The democracies that emerged victorious from the Second World War tried to entrench human rights as a defense against the cruel politics of power. In so doing, however, they created a major problem of self-understanding, a cleft running deep through the heart of democratic theory. Democracy and human rights are not identical things, so it is necessary to ask whether they can coexist. It seems that the answer depends on two contingent factors: how the democratic societies conduct themselves, and what rights human beings assert. You cannot champion “democracy and human rights” without quite quickly having to decide which takes precedence between them; and since either of those terms, and not just one of them, may from time to time be used as a cloak for self-interest and tyranny, there is no universally correct answer. That is the underlying problem of coherence in contemporary Western ideology.
My interest here, however, lies not with that problem, but with one deriving from it, a constitutional problem about the judicial review of legislation, “legislation by courts” as it is often alleged to be, which in the service of human or civil rights deprives lawmaking of democratic accountability. In terms of U.S. constitutional theory, this problem is often addressed as a shift in the traditional relation between the legislative and judicial branches of government, as readers of this journal may be aware. But I hope it may be useful for a British commentator to point out that the constitutional form which the question takes here is not the only possible form. Similar difficulties confront European societies with other constitutional traditions. The constitution of the Republic of Ireland, for example, has acquired the shape of a baggy Aran sweater, full of detailed amendments that would never belong in such a document except to countermand decisions of the Supreme Court. Even the constitution of the United Kingdom, boasting a radical centralization of authority in parliament, meets the same problem through its adherence to the European Convention on Human Rights, with its attendant Commission and Court.
It is natural to suppose that the solution lies in recovering early-modern doctrines about the separation of three powers of government. These doctrines derive ultimately from the fourteenth-century Italian thinker, Marsilius of Padua, who distinguished the Legislator, which was the people itself or its representatives, from those who implemented the laws against domestic threats, on the one hand, and against external threats, on the other. But there is a difficulty with this approach, namely that on the all-important point early-modern thinkers achieved no stable consensus to which we may appeal.
Within a fifty-year period at the turn of the eighteenth century, there emerged two ways in which political philosophers defended the separation of powers-one put forth by Locke, the other by Montesquieu. Both claimed to base their observations on the best English practice; both affirmed three distinct powers of government (though only Montesquieu used the modern names and only Locke actually used the word “separate”). Yet they are very different. In Locke the greatest point of “separation” is still between the originating legislature on the one hand and the two consequential branches on the other. These branches are not so distinct from one another, since they must, Locke thought, rest in the same hands (so saving the face of the British monarchy). But Montesquieu articulated something like the familiar three-leaved shamrock pattern, with an equal distance separating each of the branches from the other two. He also demanded that separation should be concrete, the different branches of government in the hands of different people. From these two perspectives, which provided matrices for later British and U.S. constitutional practice respectively, the causes of our current problem and its likely solutions will appear quite different. Going back to early-modern sources, then, leaves us with the problem of which sources to go back to.
Christian thinkers, moreover, have their own reasons for not being content with this approach. They have a long theological tradition, partly forgotten, in which judicial and legislative activities are related quite differently. They, at least, should ask whether the root of the problem lies not in recent neglect of early-modern theory, but in early-modern neglect of the yet earlier Christian understanding. So, at any rate, I propose to argue. What the Christian tradition maintained, and the early modern thinkers denied, was a primacy of the act of judgment. And this primacy entailed a distinctive understanding of the task of legislation, which explains more satisfactorily than early-modern theory the nature and scope of the legislator’s authority over courts. First, then, I shall sketch the history of premodern Christian thought on the subject, secondly suggest how it supports a better account of the branches of government, and finally return briefly to our problem, the right and limits of judicial review of legislation.
Jesus has ascended in triumph to God’s right hand; yet the subdued “authorities” of this age, St. Paul held, “persist” (Romans 13:6) in order to approve good conduct and “to execute God’s wrath on the wrongdoer.” According to Paul, then, the reign of Christ in heaven left civil authorities with exactly one task: that of judging between innocent and guilty. We should observe that this was an unprecedentedly lean doctrine of civil government. Judgment alone never comprised the whole of what ancient peoples, least of all the Jews, thought government was about. Paul’s conception stripped government of its representative, identity-conferring functions, and said nothing about law. He conceded, as it were, the least possible function that would account for its place within God’s plan.
In later centuries it was Latin-speaking Western Christendom that adhered most radically to Paul’s conception. “Jurisdiction” was the term that came to define that ever-fascinating and difficult relation between church and state. Courts were the central locus of government, for church and for kingdom. Here human government differed from that of God, notably (for our purposes) in that God is a legislator as well as judge. His law provides human judges with a sufficient basis for their judgments, and the Latin Church fathers were frankly suspicious of human attempts to add to it. “The term ‘rights,’“ Augustine says, “cannot be applied to the inequitable constitutions of men.” What rulers do when they act obediently to their vocation is to apply divine law to the infinite possibilities of human wrongdoing.
In Eastern Christendom we notice a difference of emphasis. Here the way was beaten for the church by the greatest Jewish thinker of the classical world, Philo of Alexandria (c . 20 b.c. -50 a.d. ). For Philo, Jewish social existence was conceived partly in contrast with, partly in correspondence to, the political experience of a Greek city-state, constituted by the work of a “legislator” ( nomothetês ). Lawgiving in the Hellenistic world was thought of as foundation , the creation of a polis by the creation of a distinctive corpus of law. As Lycurgus was to Sparta and Solon to Athens, so, according to Philo, was Moses to the Jewish politeia , though he was unique in that he was directly inspired by the Logos or Reason of God. Also taken over from Hellenistic commonplace about government was the conception that Moses was empsuchos nomos, a “living law.” The Christian Clement, a fellow-citizen of Alexandria, followed Philo’s lead gladly. Now the lawgiver was Christ, the Logos himself, whom Moses had uniquely anticipated and represented.
Yet this did not really lead Greek-speaking Christians in a different direction from the Latin-speaking West. The tendency of Hellenistic Christendom to allow a direct analogy between Christ the Logos and earthly rulers is notorious. But even when that analogy was most developed, as in Eusebius’ panegyric on Constantine, there was no hint that Christ’s role as lawgiver could be transferred to the earthly ruler. Law was a feature of all earthly government, but governments merely kept the law rather than made it. In the East, too, then, the subject of human lawmaking is still passed over in silence. The term nomothetês and its cognates is hardly ever applied to the emperor by theologians, though in secular writing it was common. And in 530, when Justinian acceded to the imperial throne in Byzantium, a work of exhortation addressed to him by a theologian insisted, among other things, on his being subject to law, but contained virtually no acknowledgment that his task would include making law.
That this is not at all the situation among the thinkers of the high Middle Ages is due to two influences, of whom Justinian himself, at a remove, was one. Because of his codification of civil law, Justinian came to be seen as a model for the Christian lawmaker, and the description of human government came to include lawmaking as a dimension. But lawmaking here was not understood simply as legal innovation. Justinian’s influence served to dignify above all the task of codification; the term legis lator, when it appears in the twelfth century, refers primarily to the early jurists who ordered and systematized the Roman law. Medieval political thought was also influenced profoundly by the rediscovery of Aristotle’s Politics and Ethics, which apply the term nomothetês not only to the legal founders of city-states, Lycurgus and Solon, but also to political theorists who put forward overarching proposals for social organization. Plato is one of Aristotle’s nomothetai, and democracy and oligarchy are among his instances of nomothesia. The Justinianic conception can be seen at its most persuasive in St. Thomas’ great treatise on law in the Summa Theologiae . The structuring of a social order requires, Thomas thinks, not merely application of divine law, natural or revealed, but a lex humana, a “positive law,” which is to determine matters otherwise left unresolved. The ius ponendi leges , the “right of making law,” was the mark of the sovereign prince. Yet still the authority of human lawmakers reposes on divine law, to which human law may never stand in contradiction. So the positive aspect of human lawmaking is safeguarded by a negative proposition, that a law defying natural or revealed divine law has no standing at all.
The influence of Aristotle, on the other hand, is particularly strong in another work attributed to St. Thomas (falsely, I am inclined to think), the variously named On Kingship, to the King of Cyprus or On Princely Rule. “We must first and principally expound the king’s duty,” the author tells us, “from the institution of the state or kingdom . . . . The name of Romulus would be unknown today had he not founded Rome.” Those words, startling to ears attuned to early medieval political reflections, announce the reappearance of legislation as foundation , the concept which the early church had in effect neutralized by confining it to Moses and Christ. They attest a situation in which there is interest in how new political communities may be brought into being. At this point the line between the Aristotelian revival and the early Renaissance seems very thin.
This is the context in which the modern theory of popular sovereignty first saw the light of day. The role of Marsilius of Padua’s Defensor Pacis (1325) in articulating this new departure is commonly acknowledged, as is the fact that he drew both on Aristotle and Roman Law in articulating it. Less commented on is Marsilius’ startling use of the term “legislator,” applied to the people as a whole in the sense of “founding-lawgiver.” As originating legislator, the populace is the primary authorization for any subsequent form or act of government. Legislation is not one of the things government does ; it is the constitutive act that lies behind all government.
Even so conceived, however, it is ventured only under God, who is the author and vindicator of all law. The tradition of “constitutionalism” which arose from Marsilius’ new departure understood the founding legislative act as a response to a divinely given law of nature defining the possibilities of political society. It can exist as a power of human government only when authorized by the primum ius, the First Right, i.e., God’s. So what now comes to be said about legislation as constitutional foundation is formally parallel to what is said about judgment: as we may judge subject to God’s judgment, so we may found lawful societies under God’s law.
A decisive shift of perspective occurred in the seventeenth century, the effect of which was to make divine law irrelevant to the foundations of political order. The primum ius vanished from consideration; the act of human foundation ceased to depend on divine foundation, and began to look like a repetition of it. The sovereign arbitrariness of God’s creative decree was taken into the human act of founding a society, so that it looked rather like a creation ex nihilo, presupposing no prior law, no preexisting social rationality, a new beginning, not merely relatively and politically, but absolutely and metaphysically. Legislation thereby became the foundation of a social rationality. In setting out to radicalize the act of human foundation, this change actually destroyed it. The contractarians attempted to answer-without invoking God-the constitutionalists’ question about how a civil society could begin. But they could not long conceal a guilty secret: in reproducing the divine legislative act in the political foundation of a human society, they had abolished the moment of beginning altogether. Since it seemed possible for human society to replicate the original fiat lux of God in constituting itself as a sphere of order, it was necessary for it to do so; and if necessary once, necessary again and again. The “beginning” was constantly reenacted, the drama of bringing order out of chaos was the perpetual law of every society’s being; and the language of a primitive social contract was unveiled as what on contractarian terms it had to be, a mere thought experiment to show how society works. With the progress of the early-modern era we see the waning of the Renaissance interest in genuinely new foundations (the North Americans were the last people, perhaps, in a position to draw on that legacy), and in its place we find an interest in the possibilities of dissolution and reconstruction within existing societies, an interest in revolution, a word that enters the common currency of the West with the events of 1688 in Britain.
This explains the quite innovative place accorded to the legislators by early-modern constitutional theories. As in the Renaissance, legislation is foundational; but foundation is no longer origin , but rather a continuous spring of rationality that sustains the political society in being. In place of the originating assembly that first constituted the political society, the legislature is now a standing branch of government, which lays claim to the sovereignty hitherto held by the Head of Government. In this way early-modern theory fulfills the aspirations of ancient democracy; but it does so only indirectly and covertly, since the whole point is, as it never ceases to insist, not the rule of the people but the rule of law. Political society is a lived rationality, of which lawmaking is the source and spring. Since it stands in for the rationality of divine providence, the legislative branch had better not slumber or sleep. An incessant stream of lawmaking is the fundamental proof of its political viability.
Against this background we understand our own late-modern crisis. It is, first of all, born of reaction against this notion of positively legislated rationality, a desire for freedom to assert a right prior to and independent of the “unequal constitutions of men.” It responds to a Judeo-Christian impulse. In the postwar documents that express late-modern faith in human rights, the use of quasi-religious concepts is decisive, as in the UN Declaration of Human Rights, which speaks in its preamble of the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family.”
That the problem of autonomous courts should have come to the fore in this period, and in the nations most involved in those documents, attests the twentieth-century search for a prepolitical moral ground of law. The distinctive features of the U.S. Constitution merely served as a channel for an anti-positivist reaction common to our civilization. It is, of course, disappointing that no better alternative should have been found than the fragmented and anti social notion of “human rights”; but the impulse deserves for all that its due recognition and acknowledgment. Our crisis, however, also attests that we have not in fact succeeded in breaking with the early-modern concept of positively legislated government. Neither we nor our courts have proved capable of forming a clear idea of what it is to recognize a claim of natural right without erecting the courts as counter-legislature, an equal and opposite imitation, and so precipitating the crisis over sovereignty called, in these pages at least, “the judicial usurpation of politics.”
Let us attempt, then, to reconstruct on the Pauline model, starting from the premise that the defining role of secular government is to exercise judgment. In this case, the court is the central paradigm of government-all government, in all its branches.
In Ancient Israel, the simplest model, such as we find in the narratives of David and Solomon and in the Psalms, is that the monarch is a judge who sits in court. “Morning by morning I will destroy all the wicked in the land,” he declares according to the psalm, in what is probably a kind of oath of office; thus, daily assizes are the proof of a just king. Ancient Israel also knew, however, that the task of judgment required not only that the monarch sit in court but that he also found courts. Three separate narratives (Exodus 18, Numbers 11, and Deuteronomy 1), each with a slightly differing emphasis, explore the logic of this move in relation to Moses. In Exodus 18, for instance, Jethro persuades Moses that the business pressing on any court is far too great for only one judge to deal with. A unified system of justice, then, requires a tiered system of courts, in which the ruler hears a case only as the last resort. In Deuteronomy the various courts, based on various social identities, are held together by the authority of one law, authenticated by the monarch.
Looked at from one angle, this development logically presages the exclusion of the monarch from the judiciary; for as the court of last resort, the monarch should prefer never to sit, but rather always to act through ministers so as to retain one last throw in his own hand, should it be needed. Yet it also presages a sphere of administrative government in which the monarch still exercises judgment, even though not in court. For to provide a court in which a judge sits is no less an act of judgment than to sit in court himself. He considers the situation obtaining, in which those who are wronged lack access to public interest and vindication; he finds it wanting; he redresses it by inaugurating courts. He does not found the judiciary from outside, as it were, like a businessman founding a University chair without himself being a man of learning.
The founding of the judiciary is precisely the founding judicial act. It gives judgment in favor of the oppressed. Not one particular oppressed person in this case, but the oppressed as a class; yet not a universal class, for the ruler does not undertake to remedy the wrongs of all oppressed people everywhere in every age, but a concrete historical class, the oppressed of this kingdom at this juncture of history. But what can be said about the foundation of courts applies equally to the maintenance of courts, as well. The monarch’s duty to keep the courts open, to let “judgment flow like a torrent and vindication like a river in flood,” as Amos 5:24 picturesquely puts it, is quite simply a responsibility to exercise conscientious judgment.
What early-modern theorists speak of as “the separation of executive and judiciary” is a distinction, within the single task of giving judgment, between the originating judgment that founds the courts and the dependent judgments that take place in courts. (To avoid both monarchical and republican overtones, let us use the term “the Head of Government” to refer to that part of the government ultimately responsible for maintaining justice.)
At the same time as we stress the judicial matrix of all government, however, the differentiation of roles must be allowed due space-not only for the practical reasons that Jethro gave Moses, but because any given instance of wrong may be examined in more than one perspective, more broadly or more narrowly. Faced with a social crisis over drug abuse, for example, we must attend practically to the pressing problem of protecting our young people against the influence of drug-dealers; but we must also attend with impartial minds to the charges of drug-dealing brought against this person at this time and place. We cannot attend to the second, more focused matter if we are preoccupied by the first. (“If this man is acquitted, what sort of a message will it send out to drug-dealers everywhere?”) Both ways of practical attention are acts of judgment; both are particular, i.e., belonging to a definite time and place and situation; but the second way is more limited in scope, because injustice may be committed on a narrow front whenever we try to do justice on a broad front. The public interest in justice is an interest in both levels of justice being pursued, each on its own proper terms. So the government confines itself to policy making, the court is excluded from it.
The Head of Government’s business is still judicial policy, though. We depend on rulers keeping an eye on courts, just as we depend on their keeping their fingers out of cases. If over a significant period courts prove incapable of convicting terrorist offenders, they, or the law they administer, must be reformed. Government-as-judgment depends on courts performing their task reasonably well most of the time; so that the Head of Government must ensure not only that courts exist but that they function, those two responsibilities being in fact one and the same. Reasonable expedition of legal process, reasonable restraint of legal fees, reasonable rules of procedure over such matters as the admissibility of evidence, use of juries, and so on-all these are the proper concerns of the Head of Government, who is charged with ensuring that justice, not arbitrary whim, prevails in social relations. Legislation is one form the discharge of this responsibility takes.
In the unfolding of the different moments of human government, the judicial moment comes first, the administrative moment second, the legislative third. The mistake in the modern tradition was to place legislation first, following the Hellenistic association of legislation and founding. This supposed that law and legislation, nomos and nomothesia , were coextensive; without the framework of founding legislation there was no law. The Christian assertion, on the contrary, was that no human creation was ever prior to law, that lawful government never depended upon prior legislation as a precondition. “Civil laws may be silent among arms,” says Hugo Grotius, “but not those other laws, which are perpetually in force and appropriate for every season.”
In Hebrew the most general word for law, torah , meant simply “a decision.” It referred to the “ruling” that a priest would give when consulted. In the same way we say that the judge “declares the law” in relation to a case, meaning not that he quotes from law-books, but that he announces a decision; “the law of the case” is simply the generic principle applied in the particular judgment. But since each judgment is not separate and discrete but occurs in the context of an institution, the law of each case is discerned in relation to the law of preceding cases; if it is to be justly proportioned, it cannot be wildly out of line with other decisions. No act of judgment, then, simply invents law de novo; that would defeat the purpose of judging, namely, determining what is proportionate to the law of precedent that stands over and behind the present decision and can be appealed to in support or criticism of it. But a law of precedent requires no distinct human legislator. Divine law, natural or revealed, when mediated through traditions of right innate in the society, is sufficient to allow courts to develop a law by way of their own judgments, a conception which our shared English legal tradition names the “common law.”
But when the authority of courts is undermined because they operate on principles repugnant to the community’s conscience or because their orders are impossible to implement, the responsibility for correcting their law lies with the Head of Government. The legal tradition needs correction. The obligation of the courts to maintain self-consistency makes them reluctant to innovate. But innovation may be required, and that for two causes: first, where tradition has deviated from natural right; secondly, where it is ill-adapted to the practical possibilities within society. These two concerns are often confused, yet they are in principle quite different, moving, as it were, in opposite directions: bringing law closer to the moral norm on the one hand, further from it on the other. Some reforms are idealistic, attempting to correct our vices; some are compromises, making some kind of settlement with them. Either kind of reform may be necessary at one or another juncture, since acts of judgment have to be both truthful and effective. Every change in law aims to squeeze out, as it were, the maximum yield of public truthfulness available within the practical constraints of the times. Sometimes it does it by attempting more, sometimes by attempting less.
The Christian legal tradition took over, gingerly enough, the Hellenistic view which saw the ruler as the empsuchos nomos , the “living law.” Whereas this had meant originally that the ruler was the source of law, in Christian use it was combined with the assertion that the ruler was always under the law, charged, like anyone else, with keeping it. But the ruler “keeps” the law in a different way. He keeps it by ensuring that it is applied and upheld in courts. Furthermore, when the fluid character of the practice of law is recognized, its tendency to fall into disuse and neglect, then it is added that the ruler “keeps” the law by intervening, where necessary, into the legal tradition to safeguard it from degeneration.
The paradigm instance in the traditions common to the U.S. and Great Britain was the invention of the Court of Chancery in fifteenth-century England and Wales. When the common-law courts were widely perceived as having become ineffective on many fronts, the government responded by developing a new court, derived from royal council and under the supervision of the Lord Chancellor, a minister who to that date had had no special connection with the operation of law. Chancery devised rules for its own operation superior to those prevailing in the common-law courts, and took over areas of litigation where those courts had seemed peculiarly incompetent. This illustrates on a large scale what happens in fact in any act of legislation: some element in the existing tradition of the court’s law is corrected or adjusted from the source of government. But it also illustrates a precise danger, which at a later stage itself required correction: the setting up of conflicting jurisdictions within a single system. This has its bearing on our contemporary problem, as we shall see.
A further distinction arises between this act of government and other acts. Legislation is generic, distinguishing it from acts that concern bare particulars. When the Head of Government appoints a chief justice or supplies a sum of money to create new courts, he decides only who is to be the Lord Chief Justice next or where the money is to come from now. When a law is passed, on the other hand, it concerns what is always to be done in such cases as it specifies. Imagine, for example, two supposed miscarriages of justice, both uncorrected by the courts themselves, which provoke public anxiety and demands for government action. In the one case there is public doubt about the truth of the evidence on which a conviction was secured. In the other case there was a judicial ruling that evidence important to the defense was technically inadmissible. Both are assumed miscarriages, but for different reasons. The first related to a particular, “ This is the man who was observed at the scene of the crime”; the second related to a generic principle, “ This kind of evidence is not admissible in defense.” In the governmental system of England and Wales, the two miscarriages must be addressed quite differently. In the one case, the Home Secretary will review the case, and if it seems warranted, instruct the Court of Appeal to look at it again. In the other, the Lord Chancellor prepares new legislation to amend the law of evidence.
Now, these two different kinds of corrective action require a different measure of public support. If the Home Secretary refers the first case back, or simply issues a pardon, not much is needed by way of public consent. We understand that the minister has these powers, and we require only that he use them reasonably. It is not possible to settle the validity of a conviction by public consensus. Nor does it matter to the public all that much in the long run if the minister actually reaches the wrong answer, provided that he is seen to reach it reasonably, conscientiously, and without prejudice.
In the second case, though, where legislation is in question, it is a far different matter; hundreds of cases yet undreamed of will be affected. So something more than bare consent is needed to validate a legislative act. The public must positively assent to the principles on which reform is proposed. No deep cleavage can be allowed to develop between the general sense of what is right and what the law exacts. So the two kinds of governmental act proceed in quite different ways. Proposals for legislation need examination both to explore unforeseen implications and to test them against the moral attitudes and convictions of those who will be governed by them and may ultimately be tempted to find them tyrannical.
For reasons such as these, British constitutional doctrine maintains that the legislature in a government is “the monarch in parliament.” That is to say: not some other agent than the Head of Government, but the Head of Government as engaged in a process of consultation . Among the radical constitutionalists of the later sixteenth century, parliament (the estates or the diets in other European traditions) underwent a change of status: what used to be a body that represented popular concerns to government became a branch of government. Parliament began to see itself in the role of the founding people, covenanting with God and monarch to establish government; in Reformed thought especially, it also took on the role of protecting the state against abuses by the sovereign.
In this development its real significance was obscured. The English parliament began life as a court of common pleas, a means by which the governed spoke to the government about their frustrations, an organic line of communication between the two which served to legitimate government as pursuing the common good. The extension of parliament’s role to a deliberative forum, first for the authorizing of taxation and then for the formation of legislation, recognized the need for government to listen to the vox populi, to respect its deeply held convictions, and to take stock of its anxieties.
In this context we may appreciate Montesquieu’s anxiety: “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty.” His point is that when a certain dialogue fails to accompany the formation of law, its enactment simply becomes another form of executive action-it loses its distinctive lawlike character. But Montesquieu mislocated the dialogue we need. It is not a dialogue between departments of government, but a dialogue between government and people.
By converting parliament into a branch of government, modern constitutional theory lost the sense that the dialogue between government and the governed is at the heart of the legislative process. That it became a purely intra-governmental dialogue, I believe, lies at the heart of the problems people perceive with the British constitution in our century. Many contemporary critics have identified the difficulty simply in terms of the excessive power of the executive. But this analysis is one-sided, since the source of the current situation was precisely parliament’s absorbing, one by one, all the powers of sovereignty that used to belong to the monarch’s ministers. The sheer success of parliament in taming the willfulness of the monarchy led to an implosion of government and parliament upon each other, leaving an unhealthy mutual dependence.
Parliament (or, in effect, one chamber of it) wrested effective control over ministerial appointments, so that ministers depended exclusively on parliament for continuance in office. Ministers forced parliament to agree to their legislative proposals with the ever-present threat of resignation and dissolution, for which members of parliament would have to answer at the polls. The sense of dialogue was lost. Ministers and parliament gained, and still have, too much power over each other, and too little authority on their own ground. The stranglehold exercised by the party system, developed to ensure support for government in parliament and effectively controlling the terms of all political debate, is the worst symptom of this stasis. But the price paid for coopting parliament into government is loss of belief in the capacity of “politicians” to respond to what actually moves the people. The term “politician” is an expressive one, binding together ministers and popular representatives in one homogeneous class. “Politicians” argue energetically about “issues.” But what the “issues” are to be, they have settled among themselves without asking us.
We return at last to judicial review of legislation, which we may understand to be a reaction against both the dominance of parliamentary government and the positivism of legislative supremacy. The turn to the courts expresses frustration with legislative parliaments, which claim to be the sovereign government and fail in any meaningful sense to be a court of common pleas.
We have said that there is nothing impossible in the idea that law may be made by courts. Indeed, if we understand the work of courts correctly, the making of law is an essential part of it: they must declare the principles on which they have decided cases, and those principles must in some measure be a law for subsequent courts. The question, then, is not whether courts shall make law, but how. Are they to be autonomous, or under correction from someone other than a higher court? When we contemplate the sight of military leaders ruling by decree, we may wish to concede that there can be worse forms of autocratic rule than that which judges exercise.
Nevertheless, autocratic government is not good government; and as I have tried to show, there are three reasons why good government requires courts to be subject to external correction: a) good court practice requires concentration on the particular case, but good lawmaking requires attention to general policy (the sub judice principle); b) good court practice requires insulation from pressures of public concern, but good lawmaking requires exposure through consultation to public concern (the democratic principle); c) good court practice requires a conservative approach to legal tradition, but good lawmaking needs a measure of critical distance from the tradition (the natural law principle).
As I have reflected on this problem over the past twenty years, I have come to the conclusion that the root of the matter lies in the faulty early-modern articulation which, lacking a sense that all branches of government engage in judgment, allowed separation to create competing jurisdictions. This is a situation which political authority cannot endure. The multiple variation of functions within a complex government allows for an extensive plurality of function and decision, but this rests on the hypothesis of a summa potestas, a source of governmental authority, to which, in the last analysis, the resolution of conflicts must return. That is the heart of the matter.
There is an alternative analysis of the problem, which I now reject. It was frequently argued in Canada at the time of the introduction of its Bill of Rights in 1982, and is often urged by opponents of a British Bill of Rights: that the root of the problem lies in assigning legal status to a philosophical document , whether a Bill of Rights or a Grundrecht or whatever else it may be, that is in legal terms underdetermined, and so undercuts the concrete determinations of ordinary legislation. But this is not the root of the problem: if an underdetermined document has the status of law, it is in principle easy to provide it with the necessary determinations. Failing anything else, the precedents of the courts suffice to provide such determinations. A problem arises only when there is competition between rival determinations.
This is illustrated by a famous controversy between the European Court of Human Rights and the British government, which turned precisely on such an underdetermined expression, and led to Great Britain’s only derogation from the European Convention on Human Rights. Article 5(3) requires that an arrested person be “brought promptly before a judge.” In British antiterrorist legislation, the time-lapse between arrest and appearance in court was, in exceptional circumstances, allowed to be as long as seven days; the Court of Human Rights insisted that three days must be the limit. Now, either three days or seven days could plausibly serve as a determination of the word “promptly.” Which is the better determination will depend on the circumstances in which one has to be prompt, which is why alternative determinations for differing circumstances are conceivable, even desirable. The controversy, then, did not follow from the mere possibility of differing determinations, nor from the fact that the phrase was, as it stood, underdetermined. It was simply born of a failure to achieve a workable conception of the way in which the jurisdiction of the court related to that of the government of the United Kingdom.
Unlike most other signatory countries, Britain regarded the Convention simply as a treaty, without any immediate force in domestic law. The European court, then, could see no reason to attribute to the British government and courts any intention of respecting the Convention and applying it appropriately. In relation to Great Britain, the court seemed to enjoy a monopoly on interpreting human rights, standing over against a civil society in which both legislature and courts seemed free to ignore them. The British protested that this was not concretely the case; but formally the matter appeared so. One can hardly blame the court, perhaps, for acting out the logic of a Scarlet Pimpernel role. But that role was simply the result of allowing competition to arise between jurisdictions: on the one side a court with a document all its own, on the other side national government and courts which were obliged to respect the document but which had no share in interpreting it.
The British government recently responded by incorporating the European Convention of Human Rights within English and Scottish law; it is hoped that this will overcome the existing liability to generate conflicts while also protecting the legislative supremacy of the Queen in Parliament. This measure allows the Convention to be interpreted as British law in British courts, and so allows British statute law to be applied within the interpretative context of the Convention. It will have the effect of presenting the Strasbourg court with interpretative decisions on the Convention that have already been reached under British law by British courts, and so do something to reconcile the jurisdictions. While stopping short of according Strasbourg rulings ipso facto force in British law, it requires British courts to take those rulings into account, thereby allowing a serious contribution to the interpretation of British law from outside Great Britain. But by depriving the Strasbourg court of its monopoly in interpreting the Convention in Great Britain, it will ensure that the interpretation of the Convention begins to reflect British legal realities.
This approach attempts to do institutionally what still remains to be done conceptually, i.e., to reintegrate statute law and human rights, the one enjoying a positive immunity from moral criteria, the other enjoying a natural law supremacy over positive law. The natural law principle, that a law must be morally tolerable for it to be valid, must be brought to bear across the whole range of legislative endeavor, not merely those cases in which individuals have claims to make against governments. On the other hand, we must maintain the principle behind positive law: that the rights of individuals cannot be respected simply by letting them cut across legal traditions, allowing rights to invade, as it were, the legal sphere by sudden irruptions of court judgment at unpredictable moments. Rights must be an essential aspect of the spirit of a well-tempered law, a “Right” in the singular, which government takes responsibility for sustaining and correcting.
We return to the respective roles of courts and legislators. The essence of the courts’ task, in the first place, is to apply statute law intelligently in the light of natural law; to make good moral and social sense of a body of legislation that may sometimes have been incoherently or inconsiderately compiled. In handling this body of law we should not require that the courts be slavish. There should be no prejudice in favor of “strict construction”-except where that has become the only acknowledged alternative to sheer interpretative willfulness. We should require that the courts duly acknowledge the authority of government in providing law, and that they make a commitment to give the law the best interpretation of which it is susceptible, according to the most consistent interpretative principles (not necessarily the most literalistic) that can be developed. We cannot rule out a priori the possibility that some legal provision inconsistent with divine and natural right would need to be rejected absolutely, since we cannot a priori exclude the possibility of a tyrannical law, one that requires the performance of wicked actions or forbids the performance of obligations. Such an event, however, needs to be seen as a last resort, and it implies the invocation of an emergency procedure-our new British legislation envisages a formal declaration-that will bring the legislators urgently to the point, and cause bad statute to be re-made, but by parliament, not by the courts. The procedure of “striking down” law has been rejected by the British government, and rightly, since it is precisely that procedure which produces the situation in which legislative responsibility slips away from parliament.
But here we must recall the main point of our analysis: the problem arose in the first place because populist constitutional doctrine asserted an idolatrously inflated conception of legislative power. Making so much of positive legislation cheapened it, and created a general contempt for legislative process-too much law was made too fast and too carelessly. Law, as Montesquieu feared, turned into a form of executive action, as parties competed at elections with their rival legislative programs, which they promised to ram through within one parliamentary term (or, even worse, within the first hundred days of it).
In this ethos the shifting of real responsibility to the courts occurred with the collusion of politicians, since it enabled them to sustain a flurry of lawmaking without ultimately being answerable for the consequences. I recall, with a shudder of despair, one Premier of Ontario who, promoting a controversial and wide-ranging amendment to that Province’s Bill of Rights, answered all questions about what it would mean in practice with the simple formula: “We don’t know. The courts will decide.” With this sort of reasoning, legislation came to be seen as merely provisional; in some places a new law was hardly thought authoritative until it had been challenged at least once through the court system. But this is the spiritual end of modern democracy itself, the great claim of which was to provide an answer to the question: how may a multitude of human beings live as a political society in obedience to law? (Readers of First Things may like to ponder to what extent my perception of what it means for democracy to “end” coincides with that of the contributors to the symposium “The End of Democracy?” In order to make myself clear on one point, however, I should add that the end of democracy is not, in my view, the same thing as the end of legitimate government.)
No solution of the problem can be imagined that does not involve an address to the process of legislation. What our democracies most need is not judicial review of laws after the event, but a high standard of preparatory scrutiny before laws are entered in the statute book. One of the most positive aspects of the new British proposals is that new legislation must come before parliament accompanied by a statement assuring its compatibility with the provisions of the European Convention. The courts are not bound to agree with this statement should it ever be challenged, but the practice requires legislators to respect the Convention in all their legislative endeavors, and to heed the advice of lawyers on that matter ab initio. But something will be required of the courts in turn-namely, to recognize the implications of this legislative process, to acknowledge the legislature’s intent to insert a given law into a natural law-governed framework, and to interpret it in good faith. In this way a real understanding between lawmakers and courts may be developed. Once that occurs, the burden against impugning a law with a clean bill of health will be greater. Self-discipline in legislative quarters and self-discipline in judicial quarters must go hand in hand.
Oliver O’Donovan, Regius Professor of Theology at Oxford University and Canon of Christ Church, is author of The Desire of the Nations: Rediscovering the Roots of Political Theology (Cambridge University Press). This essay is adapted from his 1998 Erasmus Lecture, sponsored by the Institute on Religion and Public Life.
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