Constitutional Law I
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Constitutional Law I Teaching Material Developed By: 1) Sileshi Zeyohannes (LL.B, LL.M) 2) Dagnachew Asrat (LL.B) Sponsored by the Justice and Legal System Research Institute 2009 Table of Contents Introduction…………………………………………………………………………. 1 CHAPTER ONE: Basic Conceptual Framework 1.1. State as a Political and Juridical Concept………………………………. 2 1.1.1 State as a Political Concept……………………………………. 2 1.1.2 Political Culture and Constitution……………………………… 6 1.1.3 Configuration of Political Power……………………………….. 7 1.2 State as a Juristic Person…………………………………………………. 9 1.2.1 Sovereignty……………………………………………………….. 11 1.2.3 Sovereignty in the Changing World ……………………………….. 15 1.2.3.1 Forms of Sovereignty in International Law……………….. 17 1.2.3.2 Sovereignty as a Dynamic Concept……………………….. 20 1.2.4 The Concept of Nationality………………………………………….. 24 1.2.5 Democracy and Constitutionalism……………………………………. 26 1.2.5.1 Democratic Theory…………………………………………….. 26 1.2.5.2 Constitutionalism………………………………………………. 29 1.2.5.3 The Concept of “Constitution”………………………………… 31 1.2.5.4 Constitutional Democracy……………………………………… 36 1.2.6 Rule of Law……………………………………………………………. 38 1.2.7 Sustainable Development, Good Governance and Constitutional Order…43 1.2.7.1 Introduction………………………………………………………..43 1.2.7.2 Sustainable Development…………………………………………44 1.2.7.3 Constitutional Orders for Sustainable Development……………. 45 1.2.7.4 Good Governance as an Element of Sustainable Development…. 47 i CHAPTER TWO: Creating Paradigms of State 2.1 Development of State in the Paradigm of Western Civilization………………………….49 2.1.1 The Rise of State without Nationhood………………………………………….. ..49 2.1.1.1 The Greek City-State…………………………………………………….49 2.1.1.2. THE Roman City-State and Empire-State………………………………51 2.1.2. Medieval State……………………………………………………………………53 2.1.3 The Renaissance State and the Effect of Industrial Revolution on Nation- State Formation…………………………………………………………………………….55 2.1.3.1 Development in England…………………………………………………......56 2.1.3.2 Developments in America and France ……………………………………….59 2.1.3.3 Nationalism and Liberalism as Propelling Forces……………………………61 2.1.3.4 The Second Half of the 19th Century…………………………………………64 2.1.3.5 The First World War………………………………………………………….65 2.1.3.6 The Backlashes……………………………………………………………….67 2.1.3.7 World War II and its consequences…………………………………..70 2.2 Developments in Ethiopia……………………………………………………………………73 2.2.1 Attempts in Developing the Ethiopian Nation-State………………………………73 2.2.2.1 The 1931 Constitution: the Japanese Paradigm………………………..79 2.2.2.2 The 1955 Revised Constitution: the Westminster Paradigm and the Aborted Reform thereof……………………………………………………81 2.2.2.3 The 1974 Revolution and the 1987 Constitution: the Soviet Paradigm..84 2.2.2.4 The Transitional Charter: A Prelude to Federalism……………............92 CHAPTER THREE: Creating Paradigm of Constitution by Classification 3.1. Making of a Constitution…………………………………………………………………..101 3.2. What a Constitution should contain………………………………………………………..115 3.3. Status of International Instruments under Ethiopian Constitutional Frame-work……………………………………………………………………………….116 ii CHAPTER FOUR: Making paradigm of Constitutions by Classifications 4.1. Classification of a Constitution……………………………………………………..119 4.1.1. By looking at the Nature of the Constitution itself: Traditional Approach…119 4.1.1.1. Written /unwritten, codified/uncodified…………………….........119 4.1.1.2. Rigid/flexible, Conditional/unconditional…………………………121 4.1.2. By looking at the Nature of the State itself: Federal/Unitary classification…122 4.1.3. By looking at the nature of the Government itself: presidential/Parliamentary and Republican/Monarchical……………………………………………………...124 4.1.3. 1. Presidential/Parliamentary……………………………………………124 4.1.3.2. Republican/Monarchical…………………………………………...….125 4.1.4. By looking at the Legislature……………………………………………………126 4.1.4.1. Unicameral/Bicameral/Tricameral/Tetracameral……………………..126 4.1.4.2. The Upper House………………………………………………………139 4.1.4.3. Lower House…………………………………………………………...142 4.1.5. By looking at the nature of the Executive………………………………………143 4.1.5.1. Monosepalous Executive……………………………………………….144 4.1.5.2. Bicephalous Executive………………………………………………….145 4.1.5.3. Acephalous Executive (Dispersed Leadership)…………………………146 4.1.6. By looking at the Nature of the Judiciary: Prerogative/rule of law system………147 4.2. Reflections on the Ethiopian Constitution…………………………………………………147 CHAPTER FIVE: Forms of Government and Electoral systems 5.1. The presidential system………………………………………………………………. 153 5.1.1. Features………………………………………………………………………. 154 5.1.2. Merits and Demerits…………………………………………………………. 156 5.2. Parliamentary System……………………………………………………………….. 160 5.2.1. Features………………………………………………………………………. 161 5.2.2. Merits and Demerits………………………………………………………….. 164 5.3. Electoral systems……………………………………………………………………. 166 5.3.1. Meaning and features of election……………………………………………. 167 iii 5.3.2. Types and Features of Electoral systems……………………………………. 169 5.3.3. Majoritarian Representation systems………………………………………… 169 5.3.4 Proportional Representation system…………………………………………… 171 5.4. Reflection on the Ethiopian Legal Regime……………………………………………172 CHPTER SIX: Making the Constitution Adjustable 6.1. Interpretation of a Constitution……………………………………………………….. 175 6.1.1. Methods of Constitutional Interpretation……………………………………….175 6.2. Amendment of a Constitution…………………………………………………………..180 6.2.1. Amendment procedures…………………………………………………………..180 6.2.2. Form of changes to the text………………………………………………………182 List of References…………………………………………………………………………..184 iv Introduction The text is based on a paradigm approach (modeling), for the study of this sort cannot be done in any one single approach. Its stores try modeling the state as a political-legal entity. Then, it attempts to create a typology of state in the eyes of the law, followed by the various attributes of states‘ paradigms. It typifies it from a historical perspective. Formal, basic features of constitution are shown in comparative perspective. Although the text is neither an original nor a compilation, we believe it provides a palatable platform for further works. In this regard, we, the developers, welcome suggestions. We wish all a cheerful academic year and extend our heartfelt thanks to all those who take the venture as their own. 1 Chapter One Basic Conceptual Framework 1.1 State as a Political and Juridical Concept 1.1.1 State as a Political Concept The sociology of law, as advocated by Duguit, the coherence of all associations, including that of the state, lies not in some mystic personality but in social solidarity, whose primary driving force may be attributed to collective security. Society is the product of man‘s instinctive desire for association, which in turn is expressed in terms of an aggregation or assemblage of people having common interests and who unite together by the consciousness of those common purposes, be they religious, economic or political. When man finds himself in such a situation, then as aptly said by Aristotle, man becomes a social animal. It is said that social relations are threads of life and social institutions are the looms on which those threads are woven to make the social garment. The entire scheme of life is an interwoven state of affairs for the attainment of the various purposes of life, among which one is political life which itself necessitates the establishment of political institutions through which political actions are undertaken. When such aggregates of people start living a settled life in a more or less definite territory and begin to realize their common, social purposes of life, man in such processes of activities ends-up in the creation of a state. Gabriel Almod‘s definition of the concept of state seems to be fitting here. He qualifies it as:- “…… that system of interaction to be found in all society which perform the function of integration and adoption (both internally and externally) by the means of the employment, or threat of employment of legitimate physical compulsion.”1 The central notion in such human grouping or state is the existence of power relationship between and among individuals and institutions. It is this very relationship that is the 2 raison d‟être of all political institutions. In this respect, institution should be taken as “an idea of an undertaking2 which is realized and which persists in a social environment”. It is its endurance and permanence in a social matrix that makes an institution distinct from other social factors, for all social facts are not institutions. Institutions may take the form of either ―institutions personas‖;3 i.e. groups of human beings and establishments; and “institution of things and concepts‖. Hence, concepts, principles, doctrines become institutionalized; and, as such, are referred herein and hereinafter as ―institutions‖. Law, consisting all these elements, reflecting a legal system and attached to state, falls in the category of institutions. Law in the widest sense of the term may therefore be identified as “[t]he sum of the conditions of social life….. as secured by the power of the state through the means of compulsion.”4 Law may be a direct reflection of social, economic and political relationships of a society existing at a definite time and place. It may serve as an instrument of change or may be regarded as an agency of formal control. It may, more often than not, have any one of these or some or all of these. The point is that law is one among many institutions of social life. Constitution, as a foundation of political order,