A Primer on the Civil-Law System

A Primer on the Civil-Law System councils of state. In Germany and countries that follow its model, special administrative courts have been created. In theory, ordinary court and administrative court jurisdiction is separate and exclusive, but disputes arise. In France, a special Tribunal of Conflicts decides which is the proper court for a disputed case. In Germany, the court in which the case is filed decides whether it has jurisdiction and may transfer cases over which it declines jurisdiction. A decision refusing jurisdiction is binding in the transferee court. In other countries, such as Italy, the Court of Cassation is the final authority on conflicts of jurisdiction. Constitutional law poses a special problem for civil-law judicial administration. The recent adoption of written constitutions, for example in Germany and Italy since World War II, illustrates the extent to which the public–private law dichotomy affects court structure and jurisdiction. In those countries, some method of reviewing legislative action for constitutionality was necessary, yet it was clear that this power could not be exercised by the judiciary (i.e., the ordinary judiciary) without violating the doctrine of separation of powers and limiting the supremacy of the legislature. Just as the development of the modern administrative state led to the creation of a separate jurisdiction to review the legality of administrative actions, in Germany and Italy the solution to the question of judicial review was to establish separate constitutional courts. Civil-law fundamentalists have occasionally argued that these tribunals cannot really be “courts,” since civil-law courts, strictly speaking, merely interpret and apply the law made by the legislature. Nonetheless, this view has yielded in the same way that most observers now regard entities such as the French Council of State as a “court” and its officials as “judges.” Thus, the strong principle of separation of powers and the traditional civil-law limits on judges’ powers continue to apply to the work of the ordinary judiciary. Conversely, the separate administrative and constitutional courts are not thought to violate that principle.