A state governed by the rule of law is a state where limits are set on the exercise of state power. These limits are set so that a state does not proceed to an arbitrary exercise of state power. A constitution provides a description of the separation of powers, fundamental rights, the principle of legality and the judiciary of a state. A state can only be regarded as a constitutional state if it meets four different conditions and/or characteristics. The core idea of a constitutional state is that laws describe the rights and obligations of citizens, on the one hand, and of the government, on the other.
What are the characteristics of a constitutional state?
A state must meet 4 characteristics and/or conditions to be able to speak of a constitutional state:
- The principle of legality applies.
- A judge who administers justice independently and impartially.
- Fundamental rights are guaranteed.
- The various state organs share state power.
Principle of legality: no authority without law
The principle of legality is a principle of the classical-liberal constitutional state and is one of the conditions or characteristics for being able to speak of a constitutional state. The principle of legality means that government action, when it intervenes in the rights and freedoms of its citizens, is only permitted if this power of the government body is described in a law. The law must clearly describe whether and when a government body is authorized to intervene in the rights or freedoms of citizens. In short, the principle of legality means that both the government and the citizens of a state are bound by the law.
Principle of legality & principle of legal certainty
The fact that the powers of the government must be expressly laid down in law is related to the principle of legal certainty: the ability of the government to limit the individual freedom of citizens is limited by a law that must be certain and clear .
Judiciary by independent and impartial judges
The fact that justice is administered by an independent and impartial judge is also one of the conditions or characteristics for being able to speak of a constitutional state.
Independence
The fact that a judge is independent means that a judge makes his own decision and does not allow anyone to tell him what decision should be made. To guarantee this independence, a judge cannot be held accountable by the government or parliament; If this were to happen, a judge would no longer rule according to the law, but according to the positions of the government and parliament.
Impartiality
A judge is impartial, which means that a judge acts in office and not as a private person . This is why judges do not wear their own clothing during a hearing, but a black gown with white collar, to symbolize the impartiality of the judiciary.
Guaranteeing fundamental rights
The guarantee of fundamental rights is one of the conditions or characteristics for being able to speak of a constitutional state. The state guarantees that citizens can rely on fundamental rights in order to protect the rights and freedoms of citizens. Fundamental rights can be divided into fundamental social rights and classical fundamental rights . Many fundamental rights that Dutch citizens can rely on are described in the Constitution. Fundamental rights also exist at an international level, and Dutch citizens can rely on most internationally established fundamental rights. Examples of fundamental international rights from European and/or international treaties include the provisions of the European Convention on Human Rights (ECHR), the provisions of the International Covenant on Civil and Political Rights (ICCPR), and provisions of the European Social Charter (ESH).
Classical fundamental rights
A classic fundamental right protects citizens against government action. The government has no obligation to act and in certain cases the government must even refrain from any government action. The ‘ freedom of religion ‘ is an example of a classic fundamental right: a government may not infringe on this right and freedom of citizens and must therefore refrain from government action.
Basic social rights
A fundamental social right protects citizens because the government has an obligation to act. An example of a fundamental social right is the ‘ right to education ‘, the costs of which are largely borne by the government.
Distribution of power among state organs
State power must be divided among the various state organs: the trias politica. This distribution of power over the state organs is one of the conditions or characteristics for being able to speak of a constitutional state. The idea behind Montesquieu’s trias politica is that the freedoms of citizens are protected, because the distribution of power among the various state organs ensures that no dominance of power can arise in any of these state organs. If there were no distribution of power among the state bodies, this situation could lead to the state body with the most power abusing power . A division of power therefore prevents the emergence of a preponderance of power in one of the three state organs.
In practice, a state (according to the trias politica) divides its power among 3 state organs:
- legislature
- executive power
- judicial power
Separation of powers in the Netherlands
parliament can be seen as the legislative power, the government as the executive power, and the independent and impartial judiciary as the judicial power.
System of ‘checks & balances’
The system of ‘checks & balances’ is part of the trias politica and describes the way in which state power is kept in balance. State power is kept in balance by the mutual and/or mutual control that takes place between the bodies. In this system, checks represent the mutual and/or mutual control between the various state organs and balances represent the state power that is kept in balance. A state that uses the system of ‘checks & balances’ prevents too much state power from being vested in one of the state organs by applying mutual control between the state organs and a distribution of power among the state organs.
Checks & balances in the Netherlands
The Dutch state organs operate via the system of ‘checks & balances’. An example of this is the control of the executive by the legislature. In the Netherlands, ministerial responsibility applies: the ability of parliament (legislative power) to hold a minister, a state secretary or the entire cabinet (executive power) accountable for a certain act or omission.
Difference between a constitutional state & a democratic constitutional state
The most important difference between a constitutional state and a democratic constitutional state is already evident from the name; a democratic constitutional state requires the presence of democracy. A constitutional state does not recognize the presence of democracy as a necessary condition. This means that a constitutional state can take multiple forms of government.
Democratic constitutional state in the Netherlands
The Netherlands can be characterized as a democratic constitutional state . The Netherlands holds parliamentary elections every four years that determine what the parliamentary representation will look like. This is a form of indirect democracy. In addition, the Netherlands meets the conditions for a constitutional state, because the Netherlands has an impartial and independent judiciary, a guarantee of fundamental rights, an application of the principle of legality, and a distribution of power among parliament, the government and the judicial authorities (the courts, the courts and the Supreme Court).
read more
- Ministerial responsibility: meaning & scope
- What are the general principles of good governance?
- Democracy: its different forms and views
- Principle of legality: no authority without law
- What is the difference between a constitution and a constitution?