Prof. Thomas FleinerComparative

Constitutional Las

Intensive CourseSpring 2008

Goals of this course:

Challenges and limits of compara-tive legal science;different methods of comparativeconstitutional law;enable students to compare and Evaluate different constitutionalsystems;few chosen issues of comparativeconstitutional Law

Methods and outline of the course:

Method: Introduction into four differentIssues and in the following course dis-

cussion on those issues based on presentations by the students

Issues:Introduction: Problems and Methods of Comparative lawLegitimacyPrinciples of Good GovernanceGovernmental Systems

Why Comparative Law?

- To understand its proper System(Swiss Governmental System)

- To get new Ideas(Environmental Protection)

- To evaluate other SytemsVenice Commission

- To cooperate Internationally(Common Law – Continental law)

Challenge of Comparative Law

We read texts of legislation or textsOf judicial decisions But we should know the context:Implementation, History, Economy,Social situation, understanding by the Peoples, philsophical, ethical values

Methods

1.Description and explanation of an other SystemPoint of view, e.g. judiciary

2. Evaluate the chances of a constitutional caseWith regard to access to justice, argumentation,Independence of judiciary, power of the judiciaryCriteria: Rule of Law

3. Understand the reasons for different develop-ments with regard to history, legal culture, economy, social factors

4. Make an over all analyses of the system withRegard to fundamental criteria’s of good gover-nance

Comparing ConstitutionalLaw by the judiciary

Comparative Constitutional lawby the courts

South African Constitution:Section 39 Interpretation of Bill of Rights (1)When interpreting the Bill of Rights, a court, tribunal or forum - (a)must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law. (2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

Questions with regard toSouth Africa for the Swiss

Judiciary:

1.Would you favor such a provision withinour Swiss constitution? Why yes, why no?

2. Why should judges take into account foreign law and foreign court decisions?

3. Is our legal profession prepared to takeforeign law into account?

4. Scalia - Breyer on foreign law :

Scalia: Distinction between ConstitutionMaking and Constitution interpreting

Now, my theory of what I do when I interpret the American Constitution is I try to understand what it meant, what was understood by the society to mean when it was adopted. And I don't think it changes since then.

Hard cases: Death penaltyTax evasion

Different bodies to useComparative constitutional law

For different reasons:

Legislatures, constitution makers: to getNew ideas

Judges: to find justice

Scholars: to understand the proper systemTo understand other systems

International community: to evaluate otherConstitutions, under universal principals

Special Case ofComparative Federalism

Decon-centrationadministra-tive Decision OrderRevoca-tion

Decentrali-SationLegislationAutonomyResponsi-BilityFinance

FederationConstitu-TionConstitu-tion ma-kingLegitimacy

Confede-RationTreatyLegitimacyInternatio-nal court

FederalismUnitary state - Confederation

Decentralization

Institutions are the means through which federal government is deliveredConsider two categories:

Specifically federal institutionsInstitutions of democratic constitutional government

These categories are interdependentFederalism affects democratic institutions and the choice of democratic institutions affects federalism

Institutions

Value of Comparative Federalism

How did others designinstitutions to deal with the particular needs of their societiesideas about institutional design for emerging federationsmodels for adoption and adaptationExemples: South Africa

India Ethiopia

Variations between federations

• Degrees of diversity• State of the pre-federal state(s)• Legal system

– Legal philosophy– Doctrine

• History• Other?

Institutional building blocks: overview

• A division of powers• Two (+) spheres of government• A division of resources• Constituent representation in central

institutions• (some) constituent autonomy with own

institutions• Prescribed common standards in relation to,

for example, governance, rights, economic union

• Entrenched Constitution, effectively enforced

Two spheres of government

• Representing the people, grouped in different ways, allowing the emergence of different majorities & minorities

• How many units?– Not too many, not too few…

• Borders. – How are they drawn & changed?– According to what criteria?

• Symmetry or asymmetry

Division of powers• What powers?

– Potentially, legislative, executive, judicial

• How?– Horizontal/vertical/mixed– Exclusive/concurrent/shared– Provision for co-operation?

• Who gets what?• NB:implications of the answers to these

questions for the institutional structure of all governments

Division of resources• This includes taxation, other revenues,

loan funds, grants• Mechanism likely to be influenced by the

approach to the division of powers– Horizontal/vertical– Exclusive/concurrent

• Fiscal Equalisation– Bases– Process– Constitutional mandate?

Challenges

Each federation has a set of interlocking institutions with a structural logic of their own, through which the values of both federalism and constitutional government are metThe operation of these institutions may be affected by the wider contextBoth logic and context need to be appre-ciated to understand another system (and to borrow from it)

Some Examples of Prototypes

United StatesPresidential

System2nd chamberCompetitiveFederalismGoal of FJudiciary

GermanyParliamentary

System2nd chamber

ExecutiveFederalismGoal of FJudiciary

SwitzerlandDirectorial

System2nd chamber

ExecutiveFederalismGoal of FJudiciary

Some examples of adaption

AustraliaAmerican

System withParliamentaryGovernment

And one Common Law

SwitzerlandAmerican

SenateFrench legal

SystemDirect

Democracy

EuropeanUnion

GermanSecond ChamberDirectorial

System

Concluding Remarks

Comparative Law requires a clear notionOf the point of Reference

This point can be one of the two constitutionscompared

Tertium comparationis: Principles of GoodGovernance