CHAPTER 2

LEGAL STRUCTURES IN CIVIL LAW NATIONS

1. Parliamentary Government
Most of the civil law nations have a parliamentary government. But its not always like that. For example, England has a parliamentary government though it is a common law country. Moreover some civil law nations (in Latin America) have a presidential model. France has features of both. Parliamentary government is the form of constitutional government in which the executive authority emerges from and is responsible to the democratically elected legislative authority. In the presidential government the members of the executive branch and the legislature are elected independently of each other. So as we have seen in the parliamentary government the legislature is supreme over the executive branch. The head of state must choose as prime minister the leader of the majority party. The PM chooses the executive heads of government departments the most important of whom constitute the cabinet. The PM and the cabinet constitute the government. The government holds office as long as the majority of the legislature supports it. The government regularly submits its program for parliamentary approval. In case of a disapproval of the legislature of an important issue the government has to resign or secure a new parliamentary majority by means of general election. Technically the decision to dissolve parliament belongs to the head of state. In practice the head of state exercises this power only on the advice of the prime minister. The parliamentary systems of different countries are not the same in all aspects. France is a good example. In 1958 constitution the powers of the head of state were increased so that the power of the executive was on the same level with the parliament. The president could dissolve the parliament and since 1962 is chosen by direct suffrage. President may have a popular mandate independent of parliament. All of this means that France has a hybrid system with features of both presidential and parliamentary types.

 The parliamentary system was the pattern for many countries in the 20 th century (for instance for Japan). Some countries have a federal system (US and Germany) which makes their legal systems more complex compared to unitary states (England and France). Note that Germany is closer to unitary system than the States because federal law organizes all state and federal courts into a single nationwide system.

2.Separation of Powers
This concept is different in Europe from what is in US. Historically in England and Europe it meant struggles of representative governments against the rule of monarchs. In France the doctrine of the separation of powers was against the rearguard role that judiciary played. Separation of powers to America evokes the system of checks and balances among the three branches of government executive, legislative and judicial each with its independent constitutional basis. In Europe the separation of powers is more rigid inseparable from the notion of legislative supremacy. The doctrine in the extreme form has been thought to exclude the judicial power to review the legality of legislative executive and administrative action. It has also been invoked to deny the courts law-making function by interpreting of legislative texts. However this has not prevented modern civil law systems from moving toward various forms of judicial review. This European version of the separation of powers had long-lasting effects on the structures of the curt systems in most civil law countries. In France the mistrust to judiciary seems to rule out the possibility of the judicial review of the legality of administrative action or of adjudication of ordinary courts of disputes between agencies of government. Thus a Council of State was created for dealing with these matters. A number of nations (Italy and Belgium) followed this model. In for instance Austria and Germany such disputes were handled by the judiciary BUT within a separate system of administrative courts. Thus these systems contain TWO separate sets of courts for administrative and private law matters. In America a single set of courts within each state hears public and private law matters and even can review the legality of the actions of the other branches of government.

3. Constitutions
Two countries whose civil codes influenced the civil codes of other civil law countries were France and Germany. The basic law for the Federal Republic of Germany emerged at the end of the Second World War. France constitution of the Fifth Republic was adopted in 1958 under the leadership of the Charles de Gaulle and continues today. Its important to notice that the constitutions of these countries make certain claims that limit the codes empowering constitutional courts to strike down laws even those in the code as unconstitutional.

4. Judicial Review
o After the World War 2 there was a movement toward the establishment of some form of constitutional control over the governmental power. o This was especially in those countries that adopted the constitutions containing guarantees of fundamental rights. o The introduction of judicial review took different forms in different countries. o In France and England its existence is still denied while in Italy, Germany and US the power to review legislation for conformity to the constitution is vigorously exercised by the courts. o There are countries in between that have admitted the practice but where the courts were cautions in implementing it. Under the influence of the European Court of Justice and European Court of Human Rights the practice of judicial review has increased. o As mentioned before in France the ordinary civil courts are nor permitted to view legality of administrative action this task being reserved to the administrative tribunals within the executive branch. o Then in 1958 the Constitutional Council was created which is authorized to review legislation but only at the request of the executive or a specified proportion of legislature only before the promulgation and only for a limited purpose of indicating whether the laws are in conformity with the constitutional division of powers between the executive and legislative branches. o The council expanded its own authority in 1971 by claiming itself the power to review the laws (upon proper petition and prior to their taking effect) for

conformity with the Constitution generally including the unwritten fundamental principles of the French republican tradition. o So this rigid view of legislative supremacy is not so rigid anymore. o After World War 2 in Austria, Italy and Germany Constitutional Courts were established. They are special separate institutions within the judiciary with their own jurisdiction and judges. o So the Constitutional Court can declare a statute unconstitutional. Moreover the German Constitutional Court also hears complaints filed by individuals aggrieved by allegedly unconstitutional official actions! o The decisions of this court are binding on other courts but not on the Constitutional Court itself.

5. Public Law Courts

Its necessary for every legal system to have some mechanism for resolving disputes concerning which court system has jurisdiction over a particular case. In France a Tribunal of Conflicts was created to decide whether a case falls within the administrative or the ordinary jurisdiction. In Germany the courts have power to determine their own jurisdiction and transfer cases over which they decline jurisdiction. It is important to notice that the French model has been more widely imitated than the German system of separate judicial jurisdictions. The French experience was the principal mode available to other countries as they searched foe mechanisms to control their rapidly growing public administrations. As noted earlier the French doctrine of separation of powers seemed to require that the actions of administrative bodies and disputes among or involving them should not be subject to control by the judiciary. In the Napoleonic times the Council of State was responsible for this. It began as a body of advisors to the king and later developed into the central organ of governmental administration. The present Council of State is composed of professional public administrators whose background and training is different from the judiciary.

It is responsible for determining the legality of administrative measures.

The Council of State functions as the highest appellate courts and also as the court of first and last instance for certain types of cases such as where the constitutional status of an administrative act is challenged. The constitutional review by the Constitutional Council (not the same as the Council of State) extends only to parliamentary legislation not to other governmental actions. It practices judicial review of legislative acts and laws. Under the 1958 constitution the legislature has power to legislate only in enumerated areas leaving and extensive residuary law-making power to the executive. The Council of State has the power to review this executive legislation. It has the exclusive power to review legality or constitutionality of the acts of executive.

Of the countries that have followed the French model Belgium and Italy have done rather closely. Historically in Germany the idea of the separation of powers was not understood to require the administrative courts to be outside the judicial system. Rather they constitute one of five principal separate court systems within the judiciary plus the Federal Constitutional Court. In contrast to US where a single federal Supreme Court stands at the apex of a pyramid of all lower and intermediate federal courts, Germany has several judicial pyramids each with its own Supreme Court. The two main hierarchies are the ordinary (civil and criminal) courts (The federal court of Justice is the highest ordinary court) and the administrative courts (the federal administrative court the highest). In addition there are labor courts, tax courts and social security courts. The highest court in each system is a federal court but the trial courts and intermediate appellate courts are state courts. The constitutional law courts focus on judicial review and constitutional interpretation. The Federal Constitutional Court with its two chambers known as Senates is the highest court dealing with the constitutional matters not only exercising the power of judicial review but also hearing complaints about violations of constitutional rights and deciding disputes of a constitutional nature among the various go governmental organs and entities.

The main difference between the Federal Constitutional Court and the Federal Court is that the Federal Constitutional Court may only be called if a constitutional matter within a case is in question!!!

The German administrative courts have jurisdiction over public law disputes generally except for constitutional issues and for those administrative matters which have been assigned to the specialized tax and social security courts.

6. Ordinary courts
The ordinary courts which hear and decide the great range of civil and criminal litigation are the core of the judicial system. In the post-codification era the main concerns of the ordinary courts became the interpretation and application of the basic codes but today they deal with a great body of law which is not found within the civil commercial and criminal codes. As already mentioned in French system the ordinary law courts and the administrative law courts are separate and independent hierarchies, the public law system headed by the administrative Council of State while the private and criminal law system is headed by the Court of Cassation. The Tribunal of Conflicts stands between the two systems. At the first level of ordinary court jurisdiction several specialized courts coexist with the regular civil and criminal trial courts. For example disputes between employers and individual employees in the first instance are brought before one of the labor courts where the elected representatives each from labor and management sit together. These labor courts try to settle disputes first by conciliation. If the matter proceeds to adjudication and the judges become deadlocked a professional judge sits with the panel. The Court of Appeal handles appeals from most lower courts. Court of Cassation is the highest court of appeal. It is the court of final appeal for civil and criminal matters.

It has jurisdiction over the ordinary courts of the entire country. As a judicial court, it does not hear cases involving claims against the government which generally fall within the preview of administrative courts, for which the Council of State acts as the supreme court of appeal. Nor does the Court adjudicate constitutional issues; instead, constitutional review lies solely with the Constitutional Council. In German system there are several independent court systems each with its own supreme court. The ordinary jurisdiction includes all the criminal and civil cases which are handled within the regular courts, and labor cases which are handled in a separate Federal Labor Court system. The legislation in 1970s made it possible for many types of cases to be decided by a single judge.

In the labor court system appeals from the lower courts are taken first to the Labor Court of the state where the lower court is located and finally to the Federal Labor Court. At the first and second level the judge acts in consultation with labor and management representatives.