Every Square Inch

Thu, 01 Nov 2018 00:00:00 -0400

Pro Rege:
Living Under Christ’s Kingship
Vol. 1: The Exalted Nature of Christ’s Kingship
Vol. 2: The Kingship of Christ in its Operation
by abraham kuyper
edited by john kok and nelson d. kloosterman
translated by albert gootjes
lexham, 1072 pages, $99.98

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Government as Judgment

Thu, 01 Apr 1999 00:00:00 -0500

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.

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Every Square Inch

Government as Judgment