Comparative Legal System and Legal Pluralism- Chapter 2 by Knarick

7/28/2019 Comparative Legal System and Legal Pluralism- Chapter 2 by Knarick

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CHAPTER 2

LEGAL STRUCTURES IN CIVIL LAW NATIONS

1. Parliamentary Government

Most of the civil law nations have a parliamentary government. But its notalways like that. For example, England has a parliamentary government though it

is a common law country. Moreover some civil law nations (in Latin America)

have a presidential model. France has features of both.

Parliamentary government is the form of constitutional government in which theexecutive authority emerges from and is responsible to the democratically

elected legislative authority.

In the presidential government the members of the executive branch and thelegislature are elected independently of each other.

So as we have seen in the parliamentary government the legislature is supremeover the executive branch. The head of state must choose as prime minister the

leader of the majority party. The PM chooses the executive heads of government

departments the most important of whom constitute the cabinet.

The PM and the cabinet constitute the government. The government holds office as long as the majority of the legislature supports it.

The government regularly submits its program for parliamentary approval.

In case of a disapproval of the legislature of an important issue the governmenthas to resign or secure a new parliamentary majority by means of general

election. Technically the decision to dissolve parliament belongs to the head of

state. In practice the head of state exercises this power only on the advice of the

prime minister.

The parliamentary systems of different countries are not the same in all aspects.France is a good example. In 1958 constitution the powers of the head of state

were increased so that the power of the executive was on the same level with

the parliament.

The president could dissolve the parliament and since 1962 is chosen by directsuffrage. President may have a popular mandate independent of parliament.

All of this means that France has a hybrid system with features of bothpresidential and parliamentary types.


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The parliamentary system was the pattern for many countries in the 20 th century(for instance for Japan).

Some countries have a federal system (US and Germany) which makes their legalsystems more complex compared to unitary states (England and France). Note

that Germany is closer to unitary system than the States because federal law

organizes all state and federal courts into a single nationwide system.

2.Separation of Powers

This concept is different in Europe from what is in US. Historically in England andEurope it meant struggles of representative governments against the rule of

monarchs.

In France the doctrine of the separation of powers was against the rearguard rolethat judiciary played.

Separation of powers to America evokes the system ofchecks and balancesamong the three branches of government executive, legislative and judicial

each with its independent constitutional basis.

In Europe the separation of powers is more rigid inseparable from the notion oflegislative supremacy.

The doctrine in the extreme form has been thought to exclude the judicial powerto review the legality of legislative executive and administrative action. It has

also been invoked to deny the courts law-making function by interpreting of

legislative texts. However this has not prevented modern civil law systems from

moving toward various forms of judicial review.

This European version of the separation of powers had long-lasting effects on thestructures of the curt systems in most civil law countries. In France the mistrust

to judiciary seems to rule out the possibility of the judicial review of the legality

of administrative action or of adjudication of ordinary courts of disputes

between agencies of government. Thus a Council of State was created for dealing with these matters. A number of

nations (Italy and Belgium) followed this model. In for instance Austria and

Germany such disputes were handled by the judiciary BUT within a separate

system of administrative courts.

Thus these systems contain TWO separate sets of courts for administrative andprivate law matters. In America a single set of courts within each state hears

public and private law matters and even can review the legality of the actions of

the other branches of government.


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3. Constitutions

Two countries whose civil codes influenced the civil codes of other civil law countrieswere France and Germany.

The basic law for the Federal Republic of Germany emerged at the end of the SecondWorld War.

France constitution of the Fifth Republic was adopted in 1958 under the leadershipof the Charles de Gaulle and continues today.

Its important to notice that the constitutions of these countries make certain claimsthat limit the codes empowering constitutional courts to strike down laws even

those in the code as unconstitutional.

4. Judicial Review

o After the World War 2 there was a movement toward the establishment of someform of constitutional control over the governmental power.

o This was especially in those countries that adopted the constitutions containingguarantees of fundamental rights.

o The introduction of judicial review took different forms in different countries.o In France and England its existence is still denied while in Italy, Germany and US

the power to review legislation for conformity to the constitution is vigorously

exercised by the courts.

o There are countries in between that have admitted the practice but where thecourts were cautions in implementing it. Under the influence of the European

Court of Justice and European Court of Human Rights the practice of judicial

review has increased.

o As mentioned before in France the ordinary civil courts are nor permitted to viewlegality of administrative action this task being reserved to the administrative

tribunals within the executive branch.

o Then in 1958 the Constitutional Council was created which is authorized toreview legislation but only at the request of the executive or a specified

proportion of legislature only before the promulgation and only for a limited

purpose of indicating whether the laws are in conformity with the constitutional

division of powers between the executive and legislative branches.

o The council expanded its own authority in 1971 by claiming itself the power toreview the laws (upon proper petition and prior to their taking effect) for


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conformity with the Constitution generally including the unwritten fundamental

principles of the French republican tradition.

o So this rigid view of legislative supremacy is not so rigid anymore.o After World War 2 in Austria, Italy and Germany Constitutional Courts were

established. They are special separate institutions within the judiciary with their

own jurisdiction and judges.

o So the Constitutional Court can declare a statute unconstitutional. Moreover theGerman Constitutional Court also hears complaints filed by individuals aggrieved

by allegedly unconstitutional official actions!

o The decisions of this court are binding on other courts but not on theConstitutional Court itself.

5. Public Law Courts

Its necessary for every legal system to have some mechanism for resolving disputesconcerning which court system has jurisdiction over a particular case. In France a

Tribunal of Conflicts was created to decide whether a case falls within the

administrative or the ordinary jurisdiction. In Germany the courts have power to

determine their own jurisdiction and transfer cases over which they decline

jurisdiction.

It is important to notice that the French model has been more widely imitated thanthe German system of separate judicial jurisdictions.

The French experience was the principal mode available to other countries as theysearched foe mechanisms to control their rapidly growing public administrations.

As noted earlier the French doctrine of separation of powers seemed to require thatthe actions of administrative bodies and disputes among or involving them should

not be subject to control by the judiciary.

In the Napoleonic times the Council of State was responsible for this. It began as abody of advisors to the king and later developed into the central organ of

governmental administration.

The present Council of State is composed of professional public administratorswhose background and training is different from the judiciary.


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It is responsible for determining the legality of administrative measures. The Council of State functions as the highest appellate courts and also as the

court of first and last instance for certain types of cases such as where the

constitutional status of an administrative act is challenged. The constitutional review

by the Constitutional Council (not the same as the Council of State) extends only to

parliamentary legislation not to other governmental actions. It practicesjudicial

reviewof legislative acts and laws.

Under the 1958 constitution the legislature has power to legislate only inenumerated areas leaving and extensive residuary law-making power to the

executive. The Council of State has the power to review this executive legislation.

It has the exclusive power to review legality or constitutionality of the acts of

executive.

Of the countries that have followed the French model Belgium and Italy have donerather closely.

Historically in Germany the idea of the separation of powers was not understood torequire the administrative courts to be outside the judicial system. Rather they

constitute one of five principal separate court systems within the judiciary plus the

Federal Constitutional Court.

In contrast to US where a single federal Supreme Court stands at the apex of apyramid of all lower and intermediate federal courts, Germany has several judicial

pyramids each with its own Supreme Court.

The two main hierarchies are the ordinary (civil and criminal) courts (The federalcourt of Justice is the highest ordinary court) and the administrative courts (the

federal administrative court the highest). In addition there are labor courts, tax

courts and social security courts.

The highest court in each system is a federal court but the trial courts andintermediate appellate courts are state courts.

The constitutional law courts focus on judicial review and constitutionalinterpretation. The Federal Constitutional Court with its two chambers known as

Senates is the highest court dealing with the constitutional matters not only

exercising the power of judicial review but also hearing complaints about violations

of constitutional rights and deciding disputes of a constitutional nature among the

various go governmental organs and entities.
http://en.wikipedia.org/wiki/Judicial_reviewhttp://en.wikipedia.org/wiki/Judicial_reviewhttp://en.wikipedia.org/wiki/Judicial_reviewhttp://en.wikipedia.org/wiki/Judicial_reviewhttp://en.wikipedia.org/wiki/Judicial_reviewhttp://en.wikipedia.org/wiki/Judicial_review


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The main difference between the Federal Constitutional Court and the Federal Court isthat the Federal Constitutional Court may only be called if a constitutional matter

within a case is in question!!!

The German administrative courts have jurisdiction over public law disputes generallyexcept for constitutional issues and for those administrative matters which have been

assigned to the specialized tax and social security courts.

6. Ordinary courts

The ordinary courts which hear and decide the great range of civil and criminallitigation are the core of the judicial system.

In the post-codification era the main concerns of the ordinary courts became theinterpretation and application of the basic codes but today they deal with a great

body of law which is not found within the civil commercial and criminal codes.

As already mentioned in French system the ordinary law courts and theadministrative law courts are separate and independent hierarchies, the public law

system headed by the administrative Council of State while the private and criminal

law system is headed by the Court of Cassation.

The Tribunal of Conflicts stands between the two systems. At the first level ofordinary court jurisdiction several specialized courts coexist with the regular civil and

criminal trial courts.

For example disputes between employers and individual employees in the firstinstance are brought before one of the labor courts where the elected

representatives each from labor and management sit together.

These labor courts try to settle disputes first by conciliation. If the matter proceedsto adjudication and the judges become deadlocked a professional judge sits with the

panel.

The Court of Appeal handles appeals from most lower courts.Court of Cassation is the highest court of appeal. It is the court of final appeal for civil

and criminal matters.

It has jurisdiction over the ordinary courts of the entire country. As a judicial court, itdoes not hear cases involving claims against the government which generally fall

within the preview of administrative courts, for which the Council of State acts as thesupreme court of appeal.

Nor does the Court adjudicate constitutional issues; instead, constitutional review lies solely

with the Constitutional Council.

In German system there are several independent court systems each with its ownsupreme court.

The ordinary jurisdiction includes all the criminal and civil cases which are handledwithin the regular courts, and labor cases which are handled in a separate Federal

Labor Court system.

The legislation in 1970s made it possible for many types of cases to bedecided by a single judge.


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In the labor court system appeals from the lower courts are taken first to theLabor Court of the state where the lower court is located and finally to the Federal

Labor Court.

At the first and second level the judge acts in consultation with labor andmanagement representatives.

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Comparative Legal System and Legal Pluralism- Chapter 2 by Knarick