Common Law and Continental Civil Law Two Legal
- Slides: 11
Common Law and Continental / Civil Law: Two Legal Systems Thomas Fleiner
Why is the knowledge of the main differences of the two systems necessary in the development and cooperation policy? To what extend is the dialogue on the rule of law s different : n according to the tio countries s uethe family of belonging. Qto y e K or civil law system? common What are the consequences for Switzerland in particular for the SDC with regard to treaties concluded either with civil law or common law countries?
Introduction History Common Law England US Continental Law French Revolution Development Common Law: Family Civil Law Sovereignty Legislature
Notion of the State Civil Law Common Law Collectivity Big Bang Leviathan Rights Individualism Pursuit of Happiness Rights
Concept of the Constitution Civil Law Common Law Parliament: Volonté Générale Stat as Instrument to Change society Constitutions limit and empower Governments Judge is also law-maker State as moderator Constitutions limit Governments Law and natural Justice
Locke and American Constitutionalism Declaration of Independance Inalienable Rights of the People d ly i d England violates inalienable n ! Rights o s n ut ts o i t s b en u l e mthe people o Right of Resistance of t n v r a Re St ove n w g a e sovereignty People‘s ne ing p o te st r Eu rea exi c toe set up a new government Right t g No han C A government of Consent
Rule of Law and Federalism Rule Of Law Legitimacy of Courts Procedural Substantive law US Judiciary Legislature Federalism Rule of Law Rule of the Law Two parallel „states“ Fed. Units Implement Europe Legislature
Basic Principles of Common law No Hierarchy Of norms Parallel legal systems Dualistic system A „right“ needs a judgment Stare Decises Legitimacy Of Judiciary Democracy Jury Natural Justice – Due Process Adversary system
Basic Principles of Civil law Hierarchy Of Authority „Stufenordung“ Justice Administration Inquisitory system Public law immunity Substantive law Indepen dance Of Judiciary? Ministre Juge Access to court Justice – Volonté Générale
Access to Justice against failures of authority Civil Law Common Law Administrative act Enforceable if n. compl. Actions or Failures Complaint Injunction Prohibition Habeas Corpus Mandamus Certiorari Administration Complaint Administrat. Law Court Limited powers Prerogative writs Common law writs Traditional Courts All ordinary powers
Civil Law Common Law Conclusions State - Authority Substantive Law v. Procedure Access to Court Legislature Politics Parties Justice Judge Jury Precedents Principles Adversary System
