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Thomas Fleiner Class No. 11 Common Law Civil Law - PowerPoint PPT Presentation


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Belgrade Law Faculty Master Course on Comparative Constitutional Review Prof. Lidija Basta Fleiner Prof. Thomas Fleiner November 23 to December 12 2009. Thomas Fleiner Class No. 11 Common Law Civil Law . The Basic differences of the two systems: The power of the Court,

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Thomas Fleiner Class No. 11 Common Law Civil Law


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slide1

Belgrade Law Faculty

Master Course on

Comparative

Constitutional Review

Prof. Lidija Basta Fleiner

Prof. Thomas Fleiner

November 23 to December 12

2009

Thomas Fleiner Class No. 11

Common Law

Civil Law

slide2

The Basic differences of the two

  • systems:
    • The power of the Court,
    • Remedies and Access to justice and
    • different function of the positive law
  • Civil law:
  • The one who has right should win the case
  • Common Law:
  • The one who wins the case has right
slide3

Common Law

    • Different Perception of the state authority
    • of the stat and of the
    • Sovereignty of the constitution
    • Limited State, Function as Moderator
    • State as provider of Justice
    • Different perception of administration
  • Civil Law
    • Constitution empowers does not only limit
    • Basic idea of hierarchy, truth etc.
    • Different perception of procedure
    • Different perception of access to justice
slide4

Constitutionalism

Common Law:

John Locke

To limit the power of

The government

Civil Law:

Thomas Hobbes:

Absolute Power of the

Leviathan:

Constitution:

Empower government

And Limit government

slide5

Constituting a State or

Constituting a government

Legitimacy of the state / or Government

Rule of Law versus Rule of the Laws (legis-

Lature)

Federalism: Limit federal power

Accommodate Diversity

slide6

Basic Differences

  • Hierarchy of Norms
  • Napoleonic Public Law Concept
  • Notion of Authority
  • Due process / Natural Justice
    • Prerogative writs
        • Habeas Corpus
        • Mandamus
        • Writ of Certiorari
        • Injunction
    • The continental legal system:
        • legislature
        • Administration
        • Administrative Tribunals
        • Administrative Acts
  • European Court on Human Rights
comparing constitutions of the different legal systems
Comparing constitutions of thedifferent Legal Systems:

Function of the Constitution with regard to

Powers of the separate branches

Function of the Judiciary

Function of the legislature

Function of the executive

Nation Concept and legitimacy