Thomas Fleiner Class No. 6

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Presentation transcript:

Thomas Fleiner Class No. 6 Belgrade Law Faculty Master Course on Comparative Constitutional Law Prof. Thomas Fleiner October 31 to November 16 2011 Thomas Fleiner Class No. 6 Common Law Civil Law

The Basic differences of the two systems: The power of the Court, Remedies and Access to justice and different function of the positive law Civil law: The one who has right should win the case Common Law: The one who wins the case has right

Common Law Different Perception of the state authority of the stat and of the Sovereignty of the constitution Limited State, Function as Moderator State as provider of Justice Different perception of administration Civil Law Constitution empowers does not only limit Basic idea of hierarchy, truth etc. Different perception of procedure Different perception of access to justice

Constitutionalism Common Law: John Locke To limit the power of The government Civil Law: Thomas Hobbes: Absolute Power of the Leviathan: Constitution: Empower government And Limit government

Constituting a State or Constituting a government Legitimacy of the state / or Government Rule of Law versus Rule of the Laws (legis- Lature) Federalism: Limit federal power Accommodate Diversity

Basic Differences Hierarchy of Norms Napoleonic Public Law Concept Notion of Authority Due process / Natural Justice Prerogative writs Habeas Corpus Mandamus Writ of Certiorari Injunction The continental legal system: legislature Administration Administrative Tribunals Administrative Acts European Court on Human Rights

Comparing constitutions of the different Legal Systems: Function of the Constitution with regard to Powers of the separate branches Function of the Judiciary Function of the legislature Function of the executive Nation Concept and legitimacy