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
Rule of Law?

Who has to obey the

Rule of Law?
International
Community

Rule(s) of Law
Rule of Laws
Rule(s) of Law(s)

States?
Citizens?
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 USA:

European
continent
Hobbes:
Big Bang

That men are ruled by

Law and not by men
Rechtsstaat
Etat
De
Droit

Etat Lgale
Principle of
legality

Constitution:
Protection of
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

Reasonableness
Due Process
Natural Justice

Proportionality
Etat lgale

Rule of Law and Justice

Legitimacy

Indepen
dance

Pre-constitutional
International
Constitutional
Legal?
By executive?
Status of
courts
Jurisdiction
Access to.
justice

remedies
Legitim.
Fact finding
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