Introduction: beyond inter-state migration

How, if at all, do two increasingly topical debates – one concerned with the ‘migration’ of constitutional ideas and the other with the constitutionalization of supranational entities such as the European Union (EU) – connect? This is no simple question. Even if restricted to the traditional domain of inter-state movement, the debate on the migration of constitutional ideas is complex and contentious both empirically and normatively. It is empirically complex because the sources of the migrating constitutional ideas tend to be diffuse, hidden, or rhetorically overstated, and their reception mediated by and their meaning more or less subtly adjusted within the recipient legal system, both at the initial point of political and judicial interpellation and in their subsequent legal-cultural re-embedding. It is normatively contentious because there are such strong and well-rehearsed prima facie arguments both for and against migration – most of which, moreover, seem resistant to conclusive empirical proof or refutation – and, therefore, much disagreement about the circumstances and conditions, if at all, under which migration is acceptable or desirable.

The migration of constitutional ideas may be a ‘good thing’ where it counters parochial tendencies within national constitutional law, providing alternative models of constitutional virtue against which the domestic model can be evaluated, or, even if the most basic norms and ends of the recipient order are not challenged, supplying a broader range of constitutional techniques in the search for the optimal means towards the realizations of these norms or ends.

Why study comparative constitutional law? For a scholar, of course, the value seems obvious: more knowledge is generally better than less. Others have a more instrumental interest. They might want to know whether studying comparative constitutional law might improve our ability to make domestic constitutional law. Responding to that inquiry requires some examination of how we can actually do comparative constitutional law.

I confine my attention to questions implicated in doing comparative constitutional law as law. There is of course a large field of comparative studies of governmental organization, conducted by political scientists as well as by lawyers, and some of that field overlaps with the field of comparative constitutional law. But, there is also one large difference between the fields. Comparative constitutional law involves doing law. And, as I have learned, it is quite difficult to be comfortable in doing law in more than one legal system. Even when language barriers do not intervene, legal cultures do. For example, I have been persuaded – despite my initial scepticism – that Australian constitutional culture is far more formalist than US constitutional culture. It is less open to what seem to me the inevitable intellectual challenges from those influenced by US legal realism and its legacy. As a result, constitutional doctrines in Australia, such as those dealing with the allocation of authority between the national and the state governments, are more stable than similar doctrines in the United States, even doctrines framed in language that seems parallel to that used in the Australian cases.

Introduction

Even in the last stronghold of domestic law – the constitutional sphere – constitutional law is increasingly comparative and transnational in scope. The theory, however, is struggling to keep pace with this aspect of contemporary practice. In no small part this is because of how the use of comparative and transnational sources points up the poverty of the traditional account of sources of law and legitimacy. The traditional account of the sources of law and legal authority is highly spatialized – essentially positivistic in nature, it imagines mutually exclusive ‘bodies’ of rules, delineated in terms of both subject-matter and jurisdiction and presided over by a conflict-like adjudicative process. According to this account, drawing sources from beyond any of the relevant borders inevitably raises questions of legitimacy. The concept of legal ideas ‘migrating’ is in this way inherently threatening to the traditional account. As long, however, as ideas from elsewhere appear in a purely persuasive guise, their invocation may have some semblance of consistency with the traditional account.

Recently, however, courts have been inclined to find that some non-binding legal sources, drawn from across traditional boundaries, may also give rise to a more demanding effect. So, legal rules that lack force or are not binding may nonetheless possess a kind of mandatory effect that cannot be explained as persuasive authority. This is apparent in many invocations of international and transnational law but it also appears elsewhere.

This book is written for students who are studying law on courses ranging from ‘A’ and ‘AS’ level and BTEC through to a wide range of undergraduate degree courses. Students studying for law degrees will find much material which introduces them to most of the foundation subjects, as well as familiarising them with legal concepts, legal method, and many aspects of the English legal system.

Apart from students enrolled on academic courses, it is hoped that this book will also be of interest to others who are fascinated by English law and the legal system. We live in a society in which everyday life is touched by legal regulation more than at any other period in history. Laws themselves are the result of intricate historical processes and of contemporary policies; those processes and policies are often controversial, and are themselves interesting and rewarding areas of study, helping us understand why our law takes the form that it does.

For if we are to have law at all (and every known social group has had codes approximating to what we would recognise as law) then it must be responsive to the needs of society. If the law, or any part of the legal system, fails to respond to those needs, then it clearly becomes open to criticism. I see neither use nor virtue in presenting or studying law as if it were merely a package of rules; or in a way which suggests that there is nothing wrong with it.

The contract is the legal cornerstone of all transactions in business and consumer life. It is the legal device which facilitates exchange of goods or services between individuals and groups (such as businesses) in our society, and may be defined as a legally binding agreement between two parties whereby each party undertakes specific obligations or enjoys specific rights, conferred by virtue of that agreement. The expression ‘breach of contract’ refers to the fact that the agreement is legally binding: if one party fails to honour his or her part of the bargain, then the other can sue, and obtain a remedy through the courts for that breach.

Of course, not every agreement is a legally binding contract. Purely social or domestic agreements, mere requests by one party for information, a series of negotiations between two parties and collective agreements between trade unions and employers have been held by the judges not to constitute contracts, and the judges have also refused to regard lotteries or football pools transactions as legally enforceable contractual relationships. Regarding social and domestic arrangements, the courts have asserted that the parties to the agreements did not intend to enter into a legal relationship, and this ‘intention to create legal relations’ is often said to be one of the legal conditions for the formation of a contract.

One of the most important functions of any legal system is the authoritative statement of the normative legal code – the legal rules – by which the society in question is to operate. As we have seen, legal rules are not necessarily the only normative codes which prescribe social behaviour (morals and etiquette are others), but legal rules are distinct in that they constitute the official code which has the backing of state powers of enforcement and sanctions. In this chapter we examine the principal sources in modern society whereby legal rules are created.

Parliamentary legislation: politics, pressures and public policy

According to the constitution, Parliament or, more correctly, the ‘Queen in Parliament’, is the sovereign law-maker in Britain. This means that although the judges have a role in the law-making process, they must bow to the superior powers of the legislature who may override judge-made ‘common law’ rules by Acts of Parliament. Britain's membership of the European Community has brought dramatic consequences for this constitutional doctrine, as we will see in chapter 8. In this chapter, however, we will concentrate on the domestic law-making processes of the UK, and in this first section we consider the procedural aspects of legislation and discuss the background to and impact of legislative enactments.

Legal rules are invariably related to social and economic conditions prevailing at a given period, and so we find that the legal normative expressions of the relationship between the holder of property rights and the objects of those rights have their basis in social and economic practice. We saw in chapter 3 the extent to which the law relating to business concerns itself predominantly with business property, and the regulation and transfer of that property, in accordance with the economic structure within which business operates, and we noted in chapter 2 the relationship between the law of theft and the demands of propertied classes for adequate legal protection of their property. Similarly, property concepts such as ownership and possession, leases and mortgages, contracts and trusts, are legal normative reflections of the economic activities and demands of individuals and classes at different periods.

In considering law and property, we must also bear in mind two further points. First, in our economic system, property rights are related to wealth, and when we speak of wealth and property we are usually implicitly acknowledging the unequal distribution of private property and property rights among social classes. Second, property is not treated in law as a homogeneous category. Because property objects have taken different forms and have represented differing degrees of value at different times, the law has developed a fairly specific classification of property, each type of which has particular legal rules attached to it.

One of the many ways in which human societies can be distinguished from animal groups is by reference to social rules. We eat and sleep at certain intervals; we work on certain days for certain periods; our behaviour towards others is controlled, directly and indirectly, through moral standards, religious doctrines, social traditions and legal rules. To take one specific example: we may be born with a ‘mating instinct’, but it is through social rules that the attempt is made to channel this ‘instinct’ into the most common socially-sanctioned form of relationship – heterosexual marriage.

Marriage is a good example of the way in which social rules govern our lives. Not only is the monogamous (one man/one woman) marriage supported by the pre-dominant religion in British history – Christianity; it is also maintained through moral rules (hence the traditional idea of unmarried couples living together being ‘wrong’) and by the operation of rules of law which define and control the formalities of the marriage ceremony, lay down who can and who cannot legally marry, specify the circumstances whereby divorce may be obtained, define the rights to matrimonial property upon marital breakdown, and so on.

Marriage is only one example of social behaviour being governed through rules. Legal rules are especially significant in the world of business, with matters such as banking, money, credit and employment all regulated to some extent through law.

Among the topics and themes discussed so far has been the increase in state intervention in almost all sectors of social and economic life over the past 100 years or so; the growth of the welfare state, with the accompanying expansion of machinery for dispute-prevention and solution through administrative tribunals and other bodies; the vast increase in legal controls over many activities which, in earlier times, were left to the private arrangements of the individuals and groups concerned; and the changing nature of the state itself, which has moved from a relatively non-interventionist stance to much more positive and direct regulation and control. In recent years central government has sought to deregulate, and to return nationalised and public-sector industries and services to the private sector; but, paradoxically, in so far as this has been achieved, it has been done largely by placing considerable directive power in the hands of central government.

Private sector involvement in the provision of public services has blurred the distinction between ‘public’ and ‘private’ sector organisations and functions: what were previously regarded as the proper activities of the state have now often become the responsibilities of private companies – examples range from the privatisation of ‘public utilities’ such as the power and telecommunications industries, to the contracting-out to private companies of various aspects of the management of hospitals, schools and even prisons.

It is a commonplace assertion that the last hundred years have witnessed state intervention, especially in affairs involving economic activity, on a scale greater than at any other period in history. In chapter 1 we noted some examples of this phenomenon and discussed some of its basic aspects. But if we now pursue the matter, and ask exactly what is meant by the term ‘state intervention’, we find that this expansion of intervention has not come about in a straightforward fashion but has occurred through complex changes in the structure of society and the economy, and in the very nature and role of the state itself. As we shall see presently, the notion of ‘the state’ is itself surrounded by problems of definition, and by controversy both as to the precise nature of the modern state and as to what the most appropriate role for the state should be in advanced capitalist society. Of course, state intervention is by no means confined to the economic sphere: the state has taken on a more active role with respect to many other areas of social life, such as public administration and the growth of what is usually termed the ‘welfare state’. We shall discuss these developments presently, but for the moment we examine some of the main issues concerning state regulation of economic activity – a sphere of social life which is central to the existence of any social group.

One of the most basic functions of law in any society is to specify the situations in which a person may be legally liable, that is, answerable to the law, for his or her acts or omissions. In English law, the major areas containing the fundamental principles of liability are crime, tort and contract, all of which, together with the important area of public-law regulation, have been briefly introduced in earlier chapters. In this chapter and the three following, the question to be discussed may be stated as follows: in what circumstances will the infringement of a legal obligation involve the imposition of legal liability, and hence some form of legal sanction, upon the violator?

The law of tort, or civil wrongs, incorporates as a basic general condition of liability the proposition that a defendant is only liable if that person is in some way ‘at fault’. As we saw in chapter 2, the proposition ‘no liability without fault’ is a general characteristic of English law: how, then, is this idea built into the law of tort?

Tort and capitalism

The high-water mark of the principle of ‘no liability without fault’ in English law was undoubtedly the nineteenth century. We have repeatedly noted how, in the twentieth century, the state intervened to regulate more and more areas of social and economic life, but the nineteenth century – the period of economic individualism and laisser-faire – saw minimal state interference with the business and commercial life of the community.

The law is one of the most powerful carriers of dominant social definitions of acceptable and unacceptable conduct. It is perhaps the most significant social institution for the settlement of disputes, and it contains within its rules and procedures means whereby infringements of the law, from the trivial to the most serious, can be dealt with. Lawyers form an important group of the various personnel involved in these procedures, and it is important to understand the kinds of services which lawyers provide, as well as the occupational, social and educational background of this body of experts whose work is so closely tied up with the maintenance of social norms embodied in the law and the legal system.

Lawyers, it is often said, are a response to a social need. Disputes crop up in all corners of society, among every social class, and such disputes and problems can involve anything from marriage breakdown to criminal charges, contested wills to commercial transactions. The trouble is that in many cases the solution to the dispute is not something which can be determined like a mathematical equation. Most cases involve questions of social values, the most fundamental of which is probably ‘justice’, and judgments about those cases are based upon evaluation rather than issues of hard fact. Law embodies dominant social norms and values, and lawyers are engaged in their everyday work in maintaining those values through their function of implementing the law.

The importance of legal concepts will already be appreciated from the preceding discussions, in which we mentioned such notions as ‘freedom’ and ‘justice’ and their role within the legal system. Apart from these concepts, however, which play a part in influencing the content and operation of the legal system, there are other fundamental concepts within the law itself, whose significance must be understood. Such concepts as ‘ownership’ and ‘possession’, for example, referring to what may be quite complex relationships between individuals and concrete things, are basic to the notions about property embodied in law, and these particular ideas are dealt with in chapter 5. At a rather more fundamental level are concepts of ‘rights’, ‘duties’ and ‘persons’, which are so basic to the operation and implementation of rules of law that we can think of them as the ‘units of legal currency’ whereby rules become ‘translated’ and applied to specific social activities. If we say, for example, ‘Jones owns a car’, then in the event of Smith, another car-owner, driving his vehicle so that it collides with Jones' car, the fact that Jones' interest in her car is one of ‘ownership’ will give rise to all kinds of possible relationships between Jones and Smith, turning on the questions as to what rights Jones may have in law against Smith, and what duties Smith may have infringed in respect of Jones and her damaged car.

On 1 January 2002, 12 member states of the European Union – Germany, France, Spain, Ireland, Italy, Luxembourg, Belgium, the Netherlands, Austria, Portugal, Finland and Greece – adopted the euro as their official currency. This event was significant in a number of important respects, the main ones being first, that it marked an important stage in the move towards European economic and monetary union; second, that some member states of the European Union – Britain, Denmark and Sweden – chose not to join the common currency at that time (and this remains the case). Third, the fact that Europe is split on the euro issue is an indicator of the extent to which the European Union has embraced what has been termed a ‘twin-track’ situation in which some member states, through powers to opt out of European Union initiatives, choose to move towards European objectives at a different speed than others. This issue has become more acutely marked since the accession to the European Union of ten new member states in 2005 – Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia.

The history of the European Union has been one of gradual expansion of both its membership and its agenda. In terms of its member states, the original European Economic Community, created through the Treaty of Rome in 1957, consisted of six members – Germany, France, Italy, Belgium, the Netherlands and Luxembourg – who came together with the purpose of creating closer economic relationships.