Thomas Fleiner Class No. 1 Introduction Belgrade Law Faculty Master Course on Comparative Constitutional Law Prof. Thomas Fleiner October 31 to November

Value of Comparative Constitutional Law How did others design institutions to deal with the particular needs of their societies ideas about institutional design for emerging states models for adoption and adaptation Exemples: South Africa, India, Ethiopia Merging of constitutional systems, impact of international; European law Evaluation of constitutional systems: accountability, democracy, transparency, human rights, minority protection, separation Of powers

Goals of this course: Challenges and limits of comparative legal science; different methods of comparative constitutional law; enable students to compare and to evaluate different constitutional systems; few chosen issues of comparative constitutional Law

Methods and outline of the course: Method: Introduction into different issues and discussion on some of those issues based also on presentations by the students Issues to be dealt with: Introduction: problems and methods of compara- tive law, Legitimacy, Nation Building, Rule of Law governmental Systems, Systems of common law and continental Law, judicial review and the constitutional challenge of diversity This course will not deal with: comparing legisla- tion or administrative law etc. Workshops: Three issues: value of comparative Law, constitutional review, and Lisbon treaty

Why Comparative Law? -To understand its proper System (Serbian Governmental System) -To get new ideas (Environmental Protection) -To evaluate other Systems Venice Commission -to implement universal constitutional values -to cooperate Internationally (Common Law – Continental law) -Ordre public -How to diminish corruption

Challenge of Comparative Law We read legislative texts or judicial decisions We should understand different legal notions and concepts the political and legal context Implementation of legislation, legal culture History, Economy, Social situation, understanding by the Peoples, philosophical, ethical values

Methods 1.Description and explanation of an other System Point of view, e.g. judiciary: positive law, legal Concepts and history, culture, contexts: history, economy, culture, foreign influence, 2. Juxtaposition of different institutions and procedures e.g. systems of government, legislative procedures, know and understand? reasons for different solutions 3. Develop criteria to evaluate systems 4. Evaluate different systems, institutions or Procedures with regard to universal criteria

Different goals and aims 1. Evaluate the chances of a constitutional case With regard to access to justice, argumentation, Independence of judiciary, power of the judiciary Criteria: Rule of Law 2. Get ideas for other or better legal solutions e.g. access to justice environmental protection 3. Know the impact of international treaties on Different legal systems 4. Copy, adapt, improve different legal solutions 5. Evaluate systems for cooperation, credits etc. 6. Improve legal reasoning

Different bodies to use Comparative constitutional law For different reasons: Legislatures Courts Scholars: to understand the proper system To understand other systems International community: to evaluate other Constitutions, under universal principals Constitution makers Executive - Administration

Constitution makers Examples American Constitution: Two Houses Presidency Switzerland: American Senate International Treaties Eastern Europe: German, French System Constitutional Courts, Swiss Cantons? Problems: History and Political Culture Fragmentation of the Country e.g. Island – Switzerland Constitution making South Africa Economic Situation?

Legislatures Examples: Environmental Protection Choice of System Civil Law Decentralization autonomy of Local authorities Problems: Judicial system and system of implementation Legal Culture

What to compare? - Different constitutional systems - Different institutions - Different basic legal principles: natural Justice, due process, proportionality, Legality etc. - Different legal reasoning - Different procedures - Different legal solutions - Different interpretation of e.g. human Rights: freedom of speech, religion etc.

Institutions are the means through which government is delivered Consider: Institutions of democratic constitutional Government: efficiency, legitimacy for whom? Governmental Institutions Interdependence of Institutions Function, election, composition procedure Accountability, transparency

Comparing Constitutional Law by the judiciary

Comparative Constitutional law by the courts Interpreting fundamental rights: (1)When interpreting individual rights should a court, promote universal values (free speech, Freedom of religion?; Should it consider international law? Should it consider foreign law and foreign court interpretations?

Special Case of Comparative Federalism

Decon- centration administra- tive Decision Order Revoca- tion Decentrali- Sation Legislation Autonomy Responsi- Bility Finance Federation Constitu- Tion Constitu- tion ma- king Legitimacy Confede- Ration Treaty Legitimacy Internatio- nal court Federalism Unitary state - Confederation Decentralization

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 met The operation of these institutions may be affected by the wider context Both logic and context need to be appre- ciated to understand another system (and to borrow from it)

Some Examples of Prototypes United States Presidential System 2nd chamber Competitive Federalism Goal of F Judiciary Germany Parliamentary System 2nd chamber Executive Federalism Goal of F Judiciary Switzerland Directorial System 2nd chamber Executive Federalism Goal of F Judiciary

Some examples of adaption Australia American System with Parliamentary Government And one Common Law Switzerland American Senate French legal System Direct Democracy European Union German Second Chamber Directorial System

Concluding Remarks Comparative Law requires a clear notion Of the point of Reference This point can be one of the two constitutions Tertium comparationis: Principles of Good Governance e.g. accountability, legitimacy, Transparancy, corruption