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Poder Judicial de la Federacion Estados Unidos Mexicanos. Different systems and concepts of constitutional review within the Civil Law tradition in Europe. Video-Conference of Prof. Thomas Fleiner December 2nd/3rd Zacatecas Mexico. French Revolution. Subjugation Of the

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Presentation Transcript
slide1

Poder Judicial de la

Federacion

Estados Unidos Mexicanos

Different systems and

concepts of constitutional

review within the Civil

Law tradition in Europe

Video-Conference

of

Prof. Thomas Fleiner

December 2nd/3rd

Zacatecas

Mexico

slide2

French Revolution

Subjugation

Of the

Judiciary to

The Legisla-

ture

Revolution

of legislature

and its mono-

poliy for

Law Making

Fabrication

of

Public law

Napoleon

slide3

Revolution of

Legislation

slide4

Declaration of Man

and

the Citizens

August 26 1789

Article 6

6.  Law is the expression of the general will.

Every citizen has a right to participate personally,

or through his representative, in its foundation.

It must be the same for all, whether it protects or

punishes. All citizens, being equal in the eyes of the

law, are equally eligible to all dignities and to all

public positions and occupations, according to their

abilities, and without distinction except that of their

virtues and talents.

slide5

Consequences

Legislation is

The expression

of the

General Will

(Volonté Générale)

Adjudication

Is the application

of the

General Will

of the

Legislature

Actually four different options in

Europe

British Influence (also Human Rights act)

German Influence

French influence

No constitutional review of statutes but

EHRC

slide6

Fabrication of

Public Law

Reason:

Instrument:

Consequence:

Changing

society

Priority of

politics

Aristocratic

Judiciary

Development

of

administrative

Law

Judiciary

With limited

Powers of the

Courts

Fabrication

of

Public

and

administrative

law

slide7

Consequences

Limited

Administrative

Judiciary

No constitutional

Review

By legislature

No constitutional

Review by court

decision

France

Germany

slide8

Development of

Constitutional Review

Contradictory

Concepts

Theory of

Hierarchy of norms

Kelsen

Volonté Générale

General Will

Rousseau

Influence of the

European Convention

on

Human Rights

slide9

Constitutional Review

After World War II

By Constitution Makers

Limited Constitutional

Review

French model

General Constitutional

Review:

German model

Constitutional Council

How to overcome the

Volonté Générale

History Roots:

Reichsgericht,

Weimar, Austria

1958-71: Protection

Executif

Specialized Court with

Large and general

Competences individual

Access individual

Access

1971 Preamble and

Human Rights Opposi-

tion

2010 Protection Citi-

zens

slide10

European Courts

European Court

of

Justice

European Court

of

Human Rights

Development

Of European Human

Rights Law

Motor of the European

Integration