Comparative legal systems Vincenzo Zeno Zencovich

Chapter 1: democratic models

(intro)

The terms democracy and democratic have been at the center of years of discussion. What
we are interested in, however, is how the demos can actually exert the power (kratos). In
the last two centuries the subjective and objective nature of democracy has expanded
considerably, not only about voting and universal suffrage, but even increasing the number
of political powers attached to each citizen: control over the judiciary, participation in
public decision making and so on..However the way in which they can exert these powers
depends on the legal system they’re in: US presidential and British Parliamentary models.

 US presidentialism
1787 constitution: first example of a democratic system constitution. It opens with a
basic principle : ‘we the people’ meaning the double role of citizens in electing both
the president and the congress.
Remember that the us system is a federal one in which powers are assigned
proportionally at federal and state levels. Distinctive feature: the legislative and
executive branches are vested in the electoral process, so on equal footing under a
democratic pov. So differently from a parliamentary system, the us one is not
characterized by the executive backed by the legislative(parliament) so the
separation among the 2 powers is well distinct. We may say that it is more
democratic than a parliamentary because both the powers are decided in the voting
act. However as it may happen during the elections that a handful of voters may
shift the balance in favour of someone else(greater and more important states).
2 features: 1) most applied and first developed in a federal system 2)Difficult model
to export
N.b. Legal transplants, related to the above point.
When legal institutions , processes and solutions are reproduced in a different
context. Quite often the result is a rejection. Law is a social product, so if society
differs, it may be the case of a failure in transplanting.
 Parliamentary model

The English model of parliamentary came out mainly from chance rather then
deliberate design. In that model, the parliament is at the centre of the constitutional
process. The direct legitimacy of the us president is not findable in the english model.
This model has been broadly transplanted, mostly to western countries. Voters elect
the parliament, which appoints the Gov, which in turn needs a majority not to fall. So
we find the gov subordination to the parliament.
  Semi presidential

The head of the state is elected by the citizens, who also elect the parliament, from
which the gov is made. May happen Co-habitation in which a president needs to act
with a parliamentary majority of another coalition

 EUnion

Stands on 3 legs: Council, Commission and The eu parliament.

The legislative and executive powers are in the hands of the first 2 with the parliament
playing an ancillary role. Despite the parliament wich is elected by citizens, the council
is not voted but made of a representative of each state at a ministerial level. This has
attracted theories of democratic deficit of the eu.

 Electoral systems

Vote as the greatest expression of democracy. 2 types: a) majoritarian: the most votes
b) proportional: proportion among number of votes and seats at stake. While for the
first through gerrymandering it is trying to solve the problem of not allowing a minority
to be affected by a majority( us ), for the second it may happen political instability due
to various coalitions being elected.

4 ways to avoid the political fragmentation .

1. Reduce the size of constituencies, which implies that only those lists receiving
the more votes will win.
2. Set an entry barriers: a % of votes.
3. Grant a bonus to the most-votes receiving list
4. 2 round voting: mixing proportionality and majoritarian.

Chapter 2: Values.

Western democracy is imbued with values that have taken shape by history.

 Constitutionalism.

Differences in constitutions. It is at the basis of the legitimacy of each power, may be more
or less flexible. This principle expresses a hierarchy among legal sources. The uk don’t have
a formal constitution like the us, but has a variety of legal instruments, classified as
constituinal conventions. Not having a comprehensive constitutional text, but constitution
is something that is perceived as such, despite of being written or not. May differ in terms
of length, the Italian very long: 139 articles. It may even grow with its binding provisions as
the society grows and lots of new rights need to be classified and fomalised.
  Bills of rights, fundamental rights, human rights

In comparing models, we can see different approaches based on the same issue. For the us
constitution the first leg was the official 1787 text, added then 10 amendments to the
constitution 4 years later: bill of rights; in included 2 parts about rights: a)individual
liberties and b) procedural rights. However by the issue of fundamental rights we can make
comparisons among different legal systems: for ex while the us rights were part of the
constitution, for the French declaration of rights it was an external text. To what extent do
these charters part of a legal system? It depends on the openness of the legal system,
being a) dualistic and b) monistic : more open to changes, which come from international
law and are related to more and many important aspects. Fundamental rights in some
countries have evolved till 3rd generation, including even the most recent ones. Negative vs
affirmative rights: impose a public authority to interfere or not with them.

 Constitutional adjudication

Controversies having a constitutional relevance, decide by a specified body, that cannot

be modified ones the decision is taken, being at the summit of the legal system. Why it
is needed? For tackling bottlenecks in the judiciary practice. The main differences lie in:
a) how the constitutional court is sized. In the us the supreme court is reached by the
citizen by appealing a decision at a lower federal court, the supreme then decides the
merits of the case basing on the constitution. b) in Europe there’s the issue of
constitutionality, the norm that is made present at the judge needs to be weighted with
the constitution itself.

 Rule of law

Short hand expression for many different aspects. It stands for a system in which:

1. Legal decisions are taken by those bodies that have been vested with the power
to take those.
2. These decisions are taken in accordance with certain procedural rules previously
set.
3. There’s the chance to verify, through a 3rd party(judge), that conditions 1 and 2
have been respected.

However these rules must be integrated with fundamental rights, since we cannot
100% apply 1,2 and 3 if against the above.

 Universalism vs Relativism
 The flexibility of a legal system can obviously be seen from 2 povs: a)it may alter what
perceived as a constitutional identity b) adaptable and ready to changes in the whole
environment.

 The religious factor

Civil vs religious sphere. Religion, as it may seem, influences a lot society and its
beliefs/values, influencing so the law and customs of a country. We can outline 3
models:

1. State-religion model: where the relation among the 3 spheres in well structured
an formalized. Ex the uk were the queen is the head of the church of England.
2. State and church separated is an imperative: us, France.. not means that the
state is atheist.
3. State church concordat model: legal agreement among them setting rights and
obligations for the 2 parties.

Chapter 3: Government

 Central and local gov

The first example of a federal system is the swiss one. The best known is the 18 th
century us. All competencies among federation and states are clearly outlined and
enumerated. 1st element: federalist model not only because of the proportionate
powers among the federal institutions and the states, but because the latter have a
strong saying in the legislative process. Each system provides a different accent of
federalism more or less centralized, where the main features are:

1. Areas of competences
2. Area of shared competences
3. The existence of a local law making institution and the control over the
legislative production
4. The possibility of local institutions to entertain foreign relations
5. If and how local institutions participate in the creation of central institution
6. Taxation and public spending powers of local institutions.

 Administration

To understand basic differences we may be interested in other aspects at a lower

hierarchical level:

1. The scope of the powers conferred upon administration and the appointment of
competencies between the branches.
 2. Recruitment of civil service and of its highest officials. Some of them in some
countries can be dismissed and in others only for misconduct
3. To what extent citizens can participate in the administration process
4. Separation of the 3 powers with the awareness that administration
interchangeably plays these 3 roles
5. If the administration invades the field of law makers it also occupies the judiciary
6. Last but not least one must consider the control of the judiciary over
administration: the main areas are: a) Competence: is it given to ordinary judges
or specialized? b) areas of judicial control c) remedies

 Independent agencies

Immunize such agencies from the hierarchical direct control of the executive. The
differences are in the role these agencies play in the administration. The main focus is
their specialization in extremely complex fields which requires a specific technical
knowledge. The move is from general branches of the government(labor, finance,
armed forces) to specialized niches which is thought should be removed from political
fluctuations.

Chapter 4: the economic dimension

The majority of western systems have developed throughout the years high capitalistic
models. Both legal system and economic dimension influence each other.

 Private economy

A capitalist country is based on the assumption of free enterprise, expressed as private

economy. Property and contract are at the center of the legal system. The former is
meant in his roman law sense: absolute ownership. Contract instead is the legal
instrument through wich exchange of goods is regulated, creating wealth. Economic
wealth requires the assistance of the law to be recognized in the community and
protected

 Legal entities

Middle ages term ‘compagnie’ meant a term regarding sharing profit e risk. This was a
protocapitalist structure meant to create a legal entity which could have operated
rapidly, flexibly and with less risks. The development of the ‘compagnia’ was
contemporary with the establishment of banks, notes, letters of credit. When
comparing legal institutions it’s important to look at the economies behind them,
having an idea about the various stages of capitalist’s transplanting.
 Insolvency

Obligation and liabilities undertaken by a firm must be consolidated and enforced. It

could mean the very ineffective functioning of a system and even the collapse of it.
Steps in the process:

1. In the past the ‘dura lex’ of bankruptcy

2. Who is in charge of supervising the insolvency procedure?
3. Insolvency law is inextricably tied up with the system of securities (mortgages,
loans..)
 Regulations

Means the enactment of rules by public authorities tending to establish who can
operate in a specific market, under what standard and till which limit. Its importance
relies on its pervasive nature; it lies at each level, from the mere production till the
most complex levels. Points in regulation:

1. Who sets the rules? Mainly independent agencies or from a legislative body
enacting laws, given their respect and acceptance by the government through
the administration.
2. Ex ante ex post regulation: a) who can produce, how and when before entering
the market sector or starting producing; whoever enters the market must know
the rules in advance. b) ex post when a firm is actually producing in a sector and
it damages competition or other firms.
3. Aim of regulation: contain the market balance, and to contain arbitrage made
possible by capitalistic behaviours.
4. Forms of regulation: taxation and labor law

 State aid

It’s one of the main forms of state directly intervening in the market. It may help
firms to develop and incentives to undertake a business operation but if done
wrongly it may alter considerably the market having the above effects, damaging
competition. It’s a pervasive form of intervention. State aid-regulation balance:
the redistributive effects vary in different legal and economic environments.

Chapter 5: The welfare state

 Taxation

It’s impossible to define a system without considering the public finance model. A
comprehensive view is essential. Historically taxation is the first form of public control
over the economic factors, not only production, trade and consumption, but also
wealth. In a democratic system it goes to the roots of the social contract between the
state and the citizens. While constitutions and laws are enacted once and are difficult
to be changed, the budget session, which is done every year, is one of the most
powerful and pervasive forms of intervention in the market. A distinctive feature is also
the tax rate. For direct taxes, it’s generally a flat rate (ex-value added tax ‘VAT’), which
can vary according to the nature of the economic activity or who the economic agent is.
For indirect taxes the 2 models are progressive rates or flat rates. The influence of tax
law spreads to other, important, sectors. We need to consider micro and macro effects,
having even, in some cases constitutional implications, for instance: in a first scenario,
there’s the existence of a balance budget, which may mean multiple effects in the
economy even under an import-export pov. The default rate is one of the most
important factors determining the interest rate. The best example of how of fiscal
policies are the center of the financial environment is given by the EU. Its choice of a
common currency-the euro- is instrumental to the efficient functioning of a common
market, avoiding the costs of uncertainties and fluctuating currencies. Taxation policies,
which incentivize or dis- certain activities, by redistributing wealth and determining the
need for more(less) public spending, should be at least coordinated.

 Social services

In the last century public finance has developed involving a lot of activities, being
almost multiplied. Different among different countries. There are three main areas:
education, health, and social security. That’s at the basis of welfare state, term born
among the 2 WW. An educated and healthy population is in the interest of the state. To
put in practice such policies a strong and efficient administrative body is needed.
Education and health services are usually complements with of what’s called social
security. Social services are provided differently in different countries. In us for example
some of them are privately provided, having a lower and weaker fiscal pressure, while
in most countries of western Europe they’re public provided. Welfare state is seen as
an essential aspect of the economic constitution which can be subjected to limited
variation but cannot be suppressed.

 Labor relations and legislation

At the basis of labor legislation there’s the need of setting conditions, relations and
regulations to be respected in order to set minimum working economic and working
conditions to the workers, seen as the losing side of the bargain. A first aspect is related
to the termination of labor. In order to guarantee stability and safety to the employee,
it’s not more the ‘hire and fire’ thing that previously happened. One must consider the
fact that employment is at the basis of social stability. We cannot act as a 18 th century
capitalist exploiting people, so in this case the profit max conditions for firms is not
100% acceptable. Another aspect is that of trade unions, born in the 19 th century to
protect over-exploited workers and obtain better working and pay conditions. There
are even differences in that field. Focus only on cost of human capital, different among
countries and usually exploited by large corporations: labor intensive production has
always been delocalized to countries where the cost of labor was cheaper.