Foundations of Law and State Structure

Law and the State Connection

Law is strongly connected to the state because the state creates most of the law, and the state itself is regulated by the law.

Understanding Constitutional Law

Constitutional Law contains rules on the organization of the state, its powers, and the relations between its organizations. It provides fundamental rights that protect the legal position of the individual against the state.

Sources of Constitutional Law

Primary sources of constitutional law include ordinary law, case law, and customs.

State Sovereignty Explained

Sovereignty can be understood as the supreme power or authority of a state to govern itself and determine its own laws.

Internal vs External Sovereignty

Internal sovereignty means the state is the highest authority within its territory. External sovereignty refers to the state's ability to exercise control over its population without interference from external forces.

What is a Failed State?

A state becomes a failed state when it cannot manage internal control, lacks a monopoly on the use of force, and does not meet the criteria of statehood.

State Structures: Unitary vs Federations

In Unitary States, all state power resides with one central government authority; decision-making powers are granted by central laws. In contrast, Federations divide state power between the organs of the central state and its subunits.

Functional Divisions of State Power

Functional Divisions of State Power, also known as the Separation of Powers, are Legislative, Executive, and Judicial.

Separation of Powers Branches

• Judicial: The branch responsible for interpreting the constitution and laws and applying them.
• Legislative: Responsible for enacting state laws and controlling the finances necessary to operate the government.
• Executive: Responsible for governing public policy.

Constitutional Checks and Balances

The essential forms of constitutional checks and balances include:

• Forced cooperation
• Constitutional review: A system that prevents violations of constitutionally granted rights, ensuring the constitution's efficacy, stability, and preservation.
• Judicial review: A court's power to invalidate laws and governmental actions incompatible with a higher authority (e.g., the constitution). This means judges can overrule and influence policy changes.

Judicial Review and Its Types

Two types of judicial review are concrete review and abstract review.

Degrees of State Decentralization

Degrees of decentralization include:

• Centralized unitary state
• Decentralized unitary state
• Mild federation
• Strict federation

Parliamentary vs Presidential Systems

In a Parliamentary system, the head of the executive (e.g., Prime Minister) is supported by and accountable to the parliament. In a Presidential system, the head of the executive (the President) has their own mandate and is independent from the parliament.

Defining Rechtsstaat or Estado de Derecho

Rechtsstaat (German) or Estado de Derecho (Spanish) describes a state governed by the rule of law, bound by legal norms, and respecting the separation of powers.

Constitutional Entrenchment

Constitutional entrenchment refers to provisions that make changing the constitution more difficult than changing ordinary law.