → debates about the virtues of parliamentarian and the perils of presidentialism. E.g. → studies on constitutional design try to determine what is the optimal form of government, given certain socio-political circumstances. These debates often seek to find the balance between government effectiveness, political representativeness and respect for the rule of law. Method of classification → for this classification we use the approach of the political scientist Robert Elgie, who distinguished between dispositional and relational properties. Advantages Disadvantages Accomodate diversity Encourage nationalism and secessionist claims Improve democracy and representation Risk of capture Effectiveness and quality of decision- making Inefficiencies and regulatory competition Economic dividend Socio-economic inequalities • Dispositional properties → the formal rules that divide and organize the power between various constitutional bodies. We find them in the written Constitutional and they are related to the government’s own disposition, in other words its organization and morphology. They are not influenced by the contingent political circumstances or other external factors. • Relational properties → they concern the actual exercise of power. They are beyond formal rules and we can find them by observing the political system and the practice of government. They can be influenced by external factors. Elgie does not think relational properties are a good basis for classification and he prefers to resort to dispositional properties. 
 According to Elgie, three and only three aspects of any regime can be called purely dispositional. Dispositional properties: • First dispositional property → whether there the Head of State is also the Head of Government or whether they are two different people. For example, in the case of Italy we have Sergio Mattarella as Head of State and Giuseppe Conte as Head of Government, while in the US Donald Trump represents the state and detains the executive power. • Second dispositional property → whether the incumbents of these institutions are popularly elected. In other words, whether the Head of State and Head of Government are elected directly by the population. The Head of State can be either determined on an hereditary basis (in monarchies) or elected by the Parliament (in republics), while the Head of Government is appointed by the Head of State and needs to have the support of the Parliament. • Third dispositional property → whether the incumbents serve for a fixed term or for a variable term. Every constitution provides a term of office both for the Head of State and for the Head of Government. The key to understand that does not lie in the existence of a term of office, but in the presence of a relationship of confidence. The Head of State serves for life Parliamentary monarchies or for a fixed term in Parliamentary Republics (in Italy, for example, 7 years). The Head of Government is not fixed because he serves until he has the support of the Parliament and can be influenced by the Parliament of a third party. Our approach → by using these three dispositional properties we can produce a synchronic classification of forms of government. In particular, we can isolate five main forms of government: 1. Parliamentary executive 2. Presidential executive 3. Semi-presidential executive 4. Directorial executive 5. Neo-Parliamentary or Prime Ministerial executive The form of government is strongly influenced by two elements: • political system • electoral system For each form of government, we will: • Apply the three dispositional properties • Look at its key features and historical evolution 1. The Parliamentary Executive Parliamentary Executive → Parliamentarism • First Dispositional Property → do we have both a head of State and head of government? Yes because Head of State and Head of Government are two different people. • Second Dispositional Property → are the Head of State and Head of Government popularly elected? No because the Head of State is either determined on a hereditary basis (in constitutional monarchies) or elected by Parliament (in parliamentary republics), while the Head of Government is appointed by the Head of State and needs to have the support of the Parliament. • Third Dispositional Property → do the Head of State and Head of Government serve for a fixed term? The Head of State serves for life (in constitutional monarchies) or for a fixed term (in parliamentary republics), while the Head of Government serves until he has the support of the Parliament, thus for a fixed term. The parliamentary executive finds its origins in the UK and evolved through time. Countries with a parliamentary executive system can be divided in: • Constitutional Monarchies → here the Head of State is a monarch, is elected on an hereditary basis and serves for life. • Parliamentary Republics → here the Head of State is appointed by the Parliament and serves fir a fixed period of time (for example, in Italy the Head of State serves for 7 years). Positive and negative aspects of Parliamentarism Virtues Perils Ease in passing laws because of strong majorities in Parliament Inadequate separation of power (the Parliament does not provide adequate check to the government) Safeguard against concentration of power Inefficiency and conflict between the government and the majorities in Parliament Safeguard against personalistic rule Imperfect democratic legitimation of the executive Better representation of plurality of interests through coalition governments Inefficiency and conflict within government Article 92 of the Italian Constitution vests in the President the power to appoint Ministers and this power “has never tolerated and may not tolerate impositions.” E.g. Example of Matterella’s veto on Paolo Savona. 2. The Presidential Executive Presidential Executive → Presidentialism This form of government was firstly developed in the US in 1787 and there were two views of this system: one belonged to Hamilton and one that belonged to Jefferson. • Hamilton: this view is based on the idea that a very strong executive power was needed. • Jefferson: this view is based on the idea that both the president and the government have limited powers as defined by the constitution. Here we have the prevalence of the Congress. While we had an initial prevalence of the Congress, presidential powers began to expand during the 20th century. Other presidential systems include: • Latin America (since 1830s with Caudillismo): - personalistic rule - prevalence of the President over the branches of government) • some governments in Africa (post WWII and decolonization) • many post-soviet republics (after 1989). First Dispositional Property → Do we have both a Head of State and Head of Government? No. The Head of State and the Head of Government are combined in one institution, the President. However, the President (the executive power) is completely separated from the legislative power, which is represented by the Congress. President → executive power Congress → legislative power NB: The Congress is divided in two chambers: the Senate and the House of Representatives. The Presidential Executive system is characterized by a strong separation of powers and the absence of a relationship of confidence between the Head of State—who is also the Head of Government—and the Congress, which is present in the the Parliamentary Executive system. Here we don’t need the relationship of confidence because both the Congress and the President are directly elected by the people and they both have democratic legitimacy. In the Parliament Executive, instead, only the Parliament is elected by the people and that’s why we need a relationship of confidence. Second Dispositional Property → Is the Head of State Head of Government popularly elected? Yes, in the Presidential Executive system the President is popularly elected. However, in the US the President is elected by people through the electoral college. For this reason, we have a popular but indirect election of the President. The electoral college The idea is that voters vote Presidential electors who will elect the President. Presidential electors vote for the President they declare to support, who is usually a candidate of their party (Democratic or Republican). However, they are not obliged by law to do so and it can happen that they vote for someone else. Presidential electors are elected on a State basis and to reach the majority at least 270 votes out of 538 total are needed. Most States adopt a winner-take-all system meaning that they award all electors to the winning presidential candidate of that State (if in California candidate B obtains a higher number of votes of candidate A, candidate B will obtain the whole set of Presidential electors for that State, which is 55). According to the US Constitution, if no presidential candidate reaches the absolute majority then the House of Representatives will appoint the President. It is a popular election → if a presidential candidate obtains the majority in the electoral college then it is a foregone conclusion that she will be elected President. But not a direct election → Art. II Sect. 2 US Const. States that if no presidential candidate has the absolute majority (270 great electors) then it will be the House of Representatives that will choose the President. Third Dispositional Property → Does the head of State/ Head of Government serve for a fixed term? Yes, the President serves for a fixed term (in the US, 4 years). 22° Amendment introduces a maximum number of two consecutive mandates. The powers of the President of the US • A Veto Power over legislation → the President normally has 10 days to sign a bill passed by the Congress. The President can veto a bill by sending it back to the chamber in which it originated with a message explaining the reasons for the veto. A veto can be overridden only by 2/3 majority in both house and Senate. • Commander-in-chief of the armed forces → the President has the power to declare war to another country but he needs the intervention of the Congress in order to get the necessary funds to declare it. • Power to make treaties → carries with it the idea of the International personality of the State, which is represented by the President himself. • Power to appoint ambassadors, officers and federal judges sitting in federal courts and Supreme Court. • Power to issue pardons • Power to call congress for special sessions • Power to initiate legislation → also in Presidential systems most legislation passed by the Congress is proposed by the Executive. In Presidential Executive systems there is no relationship of confidence and the President is not responsible to Parliament. However, most Presidential systems have introduced procedures to: • increase the President’s ability to influence legislative work → veto • increase the ability of members of the legislature to influence the operation of government → impeachment. In presidential systems the Parliament can only impeach the President, but it cannot vote for a motion of no confidence and force him to resign for political reasons. If the President is removed from office the Vice- president becomes President. 1. Veto power Veto → the right of a president, governor or other chief executive to to reject bills passed by the legislature. The President normally has 10 days to sign a bill passed by the Congress. The President can veto a bill by sending it back to the chamber in which it originated with a message explaining the reasons for the veto. A veto can be overridden only by 2/3 majority in both house and Senate. NB: The United States Congress consists of two legislative bodies, the House of Representatives and the Senate. There are many similarities between these institutions and both representatives and senators are directly elected by the public. Passing a legislation requires the approval of the Congress, and in particular the agreement of both the House and Senate. 2. Impeachment procedure Art. 2 Sect. 4 US Constitution: “The Congress has the power to impeach the president for treason, bribery or other high crimes and misdemeanors”. House of Representative → acts as the prosecutor Senate → acts as the Jury. A 2/3 vote is needed to remove the President. Positive and negative aspects of Presidentialism Virtues Perils Stability Inflexible Terms of Office Strong checks and balances Political Paralysis (divided or minority governments) Clear democratic legitimation of the executive Winner-take-it all approach • Possibility of US-like impeachment of the President → after the constitutional reform of 2014, it is possible to remove the President from office. In all forms of Semi-Presidentialism system the President appoints the Prime Minister but in some countries the President can also dismiss the Prime Minister with the support of the Parliament → President Parliamentarism (Russia → here the Prime Minister and the Cabinet are responsible to both the Parliament and the President). In other countries, the President cannot dismiss the Prime Minister → Premier Presidentialism (France → here the Prime Minister and the Cabinet are responsible only to the Parliament). 2. Coordination Problems: - Poland → who represents the foreign policy of Poland in the European Council? The answer is not clear and it depends on the circumstance. Article 133 → the President is the representative of the State in foreign affairs. The President of the Republic shall cooperate with the Prime Minister and the appropriate minister in respect of foreign policy. Article 146 → the Council of Ministers shall conduct the internal affairs and foreign policy of the Republic of Poland. 3. Dual legitimation problems 4. Accumulation of power in one institution → this is what happens in Russia → under certain forms of Semi-Presidentialism system, the President has immense powers, even more than in a Presidential Executive system. The President combines executive power and the power to dissolve the chambers → this is very dangerous where there are authoritarian tendencies. Russia → particular case → it adopted the French model but with some peculiar features. Dissolution of the Parliament → the President can dissolve the Parliament if the Duma votes a no confidence vote twice towards the Government. There is no need of consulting the Prime Minister and involve him in the decision. The President can also dismiss the Prime Minister with the support of the Parliament. 
 Duma → is the lower house of the Federal Assembly of Russia. The upper house of the Federal Assembly is the Council of the Federation. 4. Directorial Executive This system is typical of Switzerland. First Dispositional Property → Is there both a head of State and a Head of Government? No because there is the directorate, which is one collegial body that exercises the executive power. In Switzerland, the only presently working directorial system, it is called the Federal Council. Second Dispositional Property → Is the Directorate popularly elected? No because it appointed by the Parliament. In Switzerland, this happens through the Magic Formula. Third Dispositional Property → Does the Directorate serve for a fixed term? Yes because there is no relationship of confidence with the Parliament. In Switzerland the term is 4 years. Federal Council The Federal Council → supreme governing and executive authority of the Confederation. It has seven members who are elected by the Federal Assembly following each general election to the National Council. The members of the Federal Council are elected for a term of office of four years. Any Swiss citizen eligible for election to the National Council may be elected to the Federal Council. In electing the Federal Council, care must be taken to ensure that the various geographical and language regions of the country are appropriately represented. Federal Council → elected by the Federal Assembly → serves as both Head of State and Head of Government → executive power Federal Assembly → legislative power The Federal Assembly is characterized by two chambers that meet separately: the National Council and the Council of States. The Magic Formula Magic Formula → informal political agreement to allocate the 7 directorial seats amongst Switzerland main political parties. [it is an arithmetic formula that consists in dividing the 7 executive seats of the Federal Council between the four ruling parties]. Members of Parliament coordinate their vote before electing the 7 members → in this way the directorate roughly reflects the composition of the national council. 
 The balance within the directorate generally remains unaffected by power shifts in Parliament. The formula is only updated when there is a major shift → new party gaining significant power. 
 The main idea is to govern by consensus. 
 5. Prime Ministerial Executive This system was used in Israel from 1992 to 2001. The direct election of the Prime Minister was introduced because the Parliament was very fragmented and it was hard to form governments. Israel: Before 1992 → Parliamentary Executive 1992-2001 → Prime Ministerial Executive After 2001 → Parliamentary Executive First Dispositional Property → Is there both a head of State and a Head of Government? Yes Second Dispositional Property → Are the Head of State and Head of Government popularly elected? The Head of State is elected is elected by the Parliament, the Head of Government is popularly elected. Third Dispositional Property → Do the Head of State and Head of Government serve for a fixed term? The Head of State serves for a fixed term, while the Head of Government does not because he needs the confidence of the Parliament. Reform of 1992 Knesset → Parliament of Israel • Problems in Israel were aggravated by the absence of a rule Aut Simul Stabunt, Aut Simul Cadent (literally, together they stand, together they fail). 
 E.g. This rule applies in Italian regional and town councils which adopt a sort of Prime Ministerial system. This means that implicitly Presidents of Regional Executives, Presidents of the Provinces and Municipal Mayors have the same term of office as their respective councils. 
 • Early elections of the Prime Minister did not require elections of the Parliament (Knesset). 
 Objectives Results Direct election of Prime Minister aimed at transforming Israel into a two-party system to strengthen stability and governability. The Reform actually resulted in further ballot-splitting and decreased the size of the two main parties, increasing the multi-party composition in the Knesset The reform did not result in more stability and effectiveness as hoped • Authorizes the suspension of concessions. • Takes decisions by reverse consensus → in other words by “negative consensus” or “consensus against”. 
 Panels → they are the quasi-judicial bodies in charge of adjudicating disputes between members in the first instance. It is composed of three qualified panelists, who must be independent and impartial. Parties to a dispute usually agree on the panel composition or is the WTO Director-General who appoints them. Appellate Body (AB) → composed of seven individuals appointed for four years (renewable only once). AB members should broadly represent WTO membership and they hear cases based in divisions of three. 
 d. WTO Main Principles → Non-discrimination 1. Most-favored nation principle → WTO Members cannot normally discriminate between “like products” of their trading partners. This means that if a benefit such as lower tariffs is granted to one country, it must be also granted to all WTO members. Can Colombia impose a 15% customs duty on chocolate from the United States and 10% on chocolate from Ecuador? No, it can’t. 2. National treatment principle → WTO Members should treat foreign and local suppliers of “like products” equally. 
 Can Colombia impose VAT 12% on local producers of chocolate and 20% VAT on foreign producers? Yes, it can. These are two principles of non discrimination. e. WTO Exceptions 1. GAAT Article XX on General Exceptions → lays out a number of specific instances in which WTO members may be exempted from GAAT rules. Pursuant to this article, WTO members may adopt policy measures that are inconsistent with GAAT disciplines, but necessary to protect human, animal or plant life or health or relating to the conservation of exhaustible natural resources. 2. GAAT Article XXIV on Regional Integration How to balance security and trade National security is the core of the state sovereignty. States want to have “a policy space” to protect their national security and apply measures even if they are contrary to the WTO rules. Indeed, each state has a right to adopt measures to protect national security-embargo, economic sanctions and tariffs. 
 GAAT Article XXI on National Security → “Nothing in this Agreement shall be construed ... (b) to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests ... (iii) taken in time of war or other emergency in international relations” Electoral Systems An electoral system is the set of rules that govern elections and the translation of votes into seats in Parliament. An electoral system is made of: a. Electoral laws → all rules and regulations dealing with elections (for example all the characteristics a citizen must have to elect, electoral campaigns, timing, oversight, franchise). Electoral laws: • Suffrage or political franchise → limitations on the voters based on capacity, age, citizenship, status. For example, universal suffrage gives the right to vote to every adult citizen regardless of wealth, income, gender or social status. • Passive Suffrage → limitations on who can be elected. For example, different requirements in Italian Constitutions for Senate and Chamber. For the Chamber the age limit is 21, while for the Senate is 40. In order to be President of the Republic there is an age limit of 50 years. • Campaign Finance → caps on individual contributions, accounting and reporting duties. This regulates how political campaign are financed. Right to vote Right to vote → first generation, political right recognized in all liberal constitutions. However, there might be electoral laws that, while formally neutral, actually hamper the ability of certain categories of citizens to vote. For example, in many Souther States in the US citizens were required a literacy test in order to vote. The Voting Rights Act of 1965 prohibited all such requirements. Still today the strengthening of identification requirements has been challenged because it arguably prevents minorities to exercise their right to vote → Tension between ensuring the accuracy of the vote and not creating too many obstacles to its free exercise. 
 Other political rights include: • To speak freely about political matters • To run for office • To associate in a political party 
 To have democracy you need elections but in the absence of these rights you could have elections without a real democracy. Definitions of democracy: • Substantive → a form of democracy in which the outcome of elections is representative of the people. • Formal → is the opposite of substantive democracy. It is a form of democracy in which the relevant forms of democracy exist but are not actually managed democratically. Multi Member Constituencies (or Plurinominal Constituencies) → this means that each constituency elects more than one representative. Each party presents a list of candidates from which representatives are drawn. The list can be: • Closed → political parties predetermine the oder in which candidates will be elected → this means that citizens cannot choose. • Open → voters can select their preferred candidates and their preferences determine the order of election. How to deal with fractions The Proportional Allocation of seats creates a problem → fractions When you have a great number of votes and few seats a perfect proportional allocation is not possible. E.g allocation would require to give 1/2 seat to one party and the the other 1/2 to the other. Different mathematical methods try to deal with the problem of the allocation of fractions. 2a. D’Hondt Formula D’Hondt Formula → the first seat goes to the party obtaining more votes. Then the number of votes of that party is divided by s+1 (where s is the number of seats already allocated to that party). The process is repeated until all seats have been allocated. 
 Example → Elections for the European Parliament in England use this formula. 2b. Saint-Laguë Formula Saint-Laguë Formula → the first seat goes to the party obtaining more votes. Then the number of votes of that party is divided by 2s+1 (where s is the number of seats already allocated to that party). The process is repeated until all seats have been allocated. 
 NB → the divisors are always odd (1,3,5,7). In some systems, the initial divisor might be different than one. D’Hondt VS Saint-Laguë D’Hondt → usually helps larger parties → this happens because it has a lower divisor than Saint-Laguë. Saint-Laguë → helps smaller parties. It normally includes minimum thresholds → for example, only parties obtaining more than 5 % votes get seats. NB → Systems are rarely purely proportional. Majoritarian correctives such as majority bonuses are becoming. Governability → having stable majorities in order to get the Government to be able to count on strong majorities. MP → Member of Parliament Hybrid or Mixed Systems Strong tendency ti combine majoritarian and proportional elements. Germany → Mixed Member Proportional Post-War Constitution combines a personal vote in single-member districts with the principle of proportional representation. This ensures the representation of diverse social and political forces in Parliament and guarantees a link with the territory. 
 Where do we find rules on Electoral Formula? They are mainly determined through ordinary law → this means they are not in the Constitution. This happens because of the idea that electoral systems need to adapt Plurality Systems (or First Past the Post) Proportional Representation Advantages Disadvantages Advantages Disadvantages Simplicity and governability Excluding minority parties from fair representation Faithful translation of seats into votes → no water votes Complexity and inefficient coalition governments Coherent parliamentary opposition Wasted votes Regional fiefdoms Minority Parties are adequately represented Allow an entry point into Parliament to extremist parties Excludes extremist parties (unless they are territorially concentrated) May encourage development of ethnic or independentist parties More diverse list of candidates → good for diversities and women Lack of link between candidate and territory → less accountability Strong link of the MP with the territory It encourages plural political parties Open to the manipulation of electoral boundaries → gerrymandering No regional fiefdoms Visible power- sharing important for new democracies May create dominant governing parties in charge for decades to the changing political reality → many European countries are currently transitioning from two-party to multi-party system. Some countries, such as Spain, have provisions in the Constitution → but they are an exception. Spain → 1978 Constitution → states that the election in each constituency must be conducted on the basis of proportional representation”. 
 Factors to consider in the choice of the Electoral System • New Democracy vs Consolidated Democracy • Ethnic Divides • Presence of Independentist Parties 
 Example → Usually, new democracies coming from an authoritarian past will opt for inclusive systems such as the Proportional Representation. In many developing countries First Past the Post Systems are said to trigger the breakdown of democracy as the excluded minorities try to overthrow the system. Democratic consolidation → process through which a democracy matures in a way that means it is unlikely to revert to authoritarianism without an external shock. over general rules on public contracts since they are more specific. NB → This criterion prevails over the chronological one. The Constitution The Constitution is made of all rules which directly and indirectly affect the distribution or the exercise of power. Constitutional law is hierarchically superior and more stable than Ordinary Law. Constitutional Law: • Organizes and distributes the power among the different institutional bodies (form of Government) and between these institutional bodies and the citizens (form of State) → Frame of Government • Determines rules for the production of new laws and amendments of the Constitution • Provides rights and freedoms to people → Bill of Rights The Constitution can be: • Codified → one single document • Uncodified → more than one document or no documents Codified VS Uncodified This is an old divide* • Prototype of the Written Constitution → American Constitution • Prototype of the Unwritten Constitution → British Constitution → it is made of a series of written acts like the Magna Carta, 1869 Bill of Rights, Acts of Union and Constitutional Conventions. *but this distinction has lost importance because in the second half of the 20th century many Constitutions were adopted all written, either in a single document or few documents. Now the only unwritten Constitution is the British Constitution even if some people argue that also New Zealand and Israel have unwritten constitutions. • Long → contains the Frame of Government and the Bill of Rights. • Short → contains only the Frame of Government The Parts of the Constitution 1. Constitutional preamble → introductory statement that contains some broad principles and an invocation of national identity. Broad principles → have an educational or expressive functions and usually have references to history. Example → South African Constitution Preamble: “the People of South Africa recognize the injustices of our past and honor those who have suffered for justice and freedom in our land”. 2. The text of the Constitution: • Frame of Government → regards the organization of government. In particular: 1. the division and allocation of power 2. the legislative procedure → who and how makes the law and special procedures to amend the Constitution 3. the organization of the Judiciary 4. the territorial organization of Government. • Bill of rights → a list of human rights and exceptions to them 3. Constitutional Conventions → they emerge from custom, habit or common practice. We distinguish them from mere empirical regularities through: • Repetition in time → the relevant constitutional actors regularly behave in a certain way. • Opinion juris → these actors consider themselves legally bound to behave in a certain way. This is very important in the UK — the Queen gives asset to all Legislation — but also in other countries — Vote of Confidence in Italy. Vote of confidence → formal process in which people vote in order to indicate whether or not they support a leader or the current government. • Rigid → modifications of the Constitution require a special amendment procedure. This happens because the Constitution is at the top of legal sources. This type of Constitution is typical of Democratic Pluralistic States. NB → Constitutional law is superior to Ordinary law. • Flexible → the Constitution is formally equal to ordinary laws. This means that it can be modified with an ordinary law because it is not in a position of supremacy with respect to the Legislation passed by the Parliament. Also, the Constitutional Court does not exist because there is no Constitutional supremacy to appeal → no Constitutional Review. This type of Constitution is typical of Liberal States. NB → Ordinary law and Constitutional law are at the same level. Ordinary Law → the Legislation passed by the Parliament. Legislation → a law or set of laws suggested by the government and passed by the Parliament. Rigid VS Flexible During the 19th century, the majority of granted Constitutions were flexible. Nowadays, instead, the majority of Constitutions is rigid. NB → the UK does not have a flexible Constitution. Rigid Constitutions → they require a special procedure to change the Constitution. Constitutional amendment typically requires special majorities and the use of referenda. • Italy → The Italian Parliament consists of two Chambers: the Chamber of Deputies and the Senate of the Republic. According to the principle of full bicameralism, the two houses perform identical functions. Their main function is to make the laws of the country. Constitutional amendment requires a double vote of each Chamber of Parliament. There must be an interval between the votes of no less than three months. It shall be approved by a qualified majority of the members of each chamber in the second voting. There must be the possibility of recourse to the people through a popular referendum. • US → Since it is Federal State, a constitutional amendment requires the agreement of subnational units. The constitutional amendment can be proposed either by the House of Representatives and the Senate with a 2/3 majority vote or by 2/3 of the States and it must be ratified by 3⁄4 of the States legislatures. 
 Constitutional amendment → a modification of the Constitution. Amendments are usually interwoven into the relevant sections of an existing Constitution, directly altering the text. In some cases, they can be appended to the Constitution as supplemental additions, thus changing the Frame of Government without altering the existing text of the document. • Voted → drafted and adopted by a Constituent Assembly • Octroyée (or Granted) → granted by a monarch. Voted VS Granted The first Constitutions were granted by the sovereign → but then it emerged the idea of self-government of Alexander Hamilton, who defined one’s Constitution from reflection and choice rather than accident and force. Self-government → refers to the control of a country by the people living here. Nowadays all countries have a voted Constitutions. Many new countries receive assistance of International Community to draft their Constitution. Constituent power → contains two ideas • The assembly that materially adopts the Constitution → Constituent Assembly or Constitutional Convention • The imagined collectivity from which the Constitution derives its legitimacy → the people (demos) Constituent power → refers to the power to formulate a Constitution or to propose amendments. Potere costituente → momento fondativo di un pubblico potere su una comunità nazionale. Con la Costituzione si esaurisce il potere costituente ed inizia il potere costituito. Many interpret this as the first episode of Judicial Review since the law of the Parliament was review in the light of some superior law. In this case, the parameter was not the Constitution but the Common Law. This idea was initially rejected in England but it became greatly influential in the US. 
 2. Marbury vs Madison (also known as Midnight Judges Case) → US The Supreme Court case affirmed its power to review the constitutionality of Statute Law → first example of Judicial Review of Legislation in the US. 
 The Facts → President Adams appointed a series of Judges just 2 days before its term ended. One of the judges was Mr. Marbury. The judges were approved by the Senate and signed by the President, but the new President, Thomas Jefferson, did not want them to take office and asked his Secretary of State, Madison, not to send the Commissions, formal acts through which a judge could start exercising its mandate. Marbury brought a claim to the Supreme Court asking a Writ of Mandamus (a court order) requiring Madison to issue the Commissions. The Judiciary Act 1789 gave the Supreme Court the jurisdiction over Writs of Mandamus. 
 The Decision → The court, headed by the Chief Justice John Marshall, affirmed that 1. Marbury had the right to get the job and was entitled to a remedy 2. But the Supreme Court did not have the power to force Madison to hand over the Commission. The Judiciary Act 1789 gave the Supreme Court the power to issue Writs of Mandamus. However, the Judiciary Act 1789 was found by the Supreme Court to be unconstitutional because it was giving the Supreme Court a power it should not have according to article 3 of the Constitution. • Judiciary Act 1789 → gives the Supreme Court the power to issue Writs of Mandamus to people holding office under the authority of the United States. • Article 3 of the Constitution → authorizes the Supreme Court to exercise original jurisdiction only in cases involving ambassadors, other public ministers and consuls, and those cases in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction. 
 Marshall concluded: “The particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void”. Constitutional Review → American Model 
 American System of Constitutional Review: • A posteriori (or Repressive) → the law is reviewed after it came into effect. • Concrete → it is linked to an actual case and the party claiming unconstitutionality of statute needs to have standing (or a locus standi). Locus standi → the right or ability to bring a legal action to a court of law. • Incidental → courts get a chance to decide the constitutional issue as an incident during a normal case. Incidenter proceedings are used. One has an incidenter proceeding when the question of unconstitutionality is raised during a concrete court case. The unconstitutionality, therefore, represents a procedural incident on this controversy. • Decentralized (or Diffused) → this means that every court has the power to find primary legislation unconstitutional during a normal case and not only the Supreme Court. Constitutional Review (or Constitutional Adjudication) is not an extraordinary activity → it is part of the normal business of judges. The judges need to decide the question of constitutionality in order to be able to decide the case. 
 Strategic Litigation → the practice of bringing lawsuits to affect social change. It is a method that consists in taking carefully-selected cases to court with the goal of bringing significant changes in the law, greater awareness and changes in society. It is possible in countries like the US where the Constitutional Review is decentralized, concrete and incidental. It is a strategy adopted by human rights activists and progressive policy platforms. 
 Important Cases → Brown vs Board of Education (about racial segregation), Loving vs Virginia (about interracial marriage), Roe vs Wade (about abortion). Constitutional Review → Austrian Model (or Continental Model) The model that we consider now was created by the Austrian legal theorist Hans Kelsen and it is know as Kelsenian model or European model as it is adopted across continental Europe. Hans Kelsen → Stufenbau → hierarchy of legal sources This model is centralized → this means that the Constitutional Review is carried out by an ad hoc body outside of ordinary judiciary, the Constitutional Court. The Constitutional Court → only decides question of Constitutionality and has an exclusive jurisdiction over constitutional rulings. A consequence of this centralization is that the review is said to be abstract. This happens because the Constitutional Court does not decide actual cases but it simply asserts whether a certain law is compatible with the Constitution or not. In Kelsen’s model, legal proceedings are directly brought to the Constitutional Court by some specific constitutional bodies such as the President, Parliamentary Officials or States in a Federal Structure. The Kelsenian model is not incidental → cases get to court directly and not as an incident during a concrete case. Principaliter proceedings are used. One has principaliter proceedings when the question of constitutionality is not raised during a concrete court case. The unconstitutionality, therefore, does not represent a procedural incident on this controversy. In Kelsen model the review can be both a priori (preventative) or a posteriori (repressive). A priori → the review happens before the statute has been adopted. The Constitutional Court blocks the Statute before it comes into being. Example → France. A posteriori → the review happens after the statute has been adopted. Most of the countries adopting the Kelsenian model are a posteriori. At the beginning, both in the American and the Kelsenian model, Constitutional Review involved mostly questions of governmental structure. In the US after 1930s, in Europe after WWII and in the other countries after the decolonization, Constitutional Review started to be more and more involved in human rights. 
 Composition of Supreme and Constitutional Courts Supreme Court and other courts→ American model Constitutional Court → Austrian model The judges can be elected through: 1. Appointment Based System 2. Election Based System 3. Mixed System 4. Predetermined System 1. Appointment Based System In this system judges of the Supreme Court are appointed by the Executive. This is the system that we have in the US → President of the United States appoints the judges with the advice and the consent of the Senate. The judges serve for life and they are chosen taking into account different factors such as origin, gender, race and religion. There could be the risk of political affiliation. 2. Election Based System In this system the judges of the Constitutional Court are appointed by the Parliament. This is the system that we have in Germany → half of the judges are elected by Bundestag (Lower House) and half by the Bundesrat (Upper House) In Germany: • Constitutional bodies and branches of Government • Associations → trade unions, environmental or professional associations • Individual citizens → only few countries accept individual petitions → Some examples include Spain, Latina America and Germany. NB → only institutional petitions are included in the original Austrian model, individual petitions and petitions issued by associations are an evolution linked to the expansion of Right-based Constitutional Review (or Rights Review). • Incidenter proceedings → when questions of constitutionality are raised during a regular court case. The unconstitutionality, therefore, represents a procedural incident on this controversy. They can be used both in the US and Austrian Model. US Model → decentralized → the same judge before which the issue is raised will decide. Austrian Model → centralized → the regular court proceeding is interrupted and the judge refers the matter to the Constitutional Court which will decide on constitutionality. 4. What types of decisions can be taken? 1. Cassation Decision → the Court strikes down the law. A cassation decision can be of two types: Annulment → ex tunc → retroactive effect → this means that when the court strikes the law down, all the effects of the law are retroactively removed as if the law never existed. Abrogation → ex nunc → no retroactive effect → this means that when the court strikes the law down, the effects of the law are removed from that moment on and not retroactively. 2. Declaratory Decision → the Court asserts that the law is unconstitutional but decides not to strike it down to avoid a legal vacuum. So, it invites the Parliament to remedy within a term. 3. Exhortative Decision → the Court exhorts the Parliament to intervene in a certain way, but without putting a last word on the constitutionality 4. Interpretative Decision → the Court does not strike down the law but it gives it a a constitutionally conform interpretation. This means that the law must be interpreted in a certain way to be constitutional. 5. What effects do the decisions taken have? 1. Subjective effects: • erga omnes → binding for everyone • inter partes → binding only for the parties involved 2. Temporal effects • ex tunc (da allora) → it is binding from the moment the provision initially took effect • ex nunc (da ora in poi) → it will be binding from the moment the decision was taken by the Court and not when the provision initially took effect. The French Deviation France does not adhere neither to the US nor to the Austrian Model → French Deviation. After the French Revolution (1789) there was a legal project to make law judge-proof, taking away all discretion from judges → this means that judges could not interfere with the will of people. This way a way of safeguarding Montesquieu’s notion of the Separation of Power. 
 1. Constitutions of 1799 and 1852 gave to the Senate the power to carry out preventative review. 2. 1946 → Comité Constitutionnel was introduced. This was a Political Review, not really a Constitutional Review. 3. 1958 → Conseil Constitutionnel (literally, Constitutional Council) was introduced → this started the beginning of the fifth Republic. This is a priori (or preventative) Constitutional Review. NB → France → Two Chambers: the Senate and the National Assembly. 1. When is the French Review carried out? French Constitutional Review → a priori (or preventative) → laws can be referred to the Constitutional Council after their adoption but before their promulgation. If the Constitutional Council thinks the law violates the Constitution it prevents the President of the Republic from promulgating it. NB → after a law has been promulgated, it is completely immune from review. 
 2. Who can refer questions of constitutionality? • 1958 → only Constitutional Bodies could refer questions of constitutionality. Constitutional bodies → President of the Republic, Prime Minister, President of the Assembly, President of the Senate. • 1974 → Reform: Saisine Parlementaire → the parliamentary minority can lodge a constitutional petition: 60 Senators or 60 deputies can refer questions of constitutionality. This lead to a great increase in the number of laws reviewed by the Council. • 2008 → Reform: Question Prioritaire de Constitutionnalité → French Supreme Courts (Court of Cassation and the Council of State) can refer a statue already in place to the Constitutional Council. NB → this is a form of a posteriori (or repressive) Constitutional Review. 
 Question Prioritaire de Constitutionnalité → it is a procedure of Constitutional Review on laws that already promulgated. It can only be raised whenever the parties fear that the legal provision in case at hand may violate fundamental human rights enshrined in Constitution. It can only be raised by judges of a Supreme Court (Court of Cassation or Council of State). The claim is to be considered relevant if three paramount conditions are met: 1. It is concretely applicable to the dispute 2. The Constitutional Council has not already decided its incompatibility with the Constitution. NB → If a claim had already been declared incompatible with the Constitution, this condition is not met. 3. It is a pledge characterized by an innovative and serious nature Initially, Constitutional Review was used to ensure that the Parliament did not exceed its competencies. There was no right-based review. 1971 → The Constitutional Court held unconstitutional a proposed law on non-profit- organization as contrary to freedom of association. The Constitutional Court identified a body of judicially enforceable law that goes beyond the Constitution → Bloc de Constitutionnalité, which includes the Constitutional Preamble, the Declaration of Rights of Man and of the Citizen, the Fundamental Principles and the General Principles of French Law. General Principles of French Law → are unwritten sources of law, developed by the State Council. 
 The Italian System of Constitutional Review Italian System → it is a hybrid model → has features of both the US and Austrian Model: • Centralized → this means that the Constitutional Review is carried out by an ad hoc body outside of ordinary judiciary, the Constitutional Court. • A posteriori (or repressive) → the review happens after the law has been adopted. • We have both Principaliter and Incidenter Proceedings → even though the majority of them is incidenter since decisions originated from concrete cases pending before ordinary judges. Italian Constitutional Court Italian Constitutional Court → Art. 134 -137 Constitution → these articles were included in 1948 Constitution, but only came into being in 1956. Between 1948 and 1956 → ordinary courts carried out Constitutional Review. 1956 → the Constitutional Court declared itself able to review laws adopted before the Constitution came into force. law, but it carries on a substitution. This substitution has the aim of filling the legal vacuum that would be created if the Court simply delivered a judgment of partial acceptance. - Additive Judgments → the Court declares a law to be in violation of the constitution to the extent that it lacks a norm (a rule) that is constitutionally necessary and add its to the missing norm of the statute. 3. Exhortative Judgments → The Court temporarily rejects the challenge of unconstitutionality but at the same time invites the Parliament to change the law through a warning. If the Parliament does not change the law, the Court will strike down the law once for all. Norm → binding rule of conduct enforced and promulgated by courts to regulate social relations. Legal norms determine the rights and duties of individuals who are the subjects of legal relations within the governing jurisdiction at a given point in time. Provision → the written text of a legislative act Statute → a written law passed by a legislative body (the Parliament) Other Functions of Supreme and Constitutional Courts 1. Special Disputes, mostly jurisdictional, between: • Top Government Bodies • Central Government and Regional Government • Courts and others Government Bodies 2. Impeachment → criminal proceeding against the Head of State of other high officials. 3. Elections → special oversight duties and validation of the elections 4. Referenda → admissibility and validation of the results 5. Banning unconstitutional political parties 
 NB → these are not forms of Constitutional Review, but they are still part of Constitutional Justice because they are represent the other functions carried out by Supreme and Constitutional Courts. Resolution of Jurisdictional Disputes in Italy Conflict of Attribution → is a jurisdictional dispute between different branches of Government and it is solved by the Constitutional Court. More specifically, it is a controversy between two apical bodies that both want to decided on a certain issue and the Court has to decide who was the power. Typical scenario → the Region challenging a decision made by a judge. NB → This Constitutional Justice and not Constitutional Review because there is no law to be reviewed. In fact, the object of the dispute is mostly juridical or administrative or just a behavior. There is not a law to be reviewed object of the dispute is mostly judicial or administrative or simply a behavior. 
 Impeachment of the President of the Republic in Italy The President of the Republic can be accused of two crimes: • High treason • Attempts to overthrow the Constitution Impeachment is characterized by two phases: • 1st phase → The Parliament can present in a joint session a written report proposing the impeachment • 2nd phase → The Constitutional Court with 16 additional judges drawn by a list elected by the Parliament decide on impeachment Admissibility of Abrogative Referenda in Italy Art. 75 → Abrogative Referenda → allows voters to repeal totally or partially a State Law. The request for a Referendum needs to come from 500,000 voters or 5 regional councils. Referenda cannot be called on certain subject matters such as tax and budget laws, amenities or pardons or laws ratifying international treaties. 
 The role of the Constitutional Court is to check whether the subject matter of the Referendum is admissible or not. Extremist Parties Extremist parties are a problem because they are incompatible with the values of the Constitution. Many autocrat or totalitarian states deal with this problem by banning parties. Democracies usually do not ban parties because this practice is not compatible with the values of democracy. Banning a political party is an illiberal instrument because it imposes a restriction on freedom of speech and association. However, certain democracies employ illiberal instruments such as bans against parties that want to subvert the democratic order. 
 Militant democracy Definitions of democracy: • Substantive → a form of democracy in which the outcome of elections is representative of the people. • Formal → is the opposite of substantive democracy. It is a form of democracy in which the relevant forms of democracy exist but are not actually managed democratically. Militant democracy → is a formal democracy because it employs illiberal instruments which are against the values of democracy itself. According to this view, every democracy should have a set of basic values to be defended from attack and if a party is contrary to them, it should be banned. Theorized by Karl Loewenstein during the 1930s. Loewenstein saw European democracies incapable of defending themselves against Fascism. He warned against → democratic fundamentalism and the suppression of constitutional government with emotional government. He advocated → a disciplined democracy. 
 Germany → the best example of militant democracy. Ideas picked up in post-war German Constitution: • Eternity Clause → Article 79 Sect. 3 → unamendability of certain constitutional principles • Ban on political parties → Art. 21 → “Parties that, by reason of their aims or the behaviors of their adherents seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional”. The power to ban political parties used twice: • 1952 → Ban of Socialist Reich Party • 1956 → Ban on the German Communist Party This approach is labeled anti-extremism and it is inimical to both left and right extremism. 2017 → Decision of the German Constitutional Court against banning NPD (National Democratic Party) → “the NPD pursues unconstitutional goals, but there is an insufficient weight of evidence that their behavior will result in success”. 
 No other country is as democratically militant as Germany, but they can have some important provisions. Example → Italy → one important transitory provision of the Constitution is the prohibition to re-establish the Fascist Party. The main difference with Germany is that the Italian effort focused towards its own authoritarian past rather than all authoritarianisms. 
 Human Rights Right → a claim protected by law against someone else. Human Rights → rights that belong to people by virtue of their humanity. Everyone has them because of the fact of being human. They are also called Individual Rights, Natural Rights, Rights of Mankind or Inalienable Rights. Enforcement → Coercive Orders directed to the Government. Example → Free a prisoners or give back to someone his property. Protective Duties → the State sometimes has to intervene to allow someone to exercise his rights. Example → the State may need to stop protesters to allow other people to exercise free speech or practice their religion. The American Bill of Rights • Freedom of Religion → Establishment clause → Free exercise • Freedom of Press • Freedom of Speech • Freedom of Assembly • Right to bear Arms • Freedom from Excessive Fines • Protection from Double Jeopardy ECHR → European Charter of Fundamental Rights Art. 4, Protocol No.7 to the ECHR → “No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offense for which he or she has already been finally acquitted or convicted in accordance with the law and penal procedure of that State”. 2. Second Generation Rights First Generation Rights → positive rights → they require the Intervention of the State. They are typical of rigid, long, post-war Constitutions, which characterize the Democratic Pluralistic State or Welfare State. They provide substantial equality → this happens because, since the State intervenes to remove obstacles to social equality, different categories of people can be treated in different ways. Second generation rights include: 1. Social rights → they are a type of rights where the State intervenes to remove an obstacle to social equality. They include: • Right to Health • Right to adequate standard of living → insurance, unemployment benefits and pensions • Right to Housing • Right to Education • Right to Employment 2. Economic rights NB → Social rights and economic rights are positive rights Enforcement → Courts order more complex State interventions. Example → institute a shelter program, extend certain benefits, provide education, have function hospitals. The only problem of these interventions is that they can be very expensive. In particular we have: • Individual Remedies → Example → order that appropriate shelter or medication be provided to a certain individual. Problem: who goes to Court? • Systemic Remedies → Example → the Court orders the Health Ministry to redesign its system so as to avoid rights violation. Problem: it requires judges to have a lot of information in order to monitor the situation. Art. 38 Italian Constitution → Welfare → this article is regards the safeguard of the worker and the citizen unable to work by providing welfare for them → “All citizens unable to work and lacking resources shall be entitled to private and social assistance” “Workers shall be entitled to adequate insurance for their needs in case of accident, illness, disability, old age and involuntary unemployment”. “Responsibilities laid down in this article shall be entrusted to public bodies and institutions established and supplemented by the State”. 
 Art. 43 Constitution of Kenya → Every person has the right (a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care, (b) to accessible and adequate housing, and to reasonable standards of sanitation, (c) to be free from hunger, and to have adequate food of acceptable quality, (d) to clean and safe water in adequate quantities, (e) to social security and (f) to education. 
 3. Third Generation Rights Third Generation Rights → new rights → because they were developed in more recent Constitutions from 1970s. They represent a broad spectrum of situations and include individual rights of private nature (right to one’s image, honor and identity) as well as collective rights (right to language and culture, to a clean environment or to peace), which are rights that belong to an individual by a virtue of participation. Enforcement → the Court orders the Government to allow the members of a certain cultural group to behave in a certain way even when their behavior violates State Law → the Court stops behaviors or projects that violate the culture of the group. 
 Example → A new development project threatens the habitat of indigenous people or commercial exploitation of popular music harms the culture of a local community. Problem: Do they all agree that exploitation is bad? Do they all agree that the project damages the habitat? Who speaks for the group? Art. 225 Brazilian Constitution → Environmental Protection → “All persons are entitled to an ecologically balanced environment, which is an asset for the people's common use and is essential to healthy life, it being the duty of the Government and of the community to defend and preserve it for present and future generations.
 In order to ensure the effectiveness of this right, it is incumbent upon the Government to preserve and restore essential ecological processes and provide ecological handling of the species and ecosystems” 4. Forth Generation Rights Fourth Generation Rights → they have been recently given the status of rights and their protection is intergenerational. Example → sustainable development or rights connected to new applications of research in biotechnology. They protected by more recent European Constitutions but not by the Italian one. International Protection of Human Rights In Europe, human rights are protected by the Council of Europe. Council of Europe→ international organization set up to promote democracy, human rights and the rule of law in Europe. It has 47 Members States. The best known body of the Council of Europe is the European Court of Human Rights, which enforces the European Convention on Human Rights. European Court of Human Rights → it is based in Strasburg and it is composed by 47 judges, one per Member State. European Convention on Human Rights → is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950, it entered into force in 1953. European Court of Human Rights Jurisdiction → applications by individuals against Member States represent the majority of cases heard by the court. NB → individuals can lodge applications against Member States only and not against other individuals or private institutions and they must first have used all the remedies in their own Member State. 
 The European Court of Human Rights has a very high compliance rate (around 60%) → it receives a great number of applications but 90% are denied. Other Regional Conventions American Convention on Human Rights → it comprises all Latin American Countries members of the Organization of American States, for a total of 23 members. It was adopted in 1969 but became effective in 1978. It is enforced by two bodies, both of which are organs of the Organization of American States: • Inter-American Commission on Human Rights → it based in Washington DC. It hears individual complaints and tries to settle them down informally. NB → it rules on whether an individual has violated an individual’s human rights. Right-Specific Limitations Italian Constitution → Freedom of Religion → Art.19: “Anyone is entitled to freely profess their religious belief in any form, individually or with others, and to promote them and celebrate rites in public or in private, provided they are not offensive to public morality.” European Convention on Human Rights → Freedom of Expression → Art.10: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 
 Freedom of Expression is essential in a liberal democracy. Its exercise is essential for truth, social progress and the intellectual and moral development of individuals. Civil Law → Freedom of Expression Common Law → Freedom of Speech Normally, courts take a broad view of the scope of freedom → this happens because it is fundamental to draw the line between expression and conduct. US Constitution → Free Speech Clause → First Amendment: “Congress shall make no law abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”. German Constitution → Freedom of Expression → Art.5: “1. Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship. 2. These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons and in the right to personal honor. 
 Limitations on Freedom of Expression → different countries adopt different approaches. Canadian Constitution → rights, including the freedom of expression are ‘subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’. South African Constitution → “freedom of expression does not extend to war propaganda, incitement of imminent violence, or hate speech based on race, ethnicity, gender or religion, which amounts to incitement of harm”. European Charter of Human Rights → “hate speech covers all forms of expressions that spread, incite, promote or justify racial hatred, xenophobia, anti- Semitism or other forms of hatred based on intolerance” 
 Justifying Limitations Proportionality Analysis → used to know whether statutory limitations to Human Rights are constitutional or not. To be justified, limitations need to pass all the four stages of the Proportionality Analysis. The Proportionality Test: 1. Proper Purpose Test → Does the limitation pursue a proper purpose? The law has a proper purpose → if it is a constitutionally protected principle or right. Example → 1. Privacy is a constitutionally protected proper purpose to limit human rights 2. Public order is a constitutionally protected proper purpose to limit human rights 3. The protection of stability of the Government is not a proper purpose to limit human rights. No proper purpose → the law fails the test. 2. Rational Connection Test → Are the means adopted capable of advancing the proper purpose? Is there a rational connection? Example → if the Government limits certain forms of free speech in order to protect the environment, there is clearly no rational connection. But, if the Government limits certain forms of free speech such as free that incites violence in order to protect public order, there is a rational connection. The means are not rationally connected to the proper purpose → the law fails the test. 
 3. Necessity Test → Are there any others, less restrictive means, to achieve the same purpose? Is the limitation necessary? Is the law the only alternative? Or are there other policy options which cause less detriment to human rights? NB → total bans rarely meet the necessity test since there usually are less restrictive means to achieve the same purpose. Example → A ban on all forms of violent speech also in private places would also be disproportionate because there is a less restrictive means to achieve the goal: a ban on violent speech performed in certain sensitive places such schools, public spaces or the internet. There are viable alternatives that would entail less of a limitation → the law fails the test. 4. Strict Balancing Test → Balancing Stricto Sensu This phase is harder to define than the previous ones. The judge balances the constitutional significance of the interests involved and asks: “Is the objective achieved worth the limitation needed to achieve it?” The greater the size of the limitation, the greater must be the importance of satisfying its purpose. This is a judgment involving a lot of discretion from judges. Critics of proportionality → the judge enjoys too much discretion. 
 Limiting the Freedom of Expression Supreme Court of Canada → R vs Keegstra Facts → Mr. Keegstra was a Holocaust denier who taught students that “Jews created the Holocaust to gain sympathy”. He was convicted under the Criminal Code of Canada for promoting hate speech under section 319(2) of the Criminal Code. This provision criminalizes “the willful promotion of Hatred against an identifiable group”. 
 His teaching license was taken away and was fined $5,000. H e a p p e a l e d t o t h e Supreme Court claiming that section 319(2) violated his freedom of expression and was unconstitutional. 
 The Decision → Hate speech is protected speech under the meaning of Sec. 2 of the Canadian Charter, according to which “everyone has the fundamental freedoms of thought, belief, opinion and expression, including freedom of the press and other media of communication” → Sec. 319(2) of the Criminal code is clearly a limitation of freedom of expression. Is this limitation justified?
 To assess whether the limitations of freedom of expression were constitutional, the Court used the Proportionality Test, which is characterized by four stages. Proportionality Test: 1. Proper Purpose Test → Does the law pursue a proper use? The Criminal prosecution of hate speech pursues various proper purposes such as protection of the well-being of those harmed by free speech, prevention of hate crimes, protection from racial discrimination, multicultural tolerance and dissipation of racism. The Court said: “it would be impossible to deny that Parliament’s objective in enacting s. 319(2) is of the utmost importance” → The law passes the Proper Purpose Test. 2. Rational Connection Test → Are the means adopted capable of advancing the proper purpose? Is there a rational connection?