Classification of states

The definition of constitutions and constitutional law.

Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature, and the judiciary.

Not all nation states have codified constitutions, though all such states have a jus commune, or law of the land, that may consist of a variety of imperative and consensual rules. These may include customary law, conventions, statutory law, judge-made law, or international rules and norms. Constitutional law deals with the fundamental principles by which the government exercises its authority. In some instances, these principles grant specific powers to the government, such as the power to tax and spend for the welfare of the population. Other times, constitutional principles act to place limits on what the government can do, such as prohibiting the arrest of an individual without sufficient cause. In most nations, including the United States, constitutional law is based on the text of a document ratified at the time the nation came into being.

State and legal structure

Constitutional laws may often be considered second order rule making or rules about making rules to exercise power. It governs the relationships between the judiciary, the legislature and the executive with the bodies under its authority. One of the key tasks of constitutions within this context is to indicate hierarchies and relationships of power. For example, in a unitary state, the constitution will vest ultimate authority in one central administration and legislature, and judiciary, though there is often a delegation of power or authority to local or municipal authorities. When a constitution establishes a federal state, it will identify the several levels of government coexisting with exclusive or shared areas of jurisdiction over lawmaking, application and enforcement.

A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed.^[1] These rules together make up, i.e. constitute, what the entity is. When these principles are written down into a single document or set of legal documents, those documents may be said to embody a written constitution; if they are written down in a single comprehensive document, it is said to embody a codified constitution.

Constitutions concern different levels of organizations, from sovereign states to companies and unincorporated associations. A treaty which establishes an international organization is also its constitution, in that it would define how that organization is constituted. Within states, a constitution defines the principles upon which the state is based, the procedure in which laws are made and by whom. Some constitutions, especially codified constitutions, also act as limiters of state power, by establishing lines which a state's rulers cannot cross, such as fundamental rights. An example is the constitution of the United States of America.

Generally, every modern written constitution confers specific powers to an organization or institutional entity, established upon the primary condition that it abide by the said constitution's limitations. According to Scott Gordon, author of Controlling the State: Constitutionalism from Ancient Athens to Today a political organization is constitutional to the extent that it "contain[s] institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority."

The Subject and system of comparative constitutions

Comparative law is the study of differences and similarities between the law of different countries. More specifically, it involves study of the different legal systems in existence in the world, including the common law, the civil law, socialist law, Jewish Law, Islamic law, Hindu law, and Chinese law. It includes the description and analysis of foreign legal systems, even where no explicit comparison is undertaken. The importance of comparative law has increased enormously in the present age of internationalism, economic globalization and democratization.

Comparative law is an academic study of separate legal systems, each one analysed in its constitutive elements; how they differ in the different legal systems, and how their elements combine into a system.

Several disciplines have developed as separate branches of comparative law, including comparative constitutional law, comparative administrative law, comparativecivil law (in the sense of the law of torts, delicts, contracts and obligations), comparative commercial law (in the sense of business organisations and trade), and comparative criminal law. Studies of these specific areas may be viewed as micro- or macro-comparative legal analysis, i.e. detailed comparisons of two countries, or broad-ranging studies of several countries. Comparative civil law studies, for instance, show how the law of private relations is organised, interpreted and used in different systems or countries. It appears today the principal purposes of comparative law are:

· to attain a deeper knowledge of the legal systems in effect

· to perfect the legal systems in effect

· possibly, to contribute to a unification of legal systems, of a smaller or larger scale (cf. for instance, the UNIDROIT initiative)

·

Despite the differences between comparative law and these other legal fields, comparative law helps inform all of these areas of normativity. For example, comparative law can help international legal institutions, such as those of the United Nations System, in analyzing the laws of different countries regarding their treaty obligations. Comparative law would be applicable to private international law when developing an approach to interpretation in a conflicts analysis. Comparative law may contribute to legal theory by creating categories and concepts of general application. Comparative law may also provide insights into the question of legal transplants, i.e. the transplanting of law and legal institutions from one system to another. The notion of legal transplants was coined by Alan Watson, one of the world's renowned legal scholars specializing in comparative law.

The comparison of form and structure of the constitutions

The form of the constitution is a way to organize and express constitutional norms.The form of the constitution determines on the fact that the constitution may consist of one or more regulations.If the constitution is the one written act regulating the main issues of a constitutional nature, it can be defined as a codifiedconstitution (Italy, Germany, United Mexican States, Kazakhstan). If those issues are governed by severalwritten acts (Finland 4, Sweden 3, Canada), it is uncodified constitution.An uncodified system is a type of constitution where the fundamental rules often take the form of customs, usage, precedent and a variety of statutes and legal instruments. According to the degree of codificationcodified constitutions can be divided into non-deployed and deployed.Examples of deployed constitutions:Greek, Portuguese, non-deployed: serving French, US.Alsothereismixedtypetoo.Some parts are written andinclude parliamentary laws and court decisions, which are binding precedents.Some parts are composed of customs and doctrinal interpretations, judicial precedents, customs (referred to as the constitutional treaty), which contains the Convention's norms.There are also unwritten constitution, which are not established in documents, but they are usually temporary - after the revolutions, coups.

There are additional acts, called the constitutional or organic laws. Although they are considered to be constitutional, which are separate acts not included in the text of the constitution. Ex.: FederalConstitutionalLaw 1955 "OntheNeutralityofAustria"

The structure of the constitution adopts the procedure of its organizational structure, the internal consistency of the components, their arrangement.

The structure of every constitution is different. This is explained not only by each country’s form of government,its political regime, territorial structure and other factors, but also the historical conditions of the adoption of the constitution and its form.

The structure includes a preamble (introduction), the main part (main content), concluding, transitional and additional provisions, and occasionally the application.

The preamble sets out the aims of the Constitution, indicates the historical conditions of its creation, proclaims rights and freedoms.

The main part of the constitution includes provisions on rights and freedoms, on the foundations of the social system, the system and the status of public bodies, state symbols, the procedure for amending the Constitution,etc.

Concluding provisions contain different standards. Usually they set the order of enactment of the Constitution. If it is not resolved in the main part, they put rules in order to change the constitution and state symbols.

Transitional provisions define the terms of the entry into force of certain constitutional provisions, which can not be implemented immediately, the order and timing of replacement of old with new constitutional institutions.

Additional provisions contain interpretative rules, some exceptions to the general rules established by the Constitution, the regulation of the individual parts of questions.

The structure of the Constitution of the Republic of Kazakhstan. Preamble

The Constitution consists of preamble and 98 Articles divided into IX Sections: General Provisions (I); The Individual and Citizen (II); The President (III); Parliament (IV); The Government (V); The Constitutional Council (VI); Court and Justice (VII); Local public administration and self-administration (VIII); and Concluding and transitional provisions (IX).

Historical development of comparative constitutional law

The origins of modern comparative law can be traced back to 18th century Europe, although, prior to that, legal scholars had always practiced comparative methodologies.^[1]

Montesquieu is generally regarded as an early founding figure of comparative law. His comparative approach is obvious in the following excerpt from Chapter III of Book I of his masterpiece, De l'esprit des lois (1748; first translated by Thomas Nugent, 1750):^[2]

[T]he political and civil laws of each nation... should be adapted in such a manner to the people for whom they are framed that it should be a great chance if those of one nation suit another.

They should be in relation to the nature and principle of each government: whether they form it, as may be said of politic laws; or whether they support it, as in the case of civil institutions.

They should be in relation to the climate of each country, to the quality of its soil, to its situation and extent, to the principal occupation of the natives, whether husbandmen, huntsmen, or shepherds: they should have relation to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs.

Also, in Chapter XI (entitled 'How to compare two different Systems of Laws') of Book XXIX, discussing the French and English systems for punishment of false witnesses, he advises that "to determine which of those systems is most agreeable to reason, we must take them each as a whole and compare them in their entirety." Yet another place where Montesquieu's comparative approach is evident is the following, from Chapter XIII of Book XXIX:

Sir Henry James Sumner Maine, British jurist and first professor of comparative law atOxford.

As the civil laws depend on the political institutions, because they are made for the same society, whenever there is a design of adopting the civil law of another nation, it would be proper to examine beforehand whether they have both the same institutions and the same political law.

The modern founding figure of comparative and anthropological jurisprudence was Sir Henry Maine, a British jurist and legal historian.^[3] In his 1861 work Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas, he set out his views on the development of legal institutions in primitive societies and engaged in a comparative discussion of Eastern and Western legal traditions. This work placed comparative law in its historical context and was widely read and influential.

The first university course on the subject was established at the University of Oxford in 1869, with Maine taking up the position of professor.^[4]

Comparative law in the US was brought by a legal scholar fleeing persecution in Germany, Rudolf Schlesinger. Schlesinger eventually became professor of comparative law at Cornell Law School helping to spread the discipline throughout the US.

The international bill of human rights

The International Bill of Human Rights was the name given to UN General Assembly resolution 217 A (III) and two international treaties established by the United Nations.

What is known as the International Bill of Human Rights is made up of:

· Universal Declaration of Human Rights (1948)

· International Covenant on Civil and Political Rights (1966)

· International Covenant on Economic, Social and Cultural Rights (1966)

· Optional Protocol to the International Covenant on Civil and Political Rights

· Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

Universal Declaration of Human Rights (UDHR)

In 1948 the United Nations General Assembly adopted the UDHR. This was the first time that countries agreed on a comprehensive statement of inalienable human rights. The UDHR is not a treaty, so it does not directly create legal obligations for States. The Declaration has however, had a profound influence on the development of international human rights law. It is argued that because States have constantly invoked the Declaration over more than 50 years, it has become binding as a part of customary international law.²

On the same day that it adopted the UDHR, the United Nations General Assembly asked its Commission on Human Rights to draft a covenant on human rights, which could become a binding treaty. After six years of drafting and debate, in 1952 the General Assembly requested that the Commission on Human Rights draft two covenants rather than one. The covenants, International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights were opened for signature in 1966 and entered into force in 1976.

International Covenant on Civil and Political Rights 1966 (ICCPR)
Civil and political rights include the right to freedom of conscience and religion, the right to be free from torture, and the right to a fair trial.

Most of these rights are not absolute. Instead they are subject to reasonable limitations which are created for a legitimate purpose. For example, it may be legitimate to limit a right in order to protect national security, public order or the general welfare of a democratic society.

Some rights, such as the right not to be held in slavery and the right to be free from torture are absolute. Article 4 of the ICCPR identifies absolute (or non-derogable) rights which can not be infringed in any circumstances.

The ICCPR has two Optional Protocols. An optional protocol supplements the original convention with additional obligations.

Optional Protocol to the International Covenant on Civil and Political Rights 1966
On 25 September 1991, Australia agreed to be bound by the First Optional Protocol to the ICCPR. This means the United Nations Human Rights Committee can hear complaints from individuals who allege that the Australian Government has violated their rights under the ICCPR. However, the findings of the Human Rights Committee are not enforceable. For examples refer to the case studies.

Second Optional Protocol to the International Covenant on Civil and Political Rights
On 2 October 1990, Australia agreed to be bound by the Second Optional Protocol to the ICCPR. The purpose of this protocol is for States to eliminate the death penalty.

International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR)
Economic, social and cultural rights include the right to an adequate standard of living, the right to education, the right to fair wages and the right to safe working conditions.

The United Nations Committee on Economic Social and Cultural Rights (the CESCR) monitors compliance with the ICESCR and provides guidance on how countries should interpret the ICESCR.⁵

An increasing number of countries, across all continents and legal systems, have incorporated judicial review of economic, social and cultural rights. These include South Africa, Finland, Argentina, Mauritius, Canada, Latvia, France, India, Bangladesh, Nigeria, and most countries in Central and Eastern Europe.

Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

This Optional Protocol was adopted by the United Nations General Assembly on 10 December 2008. It will be open for signature for State Parties to the ICESCR from 24 September 2009.

The Classification of Human rights

Human rights are moral principles or norms that describe certain standards of human behavior, and are regularly protected as legal rights in municipal and international law.

Human rights can be classified and organized in a number of different ways. At an international level the most common categorization of human rights has been to split them into:

· civil and political rights

· Economic, social and cultural rights.

Civil and political rights

Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations and private individuals, and which ensure one's ability to participate in the civil and political life of the society and state without discrimination or oppression.

Civil rights include the ensuring of peoples' physical and mental integrity, life and safety; protection from discrimination on grounds such as race, gender, national origin, colour, sexual orientation, ethnicity, religion, or disability; and individual rights such as privacy, the freedoms of thought and conscience, speech and expression, religion, the press, assembly and movement.

Political rights include natural justice (procedural fairness) in law, such as the rights of the accused, including the right to a fair trial; due process; the right to seek redress or a legal remedy; and rights of participation in civil society and politics such as freedom of association, the right to assemble, the right to petition, the right of self-defense, and the right to vote.

Civil and political rights form the original and main part of international human rights. They comprise the first portion of the 1948 Universal Declaration of Human Rights (with economic, social and cultural rights comprising the second portion). The theory of three generations of human rights considers this group of rights to be "first-generation rights", and the theory of negative considers them to be generally negative rights.

Civil and political rights are enshrined in article 3 to 21 of the Universal Declaration of Human Rights (UDHR) and in the International Covenant on Civil and Political Rights (ICCPR). Economic, social and cultural rights are enshrined in article 22 to 28 of the Universal Declaration of Human Rights (UDHR) and in the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Economic, social and cultural rights

Economic, social and cultural rights are socio-economic human rights, such as the right to education, right to housing, right to adequate standard of living, right to health and the right to science and culture. Economic, social and cultural rights are recognized and protected in international and regional human rights instruments. Member states have a legal obligation to respect, protect and fulfill economic, social and cultural rights and are expected to take "progressive action" towards their fulfillment.

1) The right to education is a universal entitlement to education. This is recognized in the International as a human right that includes the right to free, compulsory primary education for all, an obligation to develop secondary education accessible to all, in particular by the progressive introduction of free secondary education, as well as an obligation to develop equitable access to higher education, ideally by the progressive introduction of free higher education.

2) The right to housing is recognized in a number of international human rights instruments. Article 25 of the Universal Declaration of Human Rights recognizes the right to housing as part of the right.^[1] It states that:

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, and housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

3) The right to an adequate standard of living is recognized as a human right in international human rights instruments and is understood to establish a minimum entitlement to food, clothing and housing at an adequate level. The right to food and the right to housing have been further defined in human rights instruments

4) The right to science and culture is one of the economic, social and cultural rights claimed in the Universal Declaration of Human Rights and related documents of international human rights law. It recognizes that everyone has a right to participate in culture, to benefit from science and technology, and to protection of authorship.

5) The right to health is the economic, social and cultural right to a universal minimum standard of health to which all individuals are entitled.

The Universal Declaration on Human Rights recognizes a number of economic, social and cultural rights and the International Covenant on Economic, Social and Cultural Rights (ICESCR) is the primary international legal source of economic, social and cultural rights.

7) Parliamentary and presidential republic: common and specific features

A presidential system is a system of government where an executive branch is led by a president who serves as both head of state and head of government. In such a system, this branch exists separately from the legislature, to which it is not responsible and which it cannot, in normal circumstances, dismiss.

Presidents take more direct personal charge of policy than the cabinet does in a parliamentary system. The majority party and the cabinet are a team in a parliamentary system. But the president is directly elected by the people. Unlike parliamentary cabinets, the presidential cabinet does not contain party notables. The president is also the head of the army and directly responsible for foreign policy.

Presidential systems possess several defining features including the separation of power between the executive and the legislative branches of government, weak party discipline, and a powerful committee system. Presidential systems, first devised in the United States as an alternative to the monarchical system, are characterized by a separation of powers. Not only do the executive and the legislature exist independently of one another, but they are also elected independently of one another.

Presidential Republic is the form of government in which sovereignty is vested in the people and their elected or nominated representative (president). A presidential republic may also be understood to be a state in which all segments of society are enfranchised and the power of the state is limited.

Differences from a parliamentary system [edit]

A number of key theoretical differences exist between a presidential and a parliamentary system:

· In a presidential system, the central principle is that the legislative and executive branches of government are separate. This leads to the separate election of president, who is elected to office for a fixed term, and only removable for gross misdemeanor by impeachment and dismissal. In addition he or she does not need to choose cabinet members commanding the support of the legislature. By contrast, in parliamentarianism, the executive branch is led by a council of ministers, headed by a Prime Minister, who are directly accountable to the legislature and often have their background in the legislature (regardless of whether it is called a "parliament", assembly, a "diet", or a "chamber").

· As with the president's set term of office, the legislature also exists for a set term of office and cannot be dissolved ahead of schedule. By contrast, in parliamentary systems, the prime minister needs to survive a vote of confidence otherwise a new election must be called. The legislature can typically be dissolved at any stage during its life by the head of state, usually on the advice of either Prime Minister alone, by the Prime Minister and cabinet, or by the cabinet.

· In a presidential system, the president usually has special privileges in the enactment of legislation, namely the possession of a power of veto over legislation of bills, in some cases subject to the power of the legislature by weighted majority to override the veto. The legislature and the president are thus expected to serve as checks and balances on each other's powers.

· Presidential system presidents may also be given a great deal of constitutional authority in the exercise of the office of Commander in Chief, a constitutional title given to most presidents. In addition, the presidential power to receive ambassadors as head of state is usually interpreted as giving the president broad powers to conduct foreign policy. Though semi-presidential systems may reduce a president's power over day-to-day government affairs, semi-presidential systems commonly give the president power over foreign policy.

Sovereignty and independence declarations.

Independence declarations.

At the beginning of December, 1991 leaders of three republics: Russia - B. Yeltsin, Ukraine L.Kravchuk and Belarus – S. Shushkevich signed the Belovezhsky agreement on denunciation of the allied contract of 1922. Actually disintegration of the USSR was legally issued.

December 10, 1991. The Supreme Council made the decision on renaming Kazakh SSR to the Republic of Kazakhstan, and on December 16, 1991 the Supreme Council proclaimed the state independence of the Republic of Kazakhstan. The new stage in the history of the republic began. Process of the birth of the new state began. The Constitutional Law "About the State Independence of the Republic of Kazakhstan" of December 16, 1991 became a special stage of this process. Developing key ideas of the Declaration on the state sovereignty, the Constitutional Law unambiguously fixed that the Republic of Kazakhstan from now on builds the relationship with all states on the principles of international law, as well as it befits the independent state. For the first time uniform Kazakhstan nationality was established. The variety of forms of ownership proclaimed the Declaration, the principle of division of the government on legislative, executive and judicial was legalized, and the state course on independent economic system with the financial credit, tax and customs policy was fixed.

For protection of independence and territorial integrity of the Republic of Kazakhstan the Constitutional Law also provided for the first time creation of own Armed forces. In comparison with standards of the Declaration that the supreme body of judicial protection of the Constitution the Constitutional Court of the Republic of Kazakhstan admitted was new.

In essence this Law became the Temporary Constitution of Kazakhstan independence at a legislative stage of formation of its sovereignty de jure since standards of the Constitution Kazakh SSR and other acts admitted 1978 operating in the territory of the Republic as they didn't contradict the Constitutional Law of December 16, 1991. Its contents were directly based on the Constitution of the Republic of Kazakhstan 1993.

In 1990, the Supreme Soviet of the Republic adopted the Declaration of State Sovereignty of the Kazakh SSR

October 25, 1990 the Supreme Soviet of the Republic adopted the Declaration of State Sovereignty of the Kazakh SSR.

In the Declaration, along with confirmation of the intentions of the republic enter on an equal basis to the Union of Sovereign Republics (v. 1) were first established three basic conditions for the sovereign rights of the Kazakh SSR, the state- law:

On the territory of the Kazakh Soviet Socialist Republic with the exception of matters delegated to it voluntarily Union, established the supremacy of the Constitution and the laws of the Kazakh Soviet Socialist Republic.... (v. 8)

In the exclusive property of providing a basis for its sovereignty are land and its resources, water, air, flora and fauna, and other natural resources, cultural and historical values ​​of the people, all the economic, scientific- technical potential - all the nation's wealth available to it territory (Article 9)....... Kazakh SSR has a right to their share in the country's assets, respectively, the contribution of the Republic, including diamond, gold and foreign exchange reserve funds (Article 10)

The Kazakh Soviet Socialist Republic has the right to act as an independent subject of international relations, to determine foreign policy in their own interests, exchange diplomatic consular representatives, to participate in the activities of international organizations, including the UN and its specialized agencies.

Republic is building economic and trade relations with foreign countries on the basis of mutually beneficial agreements with the principles of voluntariness and equality, independently decides on foreign trade.

Classification of states

The republic — is such form of government at which the highest government is carried out by the electoral bodies elected by the population for a certain term

The main signs:

*non-parliamentary method of election of the president and formation of the government;

* responsibility of government before the president, but not before parliament;

* wider, than in the parliamentary republic, powers of the head of state.

Views of the republic:

1. Parliamentary (Germany, Austria):

a) the leading role in the organization of life of the state is played by parliament;

b) the president is elected, as a rule, not voters, and parliament or special body which is formed with participation of parliament;

c) the president is only head of state, but not the governments;

d) powers of the president are insignificant in the sphere of executive power;

e) the government is formed by the principle of the parliamentary majority and is responsible before parliament;

2. Presidential (USA, Syria):

a) the leading role in the organization of life of the state is played by the president;

b) the president is elected not by parliament, and national vote or an electoral college;

c) the president is allocated with powers of the head of state and the government;

d) the government is formed by the president and is responsible before it;

e) the parliament can't vote non-confidence to the government, and the president has no right to dismiss parliament;

e) the parliament has the right to release ahead of schedule the president from a position by impeachment procedure.

3. Mixed ( semi-presidential) (France, Russia):

a) the combination of lines of both views of the republics is characteristic;

b) powers of the president are wide in the sphere of executive power;

c) formation of the supreme government bodies is carried out by parliament on representation of the president;

d) the parliament can vote non-confidence to the government, and the president can dismiss parliament.

Monarchy — is such form of government at which the Supreme government is carried out individually and devolves, as a rule

The main signs:

* existence of the individual head of state using the power for life (the tsar, the king, the emperor, the shah);

* hereditary order of continuity of the Supreme power;

* representation of the state

Absolute monarchy — is such form of government at which the Supreme government under the law entirely belongs to one person — the tsar, to the king, the emperor and there are no government bodies limiting competence of the monarch in direct submission and which order there is a standing army, police and developed officialdom.

Limitted monarchy - the monarchy at which the power of the monarch is limited so that in the sphere of the government he doesn't possess the Supreme powers. Legal restrictions on the power of the monarch can be fixed in the supreme laws, such as the constitution or statutes

Types	Power
1.Caste-representative	Power of monarch is limetted by caste-representative bodies
2.Dualistic	existence in system of public authorities of representative, legislative institution with which the monarch is compelled to reckon at adoption of regulations and the taxation
3.Constitutional	restriction of the power of the monarch with a representative body is fixed in the constitution which the monarch has no right to change
4.Parliamental	legal restriction of the power of the monarch who carries out representative functions and the political power carries out parliament

unitary state is a state governed as one single power in which the central government is ultimately supreme and any administrative divisions (subnational units) exercise only powers that their central government chooses to delegate

A federation (from Latin: foedus, gen.: foederis, "covenant"), also known as a federal state, is a political entity characterized by a union of partiallyself-governing states or regions under a central (federal) government. In a federation, the self-governing status of the component states, as well as the division of power between them and the central government, are typically constitutionally entrenched and may not be altered by a unilateral decision of either party, the states or the federal political body.

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