England and America: the comparative law thread

[nerdanel]

After I wrote my earlier post, I spent the next few hours reading a textbook on English public law, getting steadily more and more incensed, both at the aspects of the constitutional system here that I'd already known, and those I was learning for the first time. I called my mother via Skype midway through the afternoon, and in an unbridled tirade articulated some minor constitutional reforms that I wished to impose on Britain unilaterally - essentially, I was going to abolish parliamentary supremacy, codify the constitution, remove all convention-based duties of the Crown that are purely symbolic, ensure that the rules of accession to the Crown are gender- and religion-neutral, create a constitutional amendment procedure, give England its own devolved government, codify (in terms enforceable by the courts) or abolish all other conventions, and - most critically - suggest to our British friends that just as we use their common law as the foundation of our legal system, they may want to consider stealing our Marbury v. Madison decision for their courts' use.

My mother listened to all of this very calmly, and then suggested that I go buy my laundry detergent and air freshener before the window of opportunity closed.

It's very clear to me that I'm experiencing my first severe bout of culture shock - particularly as some of the aspects of Britain's government I rant about above are the very differences from the American system that I wanted to come here to understand (particularly as they affect human rights issues). So it's very interesting to me that differences that I found fascinating and exciting to read about in California now seem problematic and threatening. This makes me think that I'm feeling very much outside my comfort zone and threatened by laws and norms that reflect a very different worldview. I'll probably have calmed down a bit in the next few days.

[Túrin Turambar]

essentially, I was going to abolish parliamentary supremacy, codify the constitution, remove all convention-based duties of the Crown that are purely symbolic, ensure that the rules of accession to the Crown are gender- and religion-neutral, create a constitutional amendment procedure, give England its own devolved government, codify (in terms enforceable by the courts) or abolish all other conventions, and - most critically - suggest to our British friends that just as we use their common law as the foundation of our legal system, they may want to consider stealing our Marbury v. Madison decision for their courts' use.

Ooh, that's going to take a long reply. I need to go to the exam for my security course now, but I'll be back this afternoon.

[Túrin Turambar]

I have never heard CU offer the argument that international students or out-of-staters would take up all the room and that's why their tuition is higher, nor have I heard that from CSU. Rather, these students and their families never paid the CO state taxes that fund the university and so they aren't entitled to the kick-back.

That’s pretty much the argument as I understand it as well. My education at a Federally-funded public university cost half of what it would have if I wasn’t an Australian, but then my parents and I have paid taxes to the Australian Government all our working lives.

As to the discussion on British Public Law –

Aravar might be better placed to respond to this than me, given that he actually practices law in England and all I’ve done is scraped 2B honours at a lower-tier public university in Australia (ie. not quite good enough grades to actually get a job ). But I can comment in general terms.

In my experience, to really understand another system of law and government you need to view it from the ground up rather than in contrast to one that you’re familiar with. For example, were I trying to explain the American system of government to an Australian unfamiliar with it but familiar with the Australian Parliamentary model, then I might say something like ‘the head of the executive is a President who is directly-elected on a separate ballot paper from Representatives and Senators, and he isn’t a legislator. And while there is a Cabinet, it doesn’t really have any power in its own right. The members of the Cabinet are not members of the legislature, but are appointed by the President subject to legislative oversight’.

That’s all true, but it would come across as very garbled to an American. Certainly you couldn’t actually understand the American model that way. Instead, to properly understand it, you’d need to consider its historical background (rising from a rebellion against what was seen as arbitrary and unrepresentative government), its basic premises (federalism and the separation of legislative, executive and judicial power) and its growth and development. In other words, look at it from an American perspective. That doesn’t mean that you must like it or agree with it, but that you must do so to understand its purpose and how it works in practice.

essentially, I was going to abolish parliamentary supremacy

That’s a bit like saying that you’d like reform the American system of Government by abolishing the Separation of Powers. It’s kind of the whole point :p.

When you say ‘abolish parliamentary supremacy’, I assume that you mean ‘in favour of a three-way system of separation of powers as in the U.S.’ rather than ‘in favour of pre-1688 absolute monarchy’. British constitutional scholars traditionally haven’t been hostile to the idea; they just think that it’s idealistic to assume that all branches of government will remain in balance. And while the system has worked fairly well in the U.S., there’s no denying that it is a bit of a fiction in parts today. There’s no way that the President is purely an executor of the laws made by Congress. Particularly of late, there’s been arguments that America has tended towards a system of Presidential Government. And the Supreme Court has taken on at least a quasi-legislative function, going beyond simple reading of the Constitution to consider things like community standards (as we discussed in some other recent threads here).

Blackstone wrote something along the lines of ‘in the end, one institution will come to dominate the others, so it’s best that it be the elected Parliament where power will be divided between hundreds of representatives’. It’s fundamental that the elected branch of government has ultimate control over the non-elected ones. Obviously, all executive, legislative and judicial power in England originally rested with an absolute monarch, and the story of English and later, British constitutional law is the story of how that power was steadily broken up and placed with other institutions.

That process is still ongoing. For example, in 2005 the judicial powers of the House of Lords were taken and given to the newly-formed Supreme Court of the United Kingdom. And certainly I think that old-fashioned bodies like the Privy Council (with its executive, legislative and judicial power) should be abolished. But I think that the British system does have a point when it acknowledges that you can’t always draw a clear line between one type of power and another, and that the courts and the apparatus of government should both carry out the law laid down by the elected lawmakers. Parliament is the closest thing that can be to a microcosm of the nation itself.

codify the constitution

Ha. Had I read that without knowing who wrote it, I’d assume the author to be either an American or a lawyer.

There have been codification discussions in the past, not so much in the U.K. but in Australia and Canada, which had to deal with Parliamentary sovereignty and the Westminster model within a Federal system. I argued for codification in my Constitutional Law essay at law school – Australia has a written Constitution that lays out the institutions of the Federal Government and its powers with regards to the States, but it is silent on the actual workings of Parliamentary and Cabinet Government.

In the end, though, nobody has codified the Westminster model and I’ve changed my mind on the issue myself. There is a sense within the British legal tradition that codifying it would almost cheapen it – it exists as a body of arcane knowledge flexible to the needs of its users and should stay that way. More practically, I don’t think that there is a particularly good reason to codify it. Everyone understands it, and it works (with a few issues here and there) like it was meant to.

From a legal perspective it’s tempting to want to organise everything and write it down. But a written constitution would simply end up being pored over by the courts in a series of lawsuits. The current model is organic and keeps evolving.

remove all convention-based duties of the Crown that are purely symbolic

Which ones?

ensure that the rules of accession to the Crown are gender- and religion-neutral

I can’t argue with that. In an ideal world I’d be happy to do away with the monarchy itself, but that would be a big improvement in the real one. But inertia is very strong on these points.

create a constitutional amendment procedure

Well, there already is one. Parliament can pass new statutes that change the old ones. Of course, a codified constitution would need an amendment procedure and a principle of judicial review and everything, but the current one simply evolves, like the common law itself, through judicial precedent and legislation.

give England its own devolved government

Or even better, a number of regional governments. Unlike in your country and mine where sub-national government is based on states sovereign in their own right, the British are free to come up with a system of regional government from scratch. England has far more people than Scotland or Wales, and so should probably have more devolved governments. There’s already been moves to create one authority over Greater London, which makes a lot of sense in my view given its size, population and importance as a global city. You could create some similar authorities over the North, Midlands, West or whatever and have one level of local government below that.

[Aravar]

. I called my mother via Skype midway through the afternoon, and in an unbridled tirade articulated some minor constitutional reforms that I wished to impose on Britain unilaterally - essentially, I was going to abolish parliamentary supremacy, codify the constitution, remove all convention-based duties of the Crown that are purely symbolic

They may be largely symbolic: suhc as the right of veto, but they are there as a last resort.

ensure that the rules of accession to the Crown are gender- and religion-neutral

The legitimacy of the current dynasty depends on the Revolution settlement. Undermine that and we'll be looking to Bavaria IIRC for our next monarch.

give England its own devolved government,

We don't want one. At most we would rather that Scots and Welsh MPs don't vote on issues which only effect England. It doesn't require a wholesale devolved government to do that.

abolish all other conventions,

Why?

[Aravar]

[Or even better, a number of regional governments. Unlike in your country and mine where sub-national government is based on states sovereign in their own right, the British are free to come up with a system of regional government from scratch. England has far more people than Scotland or Wales, and so should probably have more devolved governments. There’s already been moves to create one authority over Greater London, which makes a lot of sense in my view given its size, population and importance as a global city. You could create some similar authorities over the North, Midlands, West or whatever and have one level of local government below that.

The first proposal to create such a body was rejected in a referendum. That idea is dead in the water.

[Aravar]

Nerdanel, you wrote that you wished our Courts took notice of Marbury v. Madison. I've just read it and there is nothing conceptually unfamiliar to me in it, save of course for the difference that Parliamentary Supremacy makes. Indeed the judgment refers back to Blackstone and the principles on which mandamus will issue in Great Britain.

Now, we don't now call it mandamus (or certiorari for that matter), but that's only been in the last twenty years when there has been a concerted attempt to cut out legal Latin, but the underlying principles remain the same.

The main difference is that an application for mandamus would be made to the High Court as successor to the King's Bench, rather than going straight to the top in the form of the House of Lords/Supreme Court, but that's a difference of procedure

What were you driving at in your plea that Marbury be taken into account?

[nerdanel]

What were you driving at in your plea that Marbury be taken into account?

Marbury v. Madison is a seminal case in United States constitutional jurisprudence in which our Supreme Court articulated the principle of judicial review: our judiciary is empowered to review and to nullify the actions of the elected branches as unconstitutional.

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

The concern is this:

In the United States, there is nothing "supreme" about the elected branches and their acts. They are both constrained by very specific terms contained in a written constitution. The judiciary can routinely restrain both elected branches from acting in an unconstitutional manner. The judiciary's role is crucial, particularly as regards human rights protections, at moments where the elected branches have shown themselves incapable of the task. Whether the issue is race, gender, sexual orientation, religion, age, disabled status, immigration status, or some other category in which some are more favored than others in practical terms, it is often our courts that have been the first to strike blows for equality (many times in constitutional terms). Too, it is the courts that are often the only (if highly imperfect, and sometimes unequal to the task) barrier against extraordinarily unconstitutional executive action in the "war on terror". Of course there are many more examples of human rights issues, though these two are closest to my heart.

So I suppose my own - again deeply American - perspective is that I am most comfortable with the courts as the final arbiters of legality in the Marbury sense. I find the concept of a legislature as final arbiter to be nothing short of extraordinary. In the American system, it would be terrifying to me: I simply do not trust Congress to police itself. But since Britain has adhered to its current system for ~ 400 years, that suggests that something is working, however imperfectly. So part of why I wanted to come to the UK is to understand: when you allow a quasi-democratically elected body to be the final arbiter of the extent of human rights protections in a country: what happens? Obviously, in some cases, it works wonderfully well: the UK is more advanced than the US in several of the civil rights areas that are most important to me. So I have come here to learn from you folks whether and how we might look to the legislature to take a greater role in human rights protection (to the extent that Parliament indeed is more progressive than Congress, which I'll be learning about on an issue-by-issue basis).

But at the outset, I am discovering that your conceptual framework, which minimizes the judicial role, is one that is viscerally, intuitively scary to me. I cannot offer you an informed opinion against trusting Parliament on this issue, because I haven't yet studied it closely enough. However, having dedicated more time to studying the American system: I just don't trust Congress that much. That said: my uninformed instinct at the start of my course would be not to trust Parliament, a part-elected and part-hereditary body, unconstrained by any written/quasi-fixed constitution, to act consistently in the best interests of minorities and disfavored/disenfranchised groups on human rights issues. However, perhaps the UK will persuade me that Parliament is indeed trustworthy in the area of human rights - or at least, is a preferable alternative to the UK courts. I will certainly keep all of you posted.

This post has already run on too long - I'd intended only to post on Marbury briefly. However, I wanted to mention that I've begun to discuss these issues with my professors, and one item of "food for thought" they've suggested is that the two countries have different relative levels of trust in the judiciary. I think that in the US, many of us on the left have placed (relative, halting) trust in the judiciary since the Warren Court - the courts have had a robust role to play in many of the civil-rights battles over the past 40-50 years, particularly in issues such as desegregation/integration. But it seems that in the UK, the courts have had a different history - first, they seem to be perceived as even more "elitist" than in the US. Secondly, a professor mentioned to me today that the socialist left in the UK is very hostile to the courts because of a decades-long history in which the courts have been hostile to organized labour. It seems that Parliament was responsible for most of the positive changes that these leftists celebrated, and it was the courts that narrowed or rendered useless a lot of the legislative battles that the progressives had won. Indeed, some on the left were apparently upset that the Human Rights Act 1998 in the UK heightened the opportunities for judicial review, as they felt that an expanded role for the courts was a blow against human rights.

This is interesting for me to consider. It brings home to me that my "trust" (however halting) in the US judiciary is not based on some inherent property of the judiciary as a particularly trustworthy branch of government. Indeed, given the "unelected" nature of the federal judiciary and its life tenure, the possibilities for untrustworthy behavior are heightened. Nor is it based on some American value set, or even our constitution - even though it is consistent with the judiciary's constitutionally prescribed role as construed in Marbury. Rather, it's based on very specific excerpts of American history, where we've seen movement on certain issues from the judiciary before we've been able to accomplish anything legislatively. (It will come as no surprise to anyone who knows me that my views on this issue have also been shaped by the LGBT victories in the courts over the past ten years, which have definitely preceded legislative movement.) I can definitely see why, in a country with a different history, the preference could be for a different branch of government as final arbiter.

Obviously, this issue - of which powers should be located in which branch - is fundamental both to the study of law and to the study of domestic enforcement of human rights guarantees. My views will continue to evolve (and hopefully to become more informed) throughout the year. But the process chronicled in this post illustrates, I think, exactly why I came to Cambridge - just in the past few days, I've:
(1) "isolated" a specific belief I hold about the American system and how government "should" work generally;
(2) resultantly, had a negative initial reaction to starting to engage with the UK's very different constitutional outlook; which has
(3) forced me to grapple with how I arrived at my current view of the American system; and
(4) has caused me to start to engage with why people within the UK system hold a different view based on their history and tradition.

In a nutshell: this is exactly what I had hoped would happen, and I look forward to the process continuing.

Sorry that this post is rather hastily thrown together. It was supposed to be only one paragraph long, and the more paragraphs I wrote, the more crudely I threw it all together. Not my finest writing.

[axordil]

nel--

Interesting, and I agree, it sounds you're getting what you sought out.

[yovargas]

Awesome.

[Aravar]

Marbury v. Madison is a seminal case in United States constitutional jurisprudence in which our Supreme Court articulated the principle of judicial review: our judiciary is empowered to review and to nullify the actions of the elected branches as unconstitutional.

But is not that different. The only matters which are beyond review are Parliament's power to legislate and some prerogative powers, such as the power to make treaties: the Courts being reluctant to interfere with foreign affairs. Everything else is up for review: the executive is constantly being reviewed. Even on prerogative powers: you may recall Lord M and myself mentioning the Derek Bentley case in the capital punishment thread and the Courts reviewed Kenneth Clarke's decison not to grant a pardon posthumously because he was under the erroneous belief that pardons could be granted only if the person was morally innocent.

The Courts will not exercise a discretion themselves, because that usurps the person who has been given the discretion, but that does not seem inconsistent with what is said in Marbury that the Court would not intervene in a function that is given to the President, but once that function had been exercised it would see that an irrevocable decision would not be frustrated by executive action.

So I suppose my own - again deeply American - perspective is that I am most comfortable with the courts as the final arbiters of legality in the Marbury sense. I find the concept of a legislature as final arbiter to be nothing short of extraordinary. In the American system, it would be terrifying to me: I simply do not trust Congress to police itself. But since Britain has adhered to its current system for ~ 400 years, that suggests that something is working, however imperfectly. So part of why I wanted to come to the UK is to understand: when you allow a quasi-democratically elected body to be the final arbiter of the extent of human rights protections in a country: what happens? Obviously, in some cases, it works wonderfully well: the UK is more advanced than the US in several of the civil rights areas that are most important to me. So I have come here to learn from you folks whether and how we might look to the legislature to take a greater role in human rights protection (to the extent that Parliament indeed is more progressive than Congress, which I'll be learning about on an issue-by-issue basis).

The Courts are also the final arbiters of legality, but Parliament is what creates the Law.

From the British perspective there is the important constraint on the executive in that the members of the executive are all in Parliament and acocuntable to it. That creates different political pressures which, to an outsider seem absent from the US system whehre the executive is away form the legislature.

This post has already run on too long - I'd intended only to post on Marbury briefly. However, I wanted to mention that I've begun to discuss these issues with my professors, and one item of "food for thought" they've suggested is that the two countries have different relative levels of trust in the judiciary. I think that in the US, many of us on the left have placed (relative, halting) trust in the judiciary since the Warren Court - the courts have had a robust role to play in many of the civil-rights battles over the past 40-50 years, particularly in issues such as desegregation/integration. But it seems that in the UK, the courts have had a different history - first, they seem to be perceived as even more "elitist" than in the US. Secondly, a professor mentioned to me today that the socialist left in the UK is very hostile to the courts because of a decades-long history in which the courts have been hostile to organized labour. It seems that Parliament was responsible for most of the positive changes that these leftists celebrated, and it was the courts that narrowed or rendered useless a lot of the legislative battles that the progressives had won. Indeed, some on the left were apparently upset that the Human Rights Act 1998 in the UK heightened the opportunities for judicial review, as they felt that an expanded role for the courts was a blow against human rights.

And this is also part of the difference between the systems. I am on the right in any event, but I have a distaste for Courts being supported only becuase they come to the "correct" result either way. The Courts have to deal with a myriad of real life problems far away from the political struggle and I think that confidence in them is undermined if they stray into politics more than is absolutely necessary. The place for political struggle is the floor of the House of Commons, not the Courts. If the Courts become involved highly motivated groups with money to employ top lawyers and an axe to grind can subvert the political process.

I think that can poison the political process. As an outsider Roe v. Wade seems ot be a running sore precisely because the Courts have apparently renderd the political process largely impotent in the realm of abortion. Abortion is not such a controversial issue because those of us who might wish to have more restrictive abortion laws know that it is a matter of getting our views represented in Parliament and so things can change.

To give an example from my political perspective. My own beleifs want Britain out of the EU. An application was launched for judicial review of the Government's decision to sign the Lisbon Treaty without holding a referendum. The attempt failed. That, to me, is the right result, even though it means a defeat for a political cause in which I believe.

[nerdanel]

I understand that the UK has the power of judicial review, but again, my understanding of your system is that the courts cannot invalidate legislation enacted by Parliament as unconstitutional - partly because you do not have a constitution that can be said to be remotely fixed in its understanding (as illustrated by L_M's point about the "flexibility" of your constitution), so it seems ipso facto impossible to strike down legislation as being incompatible with said constitution. As someone who has participated in the process of enjoining laws enacted by the elected branches, this is an important part of the US judicial function that is absent within the UK system. I don't think you can underestimate the significance of the distinction, and I'm not even sure you do, as illustrated later in your post:

As an outsider Roe v. Wade seems ot be a running sore precisely because the Courts have apparently renderd the political process largely impotent in the realm of abortion. Abortion is not such a controversial issue because those of us who might wish to have more restrictive abortion laws know that it is a matter of getting our views represented in Parliament and so things can change.

So you do understand the difference: where our systems diverge is that our courts are empowered to "render the political process impotent" where constitutional rights are at stake, something your courts cannot do. The upshot of Roe v. Wade is that I have a constitutional right to privacy that extends to my ability to control what will remain in my body and whether I wish to continue a pregnancy. This is fundamentally my right as an adult woman, and it is utterly irrelevant that you "might wish to have more restrictive abortion laws." My rights in our system are not subject to folks like you being able to elect a few more men (or women) who wish to take them away. This is exactly the reason I fear your system at the start: that it puts within the democratic purview rights that should not be subject to the tyranny (or whims) of the majority. It seems to me that we have a much stronger notion of "fixed rights" - not entirely unchangeable, but very likely to remain constant from decade-to-decade - whereas the UK seems much more comfortable with the idea that any scheme of rights is conferred by the grace of a partially-elected legislative body, and may be taken away in theory at any time by that body.

I am on the right in any event, but I have a distaste for Courts being supported only becuase they come to the "correct" result either way. The Courts have to deal with a myriad of real life problems far away from the political struggle and I think that confidence in them is undermined if they stray into politics more than is absolutely necessary.

It is not about coming to the "correct" result, nor about "politics". From my perspective, there are certain guarantees of equality and fundamental fairness. These are either textually explicit in our constitution or fall into the category of articulable nontextual rights under our constitutional jurisprudence. All branches of government are bound to comply with those rights. But the executive and legislature do not always do so, and it is here that our judiciary has power to stop them from behaving unconstitutionally.

To the extent these rights are controversial, they may be seen as relevant to "politics" - but that certainly does not exclude them from the province of the courts.

From the British perspective there is the important constraint on the executive in that the members of the executive are all in Parliament and acocuntable to it. That creates different political pressures which, to an outsider seem absent from the US system whehre the executive is away form the legislature.

Well, until recently, you guys also had your high court (literally) in the Parliament building and figuratively not so distanced from it. Suffice it to say that our countries have a different view of separation of powers. For us, part of the point is that the executive is away from the legislature; the independence of the three branches of government enables them to act as checks on each other (whereas you seem to be saying that the dependence of the executive on the legislature is what creates the check in your system).

ETA ... and we can all play the game of illustrating that we support our preferred governmental structure notwithstanding the fact that it sometimes reaches outcomes that we do not like. Despite being passionately committed to the concept of judicial invalidation of unconstitutional legislation, I was deeply disappointed by the decision that our Supreme Court reached in Citizens United, in invalidating campaign finance laws as inconsistent with the First Amendment. Here is an example of where your system would likely achieve my preferred result: if Parliament had passed the campaign finance law rather than Congress, the courts could not have invalidated it (note: I'm not sure whether your courts would've declared a similar act was incompatible with the Human Rights Act, so it might be that the two systems are not so different anymore. Though of course Parliament at least in theory remains free to disregard a judicial declaration of incompatibility, my understanding is that they have not done so in the past twelve years.)

But the bottom line: even if our robust judicial review achieved the "wrong" result in that case, I would not relinquish it for the world. I think this is a comparable example to your Eurosceptic one; like you, I believe in a particular role for the courts even if it does not achieve all of my ends.

ETA Thanks to Tosh for the welcome, and thanks to everyone who has been reading and commenting along - I really appreciate all the comments! - with apologies for not responding to each one individually.

[ToshoftheWuffingas]

As a layman and ordinary citizen I would say that our system depends utimately on public confidence. The majority of our MP's are in fairly close touch with their communities. Whatever the legislature ordains, if it doesn't get the confidence of the people it is on shaky grounds.
The Poll Tax of the late 1980's was a major policy voted in decisively by Parliament and enforced vigorously.
The people didn't like it and said so and the regime identified with it was adjusted and the law rewritten. Parliament may be sovereign but it does not have a preponderance of force or if it has it there are limits to its acceptable use. Perhaps public opinion is more powerful in a smaller society with long traditions of the ebb and flow of reform. Bear in mind we have been contesting the power of the executive for around 800 years. If the executive had all the cards they would have won ages ago.
Not that I think our system is perfect, not by a long long way.

[Aravar]

As a layman and ordinary citizen I would say that our system depends utimately on public confidence. The majority of our MP's are in fairly close touch with their communities. Whatever the legislature ordains, if it doesn't get the confidence of the people it is on shaky grounds.
The Poll Tax of the late 1980's was a major policy voted in decisively by Parliament and enforced vigorously.
The people didn't like it and said so and the regime identified with it was adjusted and the law rewritten. Parliament may be sovereign but it does not have a preponderance of force or if it has it there are limits to its acceptable use. Perhaps public opinion is more powerful in a smaller society with long traditions of the ebb and flow of reform. Bear in mind we have been contesting the power of the executive for around 800 years. If the executive had all the cards they would have won ages ago.
Not that I think our system is perfect, not by a long long way.

That's a very important point: confidence in the system. It is confidence in the system which can be undermined by the Courts being overtly political.

Nerdanel, I understand the distinction and understand your concern. But the question of whether this or that is a fundamental right is a supremely political question. Some of the things which you consider to be fundamental rights I don't, and, possibly, vice versa: I also don't think that that question is best decided in the Courts, becuase it is primarily a philosphical/political quesiton and not a legal one.

Well, until recently, you guys also had your high court (literally) in the Parliament building and figuratively not so distanced from it.

I think you mean the House of Lords. It's important to remember that The House of Lords was the House of Parliament itself. Parliament grew out of the Curia Regis, or King's Court. Decisions of the House of Lords were decisions of the High Court of Parliament (not to be confused with the High Court), but as far back as the Middle Ages it was settled that the House of Commons would not partake in this judicial function.

Decisions of the House of Lords were often done via consultation with the various judges. There is a famous example in R v. McNaghtern on the law of insanity. This was, [EDIT I've checked] intended to be abolished when the orginal "Supreme Court" consisting of the High Court and Court of Appeal was constituted in the late 19th Century to rationalise the system. Appeals to the House were retined at the last minute when it was felt that a second tier appeal was useful and was delegated to a judicial committee of senior judges. This was a committee of the Upper House which formally reported to it, much I suppose as a Senate Committee might but, as a result of one of those (annoying) conventions the House would not overturn the advice.

This was all changed because it violated the separation of powers: although the executive sitting in the legislature is, I tihnk a far more egregious violaiton. As a result we now have a Supreme Court at great expense with the same people carrying out the same functions albeit in a more expensive manner.

I don't think the High Court (as presently constituted) ever sat at Westminster Hall, which is attached to the Palace of Westminster, although the common law courts that preceded it did. I think the High Court (which actually sits throughout the Country) has always sat in the Royal Courts of Justice in the Strand. This building is almost always referred to as the "High Court" on the tv. It's another fine Victorian Gothic building and the shots on tv might make it look like the Palace of Westminster. It's about a mile away, close to the Inns of Court.

[Túrin Turambar]

This post has already run on too long - I'd intended only to post on Marbury briefly. However, I wanted to mention that I've begun to discuss these issues with my professors, and one item of "food for thought" they've suggested is that the two countries have different relative levels of trust in the judiciary. I think that in the US, many of us on the left have placed (relative, halting) trust in the judiciary since the Warren Court - the courts have had a robust role to play in many of the civil-rights battles over the past 40-50 years, particularly in issues such as desegregation/integration. But it seems that in the UK, the courts have had a different history - first, they seem to be perceived as even more "elitist" than in the US. Secondly, a professor mentioned to me today that the socialist left in the UK is very hostile to the courts because of a decades-long history in which the courts have been hostile to organized labour. It seems that Parliament was responsible for most of the positive changes that these leftists celebrated, and it was the courts that narrowed or rendered useless a lot of the legislative battles that the progressives had won. Indeed, some on the left were apparently upset that the Human Rights Act 1998 in the UK heightened the opportunities for judicial review, as they felt that an expanded role for the courts was a blow against human rights.

Progressives in Britain in the past few hundred years have been fighting for the House of Commons to be a) fully representative and b) the most powerful institution of government. It’s understandable that they’re reluctant to hand that power over to the courts, which are, as you say, seen as aristocratic and elitist (until recently the highest courts were the Judiciary Committees of the House of Lords and the Privy Council). In the U.K., social class is much more openly acknowledged as being politically significant. Labour is the main progressive party, it is traditionally seen as being based in the working classes, and the legal profession, particularly the judiciary, is dominated by the middle- and upper-classes. As such, progressives will see voting for Labour and Liberal Democrat MPs as a better way of advancing their cause than handing power to the likes of Lord Denning and Lord Goddard.

I know that some New Zealand Supreme Court judges have suggested that some common law rights may be so fundamental that Parliament cannot abrogate them. None have been tested so far, however. And the High Court of Australia has ruled that rights to freedom of political communication and a right to vote are implied by Australia’s democratic character, in particular the sections of the constitution which state that the two houses of the Federal Parliament will be elected. In reality, Parliamentary sovereignty has been limited to some extent in all Westminster jurisdictions with the possible exception of New Zealand.

Personally, I believe that the only real safeguard for rights and freedoms is a population inclined to protect them. Slavery and Jim Crow Laws were tolerated in the U.S. for decades, and were only ended by executive fiat and an Act of Congress respectively. Similarly, no matter how the courts rule I suspect that the gay rights struggle will end in the same way. I don’t trust or distrust the courts any more than parliament, but at least parliament is elected and can override its past decisions without needing someone to bring a case before it. And more importantly, I think that trust in the political process is essential, and like Aravar, I think that trust is undermined when power is taken out of people’s hands (either directly or, through their elected representatives) indirectly and given to the courts, an elite and unelected institution. Even if that means someone whose rights are being infringed needs to take one for the team every now and again so to speak.

There is a lot more to say on this subject, but I need to get back to work.

[nerdanel]

Aravar, L_M, Tosh --

http://www.admin.cam.ac.uk/news/dp/2010102003

How wonderfully convenient! I'm off to this. Will report back later.

[nerdanel]

This thread was moved from the Cambridge thread in Bag End because I think it deserves discussion as a Lasto thread. Very few people's posts are affected by the thread split, and I don't think there's anyone else's "personal" content here. If anyone is concerned about a particular post they want moved back to Bag End, let me know and I'll take care of it.

Also, I know that it should be the UK rather than England, but I like "England and America" better. I'm sure that the hordes of Scots, Welsh, and Northern Irelander Halofirians will burn me in effigy.

[Voronwë the Faithful]

Did you attend the "Festival of Ideas", nel? If so, will we get a report?

[nerdanel]

Yes, I did, and I took notes specifically with the intention of sharing. Those will probably be my next update to this thread, since they flow back nicely into some of the topics we were already discussing. (V - would love to see you join this discussion sometime soon. )

[Voronwë the Faithful]

I have participated by reading with great interest.

[Aravar]

Also, I know that it should be the UK rather than England, but I like "England and America" better. I'm sure that the hordes of Scots, Welsh, and Northern Irelander Halofirians will burn me in effigy.

Not entirely: the Scots do have a different legal system after all, and there is separate legal jurisdiction in Northern Ireland.