The common-law system originated from England in the Middle Ages. From the 17th century relations between the courts and the executive developed to a constitutional struggle between the Stuart kings and the judges over the judges’ right to decide questions affecting the royal power and even to announce an independent judgment in situations where the king had an interest. Francis Bacon, in his article Of Judicature (written in 1612), put forth the royalist point of view when he announced that the judges ought to be”lions, but yet lions under the throne.” “It’s a happy thing in a country,” he wrote,”when kings and states do often consult with judges; and again, when judges do often consult with the king and state: the one, when there is matter of law intervenient in business of state; another, whenever there is some consideration of state intervenient in matter of law.” The subordination of the judicature to the royal will was strongly resisted by Chief Justice Sir Edward Coke, Bacon’s great rival, who refused to comply with James I’s fantasies in several instances where the royal prerogative was included. The King harangued the judges over once on their obligation to honor the royal prerogative and power.
From the inherent conflict that took place a generation later, the judges and the attorneys made common cause with Parliament against Charles I, and finally the independence of the judges had been established. Henceforth there was one system of law to which all would owe . Because of this, the executive possessed no inherent forces aside from those subject to the principle of law inasmuch as laws had to emanate from the crown in Parliament. Additionally, the judges were expected to guard the field against the executive. A more abstract consequence was that the belief that”authorities” and”legislation” were often believed to be opposed to one another. The earlier conflict between judges and crown survived to become an antagonism between the legal profession and the executive, especially the civil service.
These advancements established the principle that the executive shouldn’t interfere with the judiciary from the exercise of its functions. This was, indeed, almost the only strict application in England of the philosophy of this separation of powers. On the other hand, it had been considered right and proper that the judiciary should interfere with the executive each time a minister or a department was proven to have acted illegally. This way the notion of the rule of law came slowly to be identified with the thought that the judges, in ordinary legal proceedings in the courts, could pronounce upon the lawfulness of the actions of the executive. Any attempt to split the seamless web of this law, any hint of a distinction between private and public law, appeared destructive of the law’s universality and its capacity to maintain the executive within boundaries.
The principle that all public authorities are liable to have the lawfulness of the acts and decisions tested from the ordinary courts was implemented everywhere the common law prevailed, for example, United States, regardless of the much stricter interpretation given by the Founding Fathers there to the doctrine of the separation of powers–a philosophy embodied in the state and federal constitutions. A total separation of powers wasn’t considered feasible from the framers of the Constitution, and they consequently introduced checks and balances, whereby all the three branches of government could be prevented from growing too strong by the countervailing power of others. This really strengthened the power of the courts to review the actions of the executive. Elsewhere in the common-law world, the extended function of the courts in reviewing government was adopted with no public debate regarding the separation of powers or the requirement to safeguard liberty by a system of checks and balances. This lack of an explicitly defined role for courts contributed, in the first post-World War II years in Britain, to real fears that the courts are unable or reluctant to question the enlarged powers of governmental bodies.
Modification of the common-law system
The common-law system was extensively modified in the course of the 20th century. Until then it didn’t correspond to the realities of the situation in Britain since, before the Crown Proceedings Act (1947), it wasn’t possible to sue ministers and their departments in tort; government ministers in Britain are believed ministers of the crown, along with an ancient legal doctrine holds that”the king can do no wrong.” Additionally, the evolution of state-provided social services has been accompanied by the introduction of a high number of administrative tribunals to determine disputes between a government department and a taxpayer. The jurisdiction of these tribunals is of a technical and narrowly circumscribed character and relates to these acts as social insurance and social support, the National Health Service, rent control, evaluation of land for local taxation, the compulsory acquisition of property by public authorities, and the enrollment of children’s homes. Since 1958 a permanent Council on Tribunals made by the lord chancellor has exercised a general supervision over about 40 tribunal systems, but they remain an unsystematic and uncoordinated movement. However, they supply a process of administrative adjudication far more economical, more casual, and more rapid than that provided by the courts; the members are persons possessing special knowledge and expertise of the subject dealt with; they don’t need to stick to the strict and complex rules of evidence that prevail in the courts; also it’s likely to introduce new social norms and ethical factors to guide their decisions. These tribunals have won general acceptance for the quality and impartiality of the work. An allure on a question of law lies in the majority of cases from the decision of an administrative tribunal into the High Court of Justice. There’s still no comprehensive administrative authority in Britain allowing judicial review over the entire area of executive actions and conclusion.
In Australia a similar movement took place with the development of a high number of administrative tribunals that govern many unique spheres of public management , such as industrial states; the award of pensions, allowances, and other state grants; city planning; censorship of movies; fair rents; the licensing of jobs calling for special abilities or public obligation; commerce, transportation, and marketing; the evaluation of federal taxes, local taxes, or duties; the security of industrial design, patents, and copyrights; and compensation for interference with private-property rights in the public interest. By 1975 these tribunals were handled by the Administrative Appeals Tribunal.
In america the courts review administration far more comprehensively than in Britain. But much adjudication is currently performed by public authorities aside from the courts of law. The motion toward administrative tribunals started with the Interstate Commerce Act (1887), establishing the Interstate Commerce Commission to regulate railways and other carriers. This legislation introduced a new sort of national bureau , outside the frame of the executive departments and mostly independent of the president. Other regulatory penalties followed: the Federal Trade Commission, the Federal Communications Commission, the Securities and Exchange Commission, the National Labor Relations Board, and the Occupational Safety and Health Administration. These bodies have experienced legislative, administrative, and judicial functions assigned to them by Congress, and the doctrine of the separation of forces can no longer be successfully invoked to challenge the constitutionality of such laws. The regulatory commissions are often described by American jurists as administrative tribunals.
Thus, in the USA, as in other areas of the Anglo-American common-law world, the idea of the exclusive exercise by the courts of judicial powers and of the lack of particular administrative tribunals has been substantially altered by these developments.