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COMPARATIVE CONSTITUTIONAL LAW - A synthetic presentation of the main ideas in the paper -
The comparative research of the constitutional regimes from various countries presents a great theoretical and practical importance. It allows, on the one hand, the definition of some common principles, the identification of the institutions required by any state of law and, on the other hand, as regards the legal technique, facilitates the process of elaboration and completion of the constitutional mechanisms.
Therefore, the Treatise on comparative constitutional law was designed - in order to meet both the demands of a theoretical study and also the requirements for a pertinent practical research on countries and their constitutional systems - into four parts: Part I, dedicated to general theoretical issues, Part II, which analyses the main constitutional systems (presidential, semi-presidential, parliamentary and directorial), Part III, dealing with political systems in transition (Russia and the former European socialist countries) and Part IV, on constitutional systems having historical and political particularities (dominions and former British dominions, socialist countries, Afro-Asian countries).
Part I, dedicated to general theoretical issues, highlights, in the first place, the object and significance of the study of comparative constitutional law, to further make certain conceptual distinctions and points out the methodology, practical interest and functions of comparative law, with special emphasis on public law.
In an attempt to present their own definition of comparative constitutional law, the authors reach the conclusion that it represents a sub-branch of comparative law in general, an independent branch, correlated with the systems of national law, which has as main object the comparison of political-state institutions and the techniques for drafting the constitutions in order to identify the best ways and methods to better their own constitutional provisions.
Once the object, method and field of action of comparative constitutional law are established, the study examines the particularities of political and constitutional regimes, drawing at the same time a comparative analysis of the role and place given to the main state institutions (Parliament, Head of state, Government, Justice, etc.). Further on, the authors provide an assessment of the modalities in which certain fundamental concepts are to be found and applied to the systems under study (democracy, human rights, and the control of constitutionality, original constituent power and derived constituent power, techniques for revising the Constitution).
Starting from the so-called 'traditional classification' of the constitutional regimes in presidential, semi-presidential, parliamentary and directorial regimes, the authors have comparatively researched a number of 50 constitutions, emphasising their specific features and peculiarities. The analysis is mainly focused on the oldest and the most representative regimes, considered as typical for the respective type of constitutional system (US for the presidential, France for the semi-presidential, Great Britain for the parliamentary and Switzerland for the directorial regimes). On the basis of a careful inquiry, using the comparative law techniques, they highlight especially the influences which these four major types of constitutional regimes have exercised over the constitutional order of various countries, and mainly over the former socialist countries, which drafted up new fundamental laws after 1990.
The research of the presidential regimes
pays special attention to the analysis of the U.S. political and
constitutional regime. Starting from the democratic principles formulated
by the great scholars, who laid the foundations of the American democracy, and
especially from Lincoln's idea that 'no man is good enough to govern
over another man without that other's consent', the authors point out
how these major commandments reflect themselves in the American governmental
system. Further on they review the programmatic documents of the American
Constitutional Law, which provides 'a government of laws, not a
government of people', analysing the provisions of the U.S
Constitution in
The analysis of the semi-presidential regimes pays prominent attention to the French political and constitutional regime. On the basis of an overall historical analysis - beginning with the historical wording 'L'Etat c'est moi' and up to 'the majority fact' and 'the cohabitation technique' between the President, the Prime-Minister and the Parliament, specially when they express different political views - it is emphasised the place of the 1958 Constitution within the system of the various constitutional regulations which have been adopted over the years in France. A special attention is paid to the presidential institution, pointing out not only the special role of the President within the present French constitutional system, and also to the mechanism of relations between the latter and the state powers. Illustrative for the vitality and the adaptability of the French institutions is the applicability of the provisions of the 1958 Constitution - conceived initially as a 'Gaullist' Constitution - under the circumstances radically changed when the President and the Prime-Minister belong to different political tendencies. The research analyses the nature and the implications of the powers vested in the French President by article 16 of the Constitution and, as regards the Government, presents the specificity of 'the regulating competence' and the role of the ordinances in the French Constitutional Law. Regarding the parliamentary system, the authors highlight the feature of the French mechanism of organisation of the bicameral parliamentary life, in the shape of a multi-cameral system, emphasising the different attributions and the difference of political position between the National Assembly and the Senate, as well as the value of 'the third Chamber' of the French Parliament - the Economic and Social Council. In the analysis of the French political system an appropriate attention is paid to the role and the importance of the Constitutional Council as the defender of the Constitution and guarantor for the institutions of the state of law. Further on - in this part of the book - the authors analyse the constitutional systems of Romania, Finland, Portugal and Austria, which present interesting similarities but also differentiations by comparison with the French system.
The analysis of the parliamentary regimes concentrates especially around the British constitutional system, emphasising the value and traditions of the constitutional institutions. In this part of the research, they focus on the contribution of resounding historical documents, which have maintained over the centuries their force and significance, as the Magna Carta (1215), Habeas Corpus Act (1679) and Bill of Rights (1689) had to the foundation of the whole system of rights and freedoms. Further on, it is examined the role of the House of Commons and the House of Lords, in full reform, the Queen's place in the British constitutional system and her prerogatives, the law enactment mechanism, the role of the political parties, the parliamentary organisation - especially insisting on certain specific British institutions such as 'the shadow Cabinet', 'the political leader', and bringing also into discussion certain elements regarding the local government. Further on, they examine the constitutions of several countries with parliamentary regimes, such as: Belgium, Germany, Italy, Spain, Japan, Denmark, Netherlands, Greece, Israel, Canada, Australia and New Zealand.
A significant part of this paper deals with the constitutional regime of Russia and of the other former communist countries from Eastern Europe.
The research points out the developments of the political system in Russia and in the former Soviet Union, analyses the various types of Constitutions (1918, 1936, 1977), relating all of them to the political and social circumstances existing at that time. It is highlighted the process of transformations which took place during Gorbatchev's period, the various projects of constitutional re-organisation between 1987-1991, there are analysed the circumstances which contributed to the disintegration of the Soviet Union and to the creation of a new system of relations between the former republics of the union which became wholly independent states. There are also highlighted the major political developments leading to the enactment of the Constitution of 1993, the new dimensions of the Russian parliamentary system, the profile of the new presidential institution, the importance of setting-up the Constitutional Court of Russia as an expression of the priority given to the values of the state of Law.
In a distinct chapter the authors analyse the constitutional evolution of some former soviet republics, included before in the USSR like Ukraine, Belarus, Estonia, Latvia, Lithuania, Moldova, underlining the specific peculiarities of the process of building up the new structures and constitutional mechanisms, presently in force in these countries.
The research of the constitutional system belonging to the former communist countries continues with the analysis of the regulations in Albania, Bulgaria, Czechoslovakia (Czech Republic and Slovak Republic), Poland, Hungary and former Yugoslavia, emphasising the diversity of techniques used in the process of constitutional reform (new Constitutions in most former socialist countries, but also adjustment or 'amendment' of the previous Constitutions in Hungary and, for some time, in Poland). Estimating that the former Eastern European socialist countries have achieved successes on their way to implementing the institutions of the state of law, the authors explain how these institutions work in each case and they seek to identify, from the technical and legislative points of view, the main influences registered in these countries in the process of the rebirth of constitutionalism. On this occasion, they point out that three major influences were mainly registered - French, German and American - which were taken into account by the authors of the new Constitutions. In the context of the research, the authors pay a special attention to the constitutional process in Romania, emphasising the value of the traditions and concepts belonging to the Romanian school of constitutional law, the various types of constitutions that Romania have had during its history, the various sets of political and constitutional ideas which the Romanian scholars and politicians have received in a creative way, on the basis of the principle that 'the institutions of a people have value only if they are the national work of that people' (Paul Negulescu and George Alexianu).
There are highlighted the democratic options of our country after the Revolution in December 1989, the stages required by the elaboration of the Constitution of 1991, the methodology pursued in order to enact this document, understanding the principles of constitutional law and public international law, positively estimating the value of the new mechanisms created for defending the citizens' rights. Referring to Romania's new quality of EU member since January 2007, the research spotlights the ways and the directions of action for strengthening the constitutional order, enforcing the observance of the state of law principles, emphasising in the context the value of some normative regulations which complete, develop and ensure the appropriate implementation on the constitutional principles. Perhaps the research also highlights with full realism the practical possibilities, which haven't been by far exhausted yet, of strengthening the observance of constitutional order, to enforce legality, to fight against violence, corruption and any kind of abuses using efficient means and forms guaranteeing the rights and freedoms of the citizens through the most appropriate mechanism.
The new edition of the Comparative Constitutional Law - the fourth edition - substantially improved in comparison with the previous ones and sized up to the standards of a treatise - from the point of view of the level of information, as well as from the geographical area of investigation view point - includes, in addition, a distinct chapter devoted to the analysis of political and constitutional systems of dominions and former British dominions (Canada, Australia, New Zealand, South Africa and India), of current socialist countries (China, Cuba, North Korea and Vietnam, as well as of some Afro-Asian countries, having a certain specificity: Egypt, Nigeria, Tanzania, The Democratic Republic of Congo - in the light of the 2006 Constitution, the Republic of South Africa, India, Iran, Iraq, after adopting the new Constitution in 2006.
The conclusive chapter of the paper, suggestively entitled "Constitutional Reform - a necessary requirement for the member states of the EU. Constitutional Treaty and Constitutional Law and the European Constitutional Law" reveals the system of relations existing between the community judicial order and the constitutional law of the member states under the circumstances of applying the principles of the community law priority and its direct applicability as well as the observance of the subsidiarity principle. Here are presented the practical modalities used by the member states in order to ensure a synchronization between their internal judicial order - especially the constitutional one - and the community law.
Regarding the European Constitutional Law, the research underlines that, during the present stage of evolution of the community relationships - when the European Constitutional Treaty is not yet in force, because of the negative referenda in France and Holland - it is presented more as a set of directing regulations, defining general fundamental principles of political organization, not detail regulations sanctioning over-national regulations.
The conclusions of this study highlight the value and significance of comparative constitutional law not only for researchers, legal experts, politicians, but also for all those interested to know and understand the constitutional changes in the life of various countries. Special emphasis is given to the importance of comparative constitutional law for the new member states of the EU, including Romania, which will have to make constitutional amendments in order to line up with the community standards and exigencies.
The present edition of the Treatise of Comparative Constitutional Law encloses - besides the synthesis in English and French inserted right at the beginning of the book, and the summary in French - the Romanian translation of some constitutions and other relevant constitutional documents from US, Great Britain, France, Italy, Germany, Russia, Japan and Switzerland, integrated into the respective chapters.
