Prof. Thomas Fleiner
Comparative
Constitutional
Las
Intensive Course
Spring 2008

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

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

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)

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

Methods
1.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 developments 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 governance

Comparing Constitutional
Law by the judiciary

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

Questions with regard to
South Africa for the Swiss
Judiciary:
1.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 :

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

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

Special Case of
Comparative Federalism

Federalism
Unitary state - Confederation
Decentralization
Deconcentration administrative
Decision
Order
Revocation
Decentrali-
Sation
Legislation
Autonomy
Responsi-
Bility
Finance
Federation
Constitu-
Tion
Constitution making
Legitimacy
Confede-
Ration
Treaty
Legitimacy
International court

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

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

– Legal philosophy
– Doctrine

• 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

• 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

• 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

• 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?

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 appreciated to understand another system
(and to borrow from it)

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

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

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