Comparing UKs Constitutional Monarchy with Germanys Federal Republican System: A MacroComparison

Alexandra Monica Lovin 100131613

12/15/2011

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This comparative study presents the legislative components of two distinct administrative systems, namely the UK (constitutional monarchy) and Germany (Federal Republic). Regarding the concept of a single definition of comparative law, generally recognised, it cannot be found either in the national legislation of a country nor at a European level. Based on the textual meaning of the expression, the right comparison can be described as putting face to face different laws, since this process can be extended to both the spirit and style of the whole legal system (so-called macro-comparisons) and solutions to individual problems as they appear in various legal systems in question (so-called micro-comparisons). Comparative Law is, first of all a way to gain knowledge in such degree to which exposes its characteristics, it is able to offer a variety of solutions to problems more and more diverse than those offered by a national concern legal science. Comparative law enriches and extends "the range of solutions" and critically provides to the person using this opportunity to find the "best solution" to a specific problem. Moreover, comparative law also aims specific goals relevant to practice. Thus, comparative studies are often useful for the preparations of the legislative process and the method of comparative law facilitates the creation of a new right and the burden of unification supranational rights. Comparative law can be a solution to judges in interpreting the law and creative in their role as "creators" of the law although this method could be regarded as time consuming and could not be urged to any judge because of the linguistic problem.

Administrative legal systems are based on national constitutional legal traditions and cultural values. English judges have for centuries applied the common law. In Germany, judges have developed administrative legal principles for the protection of the individual against state action. However, over the last few decades, administrative legal systems have become less isolated. This is the result of fundamental developments in the European legal landscape and of the increasing complexity of administrative legal problems. In the UK, the constitutional basis for judicial review, principles of judicial control and governmental liability as well as the organization of the courts are changing. Both the English and the German administrative legal systems are

100131613 increasingly faced with the question of how to balance the dynamics of change with the preserving forces of tradition.

The most striking difference between the common law and civil law system is the absence within the common law system of any separate administrative courts as they developed in Germany in the nineteenth century.1 On the contrary, the English approach to a systematisation of judicial review was based on a remedial approach, as applied to the prerogative writs. In Germany, the first fundamental rights were found in some state constitutions in the early nineteenth century and were incorporated into the 1848 constitution, which never went into effect. The first section of the 1949 constitution is entitled Basic Rights. The rights include protection of human dignity; liberty; equality before the law; freedom of faith, conscience, and creed; freedom of expression, assembly, association, and movement; protection of marriage, the family, and illegitimate children; and the right to petition the government in writing. Also included is the right to choose an occupation; a prohibition against forced labor, except by court sentence; privacy in communications; the right to property; and the inviolability of the home. In contrast to Germany, the United Kingdom as it has not got a form of a written constitution, it has first generally recognized individual rights throughout the common law system: the rights inherent in access to the monarchs courts for remedies even against feudal lords. But the form of pleading at common law soon became rigid, and for justice to be done, equity courts emerged and even became supreme in matters of conflict with the common law. The Parliament passed laws that laid a foundation for individual rightsfor example, the Petition of Right of 1628, the Habeas Corpus Act of 1679, and the Bill of Rights of 1689, basically declaring rights of the Parliament. However, the United Kingdom, like other common law countries, has no enacted individual bill of rights as is found in the Germanys constitution. Constitutional traditions inherent in the United Kingdoms system of government are its only real constitutional protections. In 1951, however, the nation ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950); grievances for alleged violations of human rights in the United Kingdom have been filed with the convention court. And in 2000 the Human Rights Act, incorporating the convention into British law, went into effect.

De Smith, S.K., Judicial Review of Administrative Action, 1995,p. 156

100131613 Although the two legal systems differ in regards to the implementation of the basic rights of the human being nevertheless they have successfully incorporated since the very beginning. One might say that all the countries around the world have expanded their legal system from the core of the fundamental rights of the human being. The German federal system is formed out of formerly sovereign states that have long, independent histories, and the country has been described as a centrist nation that grants some powers to the Lnder (states). Although United Kingdom of Great Britain and Northern Ireland includes England, Scotland, and Wales, as well as Northern Ireland is said to be a semidevolved state as it gives limited powers to Scotland, Wales and Northern Ireland through several acts of parliaments such as the Devolution Acts 1998 & 2006, Northern Ireland Act 1998, Scotland Act 1998, Government of Wales Act 1998 & 2006. Germany is a federal state, and the constitution prescribes a somewhat complex vertical division of power between the federal government and the Lnder in articles 70 through 75. At the national level, power is divided among the president; the chancellor (prime minister); the legislature; and the courts, which include a constitutional court that exercises constitutional review. The UK is a unitary and generally centralized as opposed to federal or confederative like Germany. A strict separation of powers does not exist in the United Kingdom as it exists in Germany. The monarch, who is head of state, and the parliament formally constitute the legislature; the prime minister, who is head of government, is an elected member of the legislature and chosen by and responsible to the lower house of the legislature; and the highest appeals court consists of the lords of appeal, or law lords, who sit in the upper house of the legislature. Technically, the courts have no power of judicial review which is the case of Germany. The most distinctive characteristic of the English administrative legal system and its sources is the absence of a written constitution and the absence of an entrenched catalogue of human rights. There is also no written record of the constitutional principles of administrative law. Further, there are no separate administrative courts. Judicial review of administrative action is, in principle, exercised not by a special administrative judiciary, but by the ordinary courts. In the absence in the past of a statutory basis for the power of the courts, their power to review administrative action is inherent and discretionary. The courts have developed a number of devices designed to keep them out of highly controversial areas.

100131613 The parliamentary sovereignty is supreme in the UK, however it is the Prime Minister who initiates policies and directs the government as it is the case of Germany where the Chancellor has more powers than the president of the state. In the UKs case, the Queen has absolute power all and above all the people because of Her royal prerogative status. Both of the heads of the state appoint the prime minister, assemble and dissolve the legislature, approve all laws; however the president of Germany is more of a moral leader of the country. The major difference between the Queen of UK and the president of Germany is, among other things, that the president, who must be at least forty years old, is elected by a federal convention consisting of the members of the upper house of the legislature and an equal number of members elected by the state legislatures. The office is limited to a five-year term with only one consecutive term permitted. In other words, the president is elected and not a hereditary head of state and he has no unlimited sovereignty. The prime minister and the Cabinet are different as formation and powers in the two countries. The only similar thing between them is that the Prime Minister has more powers than the head of the each state. Since the Glorious Revolution in 16881689, the supremacy of the

parliamentary legislature has in fact reduced the monarch to a figurehead, albeit a wealthy and pampered one. Today in the United Kingdom, the prime minister and the sixteen to twenty-three cabinet members he or she presides over rule on behalf of the people. As opposed to UK, the federal government of Germany consists of the federal chancellor (prime minister) and the federal ministers, who together make up the cabinet. The British Parliament like the German one has a bicameral legislature, consisting of an upper and a lower house: the House of Lords (now the Supreme Court) and the House of Commons. Compared to Germany, the two houses are extremely unequal in power. As the nineteenthcentury English philosopher John Stuart Mill described it, the function of representative bodies such as the House of Commons is to control the business of government, but not actually do it, because such a body is best suited to deliberating rather than administering. The proper duty of a representative body, according to Mill, is to ensure that the proper persons decide matters of administration and control the government by compelling a full justification for all its acts. The modem form of Administrative Courts maintains no more links with the administration and as a reaction to historical developments now embodies the stricter form of the doctrine of the 4

100131613 separation of powers. Like English courts, German Administrative Courts do not review questions of policy. The doctrine of the separation of powers dates back to the seventeenth century. Montesquieu developed the doctrine further and based it on the model of the British constitution. He emphasised that within a system of government based upon law, the judicial function should be separate from the legislature and the executive.2 However, Montesquieu saw the role of the judiciary in simply applying the law. The separation of powers has been described as a fundamental principle upon which all the western democracies rest, but in none of them is it interpreted or lived in the same way.3 The most visible similarity between Britain and Germany in terms of legislative authority is that both countries belong to the political and structural organization as Western democracies, emphasizing the importance of the institution of Parliament that plays a central role in democratic regimes. Similarities and differences between the two legislative authorities can be divided into two categories: structural similarities - on the composition of parliaments, the number of rooms, etc. and the hierarchy within their functional similarities - on the constitutional functions of parliaments. From the structural point of view the British Parliament and the German Parliament comprises two chambers that are unequal in terms of composition and authority. House of Lords and the Bundesrat have roles in the legislative process, while the House of Commons and the Bundestag are rooms with the greatest power in the development of constitutional law in Britain and Germany, respectively. Members of the House of Lords and those of the Bundesrat are not elected by the populations vote instead they are appointed based on hereditary. In Great Britains case, the House of Lords has its existence within the Parliament is because its link with tradition. In Germany, bicameralism stems from the federal character of the state. As a federal republic, Germany needs to fully respect the democratic rules of the game in order to have a chamber that can bring together representatives of the Land regions - Bundestrat - and a chamber representing the federation as a whole - the Bundestag.

2 3

Bradley, A.W., Ewing, K.D., Constitutional and Administrative law, 1997, p.90 Meny, Y., Government and Politics in Western Europe, 1993,p.5,6

100131613 Another structural similarity refers to the actual organization of the two Parliament committees and specialised committees on various areas of public interest. From a functional viewpoint, the two legislative authorities have common points less visible. However, a possible similarity would be that both operate on a basis of internal strict rules. Both in the UKs constitutional theory and the Germanys the Parliaments are regarded as key institutions of the democratic system. Therefore, through both of the Parliaments functions and authority exercised by the regime they strengthen and ensure its proper functioning.

The differences between the two legislative systems laws are mostly functional, but there are also differences in the structure of parliaments. Structurally, the two rooms with the highest authority of the parliaments of two countries compared are composed of different majorities. In the case of Britain the majority voting system has created a system of partisan polarizing tendencies. Thus, in the House of Commons, the majority voted for is held by the party that wins the elections in most districts, and it is joined by an opposition party that is as well as institutionalised and with accurate functions as the one elected. In Germany, the formula for electing the members of the Bundestag is a joint venture that combines proportional representation with majority voting. This electoral system has always created pluripartisane parliaments, with the potential to create multiple coalitions between various parliamentary parties. Thus, in Germany, the opposition plays a much less important than in Britain, and the possibility of minority government or the creation of a national coalition is imminent. However to ensure optimum control of government activity, there are three committees of the Bundestag, whose leadership is traditionally offered by the members of the opposition, which are the Defense Committee, the Internal Affairs and the one that is in charge of drafting the budget. In the UKs case, the speaker (head of the House of Commons) that appoint members of each committee or the Commission, ensuring that each of them be the ruling party majority. Unlike Germany, where laws are voted by all members of Parliament regardless of commissions or committees to which they belong, in the UK operates specialised institution of the vote meaning that members of each committee vote only within their business legislation sphere.

100131613 Functionally, the most obvious difference between the two models compared in this paper refers to the constitutional text which underlies the establishment and functioning of parliaments. Great Britain has a constitution in the modern sense, but a multitude of customs, laws and decisions of the British Parliament, in a word, an unwritten constitution, whose strength is in the British political tradition. Germany's current constitution is a compact document that, according to the opinion of many experts, is a lesson we learned from the Weimar Republic. For this reason, the German Parliament has no power as the British decision on the constitutionality of laws. Meanwhile, there are several mechanisms that limit the constitutional powers of Parliament. The most important of these is the constructive vote of no confidence which means that if the majority of the Parliaments members vote to distrust the Chancellor, they must choose in the same time, by majority vote, a successor.4 The German political system, the Constitution establishes the Constitutional Court as an institution that is to decide the constitutionality of laws unlike the UK system, which lacks this institution, its powers being taken by the House of Commons.

Comparative analysis of the two legal systems, as it was done in this paper tends to the following conclusion: although both countries are successful models of democracy with special emphasis on the Institute Parliament, they clearly differ when German and British legislatures are made to answer the question "Who made the government and whose interest?"5 The British model of democracy which is also known as the majoritarian democracy model6 answers the question above in the sense that the citizens govern the country in its own best interest. The majoritarian model is one that provides a strong executive that the legislature is only an instrument of policy implementation. The German model argues that the governing of the state must be done in the interest of as many citizens as possible.7 Most authors believe that the consensual democracy represented in
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Armenia Androniceanu, Gabriela Stnciulescu, Sisteme europene de administraie public, Ed. Uranus, Bucureti, 2006, p. 248 5 Arend Lijphart, Modele ale democraiei. Forme de guvernare i funcionare n treizeci i ase de ri, Ed. Polirom, Iai, 2006, p. 3-14 6 Arend Lijphart, Modele ale democraiei. Forme de guvernare i funcionare n treizeci i ase de ri, Ed. Polirom, Iai, 2006, p. 3-14 7 Democracy, Ellen Frankel Paul, Fred D. Miller Jr., Jeffrey Paul, Cambridge Ed., 2000, p.19-21

100131613 this study of the German model, contains more elements than the majoritarian truly democratic one. Thus, the German legal system, ensure greater representation of both majorities and minorities in the Parliament of the multiparty system. Also the German system tends to achieve a balance of power, weighting both the legislative and executive authority. On the continent, it had generally prevailed the consensual and semi-presidential models which are specific to countries such as Germany, Belgium, Switzerland or France, because these models are considered less dependent on social structures, political culture and tradition states.

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Bibliography
Androniceanu Armenia - Sisteme administrative n statele din Uniunea European - studii comparative, Ed. Universitar, Bucureti, 2007 Androniceanu Armenia & Stanciulescu Gabriela - Sisteme europene de administraie public, Ed. Uranus, Bucureti, 2006 Bagehot Walter - The English Constitution, Second Edition, London, 1873 Barbu Daniel - Republica absent, Ed. Nemira, 1999 Bradley, A.W., Ewing, K.D., Constitutional and Administrative law, 1997 Dalton Russell - Politics in Germany, Scott-Foresman/Harper Collins Editors, 2003 De Smith S.K. - Judicial Review of Administrative Action, 1995 Eibe Riedel & Rdiger Wolfrum Recent trends in German & European Constitutional law, 2006 Ellen Frankel Paul, Fred D. Miller Jr., Jeffrey Paul Democracy, Cambridge Ed., 2000 Elisabeth Zoller Introduction to Public law: a comparative study, Martinus Nijhoff Publishers, 2008 Gordon Anthony UK Public law & European law, Oxoford & Portland, Oregon, 2002 John Bell Judiciaries within the Europe: a comparative view, Cambridge University Express, 2006 Lijphart Arend - Modele ale democraiei. Forme de guvernare i funcionare n treizeci i ase de ri, Ed. Polirom, Iai, 2006 Mark van Hoecke Epistemology and Methodology of comparative law, Oxford & Portland, Oregon, 2004 Meny Y. - Government and Politics in Western Europe, 1993 Peter De Cruz Comparative Law in a changing world, Cavendish Publishing Ltd, 1999 Pierre Legrand & Roderick Munday Comparative Legal Studies: Traditions and Transitions, Cambridge University Express, 2003 Raymond Youngs Source book on German law, Cavendish Publishing Limited, 2002 Rose Richard - Politics in England, 5th edition, New York: Harper Collins and London: Macmillan, 1989 9

100131613 Sir Basil Markensinis in co-operation with Professor Jrg Fedtke Engaging with foreign law, Oxford & Portland, Oregon, 2009 Tim Koompas Courts & Political Institutions: a comparative view, Cambridge University Express,2003 Tom Ginsburg and Rosalind Dixon Comparative Constitutional law, Edward Elgar Publishing Ltd, 2011 W. W. Buckland & Arnold D. McNair Roman law & Common law, Cambridge University Press, 2008

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