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Constitution Matters - A Comparative Analysis of Two Legal Systems

Blomberg, Erik B:son (1999)
Department of Law
Abstract
This thesis will be examining two totally different legal systems: Sweden and New Zealand, two jurisdictions which encompass diverse historical, political and constitutional backgrounds. Sweden, to begin with, retains centuries of old constitutional traditions, where a written and entrenched constitution is seen as fundamental. New Zealand, on the other hand, is almost unique in the world in not having a written and entrenched document known as ''The Constitution''. The choice of topic might prima facie seem to lack logic. Why compare these two particular jurisdictions? However, the reason is more evident than at first glance. The author has during 1998 been studying the common law system in New Zealand on a reciprocal scholarship, and... (More)
This thesis will be examining two totally different legal systems: Sweden and New Zealand, two jurisdictions which encompass diverse historical, political and constitutional backgrounds. Sweden, to begin with, retains centuries of old constitutional traditions, where a written and entrenched constitution is seen as fundamental. New Zealand, on the other hand, is almost unique in the world in not having a written and entrenched document known as ''The Constitution''. The choice of topic might prima facie seem to lack logic. Why compare these two particular jurisdictions? However, the reason is more evident than at first glance. The author has during 1998 been studying the common law system in New Zealand on a reciprocal scholarship, and consequently, a comparison with this jurisdiction is reasonable. But on the other hand, the choice is indeed fruitful, considering the fact that Sweden is characterized as a nation typical for its Constitution, along the lines of countries like France, Germany and the United States. Thus Sweden serves as a distinct contrast to the uncodified approach applied in New Zealand. In addition, the two countries are similar in many ways. They are both small countries and are in the peripheral on the constitutional scale. Furthermore, constitutional law is of specific interest to the author, since he has been involved in lecturing on this area at the Faculty of Law, Lund University, Sweden, for several semesters while continuing his studies. Although there is much written about matters involving the New Zealand Constitution, there is a very limited amount of literature concerning the legal aspect, since most publications relate to political and historical point of views. In this thesis the objective involves a more detailed comparative analysis of New Zealand's constitutional regulations with a European civil law system. No explicit direct catalogue on whether or not New Zealand should adopt an entrenched constitution can be found in contemporary legal literature, since these investigations are more particularly related to the debate surrounding the entrenchment of the New Zealand Bill of Rights 1990. It is therefore the author's ambition to provide a more extensive and structured index on the present topic in this assignment. In other words, the focus and scope of this thesis will consequently mostly be made on the New Zealand aspect. The reasons for this are numerous&semic the particular constitutional issue in New Zealand is at present a very interesting and important matter, and further, the constitutional settlement in Sweden is comparatively uncomplicated. Accordingly, Sweden will therefore primarily serve as a reference and an example of a successful and well-working solution. In addition, the approach taken in regard to the Swedish discussion is intentionally made with the aim that persons not familiar with the Swedish legal system and terminology shall be able to comprehend. Thus, a rather basic description has sometimes been applied in order to obtain that approach. The scope of this thesis can finally be narrowed down to one single intricate question: does the fact that New Zealand lack a written and entrenched constitution lead to the consequence that the people of New Zealand possess less constitutional protection against arbitrary power, in contrast to the protection granted the people of Sweden? In other words, does an entrenched constitution matters? Sweden, in contrast to New Zealand, has a well defined Constitution containing extensive regulations relating to fundamental rights. This, in combination with Sweden's incorporation of the European Convention on Human Rights has resulted in a satisfactory situation for the citizens of Sweden. Although Sweden several times has been held not to fulfil its obligation under the Convention, it is the belief of the author that Swedes presently enjoy a very strong and adequate protection against arbitrary power. Materials involved in this thesis are mainly books concerning the constitutional framework of New Zealand and the leading publication concerning the legal aspects must be considered to be Philip Joseph's extensive book ''Constitutional and Administrative Law in New Zealand'' (1993). Regarding the Swedish material, literature discussing the Swedish Constitution is numerous, and the leading publication here concerning fundamental rights is Joakim Nergelius' doctoral dissertation ''Konstitutionellt rättighetsskydd'' (1996). For basic knowledge regarding the Swedish Constitution, Strömberg's ''Sveriges författning'' (1999), in combination with Holmberg's and Stjernquist's ''Vår författning'' (1999) have advantageously served as authoritative sources of information. As will be shown in this thesis, the constitutional settlements of a country are closely related to its history. This is the primary justification for a rather extensive historical synopsis of the constitutional development both in New Zealand and in Sweden. For the sake of precision, Swedish legislation and legal notions are set out in italics directly followed by a translation into English within brackets. Furthermore, Swedish statutes are generally given the name used in any recognized translation of which the Swedish Government Cabinet Office has issued a list. (Less)
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author
Blomberg, Erik B:son
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Komparativ rätt, Statsrätt
language
English
id
1556354
date added to LUP
2010-03-08 15:55:19
date last changed
2010-03-08 15:55:19
@misc{1556354,
  abstract     = {This thesis will be examining two totally different legal systems: Sweden and New Zealand, two jurisdictions which encompass diverse historical, political and constitutional backgrounds. Sweden, to begin with, retains centuries of old constitutional traditions, where a written and entrenched constitution is seen as fundamental. New Zealand, on the other hand, is almost unique in the world in not having a written and entrenched document known as ''The Constitution''. The choice of topic might prima facie seem to lack logic. Why compare these two particular jurisdictions? However, the reason is more evident than at first glance. The author has during 1998 been studying the common law system in New Zealand on a reciprocal scholarship, and consequently, a comparison with this jurisdiction is reasonable. But on the other hand, the choice is indeed fruitful, considering the fact that Sweden is characterized as a nation typical for its Constitution, along the lines of countries like France, Germany and the United States. Thus Sweden serves as a distinct contrast to the uncodified approach applied in New Zealand. In addition, the two countries are similar in many ways. They are both small countries and are in the peripheral on the constitutional scale. Furthermore, constitutional law is of specific interest to the author, since he has been involved in lecturing on this area at the Faculty of Law, Lund University, Sweden, for several semesters while continuing his studies. Although there is much written about matters involving the New Zealand Constitution, there is a very limited amount of literature concerning the legal aspect, since most publications relate to political and historical point of views. In this thesis the objective involves a more detailed comparative analysis of New Zealand's constitutional regulations with a European civil law system. No explicit direct catalogue on whether or not New Zealand should adopt an entrenched constitution can be found in contemporary legal literature, since these investigations are more particularly related to the debate surrounding the entrenchment of the New Zealand Bill of Rights 1990. It is therefore the author's ambition to provide a more extensive and structured index on the present topic in this assignment. In other words, the focus and scope of this thesis will consequently mostly be made on the New Zealand aspect. The reasons for this are numerous&semic the particular constitutional issue in New Zealand is at present a very interesting and important matter, and further, the constitutional settlement in Sweden is comparatively uncomplicated. Accordingly, Sweden will therefore primarily serve as a reference and an example of a successful and well-working solution. In addition, the approach taken in regard to the Swedish discussion is intentionally made with the aim that persons not familiar with the Swedish legal system and terminology shall be able to comprehend. Thus, a rather basic description has sometimes been applied in order to obtain that approach. The scope of this thesis can finally be narrowed down to one single intricate question: does the fact that New Zealand lack a written and entrenched constitution lead to the consequence that the people of New Zealand possess less constitutional protection against arbitrary power, in contrast to the protection granted the people of Sweden? In other words, does an entrenched constitution matters? Sweden, in contrast to New Zealand, has a well defined Constitution containing extensive regulations relating to fundamental rights. This, in combination with Sweden's incorporation of the European Convention on Human Rights has resulted in a satisfactory situation for the citizens of Sweden. Although Sweden several times has been held not to fulfil its obligation under the Convention, it is the belief of the author that Swedes presently enjoy a very strong and adequate protection against arbitrary power. Materials involved in this thesis are mainly books concerning the constitutional framework of New Zealand and the leading publication concerning the legal aspects must be considered to be Philip Joseph's extensive book ''Constitutional and Administrative Law in New Zealand'' (1993). Regarding the Swedish material, literature discussing the Swedish Constitution is numerous, and the leading publication here concerning fundamental rights is Joakim Nergelius' doctoral dissertation ''Konstitutionellt rättighetsskydd'' (1996). For basic knowledge regarding the Swedish Constitution, Strömberg's ''Sveriges författning'' (1999), in combination with Holmberg's and Stjernquist's ''Vår författning'' (1999) have advantageously served as authoritative sources of information. As will be shown in this thesis, the constitutional settlements of a country are closely related to its history. This is the primary justification for a rather extensive historical synopsis of the constitutional development both in New Zealand and in Sweden. For the sake of precision, Swedish legislation and legal notions are set out in italics directly followed by a translation into English within brackets. Furthermore, Swedish statutes are generally given the name used in any recognized translation of which the Swedish Government Cabinet Office has issued a list.},
  author       = {Blomberg, Erik B:son},
  keyword      = {Komparativ rätt,Statsrätt},
  language     = {eng},
  note         = {Student Paper},
  title        = {Constitution Matters - A Comparative Analysis of Two Legal Systems},
  year         = {1999},
}