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Transcript of Thomas Fleiner Class No. 1 Introduction Belgrade Law Faculty Master Course on Comparative...
Thomas Fleiner Class No. 1Introduction
Belgrade Law FacultyMaster Course on
Comparative Constitutional Law
Prof. Thomas FleinerOctober 31 to November 17
2011
Value of Comparative Constitutional Law
How did others designinstitutions to deal with the particular needs of their societiesideas about institutional design for emerging statesmodels for adoption and adaptationExemples: South Africa, India, EthiopiaMerging of constitutional systems, impactof international; European law
Evaluation of constitutional systems: accountability, democracy, transparency, human rights, minority protection, separationOf powers
Goals of this course:
Challenges and limits of comparative legal science;different methods of comparativeconstitutional law;enable students to compare and to evaluate different constitutionalsystems;few chosen issues of comparativeconstitutional Law
Methods and outline of the course:
Method: Introduction into different issues and discussion on some of those issues based also on presentations by the students
Issues to be dealt with:Introduction: problems and methods of compara-tive law, Legitimacy, Nation Building, Rule of Law governmental Systems, Systems of common law and continental Law, judicial review and the constitutional challenge of diversity
This course will not deal with: comparing legisla-tion or administrative law etc.
Workshops: Three issues: value of comparative Law, constitutional review, and Lisbon treaty
Why Comparative Law?
- To understand its proper System(Serbian Governmental System)
- To get new ideas(Environmental Protection)
- To evaluate other SystemsVenice Commission
- to implement universal constitutional values
- to cooperate Internationally(Common Law – Continental law)
- Ordre public- How to diminish corruption
Challenge of Comparative Law
We read legislative texts or judicial decisions We should understand different legal notions and concepts the political and legal context Implementation of legislation, legal culture History, Economy,Social situation, understanding by the Peoples, philosophical, ethical values
Methods
1.Description and explanation of an other SystemPoint of view, e.g. judiciary: positive law, legal Concepts and history, culture, contexts: history,
economy, culture, foreign influence,
2. Juxtaposition of different institutions andprocedures e.g. systems of government, legislative procedures, know and understand? reasons for different solutions
3. Develop criteria to evaluate systems
4. Evaluate different systems, institutions orProcedures with regard to universal criteria
Different goals and aims
1. Evaluate the chances of a constitutional caseWith regard to access to justice, argumentation,Independence of judiciary, power of the judiciaryCriteria: Rule of Law2. Get ideas for other or better legal solutionse.g. access to justice environmental protection
3. Know the impact of international treaties onDifferent legal systems
4. Copy, adapt, improve different legal solutions
5. Evaluate systems for cooperation, credits etc.
6. Improve legal reasoning
Different bodies to useComparative constitutional law
For different reasons:
Legislatures
Courts
Scholars: to understand the proper systemTo understand other systems
International community: to evaluate otherConstitutions, under universal principals
Constitution makers
Executive - Administration
Constitution makersExamples
American Constitution: Two HousesPresidencySwitzerland: American SenateInternational TreatiesEastern Europe: German, French SystemConstitutional Courts, Swiss Cantons?
Problems:
History and Political Culture
Fragmentation of the Country e.g. Island – Switzerland
Constitution making South Africa
Economic Situation?
Legislatures
Examples:
Environmental ProtectionChoice of System
Civil Law
Decentralization autonomy of Local authorities
Problems:
Judicial system and system of implementationLegal Culture
What to compare?
- Different constitutional systems
- Different institutions
- Different basic legal principles: naturalJustice, due process, proportionality, Legality etc.
- Different legal reasoning
- Different procedures
- Different legal solutions
- Different interpretation of e.g. human Rights: freedom of speech, religion etc.
Institutions are the means through which government is deliveredConsider: Institutions of democratic constitutional Government: efficiency, legitimacy for whom?
Governmental Institutions
Interdependence of Institutions
Function, election, composition procedure
Accountability, transparency
Comparative Constitutional lawby the courts
Interpreting fundamental rights:(1)When interpreting individual rights should a court, promote universal values (free speech,Freedom of religion?; Should it consider international law?Should it consider foreign law and foreign courtinterpretations?
Decon-centrationadministra-tive Decision OrderRevoca-tion
Decentrali-SationLegislationAutonomyResponsi-BilityFinance
FederationConstitu-TionConstitu-tion ma-kingLegitimacy
Confede-RationTreatyLegitimacyInternatio-nal court
FederalismUnitary state - Confederation
Decentralization
Variations between federations
• Degrees of diversity• State of the pre-federal state(s)• Legal system
– Legal philosophy– Doctrine
• History• Other?
Institutional building blocks: overview
• A division of powers• Two (+) spheres of government• A division of resources• Constituent representation in central
institutions• (some) constituent autonomy with own
institutions• Prescribed common standards in relation to,
for example, governance, rights, economic union
• Entrenched Constitution, effectively enforced
Two spheres of government
• Representing the people, grouped in different ways, allowing the emergence of different majorities & minorities
• How many units?– Not too many, not too few…
• Borders. – How are they drawn & changed?– According to what criteria?
• Symmetry or asymmetry
Division of powers• What powers?
– Potentially, legislative, executive, judicial
• How?– Horizontal/vertical/mixed– Exclusive/concurrent/shared– Provision for co-operation?
• Who gets what?• NB:implications of the answers to these
questions for the institutional structure of all governments
Division of resources• This includes taxation, other revenues,
loan funds, grants• Mechanism likely to be influenced by the
approach to the division of powers– Horizontal/vertical– Exclusive/concurrent
• Fiscal Equalisation– Bases– Process– Constitutional mandate?
Challenges
Each federation has a set of interlocking institutions with a structural logic of their own, through which the values of both federalism and constitutional government are metThe operation of these institutions may be affected by the wider contextBoth logic and context need to be appre-ciated to understand another system (and to borrow from it)
Some Examples of Prototypes
United StatesPresidential
System2nd chamberCompetitiveFederalismGoal of FJudiciary
GermanyParliamentary
System2nd chamber
ExecutiveFederalismGoal of FJudiciary
SwitzerlandDirectorial
System2nd chamber
ExecutiveFederalismGoal of FJudiciary
Some examples of adaption
AustraliaAmerican
System withParliamentaryGovernment
And one Common Law
SwitzerlandAmerican
SenateFrench legal
SystemDirect
Democracy
EuropeanUnion
GermanSecond ChamberDirectorial
System