Dr Rachid BACHAR
E.mail: rachidbachardroit@gmail.com
Legal Terminology (Foreign language)
Coefficient: 1
Credit: 1
إعلان
نعلم طلبة السنة الأولى ماستر تخصص دولة ومؤسسات أنه يمكنهم إدراج الواجب على مستوى المنصة، وفقط في حال تعذر إدراج الواجب يمكن إرساله عبر البريد الإلكتروني لأستاذ المادة: rachidbachardroit@gmail.com ،
وأن آخر أجل لإدراج الواجبات 21 جانفي 2024.
وللإستفسار يمكن الاتصال بأستاذ المقياس على مستوى إدارة قسم القانون العام
بالتوفيق
أستاذ المقياس
The constitution
Introduction
Every society makes and enforces laws that govern the conduct of the individuals, businesses, and other organizations that function within it. In the words of judge Learned Hand, “Without law we cannot live; only with it can we insure the future which by right is ours...” [1]
كل مجتمع يضع القوانين التي تحكم (تنظم) سلوك الأفراد، وتحكم الشركات والمنظمات الأخرى التي تعمل داخله، وعلى حد تعبير القاضي "ليرند هاند" : " لا يمكننا أن نعيش بدون قانون، وفقط بالقانون يمكننا تأمين المستقبل والذي هو حق لنا..".
I/ Constitutional law:
Constitutional law is the branch of law concerned with the study, interpretation, and application of a country or state’s constitution, including the issues of governance, the powers, civil liberties, and civil rights[2].
Constitutional law determines the relationship of the citizen to the state and that controls the operation of the various branches of the state.[3]
القانون الدستوري:
القانون الدستوري هو أحد فروع القانون المتعلق بدراسة وتفسير وتطبيق الدستور في الدولة، بما في ذلك مسائل الحكم والسلطات، وكذا الحريات والحقوق المدنية.
القانون الدستوري يحكم (ينظم) العلاقة بين الدولة والأفراد، ويحكم عمل مختلف أجهزة الدولة.
II/ Constitution:
The constitution is a collection of fundamental principles of law according to which a nation is to be governed[4]. It is the framework of rules which dictate the way in which power is divided between the various parts of the state and the relationship between the state and individual[5]. The constitution is the set of laws, under which the freedom of the individual is guaranteed.[6]
يمثل الدستور مجموعة المبادئ الأساسية للقانون والتي تحدد نظام الحكم في الدولة، فهو عبارة عن مجموعة من القواعد التي تحدد توزيع السلطات في الدولة، وتنظم العلاقة بين الدولة والأفراد. ويمثل الدستور مجموعة القواعد التي تضمن حرية الفرد.
[1] Henry R.Cheeseman, Introduction to Law, Pearson Education LTD, 2005, p.
(The Spirit of Liberty, 3d ed (New york: Alfred A. Knopf, 1960)).
[2] Susan Ellis Wild, Law dictionary, Wiley Publishing, Inc, 2006, P 92.
[3] W.J.Stewart and Robert Burgess, Dictionary Law, second edition, Collins, 2001, P 90.
[4] Amy, Hackney Blackwell, The essential law dictionary, Sphinx publishing, Illinois, 2008, P 99.
[5] Chris Taylor, Constitutional and administrative law, Pearson Education limited, 2008, P 3.
[6] P.H. Collin, Dictionary of law, fourth edition, Bloomsbury, 2004, P 66.
Classification of constitutions
تصنيف الدساتير
Constitutions are classified in different ways such as:
تصنف الدساتير بطرق مختلفة مثل:
I/ Written and unwritten constitutions:
The most important way to classify constitutions is between written and unwritten.
أهم طريقة لتصنيف الدساتير تتمثل في الدساتير المكتوبة والعرفية.
1/ Written constitution:الدستور المكتوب
A single written document that embodies all the fundamental and organic laws and principals of a country or state[1]. It contains the main rules governing the power of the state and the relationship between the state and the individual. For the citizens of the country, the constitution is an enormously important document because it prevents the state from abusing its powers and safeguards the rights of the individual[2], and offers the advantages of clarity, stability and enforceability.[3]
وثيقة مكتوبة واحدة تجسد جميع المبادئ والقوانين الأساسية والعضوية للدولة، تحوي القواعد الرئيسية التي تحكم أو تنظم ممارسة سلطة في الدولة، وتنظم العلاقة بين الدولة والأفراد، وبالنسبة للمواطنين يمثل الدستور وثيقة بالغة الأهمية كونه يقي من الاستبداد ويضمن حقوق الأفراد، ويوفر مزايا تتمثل في الوضوح والاستقرار والنفاذ.
2/ Unwritten constitution:الدستور العرفي
The body of fundamental and organic laws and principles contained in a series of statutes, court decisions, governmental proclamations, and tradition that has been accepted as such by the government and people (often over generations or centuries). For example, the United Kingdom has an unwritten constitution that includes the Magna Carta (written in 1215), the Bill of Rights of 1689, and other documents and tradition.[4]
مجموعة من القوانين العضوية الأساسية، والمبادئ الواردة في سلسة من القوانين الأساسية، وقرارات المحاكم،
II/ Flexible and rigid constitution:
1/ Flexible constitution:الدستور المرن
A flexible constitution is one which can be easily amended. Constitutional amendments are passed in the same manner by which an ordinary law is passed.
2/ Rigid constitution:الدستور الجامد
The rigid constitution is one which cannot be easily amended. Its method of amendment is difficult. A rigid constitution is considered to be the most fundamental law of the land. It is regarded as the basic will of the sovereign people. That is why it can be amended only by a special procedure requiring the passing of the amendment proposal by a big majority of votes which is often followed by ratification by the people in referendum.[5]
III/ Monarchical and republican constitutions:[6]
Under a monarchical constitution, the head of state is a King or Queen and state powers are exercised in their name. By contrast, a republican constitution has as head of state a president, such powers are justified on the basis that the president is elected and so accountable to the people, unlike a monarch, who is head of state simply by birth.
3/ Monarchical constitution: الدستور الملكي
A constitution based on the historical power of monarch who acts as head of state and in whose name power is exercised by the government.
2/ Republican constitution: الدستور الجمهوري
A constitution with an elected president as the head of state who exercises power in the name of the state.
IV/ Federal and unitary constitution:[7]
In some countries, state powers are divided into those exercised by central government and those exercised by the states or regions. This results in a federal constitution.
1/ Federal constitution:الدستور الفدرالي
A constitution which has a division of powers between the central government and the government of individual states or regions.
2/ Unitary constitution: دستور الدولة الموحدة
A constitution with power concentrated in central government. Local government may exist but not with the constitutional status of the states under a federal constitution.
[1] Susan Ellis Wild, Law dictionary, Wiley Publishing, Inc, 2006, P 92.
[2] Chris Taylor, Constitutional and administrative law, Pearson Education limited, 2008, P 5.
[3] Constitutional Law, 3rd ed, Cavendish Law cards series, London, 2002, P 3
[4] Susan Ellis Wild, Law dictionary, Wiley Publishing, Inc, 2006, P 92.
[5] R.Sirinivasan, Constitutional Law (second semestr), Dr.Ambedkar Law University, P 3.
[6] Chris Taylor, Constitutional and administrative law, Pearson Education limited, 2008, P 4.
[7] Chris Taylor, Constitutional and administrative law, Pearson Education limited, 2008, P 4.
List the advantages and disadvantages of flexible and rigid constitutions.
Note: The answer must be included as a PDF file.
The answer should not exceed one page.
ملاحظة : يجب إدراج الإجابة في صفحة واحدة في ملف بصيغة
PDF.
The State
I/ Definition:
The state is a body of people living in a certain territory under one government: the government of such a body of people[1]. It is an organized political unit with one government[2]. We can define it as a community of persons, permanently occupying a definite territory, legally independent of external control, and possessing a organized government which create and administrates law over all persons and group within its jurisdiction is “State”.
According to Lasson, “The state is a community of men which possesses an organized authority as the highest source of all force”.
John. W.Burgess define the state as a “particular portion of mankind viewed as an organized unit.”[3]
For many purposes the best way to define the state is the tradition of general state theory (allgemeine Staatstheorie). This identifies three main elements of the state: (1) a clearly demarcated core territory under the more or less uncontested and continuous control of a state apparatus; (2) a politically organized coercive, administrative, and symbolic apparatus with both general and specific powers; and (3) a permanent or stable population on which the state’s political authority and decisions are regarded, at least by that apparatus, if not those subject to it, as binding. As well as individual states, general state theory deals with the world of states, especially the recognition of state sovereignty and legitimate governments and the challenges posed domestically and/or externally.[4]
According to Carré de Malberg, one of France’s leading constitutional scholars, « the state is a community of men attached to a territory with an organization, from which results for the group engaged in relations with its members a supreme power of action and coercion.” More clearly, the state is the result of a population, a territory and a sovereignty.[5]
II/ Etymology:
The word state and its cognates in some other European languages (stato in Italian, estado in Spanish and Portuguese, état in French, Staat in German) ultimately derive from the Latin word “status”, meaning "condition, circumstances". Latin status derives from stare, "to stand," or remain or be permanent, thus providing the sacred or magical connotation of the political entity.
The English noun state in the generic sense "condition, circumstances" predates the political sense. It was introduced to Middle English c. 1200 both from Old French and directly from Latin.
With the revival of the Roman law in 14th-century Europe, the term came to refer to the legal standing of persons (such as the various "estates of the realm" – noble, common, and clerical), and in particular the special status of the king. The highest estates, generally those with the most wealth and social rank, were those that held power. The word also had associations with Roman ideas (dating back to Cicero) about the "status rei publicae", the "condition of public matters". In time, the word lost its reference to particular social groups and became associated with the legal order of the entire society and the apparatus of its enforcement.
The early 16th-century works of Machiavelli (especially The Prince) played a central role in popularizing the use of the word "state" in something similar to its modern sense. The contrasting of church and state still dates to the 16th century. The North American colonies were called "states" as early as the 1630s.[citation needed] The expression "L'État, c'est moi" ("I am the State") attributed to Louis XIV, although probably apocryphal, is recorded in the late 18th century.[6]
III/ Elements of the State:
A State stands identified with its four absolutely essential elements:[7]
1/Population:
State is a community of persons. It is a human political institution. Without a population there can be no State. Population can be more or less but it has to be there. The people living in the State are the citizens of the State. They enjoy rights and freedom as citizens as well as perform several duties towards the State.
2/ The territory:
Territory is the second essential element of the State. State is a territorial unit. Definite territory is its essential component. A State cannot exist in the air or at sea. It is essentially a territorial State. The size of the territory of a State can be big or small; nevertheless it has to be a definite, well-marked portion of territory.
Further, it must be noted that the territory of the state includes not only the land but also, rivers, lakes, canals inland seas if any, a portion of coastal sea—territorial waters or maritime belt, continental shelf, mountains, hills and all other land features along with the air space above the territory. The territory of the state can also include some islands located in the sea.
3/ Government:
Government is the organisation or machinery or agency or magistracy of the State which makes, implements, enforces and adjudicates the laws of the state. Government is the third essential element of the State. The state exercises its sovereign power through its government.
4/ Sovereignty:
Sovereignty also constitutes an essential element of the state. Sovereignty denotes the supreme or ultimate power of the state to make laws or take political decisions establishing public goals, fixing priorities and resolving conflicts—as also enforcing such laws and decisions by the use of legitimate force. In fact, sovereignty denotes the final
authority of the state over its population and its territory. This authority may be exercised by the government of the day, but it essentially belongs to the state from which it is derived by the government.[8]
Finally, sovereignty is the existence of a political organization that exercises its authority over the territory and the population. The concept has been theorized by the jurist Jean Bodin. The state is home to the sovereign power. This is what differentiates the state from the society.[9]
[1] Webster’s student Dictionary, Lebanon library publishers, 1998, P 480.
[2] Amy, Hackney Blackwell, The essential law dictionary, Sphinx publishing, Illinois, 2008, P 470.
[3] Aparajita, Topic :State, G.J College, Rambagh, Bihta, Patna, p 1.
[4] Bob Jessop, The State (Past, Present, Future), Lancaster University, UK, P 74.
[5] Robin Alves : https://infowelat.com/the-nation-state.html.
[6] https://en.wikipedia.org/wiki/State_(polity)
[7] K.K Ghai, State (Elements and Necessity of the State:
https://www.yourarticlelibrary.com/essay/politics-essay/state-elements-and-necessity-of-the-state/40323
[8]DEEPIKA GAHATRAJ , CONCEPT OF STATE AND GOVERNMENT, P 2: https://www.iilsindia.com/study-material/308673_1610904898.pdf.
[9] Robin Alves : https://infowelat.com/the-nation-state.html.
Democracy
I/ Introduction:
The word “democracy” is a term that comes from Greek and it is made up with two other words “demos”= People and “kratein”= to govern, to rule. “Democracy” can then be literally translated by the following terms: Government of the People or Government of the Majority. Democracy, as a State form, is to be distinguished from monarchy, aristocracy and dictatorship. You may have already heard about the most common definition of democracy: “the government of the people, by the people and for the people” (Abraham Lincoln)? To put it another way we can say that a government comes from the people; it is exercised by the people, and for the purpose of the people’s own interests. This description is only a very broad one, to start with, but the pages that follow will explain to you in a more concise way the different facets of democracy.[1]
II/ Types of democracy:
1/ Direct democracy:
The ideal of direct democracy is predicated on the type of regime practiced in Athens between the fifth and fourth century which, within the modern Western civilization, has been the object of a substantial process of idealisation. The democracy of the Athenians has thus soared into the collective imagination as a model of true and complete democracy, and is often described as the only form of government where the people actually exercise their sovereign prerogatives.[2]
Direct democracy describes those rules, institutions and processes that enable the public to vote directly on a proposed constitutional amendment, law, treaty or policy decision. The most important forms of direct democracy covered in this Primer are referendums and initiatives.[3]
2/ Representative democracy:
Technically speaking, the form of government of modern liberal-democratic regimes concerns the relations between the executive and the legislative power, so that a liberal representative democracy can be one of three fundamental types: parliamentary, semi-presidential and presidential. In the first case, the government depends on the parliament, where the sovereign people’s representatives, elected by the people themselves, sit; in the second case, the President of the Republic is directly elected by the people and has specific prerogatives related to the exercise of the executive power, but is flanked by a Prime Minister whom, although appointed by the President, needs the support of the majority of the parliament; in the third case, the President, after a direct or indirect election governs in a monocratic way (by appointing the ministers) and does not depend on the parliament (the legislative power), which is only in charge of control and carrying out the legislative function.[4]
3/ participatory democracy:
Participatory democracy is a process of collective decision making that combines elements from both direct and representative democracy: Citizens have the power to decide on policy proposals and politicians assume the role of policy
implementation. The electorate can monitor politicians’ performance simply by comparing citizens’ proposals with the policies actually implemented. As a result, the discretion of politicians is severely constrained. In this system, the extent to which citizens can affect policy and determine social priorities is directly aligned with the degree to which they choose to involve themselves in the process.[5]
[1] Paula Becker , Jean-Aimé , A Raveloson, What is democracy, KMF-CNOE & NOVA STELLA, Antanarivo, , P 4.
[2] PAOLO BELLINI, DIRECT DEMOCRACY AND REPRESENTATIVE DEMOCRACY, – Philosophy and Public Issues (New Series), Vol. 9, No. 1 (2019), Luiss University Press, 2019 ,P 96.
[3] Eliot Bulmer, Direct Democracy, IDEA, 2017, P 3.
[4] PAOLO BELLINI, DIRECT DEMOCRACY AND REPRESENTATIVE DEMOCRACY, – Philosophy and Public Issues (New Series), Vol. 9, No. 1 (2019), Luiss University Press, 2019 ,P 92.
[5] Enriqueta Aragones and Santiago Sanchez, A theory of participatory democracy based on the real case
of Porto Alegre, European Economic Review, p 1.
The principle of Separation of powers
I/ Introduction:
The phrase “separation of powers” is one of the most confusing in the vocabulary of political and constitutional thought. The phrase has been used with varying implication by historians and political scientists, this is because the concept manifests itself in so many ways. In understanding the concept of “separation of powers” one has to take on board the three approaches, traditional, modern and Marxist-Leninist approaches.[1]
II/ Doctrine of separation of powers:
The first modern formulation of the doctrine was that of the French writer Montesquieu in 1748, although the English philosopher John Locke had earlier argued that the legislative power should be divided between king and Parliament. The term “Trias politica” or “separation of powers” was coined by Montesquieu, a French social and political philosopher.
His publication, Spirit of the Laws, is considered one of the great works in the history of political theory and jurisprudence, and it inspired the Declaration of the Rights of Man of UN and the Constitution of the United States. Under his model, the political authority of the state is divided into legislative, executive and judicial powers. He asserted that, to most effectively promote liberty, these three powers must be separate and acting independently.
All the theories originated by these political thinkers in relation to the principle of separation of powers were on a basic presumption that the liberties of the people should be protected from the tyrannical and despotic rulers when all the powers are vested and exercised by the very same persons.[2]
“Van der Vyver”, borrowing from Montesquieu, is of the opinion that separation of powers is composed of the following principles:[3]
ü The principle of trias polita, requiring a formal distinction between the legislature, executive and judicial branches.
ü The principle of personnel according to which the same people should not be allowed to serve more than one branch of the government at the same time.
ü Separation of functions between the three branches to avoid one interfering with or assuming the roles of the other.
ü The principle of checks and balances that requires that each organ be entrusted with special powers designed to serve as checks on the exercise of functions by the others in order to come to an equilibrium.
[1]DEEPIKA GAHATRAJ, WORKING OF GOVERNMENTAL WINGS, POLITICAL SCIENCE II, , P 2.
https://www.iilsindia.com/study-material/801001_1593102801.pdf
[2] Mukherjee Nagar, Polity and governanceII, Distance Learning Programme, drishti, New Delhi, P 1.
[3]Emanuel Kibet & Kimberly Wangeci, A Perspective on the Doctrine of the Separation of Powers based on the Response to Court Orders in Kenya, Strathmore Law Review, January 2016, P 221.