CONSTITUTIONAL LAW

SESS 10: THE EXECUTIVE POWER

ROLE OF THE EXECUTIVE IN SEPARATION OF POWER
Administer the laws. In general, its role is quite important because it has inreality the
power to draft the bills, they know the problems and the solutions.

STRUCTURE
Pyramid: ministry, agencies, citizens. Ex) education reform, agency a would be primary
education ministry, b, secondary, c, university.
Each minister has power to some people to implement their agenda civil servants
backup to serve.

CONFLICTS
1) Conflict between incrementing agenda and the continuity: we need to draw a
line.
2) Means and ends: whether should ends justify the ways. The executive and the
legislative has different interests. There is not always a line between this two, but
there must be. Executive especially will abuse its position to accomplish ends not
necessarily compatible w/ ends of the collective body of law makers. As the legislative
controlled the bills, they thought it was the most dangerous building. Nevertheless, the
executive is more dangerous because it administrates the laws.

WHAT IS THE PURPOSE OF THE GOVERNMENT?

EXECUTIVE IN PARLIAMENTARY SYSTEMS: Head of State vs Head ofGovernment

Change the system by amending the constitution allowring direct election fr the
president some powers. From prime ministerial to semipresidential.

In Prime ministerial system: the king has no responsibility or power, based on the idea
that the king can do no row.
Before, kings selected ministers they liked to decide in their name. Nowadays, not
anymore. We had the idea of INDIVIDAL RESPONABILITY.
But then, they discuses if minster have collective or individual responsibility. Te system
followed nowadays is collected responsibility: MP convence the crown that he chall
appoint to ministers the MP who belong to the majorities in the house. That ways,
ministers shares ideas and all will be collective responsible for decisions of the
government. That was the political need b we needed a government with one face. We
cant have a government where one minister proposes the specific agenda while
another one disagrees.
Vote on proposals is a measure taken in the UK. After it, they all agree on supporting
the result of the elections. If prime minister doesn’t agree with the central decision he
has to resign.
Collective responsibility: quite important concept for machinery of government,
political necessity. Government as a whole has the confidence of the majority. The
face of the government is the prime minister.

Rule:
wole of head of state is just to approve oprions made by government, because
the head of state does not have discretion, having options to decide bten, if we don’t
have discretion we are not accountable.

Who is appointed as prime minister?

In some countries the leader who controls the majority. By voting, we figure out if he
has the majority. He writies and speeh and we vote.
In the rocuntries, Greece, the elader of the party who won the elections votes for a
chareman for the crown, if the MPs votes in favour for that chareman, it means that
person controls the majority.

The government as the obligation to inform and justify policies and decisions while the
MPs ask questions and have the power to take out some minister or the whole
government.

SPANISH CONSTITUTION ON MOTION OF CENSURE

The congress might acqire political responsibility from government by motion of
censure and we aqure overamajority of th equorum of ht econgress, which means
regardless the attendece.
Second, we see motion of censure requires at list 1/10 of the members of congress
and they also have to propose sb for alternative.
Cool off perios: of 5 days for no voting.
Also, option to submit aternatives during 2 fisrt days.
Limit Alternative, if the people does not admit can go against.
This can npot be used very ofter. Constitution drafters saved this w/ safe guard, and
guarantee that it will not se with bad poruse. Only when tehr eis a government that
lacks the confidence of the legislative. Mps, governments will apss a tax task to ensure
they do not abuse.

IN THE US
Executive far more independent, does not depend on th law makers. But still, the law
makers have the power to control the executive for possible action aadn anactions
that have implications about criminal responsibility.

Article II part 4:
The house or the senaste have the power to iniciate investigation. Means that they can
dig the actios and enactions of the government and use them for the forth coming
elections in two years.this is what has happened now that emocrtics have won the
hose, and the giverment is of the republicans.

THE NEW SEPARATION OS POWER

There has been a development ont eh esecutive. We said it is like a pyramid, but from
it we have removed some bodies. The central banka and the independent electoral
commissions. The person in charge of eht central bank was appointed by the
government, it was obvious that polititians and government were using the bank to
shotern ends wile neglecting long term earns. After the elections they asked the
central bank to print more money fo rth efollowing elecitons, maek pole happy.
OCnsecuence of this, negatve effect for the future: inflaction.

The best way to cure the wproblem was to maek this bank independent. How? The
position for central bank is field for specific term which does not need the political
circle, the idea is we have elections every four years. IF we appoint as central banker a
person for 4 years, we give h the power to inpkement the policy without interceptiob
from polititians. Once he is there, the political ones can not remove him. We guarantee
he will act without political preassure. If the government has the power ot
dismiss the director means that the director follows order. Now, this person is
independent. If he does not mind about the ppointment, means his decitions are no
tinfluence by external opinions.

The problem that wa creating: how do we keep them accountable?

An ongoing problem for which we don’t have a solution. The case of independent
electoral provisions.

We need to remember:
Executive: most dangerous branch, new bodies that do not ford within the executive
order.

Session 10: The executive

 His role: to administer the law.

In general, it has quite an important role because it is the one who draft bills
(the executive knows the law and how to manage them)

 General structure: Like a pyramid.

1.The head of the executive or ministry
2. Agency A, B, and C
3. The citizens.

Currently, the policy that we have in the executive: each ministry has the power to …

There has to be a line, at it is a problem that we have with the executive

A problem: Means and ends: whether the ends justify the means (the answer is not)
and in fact it is a difficult question.
Obviously, the executive compared to the legislative have different interests (btw
both).
In US, Trump is the president and he is elected by the whole country. While in
legislative, the senators and the representatives of the houses are elected in small
groups. Also, when Trump was elected he made some promises (for example destroy
the wall of Mexico) but has to comply with the …
The executive usually abuses his position in order to accomplish ends that are not
necessarily in common with the law-making body (legislative power)
The executive is the most dangerous brand because the way it administers the law
may be completely different from what legislators may do.
Summary: law making body and the executive power have different objectives and
points of view, they don’t comply with each other.

If law makers don’t exercise proper oversight, voters would not accept it.

Collective responsibility is a political necessity. The government as a whole has the

confidence of the majority.

Who is appointed as prime minister?

In some countries, it is the leader who control the majority (prime minister)
How do we know that is the prime minister??
He will read the speech and then the MP would choose if he is accepted

Minister accountability:

1. Parliamentary investiture
2. Accountability to parliament
3. Inform parliament and justify conduct
4. MP´s ask question or dismiss minister

Vertical separation of powers (btw central government and decentralized

authorities)

Unitary VS decentralized

Unitary state:
Central government can change the boundaries of the local communities and abolish
it, transfer power, remove it, etc.
They want the power closer to the people

Decentralized state
Power of the central government limited
In us: granted more power to the government
Federal constitution prevails under the confederal (system) where the power of the
federal government is even LESS

Federal State (Germany, US)

SUBCONSTITUTIONAL ORDERS
Mini constitutions or subnational constitutions (SEARCH meaningS)
SHARE OF POWERS
Exclusive competence
Exclusive right of local level to criminalize the use of soft drugs

Devolved states: (UK, Hong Kong)

UK PARADOGHT:
MPs England
MPs Scotland
MPs whales

In each place (England, Scotland, whales) MP´s decide about their educational system,
and it is stablished.
Each place of those also have representatives in the British Parliament, and they can
vote and expose their opinions about same topic.
Therefore, it is NOT FAIR that they decide for their own education system, but also
decide in British parliament, (decide both?!)

SESSION 20 y 22 (en verdad es 15 y 16)

THE JUDICIAL BRANCH and the RULE OF LAW (14 Y 15 sessions)

Constitutional supremacy: law that contradict the constitution shall be void

Justicia (latin) = judicial

Justicia have the power to enforce the decisions, and if we hadn’t had that power, it
won`t be “justice”.

Independent: An independency judiciary is usually seen as essential to the protection

of the rule of law. Judicial branch should always be independent.

We have two concepts:

 Independence of the institution (of the judiciary):
 Independence of the judges as people:
The method of appointing judges, their security of tenure, the way fixing their
salaries, conditions of service.

Method of appointing judges: this method shall not be on the hand of just one
constitution. We need to add more institutions in the law-making process.
In other words, judges should not feel that they debt someone something, for
have being their judge. So, if we add more institutions, we break the
relationship between the person who appointed them and the judges who are
appointed.
 Stablish the security of tenure: the longer the tenure, the more independence
of the judges.

Salaries:

Judicial (constitutional) review:

Concentrated model of constitutional review (const supremacy) ie Germany
(constitutional court with exclusive competence)

Diffused model of constitutional review (const supremacy) ie US (every court has the
power) (more democratic because the more people discussed the constitution the
more judges will be discussing the wills)

Constitutional supremacy between legislative supremacy

Constitutional supremacy: Courts have the power to review acts of parliament

Legislative supremacy: courts don’t have the power to review acts of parliament.

Session 15: RULE OF LAW

Rule of law is a common currency which we all agree.
We need to differentiate of the concept rule by law

Difference between rule OF law and rule BY law:

Rule BY law: rulers use their law as a tool in order to implement they will
It is a mechanism to implement my will. Used by authoritarians regins. It means that
rules by the force of law but these rulers are outside of the scope of the law.

Rule OF law: abstract concept… Even the rulers themselves who make the rules have
to obey the law. We have two perspectives:
 Content free perspective
 Content rich perspective

What are the basic element of the rule of law??

RAZ
In his famous article he identifies some very important elements. Therefore, we have
rule of law WHEN…
 it is perspective, open and clear.
 law is relatively stable
 the making of laws are made with clear rules (law making process must be
clear, in order to can protect ourselves)
 there is independence of the judiciary
 natural justice (law must express the feeling of the society of what is fair…)
  the power of the courts to review acts of the executive
 accessibility to the courts
 no discretion for crime-preventing agencies

DWORKIN
Rule-book conception VS rights conception

Rule-book conception:
means that authors approach rule of law just in a formal way, about how it should be
drafted, about the legal effects, discussed elements of the scope of the law. This
approach is content free.

TOM BINGHAM
 content free/formal rule of law: equality - it is about equal application of the
law (don’t care about the content, only about equal application of law)

 content rich/substantive rule of law: it is about substance of the law, whether

the law protect human rights. About equal pay for equal work!!!

According to Bingham:

 accessible law
 limited discretion
 equality
 human rights protection
 bone fide civil disputes
 no ultra vires
 fair adjudicative procedures

SESSION 17 AND 18
Both separation of powers and rule of law interact and are dependent. If we have
separation of powers, we will have rule of law. In fact, they are the basis of today´s
democracy.

HISTORY

We have some misconceptions, and we will need to take into account the past and the
present. The adoption of the manga carta. Some authors think magna carta is not that
important. But it was, if we take into account the condition of 13rd century.
King Richard was a very successful king, and king john inherit the throne because he
didn’t have any sons. King john inherit some problems also. He wanted to fight back
because of the war, and he wanted to collect money. There was tension with the
church, because it was very influential and it had the understanding that even kings
had to obey the canons rules, and they argued for the primacy of the pope. There was
a disagreement btw king john and the catholic church, of which one was going to be
appointed of the leader of the catholic church of England. People who had money paid
the taxes (aristocrats)… so they conspired with the representative of the church in
England and they started a war against king john (they felt it was not fair paying so
much taxes).

King john signed a document in which there was clauses. A very important one was the
clause 39 “no free man shall be taken or imprisoned or in any way ruined, nor …”

Due process is a constitutional guarantee that ensure that nobody will have the right
to accuse you before the judge. It was initially for the barons (btw king and barons),
but then it was for all free men.
Some books have connected magna carta with what we call “have as corpus” (if you
are in prison you have the right to defend yourself before a judge)
In the magna carta there was some provision saying that king john had to respect the
church etc… this document had practical and legal value: first time that we find a limit
on kings power.
Pope did not signed the agreement and make a declaration saying that the agreement
is void (not valid).

After king john`s death, his son came to power and he was asked to redraft and repeat
the document of magna carta, which became of huge important for the aristocrats and
for the people, as every time the crown had excessive demands, it had to “ask
permission”.

Started to speak about science, so it was revolutionary. That the world that was not
flat, it was a revolutionary idea, because it was against the church. The fact that we
tried to use our mind and our interaction, was also revolutionary

JOHN LOCK

He is more famous because of liberalism. He argued that all men deserve freedom. The
fact that we are born with rights… That was very revolutionary at that time.

He argued not only about some rights, he also brought an idea saying that men were
EQUAL. We were not equal at that time: some people were born with privileges, or
poor, even people without any opportunities. (it was also revolutionary)

The problem was that we needed to convince everyone that we had some rights, and
we had to associate rights with nature. How to convince that we were born with
RIGHTS. Those are called natural rights, because nobody gave them to us therefore no
one can take them away from us. Again, that was revolutionary

Also, in the world of law we find the seat of democracy. We are in a period in which
there is majoritarian regime. Again, it was revolutionary
In his world, we find the first interaction btw our representatives and the people. He is
celebrated as a philosopher who is associated with liberty, democracy, etc.
In his world we find the idea that rights have limits, and who can limit those ones??
The majority, and therefore the representatives.

He thought that we have born with rights that nobody can deprave

What is the encyclopedia?

It means education (in Greek)

It was a book that offered a complete education about norms and concepts. It made
possible the knowledge to everyone, because it was completely public.

EDUCATION is very important, and the authors of encyclopedia encourage people

about the concept of education. Inside it, there is the explication of natural law
It said that natural law is based on reason and common human feeling and by natural
law the “general will” provides the only foundation of social and political duties

What is natural law: Natural law is based on the natural feeling of what is: fair, legal,
etc. Even though if we had someone saying the contrary, our feelings comes first and
nobody can convince us about the opposite

Interaction between democracy and human rights:

The French monarchy based its legitimacy on “divine right”

Also, authors of encyclopedia critiqued the idea of monarchy

Session 18
Different rights
Important division because different rights enjoy different statuses

- Civil Rights: negative status. Ex) freedom speech, religion.Because they are our
rights and work as a protection. Also, the government does NOT have power to
intervene these rights. We are born with these rights and expect they will
protect s form the abuse of power of the government.

- Political Rights: positive status. Ex) vote

Because in order to apply them, we need to take a step: as create the political
party, go to the place to vote…

- Social Rights: positive status. Ex) health care, minimum wage, pension,
education
 Because in order to enjoy health care we expect the government to pass the
law, create the institution, to go to school, we expect government to build
schools…
The protection of our rights must be constant, they can never be taken for
granted.

Wisconsin v. Yoder 406 U.S 205 (1972)

US Supreme court Case

FACTS:
Amysh Community: specific community in U, believe Bible needs to be taken in literal
interpretation, no following social and technological development, trying to live w/ the
same lifestyle there was hundreds of years ago.

PROBLEMS:
Among the several measures: Mandatory Education: to have an educated society, to
have educated people in governance. The problem was that

LEGAL CONFLICT:
1ST AMENDMENT: government should not make any law limiting the freedom of
religion.
State of w: social policy according to which everybody must attend school until 26
But these people believe they don’t need this education, just need to read the bible
and calculate. It is their interpretation of religion and the Bible.

OUTCOME OF THE CASE:

The law of Wisconsin imposing this mandatory education was unconstitutional,
because it violates the 1st US amendment.
Europe: social policy, we discuss about education and offers free education.
Do we have a conflict of rights? No, US constitution only includes civil rights, it does
not include social, modern rights. It is why civil and political rights are considered 1 st
generation rights. While, social rights are considered to be demanded later, after
industrialization, workers… It is why US no health security. The health acces by Obama
can be avoided by any leader because there is no protection of it.
It is why this did not mean a conflict but in EU it would have been, because there exists
the right of education.
France, catholic, major concern with the issue of religion in politics; so it is said down
that there is respect of religion but with a limit.

ACT PROHIBITING THE CONCEALING OF RELIGION IN PUBLIC: CASE

2 (FR)

This law was adopted after terrorist attacks.

Women who teach at public schools should not wear religious symbols, in order not to
influence (Muslims not to feel influenced by catholism, avoid terrorism).
Public order in France is based on the idea that there is a clear wall between religion
and state, that there should be no interaction between these entities. Public servants
who represent the states should keep their interests and ideas in private.

CASE 3: HEADSCARF BAN(KOPFTUCHVERBOT) (GERMANY)

FACTS:
Young Muslim lady went to collect certification to teach in a school, she was wearing a
headscarf, they did not authorise her.

DECISSION OF COURTS:
German courts, says its her freedom of religion, if she wants to wear the headscarf she
can. It is a complete different approach.

Principles:
Our rights shall stop where the rights of the other start
The freedoms that are important are not the freedoms of the majority, bc they can
always protect theirselves through political meanings, but is the freedoms of the
people who disagree, who are disappointed. This is why: we have an issue when sb has
an idea, we are tolerant for different views. Challenge starts when sb expresses a
different point of view.

Liberal democracies and constitutins are based in in dubio pro reo: incase of a
doubt we are in favour of the freedom. If the constitution does not carify a limit on our
freedom, we assume we have freedom without limits. We have a bill of rights but are
not enumerated. If there is no restriction on our rights, this implies we have freedom
to do what we want. Authoritatian regimes, people do not enjpy that freedom. Liberal
democracy: we have freedom on our rights, excepts for those who are menitones n
the constitutions. So, constitutions are not limit on uor rights, are limits for the
government.s if there is no specific limit on our right, we have full freedom.

Session 19 and 20
Judicial independence
New Zealand was the first country to allow women to vote (1893)
The reality is that the right to vote, specially to women, is a global achievement that
took place within the 20th century. However, we have limits:

These are very important concepts.

MARBOURY CASE:

It is the responsibility of the courts to review and make sure laws do not contradict
constitution. Which is called:
THE JUDICIARY:
The justice has the power to enforce decisions. If we don’t have it, justice is not
complete.
When we have strong judiciary, we have stability.

INDEPENDENT:
Regardless the connection of legislative and executive, whether they share parliaments
or not
Justice and judiciary must always be independent. This implies that the decision
making process shall not be influenced by external factors. External factors are politics
and money, interest.
Independence as we will see, it is an important aspect for the protection of the rule of
law.

We need to assure:
- Independence of the institution, of the judiciary
- Independence of each judges.

Mechanisms to assure the independence:

The way we appoint judges shall not be in the hand of a sole institution, to break the
impartiality of judges, the personal connection between the judges and the person he
appoints. In US, the president appoints judges, but they are approved by the senate.
By including more people in the appointment process, we break these relations, this
links.

What gives legitimacy to judges is their knowledge, their merit. They studied laws. The
trend right now in most democratic countries is: let’s make the judicial system
independent by allowing judges to appoint new judges. But, political system is afraid to
give judicial branch more power.

The status of the judges: their security of tenure: the longer the tenure, the more
independence. Limited tenures imply that judges have second thoughts when they
make decisions.

Salaries: If judiciary salaries were cut or the conditions of service were decreased,

BRAZIL CASE

Moro judge discovers Lula is associated w/ corruption association, ex-president and

the party leading the poles. They had a penalty, which was criticised for being too
strong, and did not allow him to be president. Bolsonado won the elections and
appointed as minister of justice Moro who was the judge who sent Lula into prison w/
very strong penalty. It is said that there was communication between moro and
bolsonado and that is why the penalty was that strong.

Hamilton at federalist papers evaluated each power

He said judiciary would be the lest dangerous, executive have power to execute the
law, judiciary describes the laws that regulate every citizen. So, judiciary has no
interest on either the sword or the purse.

2 models of constitutional review:

- Concentrated model: only constitutional court can decide on constitutional law

matters

- Defused model: where we allow every court to review the constitutionality of

acts; in the case of supreme courts. It means lower courts have the power to
review. we allow every judge discuss constitutional law concept is a little bit
more democratic.

Constitutional court only this court can review. Judges are experts on
constitutional law, and only them should define these concepts.

In Germany, after the creation of new constitution it was decided to apply

constitutional courts to decide these issues

 Constitutional supremacy: courts can review acts of parliament

 Legislative supremacy: courts don’t have the power to review acts of

parliament.

Tendency nowadays is: to have more and more constitutional supremacy in countries.

In between, we have the model of Britain: declaration of incompatibility.

We see how comparative constitutional law allows as compare and enrich our
knowledge.

The rule of law nowadays is the common currency we have that unites us as humans.
We see we have different traitions and understanding between different countries but
rule of law is a current currency.

What do we mean by rule of law? I means the ruler rules by the force of law, but this
ruler is outside the spectrum of law. I use law as a maechanism to implement my will
but I am outside the scope of the law, I decide things about you, this things do not
apply to me

We need to differentiate from the concept: Are rule of law and rule by law different?
Rule by law: mechanism used by authoritarian regimes that claim they are democracy.
Rulers themselve have to ovey the law

Important people to understand the rule of law:

BASIC ELEMENTS OF RULE OF LAW:
- In the rule of law and its virtue
Law is perspective, open and clear
Law is stable, is not only a mechanism to decide controversial topics but also
about guiding your decisions
- The making of the rules must be clear, each of us need to know the law making-
process and it must be clear
- Independence of the judiciary: if not, we would have external influences and
decisions would be partial.
- Natural justice implies that law must express the feeling of the society about
what is fair and just, because society has a feeling about what I just and not
- Power of the courts to review acts of the executive, challenge deisions of them
that affects our lives
- Accessible courts, that’s we can challenge the decision of the courts
- No discretion for crime preventing agencies (by case of Lula we see the
importance of this, by imposing the more strict penalty they disbarred him
from running elections, which had an impact on the political system of brazil)

Many philosopher atributed to rule of law some elements:

One of them, by ‘a matter of principle’:

Which elements russ defined as components of rule of law
There are two perceptive for rule of law:

RULE-BOOK/THIN CONCEPTION: authors approach rule of laws only in a formal way,

about how law must be drafted, about whether legal effect of law will be for the future
or include the past. They discussed elements about the scope of the law This approach
is content free, does not care about content of law.

RIGHTS/THICK CONCEPTION: approach of law focusing on content, whether the law

incorporates a theory of justice, whether it brings fairness and protects rights

Bingam was another lawyer: first president of UK supreme court. HE rote a book, the
role of law and identifies:
- Law accessible, limited discretion, quality, human right protection, bonna fide,
no ultra vires, fair adjucative procedures, compliance w/ international alw.
- Depending on the prespective:

1. CONTENT FREE/FORMAL RULE OF LAW

Formality is about the way law is accepted, whether the aw is clear, has retrospective
effect.
 2. CONTENT RICH/SUBSTANTIVE RULE OF LAW

Content rich is about the substance of the law: whether it has a theory of justice,
protection of human rights

EQUALITY part of substantive rule of law,

It can be seen as the equal application of laws. We don’t care about the contact,
whether its just or not, just about the content. Equal application of lay might get
equality.
If you work you get money, that is common to everybody, it is equal.
Equal pay for equal work: has content, has a philosophy.

Case study: Riggs v. Palmer, 115 N.Y. 506 (1889)

Palmers were a family. Partner1 had a property, built a while, to divide it, to his
grandson. Grandson killed him to get the property 20 years before. He would go to jail
and then get the property.

Shall he inherit the property when he leaves jail?

The minority opinion, the judges approach was that he would still get it; because it was
not lawyers: law should be clear in order to guide you actions. When their grandson
killed his grandfather, it was fair: no provisions for that. There was no regulation with
an opposite guidance. But then, the majority decision had a different position: that he
could not keep the property because we don’t know what would have happened. We
see the difference between concept free and concept… the minority decision was right
because the law was clear
But according to the content rich of law, which takes into account rights, being fair, the
case would be unfair. At the end, the majority won.

Germany: veirman republic

100 years ago world war. World war winners imposed very strict limits in Germany to
the loosers, the putcome was that people was unsatisfied, dovernment under the
preassuer of how to control economy, we had the communism caming from Russia, it
was a mess. We had also the presence of political oresident who was a populist. They
found an eney: the jewish. They won some seats in the elections, hitler became
chancellor with emergency laws he imposed, he disord the election. What he did was
constitutional: the constitutional allowed him ot use consti against democracy. He
ruled the thick application of rule of law, he used constitutinal laws to distroy the
republic, without taking into account the substance of the law.
SO, then, German said, we do not allow anybody to use constitution against
democracy, human rights. It is why they created a very strong constitutional court and
the first pages are about humans rights. Hitler used the content free use of law.

RULE OF LAW WILL BE EXAMINED.

Learn elements from rass and bingam
Session 21 and 22
Political rights
Equality:

Are f1st generation rights,

Right to vote, to be elected, to participate in a political party, of association.

It is an active right because to exercise it some active steps need to be made.

The right to vote it is also an obligation bc if people don’t vote then democracy don’t
work. Less an d less people voting, legitimacy of institution limited.

Universal supremacy: people have right to vote, regardless education religion, sex,
statute.

Is not Absolut, there are limits:

Historical facts:
New Zealand: 1st country to allow women to vote 1893.
Reality yo vote among women achieved in the 20th century

Limit 1: based on citizenship, age, mental condition.

They all bill of rights but different status and functions: RIGHTS:
This is why they don’t all have the sme utility.
Political rights: are also obligations to assure the democracy to function.
Different countries follow different policies on political rights.
Civil rights: protection, very important for us and our well-being.
Freedom of region in US: absolut right, limitations are not allowed.
Opposite: in Europe, Frnace Germany: law may impose limits on religion freedom.
In France: women muslim, not allowed ot wear headcarft in school and public
spaces.
In Germany: religious minortities are protected, techers are allowed to wear it
to school.

RIGHT OF EQUALITY:
We take it from grsnteeed, but at 19 century in new zelaend, womend allowed to vote,
20th centure expanded to Europe.
2017-2018: 1st time we had more women as ministers than men in spain.
Need to take into constideration 2 diff. aspects:
Formal equality: not discrimination, we have equality of laws. One man, one
vote. Regardless of sex, age, religion; or equal pay for equal work
Substantive equality: about the substance. We focus and discuss wether the
equal application of the law generates an equal outcome. Examine whether the equal
application of law will generate an equal outcome. Ex) US: americans equal history,
slaves, no freedom. Equal protection of the law, gap between them will remain, so,
substantively there would be no equality.
Ex) Men and women: men could work, access to education; but only a few women.
Men and women equal protection of laws, but no substantive equality, because they
were in disadvantage.
Conclusion: with formal quality you don’t have substantive equality. Equal protection
of law does not mean It creates equality as a substance, as a consequence.

CONCLUSION
Is that IMPORTANT? Do we have an equality?

We need to take into account two facts about equality: one is the formal equality, and
the other the substantive equality:

 Formal equality: equal protection of the law. Equality of the law, no

discrimination. One man one vote (regardless of sex, raza, age). Equal pay for
equal work.

Substantive equality: We care about the “outcome”. We discuss whether the

equal application of the law generates equal outcome. In order to promote
substantive equality, you need to apply laws that are unequal.
Example: In US, they changed status and they started giving equal application
of the law. On the one hand, there were the white society (with their rights)
and there were the colored people, which have never had those rights.
Therefore, if we apply the substantive equality, we see that we could never be
EQUAL

When the law is enforced from the law makers dos not automatically change society it
society is against law. In the Us people did not approve equality. Law cannot assure
equality. We need to focus on results and see how we will promote the equality.
Laws were not enough, more aggressive means were needed to enforce society.

Current case law

NOCTURNAL EMPLOYMENT CASE (1992)

BLUE- COLLAR WORJERS: people using hteir hands making less money
WHITE COLLAR WORKERS: peopke using intellectual capacity to work

FACTS: Women seem to be more vulnerable, so policy-makers in Germany decided

women should not work during the night, objective: protect women.
In Germany, a bakery supervisor employed women during the need because it was
needed.

CONFLICT: the law did not allow women to work at night.

He was penalised because he was violating the law. He brought the complaint that: the
law was a case a discrimination because men are allowed to work during night but not
men.
RESULT:
it depends on the situation of the women. The evidence brought: not enough, so
women should be allowed to work at night.
It violates the formal equality or consider that they face threat during the night.
But it protects only blue collar women, but not white collar women.

Good intentions of law makers, but against constitution create a law discriminating
women. Blue and white differences.

Judges took into account:

We depart form equality. Can we justify the departure or ther eis an alternative
to achieve it?
Policy a: denie right of women to work a night.

They examined the alternative: can we achieve the same goal by employin different
means?
1. possibility that factories and employers providing night basis for their
employees. Employees have to pay the cost of employees going home safely.
2. policy better the society.

Advise: don’t solve a problem by creating more problems. This case, give secutiry by
creating the problem of unequality.

It is UNEQUAL: WHY women have to stop working at night because of the danger, if
that creates unequality?

OBERGEFELL V. HODGES 567 US

FATCS:
Gay men and lesbians cannot get married; not recognied couples
We are discussing formal equality: they are being discriminated.
Approach of supreme court: they allowed them, 14th amendment, it is a fundamental
right.

WHAT DO YOU THINK ABOUT THE ROLE OF THE

Is it a topic or right the judges or law-makers should decide? Who protects better our
rights, law makers or courts?
Law-makers did not protect gay marriage because there was no consensus in
society, not enough movement of support. Courts impose social decicions and
complains into society.

We are discussing about the process which is: when society has feeling that we need
social norms, ask representatives and representatives make a law. Paradox with
courts: that they don’t represent society, they impose social norms to the society. But
we said the right of minority are important. Political force, majoritarian, is countered
to protect the minoritarian.
To solve these questions courts balance: whether should decide or reframe and differ
political decisions to political branch of government.

Social political rights issues: courts are not enforced to assure social rights.
Courts od not enforce social rights. On hard court civil rights, particularly right of
minority, do not have power to apply to majority. Then, courts, only institution to
impose to majority to the minority. This is why we say courts are counter majoritarian:
they can work against majority and protect minority.

What shou dbe the role of courts protecting rights? Difficult positions sometimes will
go against majority, prevailing understanding of what is and is not fair.
Spain: political parties decide whether gay marriage is or not decided.
US: political party did not agree on this. no force to promote it. So, courts rule that the
fact that the government does not recognize it is unconstitutional. Because they
cannot be the others legal representatives.
Do courts have legitimacy to impose to majority social norms?

AFFIRMATIVE ACTION:
Constitutional amendment providing equality.
Despite this, inequality exists.
Law makers in the us introduced the affirmative action policy: according to it they said:
Some public universities shall accept some African Americans although in paper they
don’t have the some qualifications as other white people.
They depart from the equality principle and accept some African Americans.

GRUTTER V. BOLLINGER 539 U.S 306

Michigan Law School. Process to be accepted: GPA, L SAT average. They accept
students based on the average from GPA and the L SAT. vicious circle: where African
American community as is rejected because of its grades, will have each time less and
less opportunities.
So, aff. Action policy: universities will be allowed to discriminate in favour the African
American candidates, getting access with lowers grades, because otherwise they will
not have the opportunity to join law school and their kids will also have less
opportunities.

This policy is promoting discrimination. Somebody with better grades had to be out
because he had to give is place to some African American with lower grades.

The court said that this policy was constitutional and university should promote
diversity, to benefit students.
But, it also says that in some years this policy might not be needed, because there will
be equality. (African will have the same opportunity).
A departure from the equal application of the law because it creates a system where
some minorities or groups that face social exclusion are benefited. For instance,
political parties in some countries allow a number of cuotas for women to be in parties
to increase the number of women, for equality.

REMEMBER FORMAN AND SUBSTANTIVE

To achieve subst. unequal laws, promote African American to schools, or women into
politics; discriminate men or white people. Are necessary for a period of time to
promote substantive equality.

Session 22:
RIGHTS AGAINST THE STATE
Rights: protect us from governmental actions. They are DEFENSIVE RIGHTS:
Government cannot intervein in our personal sphere.

RIGHTS ARE BINDING FOR THE GOVERNMENT AND PRIVATE ACTORS?=

DO CONSTITUTIONAL RIGHTS APLY INTO PRICATE RELATIONS?

Can the government limit our right of feeling of speech? No.

Can Facebook limit our right of feeling of speech?

Freedom of speech protected against government, but in our private circle, it depends
on the contract we have signed,

As rights are the protection against governmental actions,

Congress cannot make laws limiting any rights
Private entities can make laws limiting our rights
So, can rights protect us in our private relations? No

In Germany, Article 5 says:

Everyone has the right of speech. But hteir find their limits.
Question: whether general statutes mean civil codes? If this is the case, rights do not
apply in private relationships.
But, humans rights are so important that must be protected in private law too.
Rights do not only work in the vertical relationship but also at an horizontal
relationship: HORIZONTAL EFFECTS OF RIGHTS: implies we limit the autonomie in the
private relationships. A contract agreeing I don’t have freedom of speech cannot be
signt. There is a blanace between autonomi and core values that shall be protected
with rights.

1ST MODEL: SOUTH AFRICA CONSTITUTION OF 1996 SECTION 8 (2)

Called direct model because implicity we say that bill of rights regulates …
It is clear because it says that rights have application in private elections.
That means that your employee cannot make you sign a contract or do anything to
limit your rights.
Example: if we are in south africa, two people want to go to a bar and at the door they
allow one of them but not the other to enter. That person could be protected by the
law and let him enter

(2) It says explicity: rights have application in private relations, clearly. Means your
employer in south Africa cannot impose you a contract limiting your rights:
DIRECT MODEL OF HORIZONTAL EFFECT OF LAWS: provision expanding the bill of
rights and allowing the bill of rights’ application.

2ND MODEL: GERMAN CONSTITUTION (contrary)

On the contrary, we have the German model where the courts have developed the
idea that yes the rights, they influence private relations.
Based on your autonomy to sign contracts, that contract have to respect human
dignity. Your right influenced private relationship.
Example: if we are in south africa, two people want to go to a bar and at the door they
allow one of them but not the other to enter. That person could enter or not
DEPENDING o

3RD MODEL: AMERICAN MODEL

Rights only applied against the government or public institutions
Your rights do not intervened in your private law relationships.
There is no horizontal effect.
Example: we are in US, two people want to go to a bar and at the door they allow one
of them but not the other to enter. That person that could not enter have no
protection of the laws because it is a PRIVATE bar

FEDERAL COSNTITUTIOINAL COURT

FACTS:
After world war 2, movie festival in Germany, co choose a script play sb who
cooperated with the 3rd reigch
He was sued.

Question:
Was his freedom of speech protected? Because it was a private law relationship

Answer:
1) There is no doubt that main propose of basic right is to protect people from
public power.
2) But, basic rights represent some values we have which cannot exists only in
vertical relations, they can also be present in private relations. Some values are
so important that must transcend different areas.
3) Is the autonomy of private entities unlimited?

APPROACH OF COURT:
Point of substantive laws: although is private, their relationship is regulated about
private law, but basic rights influence that relationship. It is still private law, but they
are regulated by some rights. Who will decide on private law realtionshis? Bc they are
not under constitutional courts. Courts have a dutie, even when they solve disputes of
private law nature to implement the constitution. So, private relations have to take
into account constitution.

This is why we say in Germany we don’t have direct model or horizontal effect,
because the laws case by case discuss whether the specific public dispute has the
influence of rights.
We have t obalance between autonomie of countries and law of human rights
regulating public relations. Topic: expansion of human rights, which is very important
today because more and more private extities, such as facebook, regulate our lives.
They set us another constitution, they limit our rights. More and more power is
transferred to them.

SESSION 24: POLITICAL RIGHTS

Are f1st generation rights,
Right to vote, to be elected, to participate in a political party, of association.

It is an active right because to exercise it some active steps need to be made.

The right to vote it is also an obligation bc if people don’t vote then democracy don’t
work. Less an d less people voting, legitimacy of institution limited.
Universal supremacy: people have right to vote, regardless education religion, sex,
statute.

Is not Absolut, there are limits:

Historical facts:
New Zealand: 1st country to allow women to vote 1893.
Reality yo vote among women achieved in the 20th century

Limit 1: based on citizenship, age, mental condition.

They all bill of rights but different status and functions: RIGHTS:
This is why they don’t all have the sme utility.
Political rights: are also obligations to assure the democracy to function.
Different countries follow different policies on political rights.
Civil rights: protection, very important for us and our well-being.
Freedom of region in US: absolut right, limitations are not allowed.
Opposite: in Europe, Frnace Germany: law may impose limits on religion freedom.
In France: women muslim, not allowed ot wear headcarft in school and public
spaces.
 In Germany: religious minortities are protected, techers are allowed to wear it
to school.

RIGHT OF EQUALITY:
We take it from granteeed, but at 19 century in new zeland, women are allowed to
vote, 20th centure expanded to Europe.
2017-2018: 1st time we had more women as ministers than men in Spain.
Need to take into constideration 2 diff. aspects:
Formal equality: not discrimination, we have equality of laws. One man, one
vote. Regardless of sex, age, religion; or equal pay for equal work
Substantive equality: about the substance. We focus and discuss whether the
equal application of the law generates an equal outcome. Examine whether the equal
application of law will generate an equal outcome. Ex) US: americans equal history,
slaves, no freedom. Equal protection of the law, gap between them will remain, so,
substantively there would be no equality.
Ex) Men and women: men could work, access to education; but only a few women.
Men and women equal protection of laws, but no substantive equality, because they
were in disadvantage.
Conclusion: with formal quality you don’t have substantive equality. Equal protection
of law does not mean It creates equality as a substance, as a consequence.

CONCLUSION

We have a difference between concepts

Formal equality: equal protection of law.
Substantive equality: we focus on the outcome.
We have a paradox: want to promote substantive equality with unequal laws. To
guarantee substantive equality we need to apply laws unequally.
How to fix that there are more men CO? applying equal protection of law,
disproportionate outcome will remain. Way to fix it: to use unequal laws to promote
women: more women should be working…
Paradox: on the one hand we discuss formal equality, on the other and we discuss
about substantive equality, in which we might use as tool laws that are unequal.

When the law is enforced from the law makers dos not automatically change society it
society is against law. In the Us people did not approve equality. Law cannot assure
equality. We need to focus on results and see how we will promote the equality.
Laws were not enough, more aggressive means were needed to enforce society.

Session 26 y 27: HORIZONTAL EFFECTS AND

LIMITATIONS
Rights divided into 2 broad categories
- Absolute rights: rights like the right to leave, freedom from slavery; that
government under no circumstances can limit. Although there is consensus
under freedom of slavery, no torture, there is less consensus on the right to
 leave. A limit on the right to live would be: death penalty. Name bc of the
nature of the rights.
- Relative rights: most of the rights. Under specific conditions, when some
conditions are met, these rights are subject to limitations.
How do judges justify governmental limitations?

FREEDOM OF SPEECH: It is a relative right, although the first amendment

approaches it in an absolute way.
It is protected in absolute terms but is not an absolute right because there are
some limits on it.
Conclusion: It is a different discussion whether a right is absolute or relative despite its
nature, and whether constitutional drafters try to protect the right in absolute or
relative terms.

TUSHENT Contrasts the two models in order to justify limitations.

Behind each law there is a public policy. Ex, public policy: compulsory education. It
indirectly limited freedom of religion. Indirect because they did not relaise it when
drafting it.

Types of limitations:
- INDIRECT: public policy: compulsory education. It indirectly
limited freedom of religion. Indirect because they did not relaise
it when drafting it.
- DIRECT: France, where the state wants religious neutrality of
government, so law: no techers should wear religious signs in
public schools. This is a Direct Limit
The difference is in their Intentionality.

Ej) Government in Spain imposes fees for Public Schools, the right of education
is affected. We need to understand every law might impact our rights. If the
government introduces a fee every time we acces a clinic, the right of health care is
affected.

PROCEDURE
- Understand public policy behind law
- Allocate which right is affected
- Then, a complaint can be brought bc some right was limited.

IN EVERY PUBLIC POLICY WE MIGHT HAVE AN IMPACT ON RIGHTS.

 How do judges face these public policies?
Court takes into account:
1. Government interest: why is the policy implanted?
2. What right is imparae, sometime we might have more than one
right implicated.
Case law:
Two models according to which jusges evaluate interst and human rights:
In the us, in general, we have 3 levels:
Rational basis review
Inmediate scrutiny
Stric scrutiny

AMERICAN POLICY ON LIMITS OF RIGHTS

Courts examine whether there is a legitimate government interest,
which means the level of scrutiny is very law.

Rational basis review

Inmediate scrutiny
Stric scrutiny

CASE: HOWE V. BROWN (SESS 23)

Elisabeth, California,a wants to move to Texas before the elections.

Republican state, bc she is strong supporter of democrats, if I travel there and
give my vote there, the democratic have more possibilities to win.
To avoid this, us adopted some policies: Ohio, one year mandatory residency to
get the right to vote. He said this residency requirement violated his right to
vote.

The result of the court was that was reasonable. The residency
measured it is rational, related and legitimate. RATIONAL BASES.

INTERMEDIATE SCRUTINY:
CASES regarding GENDER CLASIFICATION AND 1ST AMENDMENT CASES
(freedom of religion, press and speech).

Case: restrooms in a US Public museums, long que t female restrooms, a

women complaints gender classification violates a quality, she could have used
the male’s instead of waiting 10 minutes outside.
 Case: army wants to recruit 200 soldiers from where only 50 are women. Is this
quota discrimination? Yes. Do we have an important government interest? Yes.

For these cases the court used Inmediate Scrutiny, they just need to see if there
is an important government interest.

STRICT SCRUTINY:
Those who have an impact on race or discrimination are justified just when
government has a compelling state interest.

Every time political rights, national

1st amendment gendre discrimination, INTERMEDIAL
Race discrimination :STRIC STRUTINY.

This American system is criticised for not being transparent. Courts can change
thee limits.

IN EUROPE: PROPORTIONALITY TEST

Courts have developed a different mode, proportionality test. It is a method 1 st
created by German quotes, by horizontal effects.
It has in reality 3 steps:
1. Judges ask themselves: Does the government have legitimate
aim in order to limit the right? Yes.
2. The judge will ask is the measure suitable to achieve that goal?
Or alternatively whether there are different ways to achieve the
same goal
a. If there are alternative ways to achieve goal without
limits, or it is not suitable, judge will drive down this
policy.
b. If they find the measure was necessary and suitable to
achieve the goal
3. Judges will ask whether the goal are important and advanced
enough to justify the actual impairment of liberty. Balance
beterrn purpose and harm

CASE LAW: HOWE V. BROWN, BUNDESVERFASSUNGSGERIGHT

In Germany there was a law that in practice means there are serious
punishment against drugs
 It is a crime being intoxicated, by canabbis, is executing in Germany. A man said
this violated the right of physical integrity;
We not discuss the trade of rights. We discuss when sb, for example, bought
legally drugs in Germany, went home to consume them, while consuming them at a
park the police arrested them. He failed a complaint saying the law violated his
personal liberty, integrity the right to develop itself as he wants. Policy to this law:
consumption of laws, government paternalistic approach, health of citizens,
consumption of drugs impact on their health systems and also it affects the rest of the
citizens’ lives.

Is the goal of government legitimate? Yes, protection of society. Is it suitable to

criminalize intoxicated people? Yes, is it a necessary measure or is there an
alternative? There is no alternative. Is there a balance? Bc is there such a big difference
between soft (cannabis) and strong drugs? The policy is important enough to affect it.

INTERNATIONAL HUMAN RIGHTS

They are very important in constitutional law. There are vertical relations in
constitutions.
Different legal orders have different approaches. Different countries have different
frame works. Ex) us, freedom of religion bigger liberty but in Europe more protection.

After world war two, we realized the need common frame work, common standards,
there were some efforts to introduce and create general international human rights
frame work. Adoption of universal declaration of human rights.