Article by D.G.T. Williams
Comparative study is unusually difficult in the area of public law. The constitutional framework will often differ significantly, the institutions will serve different purposes, and many of the underlying assumptions will be utilized in different directions. In recent debates about open government, for instance, the official response in the United Kingdom has been to dramatize the contrasting constitutional situations in the United Kingdom and the United States. We are reminded that a basic principle of American government is the separation of powers, that there are powerful political lobbies at work, that no career civil service exists, that the press is unusually strong, and that the courts of law have ‘a pervasive part’ to play in the economic and political life of the country. By contrast, we are told with respect to British government that
[i]n our constitutional system the Government is in Parliament: members of the Government are almost invariably Members of Parliament; it is to Parliament that Government is accountable; it is to Parliament that Government comes for legislative sanction for its policy decisions; it is in Parliament in the first instance that the Government explains and defends its actions.
Comments like these, made in the context of particular areas of legal activity, underscore well-understood points of difference between the United States and the United Kingdom. These are relevant to any discussion about equal protection of the laws, not only the ‘new’ equal protection or any reevaluation of it. The chief points of difference between the two nations are (from the United Kingdom's standpoint) the absence of a supreme constitution and hence of an entrenched bill of rights, the absence of constitutional adherence to the separation of powers and the accepted merger of executive and legislative functions, the absence of a federal system of government, and the absence of a power of judicial review of primary legislation. Problems of comparison are made more complex because each of these points of difference needs to be qualified and explained, albeit briefly, if only to emphasize that differences, like similarities, can be deceptive.
About the Author
D.G.T. Williams. Rouse Ball Professor of English Law at the University of Cambridge and President of Wolfson College, Cambridge.
Citation
59 Tul. L. Rev. 959 (1985)