Prof. Thomas Fleiner Comparative Constitutional Las Intensive Course Spring 2008

1. Prof. Thomas Fleiner Comparative Constitutional Las Intensive Course Spring 2008

2. Goals of this course: Challenges and limits of compara- tive legal science; different methods of comparative constitutional law; enable students to compare and Evaluate different constitutional systems; few chosen issues of comparative constitutional Law

3. Methods and outline of the course: Method: Introduction into four different Issues and in the following course dis- cussion on those issues based on presentations by the students Issues:Introduction: Problems and Methods of Comparative law Legitimacy Principles of Good Governance Governmental Systems

4. Why Comparative Law? - To understand its proper System (Swiss Governmental System) - To get new Ideas (Environmental Protection) - To evaluate other Sytems Venice Commission - To cooperate Internationally (Common Law – Continental law)

5. Challenge of Comparative Law We read texts of legislation or texts Of judicial decisions But we should know the context: Implementation, History, Economy, Social situation, understanding by the Peoples, philsophical, ethical values

6. Methods • Description and explanation of an other System • Point of view, e.g. judiciary 2. 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 3. Understand the reasons for different develop- ments with regard to history, legal culture, eco nomy, social factors 4. Make an over all analyses of the system with Regard to fundamental criteria’s of good gover- nance

7. Comparing Constitutional Law by the judiciary

8. Comparative Constitutional law by the courts • South African Constitution: • Section 39 Interpretation of Bill of Rights • When interpreting the Bill of Rights, a court, • tribunal or forum - • 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.

9. Questions with regard to South Africa for the Swiss Judiciary: • Would you favor such a provision within • our 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 take foreign law into account? 4. Scalia - Breyer on foreign law :

10. Scalia: Distinction between Constitution Making 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 penalty Tax evasion

11. Different bodies to use Comparative constitutional law For different reasons: Legislatures, constitution makers: to get New ideas Judges: to find justice Scholars: to understand the proper system To understand other systems International community: to evaluate other Constitutions, under universal principals

12. Special Case of Comparative Federalism

13. Federalism Unitary state - Confederation Decentralization 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

14. Institutions • Institutions are the means through • which federal government is delivered • Consider two categories: • Specifically federal institutions • Institutions of democratic constitutional • government • These categories are interdependent • Federalism affects democratic • institutions and the choice of • democratic institutions affects federalism

15. Value of Comparative Federalism • How did others design • institutions to deal with the particular • needs of their societies • ideas about institutional • design for emerging federations • models for adoption and adaptation • Exemples: South Africa • India • Ethiopia

16. Variations between federations • Degrees of diversity • State of the pre-federal state(s) • Legal system • Legal philosophy • Doctrine • History • Other?

17. 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

18. 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

19. 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

20. 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?

21. 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)

22. 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

23. 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

24. Concluding Remarks Comparative Law requires a clear notion Of the point of Reference This point can be one of the two constitutions compared Tertium comparationis: Principles of Good Governance