7.Passing constitution.

Because constitution is supreme law, primary legislation it also means that it should e created in special way. Its status can create problems in that regard. Typically constitution itself sets norms describing procedure of amending constitution and sometimes creating new one, giving somebody power to do so. There are generally tow ways of passing constitution:

a) direct - constitution is passed directly by body/institution that is vested with power to create such laws. For instance if constitution is created by nation, then nation passes constitution by agreeing to it in referendum.

b) indirect-constitution is passed by elected representatives, who agree to it in place of sovereign. For instance nation is sovereign, it elects members of special assembly which is supposed to draft and pass constitution. Sovereign delegates this power.

There can be basically three ways in which constitution can be passed. either there is special organ created that has such ability, or there is direct voting. However there is third way-normal government body has this power, for instance regular parliament. There are also other methods, but those three are most popular.

Amending constitution is another thing. Amending will depend on whether constitution allows amendments. Constitution can be elastic and inelastic. Elastic constitution is easy to amend and to change. Radical example of such system is UK constitution-which basically is not any way different than regular legislation and is passed in regular way. Opposite example of that is inelastic constitution. Elastic constitution is "not entrenched". Inelastic is called "entrenched". The more entrenched constitution is, the more inelastic it is. In theory entrenchment serves purpose of constitutional stability, predictability-as supreme law it is supposed to be constant, since it guarantees basic freedom and principles of state entrenchment is supposed to protect that from radical, dangerous amendments that would be contrary to ideal of fundamental rights. In this ways legal positivism is l,limited.

Typically process of amendment is described in constitution, therefore constitution already sets rules how to change it and this cannot be altered. Sometimes constitution also sets rules how new constitution can be passed - therefore if new supreme law will be needed in order for it to be legal source of law, it has to go trough procedure described in old constitution.

Some constitutions set unmodifiable norms-norms that cannot be ever changed by any means. This basically means that once passed, such constitution creates situation in which all next constitutions and amendments have to contain those unmodifiable norms and cannot be contrary to them-otherwise they will be not legal. Present-day Germany ha such unmodifiable articles, covering rights of man, republican and federal form of government.

8. Judicial review of constitution.

However legal systems are not complete, and life creates many problems that constitution is not able to predict. Therefore often collisions between constitution and its subordinate laws occur, when law is passed that in practice goes against constitution or when understanding of the law is contrary to it. Sometimes it is not clear whether in given situation constitution is broken. In others it appears that everything is fine, but problem still exists. Thus there is need to create ways how to deal with such situations – that is why there are special institutions created that take care of interpretation of constitution. This is called judicial review.

Judicial review is specific source of law. Depending on legal system, judicial review has power to decide which laws ar correct and which aren’t, which should be supreme in given situation, and which should be disregarded. In some cases judicial review is able to revoke laws. The highest form of judicial review is constitutional review.

In common law constitutional review in above sense exists only in those states that have codified constitution. In UK the rule of parliamentary supremacy means, that no other institution can influence statutory laws. Parliament is therefore the highest source of law itself, and acts passed by it cannot be reviewed. Courts and tribunals can only check whether law was correctly implemented, by they cannot interpret it, revoke it etc. If parliament says that something is legal-its legal.

In US constitutional review did not existed at first, but supreme court, using tradition of common law and precedent, assumed that it has power to interpret constitution, based on principle in article IV, point 2, which says that sources of country's law are constitution and compatible with it legislative acts. Court argued, that it logical that since word “compatible " was used it means, that non-compatible laws cannot exist, and therefore courts should not use laws that are contrary to constitution.

In US constitutionality is therefore decided by all courts. If a law is unconstitutional according to them, they don’t use it-but only in given, concrete case. Thus the law exists, but is not used in particular moment. Only supreme court has power to revoke legislation in part or in entirety. Supreme court can also interpret constitution and thanks to that-make inelastic, entrenched document elastic and non-entrenched. Supreme Court of US has long and controversial history of "creating" laws in that manner.

The continental law judicial review is different, since there typically special court is created that takes care only of cases of law constitutionality. Previously this system was not present, parliaments were supposed to take care of constitutional review (parliamentary control), protection of constitution but this did not worked well-maybe except of UK. Therefore between I and II world war, and especially afterwards specialized constitutional courts were created.

Continental and common law systems differ greatly in their way of judicial constitutional review.

common law constitutional review:

a) is de-concentrated - all courts can pass judgements about constitutionality of laws

b) is universal-all acts of law can be reviewed with exception of constitution itself

c) is concrete-in given case, one side can argue about unconstitutionality of given law, that is supposed to be used as basis of judgement

d) is relative- courts concentrated on a particular case where law was used and have power to declare it unconstitutional - in this particular case. Apart form that law is still valid.

e) is repressive - courts can decide whether law is unconstitutional only once it is passed

f) only cases decided by supreme court, although being concrete, have power of precedent higher than all others and can become basis of new universal interpretation of constitution, can revoke legislation or it parts permanently for all cases. Only supreme court is not bound by its own judgements.

continental law constitutional review:

a) is concentrated, specialized body is created that takes car of constitutionality issues

b) can be limited-only certain types of laws can be reviewed, like legislation or project of legislation

c) is abstract-review is detached form particular case, checks general conformity of law with constitution. Usually only institutions of state 9preisdne,t parliament etc) have right to ask court about constitutionality of law, sometimes big groups of citizens are allowed to ask about constitutionality

d) is preventive - courts decide about constitutionality of law before it is passed. However typically they can also review law after it is passed, so the have both preventive and repressive powers

e) is absolute – certain norm is judged as unconstitutional it is eliminated from legal system. there are tow ways of doing that: either norm is invalid since judgement of constitutional court (ex nunc), or it was never valid (ex tunc).

II.

Administrative law