Thomas Fleiner Class No. 11 Common Law Civil Law

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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

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The Basic contrasts of the two frameworks: The force of the Court, Remedies and Access to equity and distinctive capacity of the positive law Civil law: The person who has right ought to win the case Common Law: The person who wins the case has right

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Common Law Different Perception of the state power of the detail and of the Sovereignty of the constitution Limited State, Function as Moderator State as supplier of Justice Different impression of organization Civil Law Constitution engages does not just limit Basic thought of chain of command, truth and so forth. Distinctive view of method Different impression of access to equity

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Constitutionalism Common Law: John Locke To restrain the force of The administration Civil Law: Thomas Hobbes: Absolute Power of the Leviathan: Constitution: Empower government And Limit government

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Constituting a State or Constituting an administration Legitimacy of the state/or Government Rule of Law versus Rule of the Laws (legis-Lature) Federalism: Limit elected power Accommodate Diversity

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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 mainland lawful framework: legislature Administration Administrative Tribunals Administrative Acts European Court on Human Rights

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Comparing constitutions of the diverse Legal Systems: Function of the Constitution as to Powers of the different branches Function of the Judiciary Function of the lawmaking body Function of the official Nation Concept and authenticity