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
Revolution
of legislature
and its monopoliy for
Law Making
Fabrication
of
Public law
Napoleon
Subjugation
Of the
Judiciary to
The Legislature
Revolution of
Legislation
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.
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
Fabrication of
Public Law
Reason:
Changing
society
Priority of
politics
Aristocratic
Judiciary
Instrument:
Fabrication
of
Public
and
administrative
law
Consequence:
Development
of
administrative
Law
Judiciary
With limited
Powers of the
Courts
Consequences
Limited
Administrative
Judiciary
No constitutional
Review
By legislature
France
No constitutional
Review by court
decision
Germany
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
Constitutional Review
After World War II
By Constitution Makers
General Constitutional
Review:
German model
History Roots:
Reichsgericht,
Weimar, Austria
Specialized Court with
Large and general
Competences individual
Access individual
Access
Limited Constitutional
Review
French model
Constitutional Council
How to overcome the
Volonté Générale
1958-71: Protection
Executif
1971 Preamble and
Human Rights Opposition
2010 Protection Citizens
European Courts
European Court
of
Human Rights
Development
Of European Human
Rights Law
European Court
of
Justice
Motor of the European
Integration