judges may exercise in constitutional matters. There are three main
traditions in this respect.
UK judges are formally amongst the least powerful in being
limited by the prerogative powers of the Crown, the doctrine of the
sovereignty of Parliament, the lack of an enforceable declaration of
rights (until 1998) and a tradition of deference to the executive in
such matters as official secrecy and executive discretion. A further
cause for concern is the secret process whereby judges are appointed
by the government of the day. Such appointments are generally
made from the ranks of the predominantly male and Oxbridge/public
school educated, ‘Queen’s Counsel’ who frequently represent the
prosecution in criminal cases.
‘Democratic’ elements of the British system include the jury
system, the presumption of the innocence of the accused and the
principle that only activity formally proscribed by law can be illegal.
In this ‘common law’ system highly professional lawyers interpret
legislation according to the precedents set in previous cases. Despite
the reservations expressed in the previous paragraph, it should be
conceded that they have usually been sturdily independent within
their defined limits, are only removed for gross misconduct and
usually seek to interpret legislation as respecting the traditional
rights of ‘Englishmen’.
US (and many Commonwealth) judges, whilst still operating a
common law system, however, are in a much stronger position in that
they have established their powers of ‘judicial review’ of legislative
and executive action in the light of a constitution which includes a ‘Bill
of Rights’ for individuals. In the USA the political importance of
federal judges is recognised by constitutional guarantees of inde-
pendence once appointed, and an open and rigorous appointment
process including endorsement by the Senate and hearings before its
Judiciary Committee. At state and local level a separate judicial system
operates in a similar way except that in some areas judges are elected
(generally in non-partisan elections) for fixed periods.
In the continental (Napoleonic) tradition administrative courts in
practice today often independently exercise a degree of control over
executive action without parallel in Britain. The legal system in
continental European countries is usually based upon a tradition
going back to Roman law as modified by Napoleonic reforms. It places
more stress on general principles (such as respect for constitutionally180 DEMOCRACY