Legal families and Constitutional law Class 2 NAGY, Csongor István

Legal families Western legal families: - civil law: continental legal systems - common law: Anglo-Saxon legal systems

Civil law History - Roman law - Enlightenment Features: - written law - constitution at the top of the system - theoretical - the judge is the ‘mouth’ of the statute - judges have not inherent discretion, they are just bureaucrats of the law

Hierarchy of legal sources Theory of one good answer! Constitution Statutes (Acts of the Parliament) Government regulations Ministerial regulations Ordinances

Common law History: - middle ages, England - less influence of Roman law Features: - precedents (stare decisis) - the judge’s inherent discretional power - contempt power of the court - procedural character - US: jury trial is a constitutional right

How do precedents work? The same decision in the (very) same case (factual situation). Holding: it is a battery if a man attacks you on the street after 10 pm with a gun. It is not covered by the above holding (case of first impression): if it happens in the morning, if the man uses a knife etc.

Questions dealt with by constitutional law Mission of the constitution: limiting the government. –Fundamental rights and freedoms (e.g. human dignity, equality, freedom of expresion, freedom of religion, right to a fair trial/due process) –Structure and operation of the state

States Democratic v totalitarian states Democratic states: republics and constitutional monarchies - democratic process - rule of law (Rechtsstaatprinzip) - fundamental rights and freedoms

Separation of powers NOT division of powers Old theory: John Locke, Montesquieu Three branches of power: - legislative (to proscribe), - executive (to carry out) and - judiciary (to interpret)

Separation of powers Power Legislative: power to prescribe Executive: power to carry out Judiciary: power to interpret

Forms of government (1): parliamentarian systems E.g. Germany, Hungary, Italy, UK Government elected, removed by and responsible to the parliament Power is concentrated in the hand of the legislative Head of state has only a symbolic role

Parliamentary systems Executive Government Legislative Parliament Judiciary Courts The people

Forms of government (1): presidential systems E.g. USA; nevertheless, some states are semi-presidential: e.g. France, Romania. Executive power exercised by the president The president plays a central role President responsible to the people

Presidential systems Executive President Legislative Parliament Judiciary Courts The people

The legislative Unicameral v bicameral systems Elected by the people Passes laws Adopts and controlling the budget Elects certain state officials

Executive As said previously: parliamentarian v presidential systems Two levels: central and local administration Central administration: government, ministries, agencies (administrative authorities) Local administration: mayor and city councils (local assembly)

Courts Right of appeal: - Ordinary appeal -Extraordinary appeal Hungary: Local Court → County Court → Regional Court → Supreme Court USA (federal): District Court → Circuit Court (court of appeals) → Supreme Court (writ of certiorari)