Judge made Federalism: Different approaches in Common Law and Civil Law Federal Systems

1. Judge made Federalism: Different approaches in Common Law and Civil Law Federal Systems Thomas Fleiner Centres of Federalism Villa Vigoni October 2005

2. Key Questions: To what extend is the dialogue With regard to Federalism on the rule of law different according to the countries belonging to the family of common or civil law system? What are the consequences for Analyzes of Federalism?

3. Introduction History Development Common Law England US Continental Law French Revolution Common Law: Family Civil Law Sovereign- ty Legis- lature

4. Notion of the State Civil Law Common Law Individualism Pursuit of Happiness Rights Classical (common) Law is Judge made Law Collective Big Bang Leviathan Rights Private Law Public Law

5. 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

6. Rule of Law and Federalism Two paral- lel „states“ US Rule of Law Rule of the Law Judiciary Legislature Rule Of Law Legitimacy of Courts Federalism Fed.Units Implement Procedural Substantive law Europe Legislature

7. Basic Principles of Common law Parallel legal systems No Hierarchy Of norms Dualistic system A „right“ needs a judgment Stare Decises Legitimacy Of Judiciary Democracy Jury Natural Justice – Due Process Adversary system

8. Basic Principles of Civil law „Stufenordung“ Hierarchy Of Authority Justice Administration Inquisitory system Public law immunity Substantive law Indepen dance Of Judiciary? Ministre Juge Access to court Justice – Volonté Générale

9. Access to Justice against failures of authority Civil Law Common Law Actions or Failures Administrative act Enforceable if n. compl. Prerogative writs Common law writs Complaint Injunction Prohibition Habeas Corpus Mandamus Certiorari No Contempt of Court! Contempt of Court! Administration Complaint Administrat. Law Court Traditional Courts Limited powers All ordinary powers

10. Conclusions Common Law Civil Law State - Authority Substantive Law v. Procedure Access to Court Judge Jury Precedents Principles Adversary System Legislature Politics Parties Justice