Comparative and European Public Law
Lectures by: Prof. A. Schillaci
Notes by: G. Cristofano
M. Ooms
Index
Lesson I – Civil law and Common law, Aims and methods of legal comparison 2
Lesson II – Western Constitutionalism: an Overview 7
Lesson on British Revolution 14
Lesson on American Revolution 18
Lesson on Federalism 20
Lesson on French Tradition (revolution) 21
Lesson on society and forms of government 25
Lesson III - Presidential Government and US constitutional experience 26
American system - first lesson 26
American system: Checks and Balances 27
Lesson IV - Parliamentary Government in UK, France, Germany 29
Lesson on Parliamentary government of France. 39
Lesson on Parliamentary government of Germany 40
Government established by German fundamental law in 1949. 41
Lesson V - Semi Presidential Government – French Experience 45
Recap on rationalization, political/electoral systems, monism/dualism 48
1
,Lesson I – Civil law and Common law, Aims and methods of legal
comparison
What is legal comparison what is the difference between legal comparison and comparative law
Purpose of legal comparison – is it useful? What’s its value? Why do we compare?
To understand that legal values depend on the contexts. It opens up the eyes, understanding that the
specific context is important to understand those specific legal values
Comparative law doesn’t exist as a branch and its borders are not defined
Result of legal comparison but it’s not static, it’s a dynamic discipline (see better when studying
methods)
Legal comparison is a method and puts at the center not the law as a passive object of study but the
relation between in the interpreter and law || scholar, comparative law is science.
The scholar who studies legal comparison has to choose the horizons of comparison. Head of states,
relation of confidence, personal freedom, etc. but then the second step is to constrict the object of
my personal research and choose which countries. For example. Italy and France, USA and china,
turkey and Spain etc.
Public law: government, constitutional law (what is regulated by constitutions and how public power
is organized at the top of it, division of powers, parliament government states. Fundamental rights,
organization of governments, territorial institution of power,), administrative law (procedures,
provisions, acts), constitutional adjudication (how constitutional courts work, review of legislation),
fundamental rights. Field that focuses on the vertical relation between State and individual.
International law is a branch of public law. Why? Because the first actor of international law are the
states. International law was born for regulating the external relations of a state.
Private law: property, contracts, torts, commercial law, fundamental rights
Fundamental rights is where the division between public and private blurs.
Common law and civil law
The distinction has historical roots. Was born in Europe in the middle ages. It spread out from the
common roots of roman law. Until the beginning of middle age the only law applied was roman law.
15th century in western union when that happened the legal system was deeply affected by it (?).
Because every barbaric people who conquered parts of the roman empire tried to apply their own
laws. Tendency to reestablish a system of common law based on roman law.
Civil law is typical of continental Europe. Common is typical of British islands. Indeed both spread out
from roman law but interpreted of roman law in very different manners, especially for sources, how
law is produced and applied. Common took that law is produced through judicial decisions.
Civic by writing general provisions. In common, law comes out of experience.
The main distinction is the sources. How is the certainty of law guaranteed in common law? Rule of
the stare decisis. Stick to the previous case. What is the risk? It’s that of freezing the system, not
allowing the system to evolve. If we stick to the rule of the precedent, we witness the tension
between historical development and the fixity of legal rules. That is why legal operators have the
possibilities to overcome previous cases. Common law has the advantage of assuring a continuous
2
,adjustment and balance between law and experience/facts. With no previous case you apply general
principles.
If the case has differences with the previous case or if it happens in a different historical context, the
judge may consider that.
Criminal punishment of sodomy. USA: enforced. Sodomy between adults consenting was punished
by civil law. In 1996 the supreme court said that sodomy law was not unconstitutional. After 27
years, in 2003 a similar law was submitted to the supreme court and it considered it unconstitutional
using different parametri. In the decision of 2003 the court used the same arguments of 1996 of the
dissenting opinions. Different judge different sentence.
Historical overview.
1. Issue of relations with others
2. Quest of establishment of legal principles – connected with legal comparison
Comparison in ancient times we’re dealing more with political philosophy and history. The historical
research in their works is to compare the specific Greek experience with the political experience of
other people. Herodotus works a lot on this comparison studying how other people “barbarians”
governed rules themselves. PERSIANS. In order to show the differences in traditions. Greece was
powerful in middle east and this reflects on his postures. Pericles political leader who established
stability 15th century b.c. Pericles is addressing a foreign delegation and describes Greek democracy
and its virtues. Pericles describes Athens as the perfect example of the people ruling. Herodotus in
the other book that we’re talking about describes foreign experiences as interesting approaches.
Another important element in Greek and roman inheritance is the struggle of Politika philosophy
towards the idea of city. The idea of city, the Utopia was the aim of the political philosophy. The idea
of city is the outcome, the result of an operation of comparison in order to build an ideal city you
have to check out real cities. On the other hand is important because it shows one of the possible
functions or purposes of comparison: instrument to find the best way to do something in the political
field, to build the best model of government. Historically this has been a very important element in
defining the purposes of comparison.
Relevance of points of view and judgement on other experiences. Colonial experiences is relevant
and has influences western relations with other political experiences and had in impact with
attitudes. Comparison has been and still is believed to be a tool to build universal models. Studying
through comparison. It’s connected with particularism which it’s deeply connected with rising of
modern states.
Middle ages: after the fall of the roman empire. Conditioned and influenced by the remembrance of
roman empire. Continuous manifestation of a desire and nostalgia towards the ancient experience of
roman empire. Every form of power comes of god and need to be connected with the will of god.
One religious leader, the Pope, and as alter ego, the Emperor was the political counterpart of the
pope. But the image of the coronation of Charles the Great in 700 a.d. first European emperor of
middle age is quite significant because he was crowned by the Pope himself. The power was given to
him by religious authority. Great historical jump, to napoleon 2. Crowned by religion authority.
Beginning of 19th century. Universalistic idea of mille age and its cultural roots. Roman empire roots +
influence of Christian political thought, derivation of earthly power from god. This uniqueness is
important for comparison. Between the purpose of building something universal through comparison
and the need to accept plurality.
Classical middle ages universalism and modern (rational – Grotius and Kant this idea that
universalism can be used in order to build coexisting models)
3
, Modern states: XVII to XIX the establish of modern states is identified with the treaty of Westphalia
1648 but an end to the 30 years war. Montaigne notices an amazing difference just crossing the river.
How relations among states work – Kant’s rationalism is founded on general principles and
abstractionism from historical dynamics
From enlightenment to 19th century.
Montesquieu stress how the different political experiences are influenced and connected to different
cultures and characteristics of their people and cultures. One of the first cases of how comparison
appears to be connected to a link between law, politics and cultural aspects. The first element of
Montesquieu is the esprit de lois || in Persian letters He imagines an exchange of letters between a
western thinker and eastern thinker. Orientalistic view of western world. Giving to the east an exotic
image with some elements of judgment.
Values of French revolution spread over Europe � circulation of models through comparison and
tendency of French Revolution/later nap to lead and spread values through a hegemonic posture.
Tocqueville was a French politician of early 19th century. Wrote a reference book for comparative
lawyers. Democracy in America. He was the first political thinker that wrote a book about a foreign
political experience after having been there. Two important journeys to America at the beginning of
the USA, 1st half of 19th century, getting in touch with the country. Reading the book you can really
perceive how the glance of Tocqueville changed through his journeys. Cultural shock once arrived. He
glanced changed through the trip. He relies on general principles taken from Europe but now these
principles are combined with the specific features of the political experience he got to establish a
connection with. Then the comparison with France is important between liberal states in Europe
(louis philippe in alliance with borghesia) whether in USA democracy has been established since
more than 40 years.
Hegel builds his political philosophy on the states. According to him the state is the highest and most
raffinate expression of the action of the spirit in history. Family, civil society and state. The state is
the outcome of the dialectical relation between family as private sphere and civil society as public
dimension. Private+public=state as political synthesis. Political life has to receive an order and both
of the spheres are acknowledged and regulated by law. H. is important in the construction of the
contemporary idea of state. It gives a clear and organized structure of the relation between what law
is and whatever stands aside the law, and it is the first case of the establishment of a strict
correspondence between law and states. The idea that law is a national affair.
1900 Paris, first congress of comparative law. Why? Second industrial revolution was happening.
Revolution in economic relations. Development: radio, telephones, railways, engines, industries. It’s
called first globalization, for the first time the possibility of an instant communication from one side
of the world to another one. Telegraph. Convention on the international measure of time, last
quarter of 19th century, establishment of Greenwich. It was when people realized through instant
communication that when in Europe was noon, in America was 9. London time was chosen because
at that time the most important world’s economy and most powerful countries of the world was the
British empire. – and a growing need of commercial relations between different countries. Double
movement: development of international conventions and treaties had to do that you need to
consider foreign experience.
In the first half of 20th century we have to distinguish different moments and contexts. After WWI
and until the rise and consolidation of totalitarian states, there’s a moment of crisis of the first
globalization and a new rise of interdependence among states, along with the awareness that the
cooperation had to be improved through new forms of national organization. Until then international
4
Lectures by: Prof. A. Schillaci
Notes by: G. Cristofano
M. Ooms
Index
Lesson I – Civil law and Common law, Aims and methods of legal comparison 2
Lesson II – Western Constitutionalism: an Overview 7
Lesson on British Revolution 14
Lesson on American Revolution 18
Lesson on Federalism 20
Lesson on French Tradition (revolution) 21
Lesson on society and forms of government 25
Lesson III - Presidential Government and US constitutional experience 26
American system - first lesson 26
American system: Checks and Balances 27
Lesson IV - Parliamentary Government in UK, France, Germany 29
Lesson on Parliamentary government of France. 39
Lesson on Parliamentary government of Germany 40
Government established by German fundamental law in 1949. 41
Lesson V - Semi Presidential Government – French Experience 45
Recap on rationalization, political/electoral systems, monism/dualism 48
1
,Lesson I – Civil law and Common law, Aims and methods of legal
comparison
What is legal comparison what is the difference between legal comparison and comparative law
Purpose of legal comparison – is it useful? What’s its value? Why do we compare?
To understand that legal values depend on the contexts. It opens up the eyes, understanding that the
specific context is important to understand those specific legal values
Comparative law doesn’t exist as a branch and its borders are not defined
Result of legal comparison but it’s not static, it’s a dynamic discipline (see better when studying
methods)
Legal comparison is a method and puts at the center not the law as a passive object of study but the
relation between in the interpreter and law || scholar, comparative law is science.
The scholar who studies legal comparison has to choose the horizons of comparison. Head of states,
relation of confidence, personal freedom, etc. but then the second step is to constrict the object of
my personal research and choose which countries. For example. Italy and France, USA and china,
turkey and Spain etc.
Public law: government, constitutional law (what is regulated by constitutions and how public power
is organized at the top of it, division of powers, parliament government states. Fundamental rights,
organization of governments, territorial institution of power,), administrative law (procedures,
provisions, acts), constitutional adjudication (how constitutional courts work, review of legislation),
fundamental rights. Field that focuses on the vertical relation between State and individual.
International law is a branch of public law. Why? Because the first actor of international law are the
states. International law was born for regulating the external relations of a state.
Private law: property, contracts, torts, commercial law, fundamental rights
Fundamental rights is where the division between public and private blurs.
Common law and civil law
The distinction has historical roots. Was born in Europe in the middle ages. It spread out from the
common roots of roman law. Until the beginning of middle age the only law applied was roman law.
15th century in western union when that happened the legal system was deeply affected by it (?).
Because every barbaric people who conquered parts of the roman empire tried to apply their own
laws. Tendency to reestablish a system of common law based on roman law.
Civil law is typical of continental Europe. Common is typical of British islands. Indeed both spread out
from roman law but interpreted of roman law in very different manners, especially for sources, how
law is produced and applied. Common took that law is produced through judicial decisions.
Civic by writing general provisions. In common, law comes out of experience.
The main distinction is the sources. How is the certainty of law guaranteed in common law? Rule of
the stare decisis. Stick to the previous case. What is the risk? It’s that of freezing the system, not
allowing the system to evolve. If we stick to the rule of the precedent, we witness the tension
between historical development and the fixity of legal rules. That is why legal operators have the
possibilities to overcome previous cases. Common law has the advantage of assuring a continuous
2
,adjustment and balance between law and experience/facts. With no previous case you apply general
principles.
If the case has differences with the previous case or if it happens in a different historical context, the
judge may consider that.
Criminal punishment of sodomy. USA: enforced. Sodomy between adults consenting was punished
by civil law. In 1996 the supreme court said that sodomy law was not unconstitutional. After 27
years, in 2003 a similar law was submitted to the supreme court and it considered it unconstitutional
using different parametri. In the decision of 2003 the court used the same arguments of 1996 of the
dissenting opinions. Different judge different sentence.
Historical overview.
1. Issue of relations with others
2. Quest of establishment of legal principles – connected with legal comparison
Comparison in ancient times we’re dealing more with political philosophy and history. The historical
research in their works is to compare the specific Greek experience with the political experience of
other people. Herodotus works a lot on this comparison studying how other people “barbarians”
governed rules themselves. PERSIANS. In order to show the differences in traditions. Greece was
powerful in middle east and this reflects on his postures. Pericles political leader who established
stability 15th century b.c. Pericles is addressing a foreign delegation and describes Greek democracy
and its virtues. Pericles describes Athens as the perfect example of the people ruling. Herodotus in
the other book that we’re talking about describes foreign experiences as interesting approaches.
Another important element in Greek and roman inheritance is the struggle of Politika philosophy
towards the idea of city. The idea of city, the Utopia was the aim of the political philosophy. The idea
of city is the outcome, the result of an operation of comparison in order to build an ideal city you
have to check out real cities. On the other hand is important because it shows one of the possible
functions or purposes of comparison: instrument to find the best way to do something in the political
field, to build the best model of government. Historically this has been a very important element in
defining the purposes of comparison.
Relevance of points of view and judgement on other experiences. Colonial experiences is relevant
and has influences western relations with other political experiences and had in impact with
attitudes. Comparison has been and still is believed to be a tool to build universal models. Studying
through comparison. It’s connected with particularism which it’s deeply connected with rising of
modern states.
Middle ages: after the fall of the roman empire. Conditioned and influenced by the remembrance of
roman empire. Continuous manifestation of a desire and nostalgia towards the ancient experience of
roman empire. Every form of power comes of god and need to be connected with the will of god.
One religious leader, the Pope, and as alter ego, the Emperor was the political counterpart of the
pope. But the image of the coronation of Charles the Great in 700 a.d. first European emperor of
middle age is quite significant because he was crowned by the Pope himself. The power was given to
him by religious authority. Great historical jump, to napoleon 2. Crowned by religion authority.
Beginning of 19th century. Universalistic idea of mille age and its cultural roots. Roman empire roots +
influence of Christian political thought, derivation of earthly power from god. This uniqueness is
important for comparison. Between the purpose of building something universal through comparison
and the need to accept plurality.
Classical middle ages universalism and modern (rational – Grotius and Kant this idea that
universalism can be used in order to build coexisting models)
3
, Modern states: XVII to XIX the establish of modern states is identified with the treaty of Westphalia
1648 but an end to the 30 years war. Montaigne notices an amazing difference just crossing the river.
How relations among states work – Kant’s rationalism is founded on general principles and
abstractionism from historical dynamics
From enlightenment to 19th century.
Montesquieu stress how the different political experiences are influenced and connected to different
cultures and characteristics of their people and cultures. One of the first cases of how comparison
appears to be connected to a link between law, politics and cultural aspects. The first element of
Montesquieu is the esprit de lois || in Persian letters He imagines an exchange of letters between a
western thinker and eastern thinker. Orientalistic view of western world. Giving to the east an exotic
image with some elements of judgment.
Values of French revolution spread over Europe � circulation of models through comparison and
tendency of French Revolution/later nap to lead and spread values through a hegemonic posture.
Tocqueville was a French politician of early 19th century. Wrote a reference book for comparative
lawyers. Democracy in America. He was the first political thinker that wrote a book about a foreign
political experience after having been there. Two important journeys to America at the beginning of
the USA, 1st half of 19th century, getting in touch with the country. Reading the book you can really
perceive how the glance of Tocqueville changed through his journeys. Cultural shock once arrived. He
glanced changed through the trip. He relies on general principles taken from Europe but now these
principles are combined with the specific features of the political experience he got to establish a
connection with. Then the comparison with France is important between liberal states in Europe
(louis philippe in alliance with borghesia) whether in USA democracy has been established since
more than 40 years.
Hegel builds his political philosophy on the states. According to him the state is the highest and most
raffinate expression of the action of the spirit in history. Family, civil society and state. The state is
the outcome of the dialectical relation between family as private sphere and civil society as public
dimension. Private+public=state as political synthesis. Political life has to receive an order and both
of the spheres are acknowledged and regulated by law. H. is important in the construction of the
contemporary idea of state. It gives a clear and organized structure of the relation between what law
is and whatever stands aside the law, and it is the first case of the establishment of a strict
correspondence between law and states. The idea that law is a national affair.
1900 Paris, first congress of comparative law. Why? Second industrial revolution was happening.
Revolution in economic relations. Development: radio, telephones, railways, engines, industries. It’s
called first globalization, for the first time the possibility of an instant communication from one side
of the world to another one. Telegraph. Convention on the international measure of time, last
quarter of 19th century, establishment of Greenwich. It was when people realized through instant
communication that when in Europe was noon, in America was 9. London time was chosen because
at that time the most important world’s economy and most powerful countries of the world was the
British empire. – and a growing need of commercial relations between different countries. Double
movement: development of international conventions and treaties had to do that you need to
consider foreign experience.
In the first half of 20th century we have to distinguish different moments and contexts. After WWI
and until the rise and consolidation of totalitarian states, there’s a moment of crisis of the first
globalization and a new rise of interdependence among states, along with the awareness that the
cooperation had to be improved through new forms of national organization. Until then international
4
