Comparative Law

Professor Pedro A. Malavet

Class Notes Part Eleven

(Last Updated: April 29, 2009)

Chapter 12: Constitutional Courts, Structure and Adjudication
A. Structure And Function Of Constitutional Courts: An Introduction, pp. 632-674.

Basic Question
“Does constitutionalism require judicial review of the constitutionality or lawfulness of the acts of governments and their officers?”
Put another way:
Should a constitution require some type of judicial review?

General vs. Specialized Review
The U.S. Supreme Court functions not only as a constitutional decisionmaker, but as an adjudicator of issues of statutory interpretation under federal law, and as the court of last resort for review of decisions in the lower federal courts. In acting thus as a “generalist” court, the U.S. Supreme Court differs from many European constitutional courts which specialize in the resolution of constitutional questions, often on referral from the ordinary court system. Pp. 279

Centralized v. Decentralized
The decentralized model (also known as the “American” or “diffuse” model involving “incidental” review) is represented by the organization of the United States’ judicial jurisdiction. P. 279
jurisdiction to engage in constitutional interpretation is not limited to a single court. It can be exercised by many courts, state and federal, and is seen as inherent to and an ordinary incident of the more general process of case adjudication.

Centralized v. Decentralized
The centralized model (also called the “Austrian” or “European” model) is characterized by the existence of a special court, with exclusive or close to exclusive jurisdiction over constitutional rulings. P. 280.
“Kelsenian constitutional review provides a means of defending constitutional law as higher law, while retaining the general prohibition on judicial review.”

Centralized v. Decentralized Hybrid
in which the ordinary courts may have power to refuse to apply an unconstitutional law, but only a single court has the power to declare a law invalid. P. 280-281
Another type of hybrid allows lower courts to decide constitutionality claims, subject to appeal through the system up to the specialized constitutional court, which shall have the final word on the matter (e.g. Spain).

The Role of Judges
Cappelletti argues that constitutional adjudication “often demands a higher sense of discretion than the task of interpreting ordinary statutes,” and that the ordinary training of civil law judges does not conduce to the task of constitutional interpretation.
Favoreu suggests as well that the election or appointment of judges in the U.S. by political branches gives them a legitimacy in constitutional interpretation that continental career judges lack. P. 282

Countries in Transition
countries in transition from authoritarian regimes, it would be very difficult to implement decentralized review, since the general corps of available judges would be unlikely to have either the training or the independence from prior regimes to function with legitimacy as constitutional adjudicators. Finding a small number of respected and untainted jurists, who might constitute a centralized and specialized constitutional court, is simply more doable. P. 282-283

Stare Decisis
In the United States, as in other common law countries, the doctrine of stare decisis extends the effect of rulings of law from the parties in the case before it to the broader legal community within the jurisdiction of the deciding court.
In Europe there is no tradition of stare decisis and most constitutional courts have the effect of their decisions expressly defined by constitutional provision or law

Abstract v. Concrete Review
Abstract: not in the context of case-and-controversy litigation
Concrete: individual review related to a specific case and controversy and party(ies) with standing

Constitutionalism: From here to there?
This noble idea coming from another hemisphere was to be implemented here first. We participated in the events which led North America to freedom: it shows us on which principles we should rely to keep ours. The New World on which we put chains in the past is today showing us how to protect ourselves from being chained. P. 286
The idea of review probably does originate here, but it was not really implemented until after WWII

“American” Constitutional Review
At bottom, then, there is no particular “constitutional litigation,” anymore than there is administrative litigation; there is no reason to distinguish among cases or controversies raised before the same court. Moreover, in de Tocqueville’s words, “An American court can only adjudicate when there is litigation; it deals only with a particular case, and it cannot act until its jurisdiction is invoked.” p. 287

Contrast European Specialized Jurisdiction
Constitutional Review is the (sometimes exclusive) prerogative of a Constitutional Court
Lower courts may not decide those matters at all or may be required to “refer” the question to the constitutional court
For example, in Germany a trial court may hold a post-1947 law constitutional and continue with the case, but if it finds that the law is unconstitutional, it must stay the proceedings and make a reference to the Constitutional Courts

European Review: Erga Omnes
As a consequence, the effect of the decision is erga omnes, i.e., applicable to all, absolute. When a European constitutional judge declares an act unconstitutional, his declaration has the effect of annulling the act, of making it disappear from the legal order. It is no longer in force; it has no further legal effect for anybody, and sometimes the ruling of unconstitutionality operates retroactively. Kelsen characterized the constitutional court as a “negative legislator,” as distinguished from the “positive legislator,” the parliament. P. 288

Convergence or Coincidence? 1
Above all, the United States and the European systems protect fundamental rights against infringement by governmental authority, particularly the legislature. The means are different, but the ends are the same and the results similar.

Convergence or Coincidence? 2
Both systems generally try to maintain a balance between the state and the entities of which it is composed. In a federal state, constitutional review serves that function whether the system of review follows the United States model or the European one. The United States Supreme Court and the German Constitutional Tribunal play a similar role in maintaining the balance between the federal government and the member states.

Convergence or Coincidence? 3
United States and European constitutional courts perform the same tasks, as contemplated by their respective constitutions, when they protect the separation of powers-the division of authority between the various organs of the state, whether between the executive and the legislature, or between the chambers of Parliament.

Convergence or Coincidence? 4
In Europe, as in the United States, constitutional courts may have to decide electoral disputes regarding the highest positions in the state, or the arraignment of the highest political authorities.

Changing the Judicial Function in Existing Courts?
At pages 289-291 the authors explain how this was attempted in France, Germany and Italy by using the U.S. model as the goal
Essentially failed results
One item to note is that many comparativists have written about activist German judges pomoting Nazi laws, and Italian conservative judges resisting Italian fascism
Mostly during the period preceding WWII (except Italy’s pre-1956 experiment)

Failure to follow U.S. Example
Legislative Supremacy, from Rousseau’s version of the Enlightenment
The legislature when making law has to examine whether the law considered is consistent with the Constitution and resolve issues in that regard .... This means that interpretation of the Constitution is to be left to Parliament. Because it is exercising the powers of the sovereign, Parliament is the judge of the constitutionality of its own laws. Therefore courts are not to interpret the Constitution; at least they do not have that power in relation to the legislature. P. 291-292

Failure to follow U.S. Example
A second reason for the failure of the graft is the inability of the ordinary European judge to exercise constitutional review.

Judicial “timidity”?
The “weakness” and “timidity” of the Continental judge lies perhaps in his being a “career judge,” and not, like the United States judge, selected for the task.
Diverse and strictly-separate judicial jurisdictions are also a challenge

Austrian Constitutional Court
1920-1938 (German takeover)
1945-Present
The Court has jurisdiction over several matters: elections, conflicts between courts, and litigation between the federal state and the Länder (states). It acts as an administrative court to review administrative acts alleged to violate rights guaranteed by the constitution. It acts also as a high court of justice to bring to trial the head of state or ministers accused by the houses of Parliament. (299)

Austrian Constitutional Court
The Court can exercise judicial review at the request of any of the following: a Land government, higher courts, a third of the members of the National Council (or a third of the members of a Land legislature), or, under some conditions, individuals. The Court may also raise constitutional issues on its own initiative. The Court’s case law, developed over the last sixty years, is extensive, particularly in relation to fundamental rights. The impact of its decisions on the legal and political system is strong even though the Court’s decisions are not binding on ordinary courts, unlike the decisions of the German and Spanish high courts. (299-300)

German Constitutional Court
The German Federal Constitutional Tribunal was prescribed by the 1949 Constitution and established in 1951.
In addition to constitutional review of legislation, it has jurisdiction to review cases involving the election of members to Parliament; to decide cases brought against the President of the Republic; to adjudicate controversies between constitutional organs, and between the Federal Republic and the Länder, or between two Länder.
By 1999, the German Constitutional Court had decided over 100,000 cases, of which over 96% came on individual constitutional complaints. (300)

German Constitutional Court
Constitutional review can be initiated by the government of a Land or by a third of the members of the Bundestag in regard to a federal law (for review of a law on its face); by reference to the Court from lower courts (for review of a law as applied); or by an individual claiming that his fundamental rights have been violated by a judgment, by an administrative act, or (under certain conditions) by a statute. (300)

French Constitutional Council
The French Constitutional Council was established in 1958 and came into force in 1959. It is composed of nine judges —three appointed by the president of the Republic, three by the chairman of the Senate, and three by the chairman of the National Assembly. Former presidents of the Republic are de jure members, but since 1962 none has sat on the

Constitutional Council.
However, former President Giscard d’Estaing has recently been recognized as a member

French Constitutional Council
The Constitutional Council has jurisdiction over electoral issues (elections to the National Assembly and Senate, election of the President, and referenda); conflicts regarding the division between the legislative domain and regulations (lois and règlements); the constitutionality of the rules of a chamber of Parliament; the constitutionality of international treaties; and the constitutionality of laws-upon request by one of the four highest authorities of the state (the president of the Republic, the chairmen of the National Assembly and of the Senate, and the prime minister), or by sixty members of the National Assembly or sixty members of the Senate.

Members of the Conseil Constitutionnel
Pierre MAZEAUD, appointed 1998, appointed President 27th of February 2004.
Valéry GISCARD D'ESTAING, ex officio member
Simone VEIL, President of the Senate, February 1998
Jean-Claude COLLIARD, President of the Assembly, February 1998
Olivier DUTHEILLET de LAMOTHE, President, March 2001
Dominique SCHNAPPER, President of the Senate, March 2001
Pierre JOXE, President of the Assembly, March 2001
Pierre STEINMETZ, President, February 2004
Jacqueline de GUILLENCHMIDT, President of the Senate, February 2004
Jean-Louis PEZANT, President of the Assembly, February 2004

Spanish Constitutional Court
The Spanish Constitutional Tribunal was established by the 1978 Constitution, and started its work in 1980. It is composed of twelve judges appointed by the king, four upon nomination by Congress, four by the Senate, two by the government, and two by the General Council of the Judicial Power.

Spanish Constitutional Court
The Constitutional Tribunal has jurisdiction over conflicts between state authorities; the petition of amparo against administrative acts and court decisions interfering with fundamental rights; the lawfulness of treaties in the light of the Constitution; and the constitutionality of laws. In this last category, issues can be raised by the President of the Government, by fifty deputies or fifty senators, by the authorities of autonomous communities, or by the people’s defender (defensor del pueblo). Constitutional issues can be raised by courts when they are confronted with them during litigation.

Spanish Constitutional Court: Amparo
an individual may invoke this writ to request the Constitutional Tribunal to assure the protection of his or her fundamental rights against an administrative act or a judgment of a court, when the ordinary courts have not provided such protection. (In fact, the writ of amparo is invoked particularly against judicial acts.)

Amparo
Amparo cannot be invoked directly for review of the constitutionality of a statute (unlike constitutional review in the Federal Republic of Germany), but the chamber of the Constitutional Tribunal that reviews writs of amparo may refer questions on the constitutionality of an underlying statute to the full court. The petition of amparo is the basis of 90 percent of the registered cases.

Separation of Powers, p. 304
In the American model, limitations on executive and legislative power have been achieved by the progressive recognition of a third power, the judiciary, described as “the least dangerous branch.” That third power does not exist in most European countries. European constitutional theory acknowledges only executive and legislative power. There is no recognition of a “judicial power” and judges do not enjoy the legitimacy and authority of their American counterparts.

Separation of Powers
[The Court] is neither part of the judicial order, nor part of the judicial organization in its widest sense: ... [T]he Constitutional Court remains outside the traditional categories of state power. It is an independent power whose function consists in insuring that the Constitution is respected in all areas.
Referring to the Italian constitutional court

Balance?
Not between branches?
Rather between majority and minority?
Majority and minority in government position or elected office?

Similarities: Appointment
In both cases, appointments are political-made by political authorities and taking into account the political inclinations of the judges. This is fully justified, since the democratic legitimacy of constitutional review rests upon the appointment of judges by elected authorities. (p. 306)
But note lack of cooperation
One might note, however, that in Europe a large proportion of the judges are university professors.

Similarities: Convergence
The U.S. Supreme Court is as a practical matter limiting itself to important constitutional matters in certs
The European courts, through citizen complaints arising during litigation, are more involved with the ordinary courts

Speed and focus (p. 308)
First, the European system seems to have the advantage of isolating important constitutional issues for decision by a specialized court, which is free from other duties and can devote the time required for this delicate task. The constitutionality of a national law is taken immediately to the constitutional court and does not have to go through the various steps of the jurisdictional ladder.

But what about Legal Penetration?
On the other hand, one might ask whether —with a view to strengthening constitutionalism— the European system is as successful as is the American system in spreading constitutional rules throughout the various branches of law. (p. 308).

Another view?
Brewer-Carías’ arguments that
(1) there is no necessary connection between the way constitutional review is organized (e.g., decentralized [or “diffuse”] v. centralized review) and the common law or civil law tradition of the nation and
(2) especially in Latin America the “mixed” system of judicial review is significant..

Decentralized Constitutional Review in Civil Law Countries
This is the case in Mexico, Argentina and Brazil, which followed the American model, and also of the mixed systems in Colombia and Venezuela. It has also existed in Europe in countries with a civil law tradition, like Switzerland, Portugal and Greece ....

The problem of Consistency
Is stare decisis the only way?
Alternatively, although stare decisis is a common law concept, certain roman law countries have a related concept. For instance, the Mexican Constitution has adopted the principle that with regard to the particular law of amparo, the jurisprudencia or the precedents derived from previous decisions of the federal courts are to be considered obligatory for lower courts. This happens only after five consecutive decisions to the same effect, uninterrupted by any incompatible ruling, have been rendered ....

The Rationality of the System
As indicated earlier, the essence of the diffuse system of judicial review is the very notion of constitutional supremacy: if the Constitution is to be the supreme law of the land, prevailing over all other laws, no state act contrary to the Constitution can be an effective law.

The Centralized System
Three conclusions can be drawn from this: first, the concentrated system of judicial review can only exist when it is established expressis verbis in a Constitution, and it cannot be developed by interpretation of the principle of the supremacy of the Constitution; second, the concentrated system of judicial review is compatible with any legal system, whether common law or roman law legal systems; third, the concentrated system of judicial review does not imply the attribution of the functions of constitutional justice to a special Constitutional Court, Tribunal or Council created separate to the ordinary judicial organization. (pp. 315-316)

The Political Explanations
1. The “reconstruction” wave, in which judicial empowerment was a by_product of political reconstruction in the wake of World War II. Examples include [the German Basic Law of 1949 and ensuing creation of the Federal Constitutional Court] ....

The Political Explanations
2. The “independence” scenario, in which the constitutionalization of rights and the establishment of judicial review were part of decolonization processes, primarily in former British colonies. A classic example of this pattern was the 1950 proclamation of the new Indian constitution and the establishment of the Supreme Court of India.

The Political Explanations
3. The “single transition” scenario, in which the constitutionalization of rights and the establishment of judicial review are the by_products of a transition from a quasi_democratic or authoritarian regime to democracy. South Africa adopted an Interim Bill of Rights in 1993 and a final Bill of Rights in 1996, along with a Constitutional Court in 1995, as part of its transition to full democracy in the mid_1990s.

The Political Explanations
4. The “dual transition” scenario, in which constitutionalization is part of a transition to both western model of democracy and a market economy. Obvious examples ... include the numerous constitutional revolutions of the postcommunist and post_Soviet countries [like the Polish Constitutional Tribunal in 1986; the Hungarian Constitutional Court in 1989_90; and the Russian Constitutional Court in 1991].

The Political Explanations
5. The “incorporation” scenario, in which constitutionalization is associated with the incorporation of international and trans_ or supranational legal standards into domestic law. Important examples include the incorporation of the European Convention on human Rights into Denmark’s domestic law in 1993 ... and the recent passing in Britain of the Human Rights Act (1998).

The Political Explanations
6. The “no apparent transition” scenario, in which constitutional reforms have been neither accompanied by nor the result of any apparent fundamental change in political or economic regimes. Some examples would be ... the enactment of the New Zealand Bill of Rights in 1990; the adoption of two new Basic Laws in Israel protecting a number of core rights and liberties; and the adoption of the Canadian Charter of Rights and Freedoms in 1982.

B. Structure, Composition, Appointment, & Jurisdiction,
Comparing the U.S. and France, pp. 675-709

General Comparison Chart

Questions, p. 675
(1) whether, and how, appointment mechanisms for judges and the composition of the constitutional courts relate to the types of jurisdiction exercised by the court;
(2) what are the benefits and costs of life tenure for constitutional court judges, and what is its relationship to the independence of the judiciary;
(3) whether there are different “packages” of provisions concerning appointment, advancement, tenure, salary, or retirement that will foster judicial independence, and
(4) whether an independent judiciary is necessary for a constitutional system (and, if not, what role an institutionally subordinate judiciary might play).

Basic Question
“Does constitutionalism require judicial review of the constitutionality or lawfulness of the acts of governments and their officers?”
Put another way: Should a constitution require some type of judicial review?

Judicial Review in the U.S.A.
Not expressed in the Constitution
Marbury v. Madison, 5 U.S. 137 (1803), that the government of the United States is one of limited powers, that the constitution is intended to act as law in enforcing those limits, and that “[i]t is emphatically the province and duty of the judicial department to say what the law is,” and to apply the constitution as superior to “any ordinary act of legislation” in cases in which they both apply and are in conflict. (p. 676)

Senate Role in Confirmation
The Congress has authority to change the number of justices
Probably unlikely given the court-packing controversy
Were you surprised that 30 of 144 nominees have been rejected? (p. 677)

Monaghan, p. 678
First: Senate review is political, and there is no constitutional compulsion to approve
Second: political nature of the Senate’s role, like that of the President, helps ameliorate the “countermajoritarian difficulty”: by increasing the likelihood that Supreme Court judges will hold views not too different from those of the people’s representatives, the Senate can reduce the tension between the institution of judicial review and democratic government. (pp. 678-79)

Age Limits: Given Lifetime Appointment, consider
There is no minimum age for appointment and there is no maximum age for service or retirement
(Was Douglas Ginsburg TOO YOUNG at 41?) (681)
Should there be a mandatory retirement age? (681-2)
A minimum age for appointment?
A fixed term of service?
As to each, why?

Should we have a 2/3 vote?, 682
Epstein argues that a 2/3 vote would change the process for the better.
Why? 683
Epstein: would not restrict the pool of serious candidates. It may, though, reduce it just enough to eliminate those who have no business’ sitting on the most important judicial body in our nation.
Why not?
“That a politicized system of selecting and confirming our judges may mean that people of stature, a Brandeis and a Holmes, a Marshall and a Warren, do not find their way to the Court is a consequence that must be measured against a paramount commitment to self_rule.” Silverstein, p. 684.

Confirmation Votes
Rehnquist, 68-26 (1971); C.J. (1986) 65-?
Stevens, 98-0
Scalia, 98-0
Kennedy, 97-0
Souter, 90-9
Thomas, (7/7) 52-48
Ginsburg, 96-3
Breyer, 87-9
Roberts, 78-22
Alito, 58-42

France: Historical Context
Pp. 685-686
What we have already discussed:
France was bankrupt in 1789 and the old estates, protected by the parlements, stood in the way of reform
After revolution and terror, Napoleon as dictator and then emperor, designed the modern French administration and law
In the 1950s, post-WW2 political tribalism and the challenges of Algeria and Indochina bring down the 4th Republic

The Constitution of 1958, 687
De Gaulle as Prime Minister supervises the drafting of this constitution,
with the assistance of the Conseil D’Etat.

The French Constitution
Art. 34 provides for enumerated (and limited) power to legislate to be exercised by the Parliament
Art. 37 gives to the President a general power to legislate by Decree. “executive legislative competence”
(p. 687)

The Judicial Role in France
Note that the Conseil Constitutionnelle was intended to limit legislative power vis a vis the executive
The general judicial role was heavily limited, in reaction to the Parlements, and in particular to their abuse of the power of registration of royal decrees.
The old system of the first four republics was centered on the power of the parliament, the elected legislature (p. 688)

Limitations on the Judicial Role
article 10 [law of 1790] that the judiciary was not “to take part directly or indirectly in the exercise of legislative power”, or to “obstruct or suspend the execution of the decrees of the legislative body”.
Article 127 of the Criminal Code backed this up by’ making it an offence for a judge to interfere with the legislative power.
Courts would not challenge legitimacy of laws.
(p. 689)

The Senat
A special body of tenured appointees
Could hear matters referred to it by the legislature, government or citizens
Could, in theory, quash unconstitutional actions
Never worked in practice either under Napoleon or under the brief period of Republicanism prior to Napoleon III term.

What about Constitutional Review?
The executive (Napoleonic) vision: a specialized body to limit the power of the legislature
Republican Tradition. The contrary, and typically republican, tradition exhibited in other Constitutions before 1946 was that Parliament itself was the guardian of constitutionality. In the very first Constitution of 1791 the National Assembly was enjoined to refuse all proposals that infringed the Constitution. Self_limitation was the preferred institutional device for ensuring that the Constitution was respected, with an ultimate control exercised by the electorate. (p. 690)

The Council of the Republic
Comité constitutionnel composed of the Presidents of the Republic, the National Assembly, and the Council of the Republic (as the Senate was called), and then seven persons nominated by the National Assembly and three by the Council of the Republic. The nominees appointed by the two Assemblies were to come from outside their membership.
Only one matter actually referred to it
Attempted review of Treaty of Rome (which created the EEC) failed
(p. 690)

Legislative Supremacy
The legislative represents the will of the electorate
Article 6 of the Declaration of 1789 stated that loi is the supreme expression of the volonté générale. This was interpreted as meaning that Parliament was the representative of the general will of the nation, and that its enactments thus enjoyed the status appropriate to the expression of the will of the sovereign. (p. 691).

Separation of Powers in the U.S.: Graphic

Separation of Powers
The argument from the separation of powers has two elements.
on the one hand there is the statement of the appropriate function of each organ;
on the other, there is the appropriate deference that must be paid by other organs of government. (p. 691)

Legislative Power
Nothing is more natural than to make interpretation an act of the very person who made the text ... In other words, it is for the legislature, at the very moment of making laws, to examine if the loi being considered is consistent with the Constitution, and to resolve the problems that may arise on this point. The legislature interprets in this way by virtue of its popular representation.
Judiciary defers to this legislative power (692)

Judicial Power
To Jèze, this would simply make the judiciary a block to social progress: “Against a democratic Parliament, product of universal suffrage, and against its possible will for reform, it is desired in reality to set up bourgeois judges for the defence and irreducible preservation of the possessing classes characterized as élites.” (p.692)

U.S. Judicial Inertia: The French perspective
Édouard Lambert in 1921. He described it as “doubtless the most perfected tool of social inertia to which one can currently resort to restrain workers’ agitations and to hold back the legislator from the slippery slope of economic interventionism”. (p. 692)

Rejection of Court Model
Janot, Commissaire du gouvernement:
Such a system would be tempting intellectually, but it seemed to us that constitutional review through an action in the courts would conflict too much with the traditions of French public life. To give the members of the Conseil constitutionnel the power to oppose the promulgation of unconstitutional texts appeared sufficient to us. To go further would risk leading us into a kind of government by judges, would reduce the legislative role of Parliament, and would hamper governmental action in a harmful way

The Conseil Constitutionnel, 693-694
Created principally by Conseil d’État senior counselors drafting the constitution of the Fifth Republic
Primarily designed to limit parliamentary sovereignty given the expanded role of the presidency
Limited to invalidating legislative acts to avoid “gouvernement de juges”

Only privileged referrals:
President, Prime Minister, Presidents of Assembly and Senate
60 Parliamentarians only after 1974(pp. 693-694)

Jurisdiction of the Conseil Constitutionnel
First, the Conseil is an election court and returning officer. It determines the existence of a presidential vacancy or incapacity, oversees the election process, and announces the results. It has a similar supervisory function in relation to referendums. With regard to parliamentary elections, it rules on disputed elections. It also rules on the ineligibility of members of Parliament. (p. 694)

Jurisdiction of the Conseil Constitutionnel
Secondly, the Conseil also advises the President both when he seeks to use emergency powers under article 16 and on the rules made thereunder. Such advice is not binding, but it is of considerable authority all the same. (p. 695)
The “crisis of 1961” was the second uprising of French settlers and military personnel in Algeria, which threatened an invasion of France itself.
In October 17, 1961, Paris police, attacked unarmed Algerian demonstrators and killed dozens (low estimate at 40, high as many as 200).

Jurisdiction of the Conseil Constitutionnel
Thirdly, the Conseil may also be asked to rule on the constitutionality of treaties. Treaties are signed by the President, but require parliamentary legislation in most cases before they can be ratified. Once ratified, they have a status superior to lois (article 55). Although the Conseil constitutionnel will not strike down a loi for incompatibility with a treaty, other courts may refuse to apply it in such a case. (p. 695)

Jurisdiction of the Conseil Constitutionnel
The Presidents of the Republic, the National Assembly, and the Senate, or the Prime Minister or 60 deputies or senators may refer a treaty for consideration by the Conseil to determine whether it is contrary to the Constitution. If it is, then it can only be ratified after a constitutional amendment has been passed (article 54). (p. 695)

Jurisdiction of the Conseil Constitutionnel
The Conseil evaluates the constitutionality of organic laws
These laws implement general constitutional provisions and are essential to their constitutional function

Jurisdiction of the Conseil Constitutionnel
Organic laws are required in a number of areas, such as on the judiciary, on the composition of Parliament, on finance laws, and on the procedure of the Conseil constitutionnel. The process for passing them is stricter than for ordinary lois, requiring the agreement of the Senate or an absolute majority of members of the National’ Assembly (article 46). Since these organic laws may be used subsequently as a basis for judging the constitutionality of lois, and may extend the body of constitutional rules, it is appropriate that the Conseil should review them before enactment. (p. 695)

Jurisdiction of the Conseil
Primary function: to police the boundaries of the legislative competences of Parliament and of the executive.
Three ways:
Executive “amendment or repeal” of laws
Referrals to protect the executive of legislative bills
Referrals of laws

Jurisdiction of the Conseil Constitutionnel
(1) Under article 37, the Government can only amend or repeal provisions in lois passed after 1958 by way of règlement if the Conseil constitutionnel has first declassified them, in other words, if it has ruled that the provision does fall within the domain of executive legislative competence. In this way, it ensures that the Government does not overstep its competence. The Government must take the initiative, and refer provisions of lois to the Conseil if it wishes to have them declassified. (p. 696)

Conseil Constitutionnel
(2) When private members’ bills or amendments are proposed in Parliament that stray into the area of the executive’s legislative competence, the Government may seek to have the proposed provisions ruled out of order. Where the President of the relevant chamber of Parliament disputes the claim of the Government, either he or the Prime Minister may refer the dispute to the Conseil, which has to give a ruling within eight days (article 41). Since 1979, this procedure has rarely been used. (p. 696)

Conseil Constitutionnelle
(3) Once a loi has been passed by Parliament, the Conseil has jurisdiction to rule on its constitutionality if a reference is made to it by the President of the Republic, the President of either the National Assembly or the Senate, the Prime Minister, or (since 1974) sixty members of either Assembly (article 61 § 2). The reform of 1974 effectively gave the opposition a chance to challenge legislation, and it has become almost the only challenger to lois. (p. 696)

References under Art. 61-2, p. 697
Parliament in the Fifth Republic: Defers to Executive Supremacy
The settlement, as everyone knows, resulted in a “servile” legislature, in the famous words of François Mitterrand, in a “permanent coup d’état.” (p. 698)

Formally accomplished by Articles 34 and 37 of the new constitution
All subject matters not listed in article 34 are expressly reserved to the executive by article 37 (p.698)
This line is policed by the Conseil Constitutionnel

The Conseil Constitutionnel not Impartial?
the Council was not meant to be a fair or impartial referee (any more than the constitution was designed to be fair or impartial). (p. 699)
It was there as a tool of the executive

What about Constitutional Values vs. Formalism
Preamble: The French People solemnly proclaim their attachment to the Rights of Man and to the principles of national sovereignty as defined by the Declaration of 1789, confirmed and completed by the preamble of the Constitution of 1946. (700)

Valeur Constitutionnel?
DEJEAN: For the authors of the draft, therefore, the preamble does not possess valeur constitutionnel.
JANOT: No, certainly not.
Dejean: Would it be a good thing to give unquestioned valeur constitutionnel to the contents of the preamble ... ? We would no longer be able to pass legislation without unhappy people referring it to the Council under the pretext that such and such a principle had been violated. We must be very prudent. (pp. 700-701)

Membership in the Council
Highly Political
Only three judges appointed
Presidency appointed by the President of the Republic (controls rapporteur, breaks deadlocks, sets procedures)

French Constitutional Council: Members
1) All former presidents of the republic.
2) Nine appointed members. 3 each appointed by the
a) President of the Republic,
b) President of the Senate,
c) President of the Assembly.
—(Const. Art. 42.)

Current Members 2007
Jean-Louis DEBRÉ, nommé par le Président de la République en février 2007nommé Président par le Président de la République le 23 février 2007
Valéry GISCARD D'ESTAING, membre de droit,Olivier DUTHEILLET de LAMOTHE, nommé par le Président de la République en mars 2001Dominique SCHNAPPER, nommée par le Président du Sénat en mars 2001Pierre JOXE, nommé par le Président de l'Assemblée nationale en mars 2001Pierre STEINMETZ, nommé par le Président de la République en février 2004Jacqueline de GUILLENCHMIDT, nommée par le Président du Sénat en février 2004Jean-Louis PEZANT, nommé par le Président de l'Assemblée nationale en février 2004Renaud DENOIX de SAINT-MARC, nommé par le Président du Sénat en février 2007Guy CANIVET, nommé par le Président de l'Assemblée nationale en février 2007

Appointment: National Assembly
Appointments made by presidents of the National Assembly have been the most unambiguously “political,” if political is understood to mean the appointment of full_time professional politicians. (pp. 704)

Appointment: Senate
In contrast, presidents of the Senate have manifested great independence vis_à_vis the executive and have, overall, opted for higher standards of legal expertise. Of twelve members appointed, ten had been either professional lawyers (six), law professors (three), or judges (two) or a combination. Still the majority even of these had engaged in substantial political activities. Of the past six appointees_going back to 1968_all had been former parliamentarians, bringing the total to seven of twelve.(704-05)

French Const. Article 62 [706]
[1] A provision which has been declared unconstitutional may not be promulgated or put into effect.
[2] The decisions of the Constitutional Council shall not be subject to review. They are binding on governmental, administrative and judicial authorities.
p. 707: referrals

Possibility of Individual Referrals?
Note the interesting discussion at pages 707-08 about the possibility of allowing litigants to challenge the constitutionality of laws during ordinary and administrative proceedings, by asking the high courts in those jurisdictions to refer a question to the council.
Failed.

Marbury vs. Madison of France?
Freedom of Association case
1971 decision incorporated individual rights
By 1987 “Fundamental Rights” accounted for forty percent of annulments
1974 reform has led to increased litigation
By 1987 parliamentary references accounted for eighty percent of decisions dealing with ordinary laws
Since 1979 46 of 48 decisions nullifying laws have been initiated by parliament

Context of the Freedom of Association Case
Simone de Beauvoir and Michel Leiris had attempted to form the Association of Friends of the Cause of the People under the old law.
The prefecture denied them the certificate of incorporation.
The administrative courts reversed that decision as an abuse of power.
The legislature quickly moved to amend the law.

Freedom of Association Case
The council was summoned upon request of the President of the Senate.
Bill discussed by both the Senate and the National Assembly, amending prior law on freedom of association, by placing prior restraints on that right.
Clearly politically motivated and directed against the left.
Importance of the Freedom of Association Case:
1) Demonstrates the effectiveness of the French system of prior constitutional control;
2) The legislator is no longer supreme, must answer to the Constitution;
3) constitutional jurisprudence is an important source of French law.

Impact of Council Decisions
On the Legislature
Clearly binding by operation of the enabling constitutional provisions.
On the Administrative Courts
Lack power to declare laws unconstitutional, but might follow interpretation to declare act ultra vires.
On the Ordinary CourtsSimilar to Administrative, but less likely to do so.

Below are old materials about France that provide further backfround:

The Republics of France:

• First 1792-1804
• Second 1848-1852
• Third 1870-1940
• Fourth 1944-1958
• Fifth 1958-Present

1958 Constitution makes the regulatory (i.e., executive) area the rule and the statutory (i.e., legislative) the exception.

French Constitution Article 37

[1] Matters other than those governed by laws (loi) are of a regulatory character.

[2] Legislative texts concerning these matters may be modified by decrees (décrets) issued after consultation with the Council of State.

[3] Those legislative texts produced after this Constitution comes into force cannot be modified by decree unless the Constitutional Council declared that they have a regulatory character according to the first paragraph of this Article.

Executive Regulatory Power

Government Ordinance: in areas of legislative jurisidiction, the Government acts only within a delegation of power by the legislature.

Government Decree: in Regulatory areas, the Government has unfettered constitutional authority and discretion.

ONLY LIMITATION: When amending a legislative statute, must have the consent of the Council of State.

Art. 34: Laws are enacted by parliament and govern:

• Civil rights and the fundamental guarantees of citizens in the enjoyment of their public liberties; national defense obligations imposed on the persons and property of citizens;
• Nationality, the status and capacity of persons, matrimonial regimes, successions, and gifts;
• definition of crimes and misdemeanors (délits) and the applicable punishments; criminal procedure; amnesty; the creation of new kinds of courts and the status of magistrates;
• the budget, taxes, and the methods of collecting imposts of all types; the issuance of money.
• elections to Parliament and local assemblies;
• fundamental guarantees granted to civil and military personnel employed by the State;
• nationalization of enterprises and transfer of enterprise from the public to the private sector.

Laws establish fundamental principles:

of the general organization of the national defense;

of the free administration of local organizations; their competence and their resources;

of education;

of the property regime, real rights, and civil and commercial obligations;

of labor law, union law, and social security.

Constitutional Council: Members.

1) All former presidents of the republic.

2) Nine appointed members. 3 each appointed by the

a) President of the Republic,

b) President of the Senate,

c) President of the Assembly.

(Const. Art. 42.)

Jurisdiction of the Constitutional Council:

1) Mandatory or automatic when it is an organic act (all organic acts were passed by December 1958).

2) Discretionary as to any other law upon request by (a) the President, (b) the Prime Minister, (c) the Presidents of the Senate or the Assembly, or (d) any 60 parliamentarians (after 1974 reform).

Timing:

Appeals to the Council occur before the act becomes law but after passage by the legislature, i.e., in the time after passage but before the President signs it into law.

Jurisdiction of the Conseil D'Etat:

1) Cassation, special review on issues of law, on motion to quash lower administrative courts' ruling;

2) Original trial jurisdiction on the constitutionality or underlying legality of administrative action;

3) Reference Procedure: lower level administrative court may request a non-binding, but usually-followed decision, on novel issues of law.

Court of Conflicts:

1) The Minister of Justice, who presides,

2) Three counselors (senior members) selected by and from the Conseil d'état, and

3) Three counselors (senior members) elected by and from the Court de Cassation;

4) Two more judges from the Conseil d'Etat and from the Cour de Cassation; each is jointly elected by the first seven.

C. Germany, 709-739

“Germany”
Did not exist at start of 19th century
Mid-19th Century: confederation reduces number of states from over 300 to 40
Failed constitutional reform in 1848 included U.S.-style judicial review
Prussian-led North German Confederation in 1867, Wilhelm I as Kaiser, Otto von Bismarck as Chancellor
Defeated the French in 1867 and ends with defeat of WWIp. 709

Prior to Weimar: Empire Constitution
Constitution, President, Chancellor and bicameral legislature
Reichstag (an elected body) though with limited power
and the Bundesrat (members appointed by the state governments)
Neither a bill of rights nor judicial review of legislation. P. 710

Weimar Republic
Created following German defeat in WWI
Constitution, President, Chancellor and bicameral legislature
Bicameral Parliament. Reichstag (an elected body) and the Bundesrat (members appointed by the state governments)
included a bill of rights, and was interpreted to permit judicial review. P. 710

Weimar Republic, 710
While the chancellor and the cabinet were appointed by the president, they could be removed from their offices by the Reichstag without the designation of a successor; conversely, the President could dissolve the Reichstag, and frequently did. Apart from formal amendments, the legislature could, by passing an otherwise unconstitutional law by a two_thirds vote, alter the constitution without explicit amendment;

Weimar Republic, 710
Professor Currie asserts that in this way, “the Constitution could be altered entirely by accident and ... no one could determine what the Constitution provided by reading it ....” (p. 710).
Nazis, 1933-1945
P. 710
Legally-speaking, essentially unlimited power to rule by decree

Modern Germany
Following Germany’s defeat in World War II, West Germany (the portion of Germany under the control of the western allies) adopted a new constitution, the Basic Law of 1949.
When East and West Germany reunited in 1990, they did so under that Basic Law.
But they used accession of new states, rather than reunification provisions (p. 710).

Basic Principles of German Basic Law
1) Supremacy extends to invalidate any law which invades the essential content of any basic right;
2) Eternity Clause: future amendments to the Basic Law cannot impinge upon basic principles of
Art. 1, human dignity, and
Art. 20, federalism, democracy, republicanism, separation of powers, rule of law, popular sovereignty, social welfare state. (p. 711)

Basic Organization, 711
Bundestag: Elected legislature
The Bundesrat
made up of members of the executive branches of the länder
can exercise a suspensive veto over legislation proposed by the Bundestag;
in some cases agreement of the Bundesrat is required (for legislation to pass)

Federalism in Germany, p. 711
While most laws are made at the federal level,
administration of most law is carried out by the länder.
German Constitutional Review, 712
Historically, both in Holy Roman Empire and German Empire only for disputes between states and states and central government

Weimar Staatsgerichtshof , 712
influenced subsequent constitutional development in several respects:
A tribunal separate from ordinary courts exercised constitutional review, taking cases as a matter of original jurisdiction and in a procedure simpler than that of an ordinary lawsuit, and
had jurisdiction to settle disputes of a constitutional nature among and between the different levels of government.

The Basic Law: 1945-51
German Traditions were used, rather than U.S. model
Note that this is particularly reflected in
their approach to federalism and
in the social welfare democracy
But they did accept the concept of constitutionality review, 713

Judicial Election Proposals
Allied states: equal number of justices elected by Bundestag and Bundesrat
Half from federal courts and half from state courts of appeals, 713
Distinguished Types of Review
Should the court be separate of part of the appellate court system?
Should it review disputes between state organs only or citizen complaints as well? P. 713
Two courts? One for “political” disputes between state governments and another for citizen complaints, p. 714

Note the concerns in the Compromise, p. 714
single constitutional tribunal, with authority over all constitutional disputes including the validity of laws.
The mandatory jurisdiction of the court could be invoked only by federal and state governments, political parties and in some cases other courts;
but the initial Basic Law, while permitting the legislature to add to the Court’s jurisdiction by statute, did not provide a constitutional right for private persons to petition the Constitutional Court, a decision influenced by practice in Weimar Germany.

Politics in 1949, 714
Social Democrats favored the limited access rules because political minorities would be protected
Christian Democrats thought they would be useful in preserving German federalism.
Note that the negotiations continue and matters are finally resolved not in the constitution, but in the Organic Law of the Constitutional Court

Judicial Selection, 714
Christian Democrats: This interest also was protected by the power of the Bundestag to choose half the judges, while the
Social Democrats saw their interests supported by provisions that “federal judges and others” would be appointed to the court, which contemplated that persons in addition to federal judges would be appointed, thereby avoiding entrenched domination by professional judges in the largely conservative judiciary.

Constitutional Complaints, 715
The Constitutional Court has jurisdiction over both
“abstract review” of laws, and over
“concrete” review that can arise out of ordinary litigation, both of which are invoked by government entities or officials.

Individual Concrete Norm Control, p. 715
But over 95% of the Constitutional Court’s docketed caseload has been generated from constitutional complaints, which may be filed by any person who claims that a government action has violated a right under the Basic Law if the person has exhausted other legal remedies.
Note that the constitution was amended to include this right, initially created by statute
If the lower court refuses a reference, the individual may initiate it

Special Claims, p. 716
In 1985, Kommers reports in the first edition of his book, approximately 10,000 informal notes were received, of which 728 (or 14%) ended up being referred on to chambers, where they were all rejected; in 1993, 1,441 claims went to the chambers and again, all were rejected. Although the General Register office performs a “nay_saying” function, it does provide some response to each person who writes.

Effect of Decisions:
Any decision of the Court on the constitutionality of a statute shall have the force of law, and, as law, shall be published in the Federal Gazette, along with other federal statutes.
[Decisions] bind all organs of the government, federal and state, and all courts and public officials.

Abstract vs. Concrete Norm Control
Abstract Norm Control: Articles 93(1)(2), at the request of the Federal government or a Land government or one third of the Bundestag members. Case does not arise out of the normal course of litigation. P. 716
Concrete Norm Control. Article 93(1)(4a). Individual case litigation by judicial reference or by party request. P. 717

Concrete Norm Control,
Different time limits apply for different kinds of claims.
Although exhaustion of remedies is required, a person threatened by enforcement of a criminal statute need not violate the law in order to challenge its validity, according to Kommers.
A constitutional complaint can only be filed by one who suffers a clear injury directly from the government action complained of.

Abstract Norm Control
Abstract Review of Laws: The Court can be asked to decide whether a law is constitutional by a federal, or state government, or by one third of the members of the Bundestag.
Oral argument is rare in constitutional complaint cases, but abstract review cases always have oral argument as well as written briefs.
If the Court decides against the constitutionality of the law, it is null and void. 716.

Concrete Norm Control: Reference System
Concrete Judicial Review: This may be referred to as “collateral” review, and occurs during the course of ordinary litigation.
A constitutional question of the validity of a federal or state law can be raised before ordinary German courts.
If the court believes the law is valid, it can so decide. But if it believes the law is unconstitutional, it cannot so rule but must refer the question to the Federal Constitutional Court. P. 717.

Separation of Powers, p. 717
Separation of Powers matters
Balance between executive and legislative branches
By privileged claimant only
Political parties are given standing

Federalism Matters, p. 717
Mostly about lander enforcement of federal law
Also deals with disputes between states
Privileged complaint as well

Prohibiting Political Parties, p. 717-18
“Let’s not be Nazis … again”
political parties that “seek to impair or do away with the free democratic basic order or threaten the existence of the Federal Republic of Germany shall be unconstitutional.”

Evolution of the Court, p. 718
What starts as a constitutional provision, leads to further debate on the implementation by statute
The court itself lobbied and got reforms that guaranteed its independence and status as important organ of the governmental structure

Independence of the Court, 719
Budgetary independence,
President of the Court officially 5th in governmental hierarchy,
constitutional prohibition against limiting their powers, even in times of emergency,
Amendments to Court Act require court approval in times of emergency.

Senate System
The senates are separate panels of eight (originally twelve) judges of the Court that have separate jurisdiction and administrative support.
[Plenary or en banc sessions] A “plenum” of the two senates meets to resolve jurisdictional disputes between them and to decide on rules of judicial administration.
When justices are chosen, they are chosen for either the First or Second Senate; interchange between them is strictly limited. (p. 719)

First Senate
The First Senate was given authority over concrete judicial review, involving constitutional questions that arose in ordinary litigation as well as over constitutional complaints.
The original understanding was that it would function as a less political, more “objective” court engaged in constitutional interpretation and “judicial review.” (p. 719)

Senate Jurisdiction, Currie
Now shares workload of the First Senate
“the allocation of cases between the two [senates] is determined partly by the procedural posture of the case, partly by the substantive issues presented and partly by alphabetical order ....
[T]he Second Senate is responsible ... for intergovernmental disputes and most abstract norm-control proceedings, for matters of criminal procedure, and for complaints filed by parties whose names begin with the letters L-Z in which questions of civil procedure predominate.” (p. 720)

Justices, 720
appointed for single, nonrenewable twelve year terms
at least three of the eight justices in each Senate must come from the federal judiciary
justices must retire at age 68, even if this cuts short the twelve year term.
Dissenting opinions are published (p. 721)
Secret nomination process to prevent “invasion of privacy of the candidates”

Half for Bundestag, Half for Bundesrat, p. 721
Constitution allocates half to each part of parliament, Statute allocates half in each senate
Bundesrat votes as a whole, requires 2/3 vote
Under statute (FCCA) Bundestag uses a special Judicial Selection Committee, 8 of 12 members of the committee must vote for a justice
Detailed at 723-25 for Bundestag and 725-26 for bundesrat

Judicial Qualifications, p. 727
Partisan political parity [between Christian and Social democrats], p. 727
“religious equilibrium [principally Catholic-Protestant]… as well as some balance among Justices with centralistic (pro-central government), and those with federalistic (pro-länder) views.”
“clean”: … untainted by Nazism, 727
“wide experience in public life; … balance among Justices drawn from state justice ministries, the general civil service, and the federal courts.”
“a portion of the seats was to be assigned to persons of Jewish ancestry.”

G. Harrold Carswell
Referenced at p. 735
Judge in the Northern District of Florida and later in the 5th Circuit
Nominated by Richard Nixon to replace Justice Fortas
Criticized for favoring segregation during a political election and for his 58% reversal rate on appeal when he was a district judge!
Voted down by the Senate 51 to 45
Nixon the nominated Blackmun

Background of Justices, p. 736
Minimum age of 40
Median age is 53
Birthplace is of some importance, since it is very often related to the Justices’ religious affiliation and partisan background. Seventeen of twenty Justices born outside the Federal Republic are Protestant and, of these, eleven have been identified with the SPD and one with the FDP

Background of Justices, p 737
Only twelve Justices have had careers confined exclusively to civil service or the judiciary.
Twenty_eight have held high civil service positions in state or national government.
Ten have had legislative experience.
Nine Justices spent most of their professional lives practicing law.
Five had careers as professors of law, while three others held professorships at one time or another.

US Const. Art. III, Sec. 1
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

U.S. Const. Art. III, Sec. 2, Clause 1.
The judicial Power [of the United States] shall extend to [i] all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; [ii] to all Cases affecting Ambassadors, other public Ministers or Consuls; [iii] --to all Cases of admiralty and maritime Jurisdiction; [iv] --to Controversies to which the United States shall be a Party; ***

Art. III, Sec. 2, Cl. 1 cont.
The judicial Power [of the United States] shall extend to *** [v] --to Controversies between two or more States; [vi] --between a State and Citizens of Another State; [vii] between Citizens of different States; [viii] --between Citizens of the same State claiming Lands under Grants of different States, and [ix] between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

US Const. Art. III, Sec. 2, Cl 2.
Jurisdiction of Supreme Court In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

US Const. Art. VI, Cl 2. Supremacy.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Deshaney v. Winnebago County, US Supreme Court (1989)
[There is] nothing in the language of the Due Process Clause [that] requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security. … [Its] language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.

Religion: Church and State
Neutrality as to religion.
In the US it means toleration and no public support, for the most part.
In Germany, Toleration, encouragement and and at least some support.
Religion: Church and State
In Germany students get educated in religion in public schools if they are Christian or Jewish. Moslems take ethics. In fact, non-religious persons, or persons who from religions other than Christianity or Judaism have only ethics available.

Civil rights cases in 1883
The U.S. Supreme court individual invasion of individual rights was not subject to CONSTITUTIONAL protection.
Thus private discrimination in jobs, housing and services are not a constitutional matter.
However, STATUTORY protection was given, mostly based on the commerce clause.

D. Spain, [PROBABLY WILL NOT BE COVERED]

Spanish Constitutional Court Jurisdiction

Nationwide jurisdiction, Located in Madrid.

Final jurisdiction on Constitutional matters, but must defer to the Supreme Court on matters of interpretation of other laws. Pantoja case.

Spanish Constitutional Court Membership

12 justices, formally, but only nominally, appointed by the King.

Must be lawyers w/ 15-years experience. 9-yr. terms, one third will be replaced every 3 years.

Four elected by Congress by 3/5 majority;

Four by the Senate, by 3/5 majority;

Two by the Government; and

Two by the General Council of the Judiciary.

Spanish Court System

Specialized Jurisdictions:

• Civil
• Criminal
• Administrative
• Social/Labor

Supreme Court: Located in Madrid, nationwide jurisdiction.

Superior Justice Courts: (17, one for each autonomous region); 3-judge panels.

Provincial Courts of Justice (51 provinces) Audiencias Provinciales

Courts of First Instance: One judge, sits in both criminal and civil cases.

Justice of the Peace Courts (Juzgados de Paz)

National Court of Justice (Audiencia Nacional)

E. Comparative Litigation and Crime rates, From Merryman at pages 599-602

This is from the old Merryman casebook, but it makes for interesting discourse so I will leave it here.

In the civil litigation rate comparison, I asked you to wonder how this is affected by the availability of legal services. Refer back to our study of the legal professions. We have many more attorneys in private practice than almost anyone else in the world. How might this affect litigation rates?

In the crime area, I pointed to the higher levers of violent crime here in the US, relative to Western-European nations. Yes, I know that everyone was just dying to get into a debate about the levels of violent crime in America and guns and all those fun things. Sorry. It is an interesting subject, but not for this class. Nevertheless, here is a digression for those interested in the topic:

I mentioned that a book has studied homicide rates in the US and blames Southern men, who have a much higher incidence of killing someone they know, especially if they live in cities of less than 200,000 people, for increased violence in America. Richard Nisbett, Dov Cohen (Contributor), Culture of Honor: The Psychology of Violence in the South (New Directions in Social Psychology) (Westview Press 1996). The book is not new, it just got recent press because professor Nisbett has reported the results of studies he has been conducting.

The following report of Prof. Nisbett's work is excerpted From: Psychology Today, September 19, 1997, SECTION: No. 5, Vol. 30; Pg. 34; BY Jones, Marian M., Unconventional wisdom: a report from the ninth annual Convention of the American Psychological Society.

 

--These statistics show that that honor, home, and violence are deeply intertwined in the white Southern male psyche, contends Richard Nisbett, Ph.D., a University of Michigan social psychologist, native Southerner, and author of Culture of Honor (Westview Press). Nisbett has conducted numerous experimental studies of this culture, with often astounding results.

--In one study, members of Nisbett's research team sent letters to store, hotel, and restaurant chains in the guise of a hardworking, 27-year-old man requesting a job application. Half of the letters admitted that the "applicant" had been convicted of manslaughter for accidentally killing a man who had been having an affair with his fiancee and who had challenged him to a fight if he were "man enough." In the rest of the letters, the writer stated that he had been convicted of stealing a car to help support his wife and kids. The response rate to this second letter, it turned out, was similar throughout the country. But in the South and West almost 60 percent of employers sent applications to the letter writer who had accidentally killed a man, compared to only 46 percent of Northern companies. One Southern business owner even sent back a sympathetic letter to the man convicted of manslaughter, writing that "anyone could probably be in the situation you were in ... Your honesty shows that you are sincere." These results suggest that many in the South still approve of using violence to defend male honor.

--It's no surprise, then, that Nisbett finds that Southern men react more strongly than Northerners when insulted. In one experiment, as male college students walked down a long, narrow hallway, Nisbett had a large, burly man approach them. Southerners, on average, stepped aside to let the man pass when he was nine feet away, while Northerners waited until he was five to six feet away. But if the man, without provocation, called the subject an "asshole" as he approached, Southern subjects would wait until he was three feet away to step aside. Northerners, however, didn't change their distance. Nisbett also found that Southern men had increased levels of testosterone and the stress hormone cortisol when insulted in this way, while Northern men did not.

-- How did this culture of honor arise? Most white people in small southern cities are descendants of Scotch-Irish herders who immigrated to the area in the 17th and 18th centuries. And herding cultures, Nisbett notes, have traditionally been violent because of the need to defend one's flock and grazing territory. In comparing herding regions of the South with areas where farming predominates, Nisbett found that the herding regions indeed have higher homicide rates. Even though these areas are no longer dependent on raising sheep and cattle, at least some of the herding culture's values seem to have endured.

The theme here is something that I have talked about before. Constitutionalism is definitely the strong, currently dominating, trend in European law. But this is challenged, or perhaps actually driven, by Supranational and Internal challenges to national supremacy. This is clearly visible in Europe, in the Supranational European Union and in the increasingly powerful regional governments.

The Old Assumptions (1)
Legal System: one that contemplated such things as a legal universe inhabited only by the individual and the state;

The Old Assumptions (2)
legislative supremacy;
a rigorous separation of the judicial from the legislative and administrative powers;
a narrowly defined and uncreative judicial role;
the denial of stare decisis;

The Old Assumptions (3)
the primacy of the civil code and of civil law scholarship;
a highly developed and coherent conceptual structure;
and a constant preoccupation with certainty. [1241].

The Sub-traditions of the Civil Law Tradition
1) Roman civil law;
2) Canon Law;
3) Commercial Law;
4) The Revolution;
5) Legal Science;
6) Constitutionalism

European Federalism
Associated Tendencies:
1) De-codification
2) Constitutionalization
3) Federalization

Decodification
Special Legislation
Statutory Microsystems of law
Social Objectives of law
OLD: The contract is the law between the parties
NEW: The law becomes the contract between the parties

“Judge-made law”
French Tort Law
French Administrative Law

So why does the Code survive?
The Decline in Legislative Supremacy
Legislating by Executive Decree
Increased Bureaucracy
Is this healthy?
Democratic?

The New Constitutionalism
--Challenges to the constitutionality of legislation or official acts.
--More often used.
--Focus on Individual Rights.
--The move from the Civil Code to the Constitution Itself.
--The new vision of separation of powers: the Judges are powerful again.
--The new uncertainty.

The Future of Sovereignty

Federalization: The Challenges to Sovereignty

External Challenges
Supranational Authorities like the EU and the European Human Rights Convention.

Internal Challenges
Human/Individual Rights
Recognition of Group/Class Rights

The Sub-traditions of the Civil Law Tradition
1) Roman civil law;
2) Canon Law;
3) Commercial Law;
4) The Revolution;
5) Legal Science;
6) Constitutionalism

This is the end!