Common Law

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Common Law and Continental / Civil Law Two
Legal Systems
Thomas Fleiner
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Why is the knowledge of the main differences of
the two systems necessary in the development
and cooperation policy?
To what extend is the dialogue on the rule of
law different according to the countries
belonging to the family of common or civil law
system?
Key Questions
What are the consequences for Switzerland and in
particular for the SDC with regard to treaties
concluded either with civil law or common law
countries?
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Introduction
History
Development
Common Law England US
Continental Law French Revolution
Common Law Family
Civil Law Sovereign- ty Legis- lature
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Notion of the State
Civil Law
Common Law
Collectivity Big Bang Leviathan Rights
Individualism Pursuit of Happiness Rights
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Concept of the Constitution
Civil Law
Common Law
Parliament Volonté Générale Stat as
Instrument to Change society Constitutions
limit and empower Governments
Judge is also law-maker State as
moderator Constitutions limit Governments Law and
natural Justice
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Locke and American Constitutionalism
Inalienable Rights of the People
England violates inalienable Rights
European Revolutions did Not create new States
but only Change existing governments!
Right of Resistance of the people
Declaration of Independance
Peoples sovereignty
Right to set up a new government
A government of Consent
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Rule of Law and Federalism
Two paral- lel states
US
Rule of Law Rule of the Law
Judiciary Legislature
Rule Of Law
Legitimacy of Courts
Federalism
Fed.Units Implement
Procedural Substantive law
Europe
Legislature
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Basic Principles of Common law
Parallel legal systems
No Hierarchy Of norms
Dualistic system
A right needs a judgment
Stare Decises
Legitimacy Of Judiciary
Democracy Jury
Natural Justice Due Process
Adversary system
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Basic Principles of Civil law
Stufenordung
Hierarchy Of Authority
Justice
Administration
Inquisitory system
Public law immunity
Substantive law
Indepen dance Of Judiciary?
Ministre Juge
Access to court
Justice Volonté Générale
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Access to Justice against failures of authority
Civil Law
Common Law
Actions or Failures
Administrative act
Enforceable if n. compl.
Prerogative writs Common law writs
Complaint
Injunction Prohibition Habeas Corpus Mandamus Cert
iorari
Administration
Complaint
Traditional Courts
Administrat. Law Court
Limited powers
All ordinary powers
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Conclusions
Common Law
Civil Law
State - Authority
Substantive Law v. Procedure
Access to Court
Judge Jury Precedents Principles Adversary System
Legislature Politics Parties Justice