I.COMPARATIVE LAW, CONSTITUTIONS, POLITICS AND BUDGET SYSTEMS

4. Can comparative law explain the differences?

The focus of comparative law5 is on identifying inter-country differences in the broad features of legal systems. This section focuses on the various bullet points of Box I.1, except the last, which has been discussed in the introduction above.

Box I.1. Comparative law:

Aspects of relevance for budget system law

●“Models” or families of legal systems.

●Constitutions, statutes and budget system law.

●Hierarchy within primary law.

●Law-making processes.

●Secondary law, regulations of the legislature, and customary law.

●Rules versus law.

4.1.Families of legal systems and the importance of the constitution

A families-of-law approach provides some insights – admittedly incomplete – as to why budget system laws differ so widely across countries.6 First, the classification of legal systems into “families” is a difficult task, since when the scope of the “family” is defined, all key systemic features need to be incorporated without weakening the notion of homogeneity. Second, comparative law studies do not focus on the content of norms to be embodied in law, but rather on the overall approach. Third, “families” of laws are generally classified by specifically legal features. Findings of comparative law studies are therefore likely to provide, at best, an explanation as to why the organisational structure and density of budget system laws differ across countries.

At the broadest level, two law “families” or legal traditions were identified over a century ago (David, 1900):7

●Romano-Germanic (civil law model).8 Laws and codes are framed abstractly, with judges interpreting laws. Written constitutions are important for all such legal systems.

●English (common law model). Laws are not initially written down, but made by judges’ decisions, often based on precedents. The distinction between public law and private law is virtually absent (Allison, 1997).

Civil law countries generally also contain a large body of public administrative law, which specifies the legal relationships between those administering and those administered. However, budget system laws are

I.COMPARATIVE LAW, CONSTITUTIONS, POLITICS AND BUDGET SYSTEMS

absent from comparative studies on administrative law (Schwarze, 1992). One major reason for this absence is administrative law’s emphasis on the relations between the State – including its agents (bureaucrats) – and citizens. Administrative law concentrates on the legal framework for the administrators of public laws, such as the legal rights of civil servants, but generally not on their responsibilities in budgetary processes. In contrast, budget system laws focus on the budgetary responsibilities of the executive, the legislature, and the external audit organisation.

In common law countries, budget processes have not been a focus of courts’ and judges’ decisions. Rather, the legal basis of budget systems and players can be in any of the following: “the prerogative” of the executive (see the case study for the United Kingdom), the constitution, statutes, Standing Orders, and various types of normative acts of the executive. In civil law countries, where written constitutions provide a guiding framework for all law, challenges to budget system laws by constitutional courts have also been few.9

The differences between civil law and common law systems are lessening because of greater reciprocal knowledge of the two models and the increasing tendency in English-speaking countries to adopt statutes – lawyers’ laws are being reinterpreted and put onto a statutory footing by Parliaments. In the case of the United Kingdom, the influence of European law is also a factor resulting in the convergence of the two main legal families.

Although there is some convergence between civil law and common law, there is one characteristic of the civil law and common law “families” that help explain – at least at the broadest level – why budget system laws are so different. This concerns notably the role of the written constitution. First, a constitution often contains at least a few provisions relating to the budget system, which influence the content of any non-constitutional laws pertaining to the way the budget system should operate. Second, a constitution may specify how laws are organised – both in general and for budget laws in particular. In countries without written constitutions, statutes are drafted and adopted without any formal constitutional constraints and the need for statutes is less pressing when there is no constitution that specifies legal procedures and what subject areas must be regulated by law. Third, written constitutions specify the roles of the key players in budget processes. In civil law countries, constitutions and statutes serve different broad purposes (Box I.2).

The distinction between civil law and common law leads to the following two groups:

Group 1: Countries with written constitutions. The constitution defines the relations and differences in function of the key public bodies involved in budget processes. The distinction between the executive and the legislature is

I.COMPARATIVE LAW, CONSTITUTIONS, POLITICS AND BUDGET SYSTEMS

Box I.2. Purposes of constitutions and characteristics of statutes

Constitutions (purposes):

●To establish and specify the organisation, powers and roles of parliament, the executive, and the external audit office, and the relationships between them.

●To specify the role of sub-national legislatures (if any), governments and administrative units.

●To establish, implicitly or explicitly, a hierarchy among the sources of law.*

Statutes (characteristics):

●General in content, although the degree of detail and specificity varies.

●Embody principles and/or outline missions, roles and responsibilities for regulating economic activity and budgetary processes.

●Are adopted by parliament, the supreme institution endowed with lawmaking powers.

*Delpérée, 1988.

explicit. An external audit body is usually established. In general, written rules are trusted. Constitutions are particularly difficult to change – usually a parliamentary supermajority is needed, perhaps coupled with other restrictions (see Nordic countries case study). Constitutional courts or supreme courts have a mandate to safeguard the constitution, including reviewing statutes for their constitutionality.

Group 2: Countries without written constitutions. The relations and differences in function of the key public bodies involved in budget processes are more blurred than in countries where constitutions spell out roles with some detail. The executive and the legislature are not distinct, in part because constitutional rules specifying their roles have never been written down. For example, in the United Kingdom, the role of the Cabinet of ministers is not written. Combined with a first-past-the-post electoral system, the resulting unwritten powers conferred on the Prime Minister are very strong. Compared with Group 1 countries, unwritten rules supplement written rules. New “constitutional” values are easy to introduce since, in the absence of a special court mandated to review constitutionality, new statutory law can be adopted easily by Parliament at the initiative of the executive.

The observations concerning the distinction between the executive and the legislature are particularly pertinent when it comes to budget system