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

Comparing ConstitutionalLaw by the judiciary

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?

Special Case ofComparative Federalism

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

Concluding Remarks

Comparative Law requires a clear notionOf the point of Reference

This point can be one of the two constitutions

Tertium comparationis: Principles of GoodGovernance e.g. accountability, legitimacy,Transparancy, corruption