Lecture 2 : constitutions ; concepts, contexts, complications

1. Short essay (2-3 pages):

 argumentative
 take position
 develop your ideas

 one-day take home assignment (through Canvas)

 it is individual! (no collab, no chat gpt, no translator…)
 we need to gain all the knowledges that we require during
the tut, lecture, practical.
! First assignment opens on 4 October at 00:00 and close the
same day at 23: 59

2. The final exam: Legal opinions

 several questions
 open questions
 world limit
 Apply the law to a case or a question
 Suppose to test our application of the law.

? What it is the solution for this problem/question it is not what

we prefer as it was for the mid-assignment.
! it is a close book exam! apart the Maastricht collection &
dictionary for translation

Knowledge base: the entire course

Time & location: 23 October, 12:00-14:00 at the MECC (West
Hall)

Conduit between social & legal world

Concepts:
Evolutionary VS revolutionary constitution

Evolutionary constitution -> Developed over time (a long period

of time)

 Changes are incremental

Revolutionary constitution -> Replaces a previous system, a
new one is placed

 Constitution system is made and enters into force at a

specific moment
 Doesn’t mean it has been a revolution

What are the moments that changes the British constitution? ->
evolutionary constitution

Revolutionary constitution because of colonization, devastating

war….
French revolution 1789, the World War II….

America constitution after the decolonial so now the focus on

liberty with separation of power.
The constitution can be seen as a body of norms with unwritten
norms and nt as a document.
Most constitution have abstract idea: it is more a vision, what
they want the polity to look like for ex: it is not write how you
need to live but how you should act, behave, …
Constitutions are created in the context of certain realities

- Response to real problem/challenges (poverty, war…)

- Reaction to experience like colonial

Historical and political context to new constitution:

 Decolonization and independence struggles

Example: US
- Rejection of colonization: emphasis of liberty
State institutions and competence allocation based on
separate power, checks & balances, limited government,
individual freedoms
- Constitutions of great symbolic values like India,
Nigeria…
 War or revolution
Example: Germany “the never again constitution”
The constitution has been created to stop the war, to
maintain peace after it.
 Deep political crisis
Example: Chile -> it was a military dictatorship 1970;
constitution of 1980.
 - The problem was socio-economic inequality (poverty),
cost of living crisis, education system...
- The new constitution with entrenched welfare state &
social policies rejected in 2023 referendum 
-> so, it is not always because of war or revolution,
sometimes it can also be because of the bad way of living
in a country and the wish to make things change.
Social and geographic context:
 Homogeneity/heterogeneity of population (ethnicity,
language, religion…)
+ resources and pop distribution
Cultural context:
- Political traditions
- Existing norms and values
- Constitutions as aspirational projects of state building
and social engineering
Example: Indonesia -> had not been one state prior to
colonization

Examination Components and Grading 📝

The examination in Constitutional Law consists of two
components: a midterm and a final exam.
Grading Scale
 Both the midterm and final exam are graded on a 0 to 10
scale.
 Component grades are rounded down to the first decimal.
 Example: 5.49 is rounded down to 5.4.
Weight of Examination Components
Component Weight
Midterm 25%

Final Exam 75%

Final Grade Calculation
The final grade is calculated using the following formula:
Final Grade = (Rounded Down Midterm Grade x 0.25) +
(Rounded Down Exam Grade x 0.75)
Rounding of Final Grade
The final grade is rounded to a full number according to
the normal mathematical convention.
 Example: 6.5 is rounded up to 7, while 6.4 is rounded down
to 6.
📝 Minimum Passing Rate 📝
 The minimum passing rate is a 5.5, which is rounded up
to a 6.
📝 Examination Components 📝
Midterm Assignment
 The midterm assignment will be a short essay with a word
limit of approximately 700-1000 words.
 The assignment will be completed within a 24-hour period.
 The use of AI-generated text, including translation tools, is
strictly prohibited.
 Plagiarism will also be checked for.
Content of Midterm Assignment
The content of the midterm assignment will be based on
the topics covered in the lectures and tutorials up to the
first tutorial of week 5.
External Sources
The use of external sources for the midterm assignment
may be allowed, depending on the question. Refer to
the expectations document for more information.
📝 Technological Failure 📝
 In the event of a technological failure, it is the student's
responsibility to ensure that they have a working device
with good connectivity.
 University terminals are available for use in case of device
failure.
 If a general outage of Canvas occurs, the IT department
will have a record of it, and alternative arrangements can
be made.
📝 Carrying Over Examination Components 📝
If a student fails the course after two attempts, any
passed examination components will be carried over to
the next year.## 📝 Midterm Exam Details
Submission and Technical Issues
 The midterm exam is a take-home exam, and students are
expected to submit their answers within the given
timeframe.
 Technical issues, such as connectivity problems, are not
considered a valid reason for late submission unless it is a
technical problem on the part of the university.
 Students are advised to submit their answers reasonably
early to avoid any potential issues.
Exam Structure and Content
 The midterm exam will require students to take a position
on a question that involves a value judgment.
 The exam will not follow the IMAX structure, as it is not a
question that can be answered based on legal arguments
alone.
 Students will be expected to present their side of the
argument and address potential counterarguments.
Resources and References
 Students may use any sources they like, but they must
properly cite any direct quotes.
 The expectation document will provide more information
on citation requirements.
 The mystery collection textbook may be useful for
providing examples, but it is not strictly necessary.
Resit Policy
Scenario Resit Policy
Fail one exam component, but May resit the failed
pass the other component

Pass both components, but

unhappy with low passing grade Cannot resit

Must resit both

Fail both components components
📝 Final Exam Details
Exam Format
 The final exam will consist of several open questions that
require a legal opinion.
 The questions will be in the form of a case study, and
students will be expected to provide a concrete legal
solution.
 There will be a word limit, but it is mainly for the student's
own safety to avoid wasting time and space.
Exam Logistics
 The exam will take place at the Metropolitan Museum at
Commerce Center.
 Students will be provided with laptops, which will have a
QWERTY keyboard layout.
 Students who are not used to typing on a QWERTY
keyboard are advised to practice on the university
terminals.
Language and Knowledge Base
 The exam will be in English, but students may use any pair
of languages they prefer.
 The knowledge base for the exam will cover the entire
course material, including the structure of constitutions
and how to solve cases.
Practice Questions
 The book contains old exam questions from the
predecessor course, which can be used for practice.
 The instructor may post 1 or 2 questions from the previous
year's exam or reset in the run-up to the exam.
📝 Accommodations and Support
 Students with medical conditions or disabilities that require
special arrangements must inform the study adviser by the
end of the week.
 Arrangements can be made for separate sessions, extra
time, or reading aids.## Evolutionary vs Revolutionary
Constitutions 📜
Constitutions can be categorized into two main types:
evolutionary and revolutionary.
Evolutionary Constitutions
Evolutionary constitutions are constitutions that develop
over a long period of time, with incremental changes.
These changes are often gradual and do not drastically
alter the system.
"Evolutionary constitutions are constitutions which
develop over a long period of time. The change, of
course, the change they do change over time. All law
constitutional institutions are no exceptions, but
changes are incremental."
Example: The British Constitution
Eve
nt Description
106 Norman Conquest of England, establishment of
6 the monarchy

121
5 Magna Carta, limitation on the king's power

168 British Bill of Rights, affirmation of parliamentary

9 supremacy

199 Devolution system adopted

 Eve
nt Description
8

200 Human Rights Act, transposition of European

0 Convention on Human Rights
Revolutionary Constitutions
Revolutionary constitutions, on the other hand, are
constitutions that are created in response to a
significant event or revolution, often replacing the
previous system entirely.
"Revolutionary constitutions are constitutions which are
created in response to a significant event or revolution,
often replacing the previous system entirely."
Examples:
 French Constitution
 German Constitution
 US Constitution
Characteristics of Constitutions
Constitutions are not just a set of laws, but also an
aspirational project. They contain elements that are not
just descriptive of reality, but also prescriptive of what
the society should strive for.
"Constitutions are not just a set of laws, but also an
aspirational project. They contain elements that are not
just descriptive of reality, but also prescriptive of what
the society should strive for."
Key Features:
 Separation of powers
 Protection of individual rights
 Allocation of powers between different branches of
government
 Expression of national values and principles
Decolonization and Constitution-Making
Decolonization has led to the creation of new
constitutions in many countries. These constitutions
often face challenges in establishing a stable and
effective system of government.
Examples:
 Nigeria: adopted a British-style parliamentary system, but
later transitioned to a federal republic
 India: adopted a constitution that incorporated elements of
British law, but also reflected Indian values and principles
Liberal Revolutions and Constitution-Making
Liberal revolutions have also led to the creation of new
constitutions. These constitutions often prioritize
individual rights and freedoms.
Example:
 Germany: adopted a constitution that prioritized individual
rights and freedoms, and established a federal system of
government## 📚 Federalism in the German Constitution
Definition of Federalism
Federalism is a system of government in which power is
divided between a central authority and constituent
political units, such as states or provinces.
Key Features of Federalism in Germany
 Decentralization: Power is divided between the federal
government and 16 states (Länder).
 State Competence: States have the authority to govern
in areas not explicitly assigned to the federal government.
 Limited Amendability: The German constitution can be
amended, but certain principles, such as federalism and
the social state, are protected by a perpetuity
clause (Article 79).
Article 30: Entrenchment of Federalism
"The exercise of state power is a matter for state
authority, except where the Basic Law stipulates
otherwise. Where states are competent, the federation
cannot act except as mandated by the constitution."
Minority Rights in Parliament
 Article 44: Provides for parliamentary inquiry committees
with far-reaching powers, including the ability to compel
testimony under oath.
 Strong Minority Rights: Allows for minority groups to
hold the government accountable, even if they do not hold
a majority in parliament.
Historical and Political Context
Country Context
German Post-WWII, "never again" mentality, federalism
y as a means to prevent centralization of power

Large diaspora population, concerns about

Greece voting rights and representation
 Country Context
Ethnic and sectarian divisions, uneven
Iraq distribution of natural resources

Indonesi Existing political traditions, recognition of local

a wisdom and customary law
Existing Political Traditions and Norms
 Indonesia's Constitution: Recognizes and gives official
status to local wisdom and customary law, which often
operates on a par with national law.
 National Institutions: Established by the constitution,
including the legislative process and system of
government.
Complications of Constitutional Design
 Double Fix: Constitutions are both bodies of rules and
institutions meant to regulate.
 Tensions between National and Local Interests:
Recognition of local specialties and customary law can
lead to conflicts with national law and institutions.##
Constitutional Dilemmas 🤔
Clarity vs. Openness
Constitutions are meant to establish a system and
provide clarity on how institutions relate to each other,
citizens' rights, and the government's role. However,
they are also future-oriented and contain aspirations for
how the state should be. This creates a dilemma
between clarity and openness.
 Clarity: Constitutions should be clear and specific to
ensure that institutions and citizens understand their roles
and responsibilities.
 Openness: Constitutions should be open to interpretation
and flexible enough to accommodate changing
circumstances and societal values.
The Problem of Originalism
The US debate on originalism raises questions about
how to interpret the constitution.
"Originalism is the idea that the constitution should be
interpreted as it was originally intended by its framers."
However, this approach has its problems:
 Language and meanings change over time.
 The framers could not have foreseen technological
developments and societal changes.
 The Living Instrument Doctrine
The European Court of Human Rights has adopted the
living instrument doctrine, which holds that the
constitution is a living document that changes in
meaning over time.
"The living instrument doctrine recognizes that societal
values and opinions change, and the constitution should
be interpreted in light of these changes."
Examples of Constitutional Dilemmas
Constitution
al Issue Description Example
Interpreting
the
constitution as US debate on
originally the Second
Originalism intended Amendment

Interpreting
the European Court
constitution in of Human
Living light of Rights'
Instrument changing interpretation of
Doctrine societal values Article 8

US
The difficulty of Constitution's
Constitutiona changing the amendment
l Rigidity constitution process

The ease of UK's Fixed-term

Constitutiona changing the Parliaments Act
l Flexibility constitution 2011
The Role of Judges in Constitutional Review
Should judges have the power to review and strike down
laws passed by the legislature?
 Arguments For: Judges can ensure that the constitution
is upheld and protect individual rights.
 Arguments Against: Judges are not directly accountable
to the people and may not have the legitimacy to review
laws.
Clarity of Norms
 Constitutions need to strike a balance between being
specific and being open to interpretation.
"A constitution that is too vague is not helpful, but one
that is too specific may not be applicable in the future."
Example: The Indonesian Constitution
The Indonesian Constitution's article on the economy is
a good example of a well-intentioned but vague
provision.
"The economy shall be organized as a common
endeavor based upon the principles of the family."
This provision is open to interpretation and may not
provide clear guidance on how to organize the
economy.## 📜 Constitutional Ambiguity: The Indonesian
Example
The Problem of Clarity
The Indonesian constitution aims to ensure that the
country benefits everybody, and the state has a role in
making this happen. However, the exact meaning of this
is unclear.
 What is the family system, and how does it vary across the
country?
 What does it mean to be under the powers of the state?
 Does it mean that everything is state-owned, or can the
state license individuals and companies to extract
resources?
The Attempt to Clarify
In 2002, two subsections were added to the article to
provide more clarity.
Subsection 4: Economic Democracy
"The organization of the National Economy shall be
conducted on the basis of economic democracy
upholding the principles of togetherness, efficiency with
justice, continuity, environmental perspective, self-
sufficiency, and keeping a balance in the progress and
unity of the national economy."
This subsection introduces several key principles:
Principle Definition
The idea that the economy should
benefit everyone, not just a select
Togetherness few.

Efficiency with The balance between economic

Principle Definition
efficiency and fair distribution of
Justice resources.

The need for a stable and consistent

Continuity economic system.

Environmental The consideration of environmental

Perspective impact in economic decision-making.

The ability of the economy to meet its

own needs without relying on external
Self-Sufficiency factors.

Balance in The need for a balanced approach to

Progress and economic development that promotes
Unity unity among different groups.
The Problem of Interpretation
Despite the attempt to clarify, the constitution can still
be interpreted in different ways. This is evident in the
two rulings of the Indonesian Constitutional Court, which
hold opposite views on the same issue.
Rulin
g Interpretation
Rulin The state has a significant role in regulating the
g1 economy.

The state has a limited role in regulating the

Rulin economy, and private companies have more
g2 freedom to operate.
The Dilemma of Constitution-Making
The Indonesian constitution is trying to "square the
circle" by creating norms that promote a prosperous and
happy future while also leaving room for interpretation
and flexibility. This dilemma is not unique to Indonesia,
as other constitutions also struggle with the issue of
clarity and interpretation.