1. 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

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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