Belgrade Law Faculty

Master Course on
Comparative
Constitutional Law
Prof. Thomas Fleiner
October 31 to November 16
2011

Prof. Thomas Fleiner Class No 3

Rule of Law
Rule of Law
Rechtsstaat
Etat de Droit
What means Who has to obey the
Rule of Law? Rule of Law?

International
Community
Rule(s) of Law
States?

Rule of Laws Citizens?

Rule(s) of Law(s) Human beings?

What questions need to be asked?
If one wants to know how the rule of law is to
be applied in the legal system one has to give
An answer to the following questions:

1. What are the sources of law and justice?

2. What kind of courts protect citizens from
the whim of authorities and
administration?
3. Which remedies are available to
individuals in order to protect themselves
against illegal actions or decisions of
authorities?
4. What are the powers and jurisdiction
available to courts in order to protect
peoples against the misuse of their
might?
5. Independence of the courts,
nomination, election re-election,
impeachment, salaries and education
6. What are the essential criterias
courts decide such cases??
7. What are the rights and obligations of
the parties within judicial procedures?
 Different understanding
Of rule of law

Common Law - That men are ruled by

USA: Law and not by men
Etat Lgale
Rechts- Principle of
staat legality
European
continent
Etat
De Constitution:
Hobbes: Droit Protection of
Big Bang Individual rights
Foundation of law and justice

Hierarchy: To whom God gives an office it

Gives him her the brain to decide
General will, democracy, voice of the
People is the decision of God?
Who wins the case has right versus
Who has right should win the case

Human beings have failures

Bases of administrative jurisdiction

Control of public law

Ultra Vires v. versus legal compliance

Authority of administration

European Convention on Human Rights

Two types of administrative jurisdiction

Common Law Civil Law

Remedies Administrative
act
Parties Ministre Juge

Contempt of Court quash

Proportionality
Reasonableness
Due Process
Etat lgale
Natural Justice
 Pre-constitutional
Legitimacy International
Rule of Law and Justice

Constitutional
Legal?
By executive?
Status of remedies
courts
Legitim.
Jurisdiction
Indepen Fact fin-
Access to. ding
dance
justice
impartial
Position of
Judges education

attorneys education
 In the determination of his civil rights and
obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing
within a reasonable time by an independent and
impartial tribunal established by law. Judgment
shall be pronounced publicly by the press and
public may be excluded from all or part of the trial
in the interest of morals, public order or national
security in a democratic society, where the
interests of juveniles or the protection of the
private life of the parties so require, or the extent
strictly necessary in the opinion of the court in
special circumstances where publicity would
prejudice the interests of justice.
 Constitutional Disputes in the UK in
17th century

From Magna Charta to Habeas Corpus

King in Parliament versus Common Law
Separation of powers and Rule of Law
American development

Fundamental rights against colonialism

Inalienable rights
Constitutional Jurisdiction
 France

Human rights have to set up new society

Sovereignty of the Nation

Limits of separation of powers
Nation as fountain of justice

Rule of Law versus general will