A comparative analysis of civil and common law jurisdictions – III
Mohammad Akram Sheikh
Thursday, November 11, 2010
Following is the continuation of the article published on Nov 10, 2010, issue of The News.
Many countries with civil law systems have since adopted some sort of judicial review in order to stem the tyranny of the majority.
Another reason why judicial review should be understood in the context of both the development of two distinct legal systems (civil law and common law) and the two distinct theories of democracy (legislative supremacy and separation of powers) is that some countries with common law systems nonetheless do not have judicial review. Though a common law system is present in the United Kingdom, the country still has a strong attachment to the idea of legislative supremacy and consequently the judicial body in the United Kingdom does not have any power of judicial review. However, since the United Kingdom became a member of European Union (EU), there has emerged a strong tension between the UK’s national tendency of legislative supremacy and the EU’s legal system, which empowers the Court of Justice of the European Union with judicial review.
Constitutional review has to be understood in the context of two distinct but convergent legal and political traditions. While maintaining their theoretical differences, the civil law and common law countries are in the process of blending both the legal norms and processes in their respective systems. Norway is good example of this where the central organ for control of the constitutionality of laws is the Supreme Court. There other courts also have limited power of judicial review. Thus, Norway basically belongs to the group of countries having ex post facto, decentralized and concrete control. In this way, although Norway is a civil law jurisdiction, its judicial review system resembles closely with the systems in common law jurisdictions like the United States. On the other hand, there are other countries, which, in spite of the adopted tradition of the common law system, have authorized a single government body to carry out constitutional review (a concentrated system of constitutional review in agreement with the common law system). This seems to show that in principle the concentrated system of constitutional review (contrary to the American diffused system) is not incompatible with the common law system. This is the state of affairs in Uganda, in which the 1966 Constitution gave the Supreme Court exclusive jurisdiction over constitutional matters.
Xiii The doctrine of judicial review, which originated from United States more than two centuries ago, has been adopted extensively by other common law countries. This doctrine has now become rule-based as in civil law countries. To develop this norm further, the courts in common law jurisdictions would do well to ensure control of constitutionality through constructive interpretation aimed at bridging the conceptual difference between civil law and common law systems aptly summed up by Professor Thomas Fleiner: “The common law tradition sees law as an instrument only to limit state government, whereas according to the Continental tradition, it limits but also empowers state government. If the constitution is seen as an instrument not only to limit state power but also to empower state agencies to change the society, it will have a different position with regard to development and to a peace process.”
Xiv (Paper presented at the Administrative Law session-entitled The Constitutional Review by Administrative Courts-of the 54th Congress of the International Association of Lawyers held in Istanbul, Turkey, October 30-November 3, 2010.
i See, Jacques Ziller, “Administrative Justice as an Aspect of Modern Governance”, UNIDEM Campus Trieste Seminar, Report CDL-UDT(2005)018, prepared for the European Commission For Democracy Through Law (Venice Commission), Strasbourg, 14 March 2005.