Judge made Federalism: Different approaches in Common Law and Civil Law Federal Systems Thomas Fleiner Centres of Federalism Villa Vigoni October 2005

To what extend is the dialogue With regard to Federalism on the rule of law different according to the countries belonging to the family of common or civil law system? What are the consequences for Analyzes of Federalism? Key Questions:

Introduction History CommonLawEnglandUS ContinentalLawFrenchRevolution Development CommonLaw:Family CivilLawSovereign- ty Legis- lature

Notion of the State Civil Law Common Law Collective Big Bang LeviathanRights Private Law Public Law Individualism Pursuit of HappinessRights Classical (common) Law is Judge made Law

Concept of the Constitution Civil Law Parliament: Volonté Générale Stat as Instrument to Change society Constitutions limit and empower Governments Common Law Judge is also law-maker State as moderator Constitutions limit Governments Law and natural Justice

Rule of Law and Federalism RuleOfLaw Rule of Law Rule of the Law Law Legitimacy of Courts ProceduralSubstantivelaw Federalism US Europe Two paral- lel „states“ JudiciaryLegislature Fed.UnitsImplement Legislature

Basic Principles of Common law NoHierarchyOfnorms Parallel legal systems Dualistic system A „right“ needs a judgment LegitimacyOfJudiciary Stare Decises Democracy Jury Natural Justice – Due Process Adversary system

Basic Principles of Civil law HierarchyOfAuthority „Stufenordung“ Justice Administration Substantive law Inquisitory system Ministre Juge Access to court Justice – Volonté Générale Public law immunity IndependanceOfJudiciary?

Access to Justice against failures of authority Civil Law Common Law Actions or Failures Prerogative writs Common law writs InjunctionProhibition Habeas Corpus MandamusCertiorari Traditional Courts Administrative act Complaint Administration Administrat. Law Court Limited powers All ordinary powers Enforceable if n. compl. Complaint No Contempt of Court! Contempt of Court!

Conclusions State - Authority Civil Law Common Law Substantive Law v. Procedure Access to Court LegislaturePoliticsPartiesJustice Judge Jury PrecedentsPrinciples Adversary System