Judicial Review In Europe: Insights From Germany: Talk By Prof (Dr) M.P. Singh At NALSAR [VIDEO]

NALSAR Lecture Series on Constitutionalism hosted Professor MP Singh, who is best known as the revising author of V.N. Shukla's textbook on Constitutional Law. He has worked extensively on German Administrative Law. The talk was held on the 3rd of February, 2017 at the R.N. Jhunjhunwala Conference Hall at NALSAR University of Law, Hyderabad.AAProfessor Singh laid the history wide open, and made interesting connections between the present and the past. The Anglo Saxon notion of ‘King’s Peace’, which emerged post the Norman Conquest of England in the 11th century, saw its refined elocution on the public-private divide which was to emerge in the field of law, and capture most legal developments occurring in the nineteenth and twentieth centuries. Two difference courts were set up to adjudicate two different kinds of matters; the Court of Common Pleas was to adjudicate disputes of private nature, whereas the King’s Court was to rule upon any turbulences in the King’s Peace. Professor Singh then went on to explain the development of the doctrine of precedent, which accompanied the transition of privately held local customary beliefs of the land, into the state made law, which was quintessentially public in its pedigree. This was the process through which a “common” law emerged; which was to transcend its territorial limits of the midlands into colonies far and wide.Professor Singh then went to the Eastern Roman Empire, to talk of the “corpus juris civilis,” which was an outcome of codification undertaken by Justinian I, the Emperor. This consolidation gave rise to the concept of “book law,” which was to be administered by the church, until replaced by the modern Westphalian state. It was this Roman Law, later commonly known by the name, Civil Law, which was to become the foundation stone of the German legal system. The emergence of the state as for other reasons, holds much significance for the legal system, the laws, and jurisprudence. It did not take much time for legal philosophers and thinkers to reach the conclusion that the role and functions of the state ought to be governed by some well defined norms and rules. This was achieved by France in its 1789-1799 Revolution, which through its call for Liberty, Equality and Fraternity for all, more or less laid the ground firm for the birth of the Rule of Law. It was in this context, that the idea of State’s responsibility emerged; where not moods, whims or fancies of the rulers governed, but the law. It was this understanding, Professor Singh asserted that tasked the civil law countries to develop common-law like institutions such as the King’s Court, which were to supervise and review the functioning of the executive. It was paradoxical in a sense that geographically proximate nations such as France and Germany did not adopt English common law structures, which found easy fitment in the distant and far-off colonies such as the United States.This brought Professor to the sometimes loose distinction between public law, and private law. The differences are better captured in the dualist tradition which is more pronounced in the continental Europe than the monist traditions prevailing the day in common law countries. In the latter, there is a single set of courts which administer both, public and private law. Public law, is distinguished on the basis of the involvement of the state as one of the parties in the dispute, which is not the case in disputes involving private law. The idea that the state (without the judiciary) could be reviewed by constitutional courts emerged naturally in course of time.What made the entire process of judicial review more complex and layered was the question whether the courts could also review legislative enactments, as against executive acts. The US Supreme Court in the case of Marbury v. Madison (1803) ruled that legislature in exercise of its powers and performance of its functions was not exempt from judicial review. This expansion was not visible in the motherland of common law, in England. Professor Singh asserted that judicial review is applicable both to executive, and to the legislature; since it sources itself to the constitution, the highest law of the land. This, he said, was not a process ordained under administrative law; but in a constitutionally crafted scheme of affairs. However, the concept did not percolate so easily and so early in Europe. In their 1949 constitution, the Germans for the first time ever introduced the concept of judicial review; relying partly on the background provided by Hans Kelsen’s work with respect to the Austrian Constitution, which provided for a constitutional court. This architecture was not the same as in the States, where there was no such distinction between courts and their jurisdiction. In India, like in the US, there is no separate court per se to review exercise of executive and legislative powers. India did not adopt the German model of having a separate court, for two basic...

Judicial Review In Europe: Insights From Germany: Talk By Prof (Dr) M.P. Singh At NALSAR [VIDEO]

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