4. Concepts of civil law system
civil right family
The Concept of the State (Hobbesian) concept of the state Authority or sovereignty is the true and only source of law and justice. The main holder of sovereignty is the legislature as the only law maker. The pouvoir constituant instituting the state can be seen as the big bang out of which the universe of justice, law and legitimate state authority including the rule of law and human rights is evolving. This universe is defined by the territory of the state and its authority. The state is conceived as a collective unit containing all elements of justice and law and established by the social contract. Concept of the Constitution s « volonte generale » The French revolution established the parliament as the sovereign power which enacts the statutes and the statutes implement the volonte generale. : Art. 6 of the Declaration des Droits de lHomme 1789: „La loi est l'expression de la volonte generale. » Continental European constitutions changed the government but not the state. Constitutions are not only conceived as instruments to limit governmental power but they are also seen as the tools to set up, organize and empower the governmental branches in order to establish the liberal state and the social welfare state. Swiss Constitution : Article 5: The law is the basis and limitation for all activities of the state. Concept of Human Rights Human rights are created by the constitution. Rights are given by the state or the political authority. The continental Europeans believe that the pursuit of happiness depends on the common welfare and thus depends on the policy of the state. : 2 of the Swiss Constitution provides welfare to be considered as common endeavour to be achieved with the support of the political community that is the state. Concept of the Rule of Law of « Rechtsstaat » (« Etat de droit ») The rule of law limits the government to the normative decisions of the sovereign established in the constitution. Rechtsstaat only guarantees the correct application of the constitution by the state authorities. Continental Europeans are more inclined towards substantial rights. Substantial rights influence the legislature and are important tools for the constitutional review of statutes. Concept of International Law The concept of implementing international law differs between continental European countries, depending on the provision in their constitutions. The states belonging to this legal system can embrace either of the two concepts implementing international law (monistic or dualistic concept). : According to the Swiss tradition, international treaties are directly applicable as part of part of domestic law. Thus, without requiring further domestic legislation, they can be enforced by domestic courts (monistic conception). Concept of Federalism and Legislative Power Federalism is mainly designed along the legislature. The main concern with regard to federalism is the distribution of legislative power. The legislature (parliament or assemblee nationale) is the only law maker. The court is only the body to apply the law. The source of the law is the authority of the sovereign. Public law is perceived as a hierarchy of norms developing out of the constitution and depending each on its mother-statute. Public law is not under the jurisdiction of the traditional courts. Statutes already contain rights and obligations. The idea of a unified legal system, which includes all possible legal and obligations, is based on the Napoleonic Public Law Concept. Concept of Authority Hierarchy of Norms It is the higher instance, which is closer to the roots of justice than agencies on a deeper level of state-hierarchy that guaranties legitimacy, good law and justice. The level of the authority to issue norms, or administrative decisions or even judgements is even more important than the content. What is important is not what has been decided but who has decided. This is the notion of hierarchy in the sense that higher instances decide better, know better understand better and judge more justly. The one who is right should win the case and the judge has to know what the rights and obligations of the defendant are. This comes from the tradition of the authority of the Catholic Church. The highest authority is the closest to God. As soon as the King by the grace of God was replaced by the people, the authority representing the people became the highest sovereign body. Rights and obligations are given by the law. The making of a new constitutional basis is easier. The constitution can establish a legislature, which can design and establish a new legal system from scratch. Concept of Administration of public law / the power of administration Napoleon separated public law from private law. The state according, to Napoleon, could only be an efficient instrument for social engineering if the state administration was not under the jurisdiction of the traditional and conservative courts and judges. Since then administrative courts have been established but they still have very limited power with regard to their jurisdiction over the state administration. Public law should not be under the jurisdiction of the conservative courts. With this new public law, the administration has the power to execute statutes without being accountable to the traditional judges. Administrative decisions have thus a value similar to a sentence ruled by the judge as they are enforceable. The public law gives to the administrative authority the power to issue unilateral decisions or administrative acts with almost the same obligatory force and authority as court judgments. : A tax bill can be enforced by the bankruptcy office on the same bases as a sentence of the court. The fact finding is inquisitory as it is up to the administration to decide what evidence is necessary and proper in order to know the truth. This power to decide on the facts gives administration a privileged position in with regard to any legal decision.
Ministre Juge: The French concept of administrative law historically, and does even today, gives the power decide on administrative law complaints to the administration itself. Thus in some instances, the administration itself has the power to decide ultimately on complaints and in some instances, it decides as first and second instance with the possibility to have a final appeal to the conseil detat or to the tribunal administratif. This concept is based on the idea that the principle of separation of powers requires only the administration to review the legality of its proper decisions. In particular when a decision is sued by the subject at least in the first it should be reviewed by the administration. This system which has been largely followed by the Swiss is called ministre juge as it gives to the minister or its administration in fact judicial powers and judicial functions. In Switzerland, the administrative procedures provide some principles of natural justice for the subjects with regard to the fact finding of the administration. According to these principles, they have the so called right to be heard. This does not mean a guarantee of oral and public proceedings. It only gives the subjects the right to propose evidence, to know the relevant documents and to submit their view of the facts to the administration. However the principle nemo judex in causa sua does NOT apply in these proceedings. Those who are subject of the decision have the right, but also the obligation, to complain and to require the decision to be reviewed either by a higher authority or by an administrative tribunal or administrative court. If they do not question the decision within a certain time limit, the decision becomes valid although it may have been unlawful or ultra vires. The system is based on the fiction that the administration as protector of the public interest enjoys in principle the benefit of the doubt. :According to Swiss procedure on the decision whether a asylum seeker is granted the status of a refugee, the relevant statute has even enlarged the benefit of the doubt on behalf of the administration as the authority does not even have to investigate whether the asylum seeker is in danger, but only to establish whether the defendant claiming the status of a refugee is credible or not. Thus when asylum seeker make