Comparative Law Flashcards
French constitutional review
- 9 members for 9 yeas
- Ex ante review + saisine parlementaire
- bloc de constitutionalité
- Reform of 2008: Ex post review (QPC)
Common law system
- Historical development = GB
- Mode of legal thinking = court-based, no central law
- Sources of the law= case law, precedents
French form of government
- semi presidential
- Composition = PR / Appoint PM and ministers / presides the Council of ministers / referendum for specific matters
- Confidence between PM-Assembly
- problem of cohabitation
- Reform of 2008 : strenghening the legislature
What are the legal families ?
- legal tradition VS legal system
- Classification of David (1978): Romano-Germanic (civil law) / Common law / socialist law / Religious law
Civil law
- Originated in Roman law. Napoleonic code and German civil code
- Codification and strong centralized power
-Sources of law= Codified rules, scolarship and judge as ‘bouche de la loi’
Islamic legal family
Based on the Sharia which is a body of religious law, composed notably of the Koran and the Sunnah (traditions of the prophet)
Descriptive and normative constitution
-Descriptive= set of rules that organize the community. Not necessarily a State.
-Normative = + specific contents are required, pol community is expected to do something
–> normative is the modern conception of constitution. Based on 2 conditions; nation-state and constitutionalism
–>Main elements are separation of powers and protection of rights
Modern notion of constitution (normative)
- 2 conditions emerged: nation -state (specific way to organize the community) and constitutionalism (legal dotrine that puts forward that legal power can also be constraint) -> result of a shift of legitimization from monarch to law
- Main elements = separation of power and protection of rights
Constituent and constitutive power
-constituent = creation of the constitution from zero. Popular sovereignty.
-Constitutive= power exercised by bodies after the constitution is established. Limited by institution
Rigid constitution
- Hierarchy of Kelsen
- Practical terms = special procedure to amend the constitution / Constitutional review of legislation
-debate Madison vs Jefferson
centralized and decentralized constitutional review of legislation
-US: decentralized (ordinary courts) / concrete and ‘a posteriori’ judgements / retroactive effects / ‘Inter partes’ effects of the decision (only for the 2 parties) even if there is still stare decisis
- Europe : centralized (special ad ho tribunal) / Abstract judgment / No retroactive effect / ‘erga omnes’ effects (to all parties)
Constitutional review of legislation in Europe
- Centralization + source of legitimacy is the democratic process
- Is there a european model of judicial review? + case of UK
-Access to constitutional courts = 1. Region / State 2. Parliamentary minority (saisine parlementaire) 3. Citizen (Germany, Spain) 4. Judges (ordinary judges like in Italy) - Incidental proceedings = mix of US + Kelsian
- Example of France and Italy
- European model in crisis?
Constitutional review =proportionality and balancing
- Different constitutional interpretations
- Timing and effects of constitutiona judgments (ex tunc, ex nunc, postponed)
- Strict proportionality (competing interest into consideration)
- Strict scrutiny test (legitimate objective, rational connection, necessity, proportional)
Rule of law
- 2 concepts of rule of law (exercise power and restrict arbitrary power + social justice)
-Bingham’s parameters to rule of law (6) - checklist method = venice commission
- CJEU and Hungary, Poland
Social rights
- origins : industrialization, more rights demanded, shift in the State attitude (legitimization, secularization), role of mass parties and trade unions
- short -> long constitution. Constitution as an instrument of integration
- mechanisms of codification = in the preambule / open-ended clauses / specification of rights –> BUT if not specified does not mean it’s not protected!
