Comparative Law

Professor Pedro A. Malavet

Class Notes Part Nine

(Last Updated: April 5, 2005)

IX. Structure of the civil law Systems

A. France, 535-553

Modern European Constitutionalism, the last of the Sub-Traditions that I have mentioned, represents my view of the Future of the Civil Law Tradition. It is mostly a post-Second World war constitutional phenomenon.

Sub traditions of the Civil Law Cb.-213
(1) Roman Civil Law
(2) Canon Law
(3) Commercial Law
(4) The Revolution
(5) Legal Science
(6) Modern Constitutionalism

World War II in 1939 & 1942

World War II in 1942 & 1945

Map from Hyperhistory

The Republics of France:

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:

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.

B. Germany, 553-569

Power to Legislate:

1) Exclusive powers: Reserved to the National Government, but States may legislate, when expressly allowed to do so by the Federal Government;

2) concurrent power: states may legislate to the extent not preempted by national legislation.

3) Skeleton Laws, minor, notably education. national government sets general guidelines and structure and must leave the rest to länders.

General Principles:

1) matters not expressly given to the national government are reserved to the states.

2) As to Concurrent: Limits on the Federal government as well: there must be a need for National legislation, because state law:

a) cannot effectively regulate the matter;

b) might prejudice the interests of other states;

c) would threaten the legal unity and uniformity of living conditions.

THE BASIC LAW

Controls the entire German Legal Order. Human dignity (art. 1, par. 3) is binding on the legislature, executive, judiciary as directly enforceable law.

TRANSITION

From a positive law state which made its own law and was self-legitimizing simply because it was the sovereign, we go to a supra positive notion of law, i.e., the state is subject to both (1) the Basic Law and (2) to unwritten fundamental constitutional principles. In particular principles of the rule o f law and the social welfare state.

Basic Principles

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.

Judicial Review of Laws:

1) If constitutional, may proceed and enforce;

2) If unconstitutional, must stay proceedings and make a reference to the Constitutional Court. This applies, note 3, to post-constitution laws, pre-constitution laws may be invalidated by any court as unconstitutional, same rule applies to executive regulations pursuant to legislative grant.

Cases get to the German Constitutional Court by:

1) Judicial Reference;

2) Citizen Complaint to the Constitutional Court. In the absence of reference. Any citizen can do it. Requires [560-561]:

a) Exhaustion of Remedies; b) Standing.

Standing: plaintiff must be personally affected by the act in question.

C. Spain, 585-598

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:

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)

D. Comparative Litigation and Crime rates, 599-602

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.
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This is the end!