User:LegesFundamentales/Topic overhaul: Constitutional theory

About this page
My fellow editors! The topic of law is woefully under-edited. So are the theory of law (jurisprudence) and the philosophy of law, which partially overlaps with political philosophy. Many core concepts are naively presented as they exist in the popular imagination (see our article on the separation of powers, which is naively equated with the trias politica). These areas of insufficiency include some of my particular fields of interest; namely, constitutional theory, constitutionalism, and constitutional law. For how central these concepts are for just about everyone, they are among the least understood -- even some supposed subject-matter experts seem to have either an overly simple conception of these matters, or one that is complex but confused. It is all the more vital that Wikipedia offer good coverage for general readers and experts in adjacent fields. I am therefore resolved to take these core articles from "start-class" or "stub" to "featured" or at least "good", and to create new series navboxes. I am a mere law student, without oodles of spare time or a complete understanding of any legal system, so I cannot do all this on my own. (I mean, I'm pretty sure an enthusiastic layperson with access to the right databases could do much better by these articles than their previous editors, but I have higher aspirations.) That is why I am asking for the help of anyone as interested in these fundamentals of society as I am. Let us make the constitutional theory, constitutional law, and theory of law topics among the very best our platform offers! In particular, there needs to be considerable reorganization of the existing pages. Little attention has been paid to the all-important comparative perspective in law, which is indispensible to any reference work demanding global relevance. Just see "statutory law"/"statute" and "constitution"/"constitutional law" for some of the least helpful encyclopedic references imaginable. What is more, other core concepts such as my personal favorite, "separation of powers", are barely defined; rather, most of the article is mere trivia about individual posited constitutional orders, decontextualised, over-detailed, out of scope, off-topic... What a nightmare! That said, please don't edit my userspace drafts yourself. I probably won't know what changed, I may not agree with your editorial decisions, and will generally become confused and irritated. This must surely lead to mistakes. What I would love for you do to, however, would be to comment on the user talk pages for each of these articles (see the Navigation section of my top-level user page -- they are labeled as "documentation / discuss"), and to contact me on my top-level talk page. Also, if several of us feel we can commit to this project in 2023/24, we can set up appropriate user categories (by using the userboxes I have created.) Thank you for your cooperation!

General overhaul

 * Don't forget to ask at Requests_for_comment/Politics,_government,_and_law

Constitutional theory series (sidebar)

 * Navbox "Law and government"?

/Sidebar constitutions (template draft)
 * Sidebar "Constitutions"/"constitutional government"

1. Fount and limits Sovereignty; pouvoir constituant; inalienable rights; natural law; rightful power; illegitimate power 2. Functions and powers Pouvoirs constitués; theory of state functions (functions of government) 2.1. Abstract functions Separation of functions; legislative power; executive power; judicial power (Rechtsgewalt); federative power; prerogative; emergency powers 2.2. Specific functions Treaty power (incl. foreign affairs power); war power(s); military power; fiscal power (power of taxation and power of the purse/spending power/budget power); penal power; 3. Forms of exercise 3.1. Rulemaking Laws; decree-laws 3.2. Rule application Administrative act (administrative procedure); judgment (sentence); 3.3. Real acts 4. Organs of exercise Deliberative assembly (parliament); supreme executive (president, prime minister, consul, magistrate, monarch, dictator); judiciary (supreme court - constitutional court - criminal justice system)
 * Sidebar "State power" (or: "Powers of the State")

Structure of pages
Organized by closest relation

Draft: Distribution of power (doc / disc) (Should this be in a section in the article on social/political power?) -- this is the term that encompasses all that is discussed as "separation of powers", "division of powers", "Gewaltenteilung", "Gewaltentrennung", "Gewaltengliederung", etc.
 * Draft: Montesquieu on government (doc / disc)

Draft: Public authority (doc / disc) -- individual vs. group(s), including polities
 * Draft: History of thought on public authority (doc / disc)
 * Redraft: Popular sovereignty (doc / disc)
 * Draft: Monarchic principle (doc / disc) (cf. de:Wiener Schlussakte, Congress of Vienna) --> to what degree is Divine right of kings sufficient?

Draft: State power (doc / disc) --> Mind differentiation from state (polity)
 * (§ Legitimate exercise (law))
 * (§ Forms of exercise (functions))
 * Draft: Legislative power (doc / disc) <--> Does this reduce laws to creations of the legislative power?
 * Draft: Power of decree (doc / disc) -- meaning selbstständiges Verordnungsrecht, or the legislative authority inherent to the (monarchic) sovereign. See also decree, rule by decree (seperate problem: hierarchy of functions, cf. Jean-Jacques Rousseau -- must there first be a general rule (law or decree) before a situation-specific order or action can be taken (even if both powers are united, e.g., in the monarch)?
 * Draft: Hierarchy of norms (doc / disc)
 * Draft: Executive power (doc / disc)
 * Draft: Judicial authority (doc / disc)
 * Draft: Treaty power (doc / disc)
 * Draft: War power (also, peacemaking power) (doc / disc)
 * Draft: Fiscal power (doc / disc)

Note. Legislative power, fiscal power and war power are nowadays generally assigned to a parliament. War power and legislative power were at one time assigned to the monarch, with legislative power (sometimes equated with sovereign power) later either assigned to the King-in-Parliament, or sometimes requiring the constitutive assent of a parliament (esp. 19th-century Germany, Gesetz vs. Verordnung) Be aware of Classification of the Functions of Government (COFOG), a UN statistical concept

Draft: Structural constitution (doc / disc) - establishment of institutions, rules on their constitution, distribution of competencies among them (roughly, Staatsorganisationsrecht)
 * (§ Horizontal distribution of competencies -- (horizontale) Kompetenzordnung)
 * Redrafting: Separation of powers  (doc / discuss) (may serve political accountability by allowing several inputs of the people into the governing process, and by ensuring responsibility for a specific job, so that the people may call one branch to account specifically for a failure in performing its specific function. Also: Normative principle that there must be some Kompetenzordnung?)
 * Draft: Checks and balances  (doc / disc) (controls [supervision and vetos] - compromises ("balances") - equipoise [independent centers of power, none with greater weight than the other]: Intra-government forms of accountability that help to maintain the separation of powers [each power in its place] and so that the resulting measures will be closer to the correct intensity. -- As opposed to political accountability.)
 * (§ Inter-institutional balance (EU))
 * Redrafting: Fusion of powers  (doc / disc)
 * Parliaments in constitutional law -- phenomonological article

Draft: Divisions of government (doc / disc) -- less legalistic/politico-theoretic side of "structural constitution"?
 * redirects - organ(s) of state, state organization, structure of government, branches of government, institutions of government, agencies of government (as a hatnote on government agency, commonly meaning an executive office), parts of government, sections of government, departments of government (as a hatnote on ministry (government department)).
 * Parliament / upper house, lower house
 * Supreme executive, cabinet
 * Ministry
 * Office (government)
 * Agency (government) -- esp. independent regulatory agencies, as in the U.S.

Legal order, Hans Kelsen's Pure Theory of Law, Stufenbau der Rechtsordnung and Normenhierarchie (compare and contrast Horst Dreier's concept of Hierarchische Verwaltung im demokratischen Staat, 1991) Constitution Political constitution Legal norm (the same as Rechtssatz)


 * Constitutional law
 * Constitutional identity (unconstitutional constitutional amendment, unconstitutional constitution, supraconstitutionalism, unwritten constitution)
 * Authentic interpretation of the constitution through law vs. judicial review (see also popular constitutionalism, departmentalism - currently a redirect to an unrelated topic)
 * Redraft: Organic law (docu / disc) (cf. fr:loi organique, es:ley orgánica, U.S. organic statute. Contrast U.S. organic act.)
 * Draft: Preserve of constitutional provision (Vorbehalt der Verfassung, contrast parliamentary supremacy)
 * Must a constitution provide for a special type of norm, such as the organic law, for the executive to be directed by it? Rather than being directed to execute the laws (in their own way) under their own inherent constitutional power?


 * Primary and secondary legislation
 * Redraft: Statute (doc / disc) (also: rewrite statutory law to reflect its primary usage in common law legal systems as a distinction from the common law; add Did you mean hatnote to law and legislation)
 * Draft: Preserve of statutory provision, or perhaps statutory reservation (de:Vorbehalt des Gesetzes) (doc/ disc)
 * Maßnahmengesetz
 * Rahmengesetz
 * Maßstäbegesetz --> Problem of lex posterior derogat lex prior (one legislator binding a later one) (cf. de:Selbstbindung der Verwaltung and Systemgerechtigkeit/Rechtsanwendungsgleichheit)
 * Draft: Delegated legislation (doc / disc) (currently a redirect)
 * redirects: Regulation (legislation); national subtopics: U.S. rulemaking (executive), executive order; UK statutory instrument; German de:Rechtsverordnung
 * Draft: Administrative directive (doc / disc) -- (P) enforcement discretion, right to a type of enforcement, arbitrary inaction
 * national subtopics: U.S. presidential directive; German de:Verwaltungsvorschrift
 * Draft: Authentic interpretation (of law/statutes) (doc / disc) -- relates to U.S. 'nonlegislative rulemaking' under the APA, deference to agency interpretation (Chevron doctrine), enforcement discretion, judicial power of interpretation, legal norm vs. legal text,


 * Procedural legitimation


 * Draft: Completeness of law (cf. non liquet/lacunae in law) (doc /disc) --> Diss. Jeanneney, Julien 2016 - Les lacune constitutionnelles

- Governing structure in democratic states

(As split from government -- how does this relate to governance framework? Also, what should it be called to specify that the article deals, not in forms of government, as in monarchy, oligarchy, democracy, etc., but rather with the internal governing structures instituted in a state? Particularly in contemporary democratic constitutional régimes (parliamentary and (semi-)presidential systems? (Cf. the differntiation between Herrschaftsform, the type of rule, and Regierungssystem, system/mode of governance). Note: Britannica calls it "contemporary divisions of government". Perhaps "organs of state" would be fitting? But no, that disregards that a whole system of organs may be assinged to one function. Best call it "divisions of government" and be done with it.) With section on "branches of government", elucidating traditional organs, and the connection to separation/fusion of powers in different systems, to checks and balances, and functions of government

Structural constitution (?)


 * Separation of powers
 * Concept that there should be multiple centers of power within a sovereign power. Also, that the same center of power may not be mainly responsible for every part of the implementation of a policy
 * Functions of government, Staatsfunktionen
 *  Concept that there are substantively several kinds of sovereign power to be exercised. Corrolary assertion that certain formal structures (procedures, organs) must be linked with the form of exercise of power
 * Pouvoir constituant (See also: Constituent assembly)
 * Pouvoirs constitués
 * Legislative power (power to make a law, to legislate)
 * Power over the structure of government (cf. Vorbehalt der Verfassung, Verfassung als Rahmenordnung)
 * Executive power
 * Judicial power
 * Hierarchy of functions? Connections to legal theory (cf. Stufenbaulehre)


 * Checks and balances
 * More than one center of power within one function-branch;
 * Legislative bicameralism
 * Plural executive
 * Involvement of one branch in the function primarily exercised by another
 * Veto power


 * Fusion of powers
 * (Moderation of separation of powers for efficiency/unity; also, balance in line with checks and balances)
 * Right of initiation
 * Creation function of parliaments in parliamentary government


 * Executive presidency (as a page explaining the functions, in comparative constitutional law, of certain presidencies)?
 * Plural executive


 * Law (primary legislation)
 * Decree (selbstständiges Verordnungsrecht, règlements autonomes, atti normativi del Governo aventi forza di legge, prerogative Orders-in-Council) --> See rule by decree

Perhaps this should be subsumed under "Legislative power"? That would avoid the awkward disconnect between statute (US), primary and secondary legislation (UK, much of the world), and other sources of law in some countries (common law).
 * Organic law
 * Delegated legislation (secondary legislation)
 * Directive/administrative provision (Verwaltungsvorschrift)
 * Legal norm may need more discussion of the late-monarchic German discussion...

Separation of powers

 * Remember to get input from French and German Wikipedia
 * Should there be an entirely separate page called "checks and balances"? Or, "mechanisms of control in government"? There would be overlap with "separation of powers", but there could be discussion of questions like "which organs or functions of the state are considered the leading or driving forces within the state", and on specific topics like the power of the purse and how it has been used. Or perhaps those things should be on the "legislature" (function, defined by its law-making ability, and thus by the term "law", at least in the late constitutional monarchy period of Germany) or "parliament" (organ) pages, or have their own pages.


 * Systems of government needs to be its own page, comparing presidential, parliamentary, and other systems?


 * Differentiate separation of powers in vertical and horizontal directions; from power sharing/consocialisation;


 * https://www.cap-lmu.de/aktuell/positionen/2003/kompetenzordnung.php -- 2003 proposal for an EU Kompetenzordnung