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The normative sources of Comparative Constitutional Law| Author | : | Natalia Bernal Cano | | Publisher | : | European Research Center of Comparative Law | | Year | : | 2017 | | Language | : | English | | ISBN | : | 978-3-9450401-7-1 |
| In this book, Professor Natalia Bernal Cano explains the reference norms used by constitutional courts in different countries in order to protect the Constitution and fundamental rights. These norms are the benchmark for determining the validity of laws in constitutional procedures. Professor Natalia Bernal Cano refers basically to constitutional principles like democracy, equality, human dignity, liberty, separation of powers, pluralism, access to justice and due process. She also refers to constitutional jurisprudence and international conventions like the European Convention on Human Rights.
The current constitutions of France, Spain, Italy and Germany are analysed from a comparative perspective.
INTRODUCTION OF THE BOOK
"The following book contains a comparative analysis of the normative sources of western Constitutional Law, which I undertook in order to demonstrate to the international legal academy that various legal systems, such as those in Germany, France, England, Spain, Italy and the United States, despite containing a few differences, possess multiple common characteristics that bring them closer, thereby facilitating the integration of the States, the strengthening of the mechanisms of protection of fundamental rights, the evolution of political institutions, and the expansion of the parameters of reference for judging the validity of laws, as well as the resolution of common legal problems.
This work will enable readers to learn about the constitutional regulations of several States that share common constitutional principles and traditions, such as democracy, the separation of powers, legality, the rule of law, and human dignity and equality, that are inherent to all constitutional systems with liberal political ideologies. Liberal States are characterized by their adoption of legal systems subject to the rule of law and the Constitution, organized in a normative hierarchy, and their guarantee of fundamental rights and freedoms of the person and popular representation in the exercise of political power.
The first chapter of the book analyzes the legal discipline of Comparative Law, its evolution and practice. The second chapter contains a comparison of constitutional principles in different legal systems. The third chapter contains an explanation of the value of jurisprudence as a source of Comparative Constitutional Law.
CHAPTER I
ARGUMENTS FOR A GENERAL THEORY OF COMPARATIVE LAW
Comparative Law is a legal discipline that goes beyond the study of foreign legal systems. It is a novel branch of the law that allows for linguistic obstacles to be overcome and different systems to be approached in order to resolve common legal problems.
The comparison of legal disciplines is not the imposition of foreign legal systems on others. Nor is it a technique for capriciously reforming a legal system by adopting elements of another system. It is not a science against the preservation of the institutions or original characteristics of a particular legal system.
Comparative Law allows for a doctrinal dialogue around States' internal structures, or different legal problems related to the branches of the law. To compare is to know how to approach heterogeneous legal systems that have something in common that makes them comparable, for example a problem that is difficult to resolve, or the influence of one legal system on another, or the assimilation of certain institutions of a similar foreign system. With help from comparative methodology, the interpreter of sources of law makes an inventory of similarities and differences in order to find, preferably, uniformity and, if possible, some convergences.
SECTION I
DEFINITION OF COMPARATIVE LAW AS AN AUTONOMOUS LEGAL DISCIPLINE
In a strict sense, Comparative Law can be considered as a scientific discipline aimed at clearly explaining the relationships among diverse legal systems.
One who engages in comparative studies must have an open and multidisciplinary mind, in order to interpret sociological elements, sources of law, empirical factors, historical facts and different languages.
As an autonomous legal discipline, Comparative Law or comparative legal studies remain outside of philosophy, sociology, the economic analysis of law, and other related disciplines.
Comparative methodology can be a method of legal reasoning, with which a court complements reiterated jurisprudential criteria or traditional judicial precedents in its jurisdiction with similar legal reasoning from the jurisprudence of other courts or tribunals, in order to be applied in specific analogous cases. Under this methodology, judicial reasoning is not narrow-minded or always subject to the previous jurisprudence of a single court; rather there is undoubtedly greater argumentative wealth. Indeed, consideration may be given to the alternative of adopting some jurisprudential changes or developments, in compliance with the constitution, due to new social circumstances, or judicial reasoning may take account of sufficient grounds or reasons for looking to other legal systems as references, and for adapting or incorporating effective solutions that have already been considered or debated." |
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