THE CONSTITUTION OF LAW Part 10 docx

In contrast, incorporationist or inclusive legal positivists, whose camp Hart belatedly joined, try to make sense of the fact that law is a matter of principles as well as rules and of t

226 the unity of public law

that come before them and that their practice of giving reasons for their conclusions is an elaborate charade Judges must accept that they work entirely in the penumbra and so must accept that the rule of law is their rule – the rule of judges and officials and thus largely the rule of an elite, largely composed of men The argument thus adds a second group of gunmen to the gunman at the apex of the pyramid of power, an addition which has the result of turning law into a series of exceptions, which those with authority deal with on an ad hoc basis by pretending that their pref- erences represent the requirements of law While this theory is plausible

as a sociological critique of the claims of the rule of law, it cannot make sense of a project whose aspiration is to replace the arbitrary rule of men with the rule of law.

In contrast, incorporationist or inclusive legal positivists, whose camp Hart belatedly joined, try to make sense of the fact that law is a matter of principles as well as rules and of the fact that these principles are regarded

by judges and other officials as determining their conclusions about what the law requires.120As Dworkin has pointed out, this position looks like

a wholesale capitulation to his critique of legal positivism, except for the fact that it holds out as a kind of face-saving device the logical possibility that a legal order could exist in which principles did not play this role But logical possibilities are of no use to judges or other officials and moreover

we would have good reason to think that the order imagined by these positivists as a logical possibility would not have any serious claim to be

a legal order.

It is worth noting that exclusive legal positivism and unmodified ultra vires theorists are close cousins, as are their adaptations in inclusive legal positivism and modified ultra vires theory Both exclusive legal positivists and unmodified ultra vires theorists regard morality as playing a role in law only when it is explicitly incorporated by the law The main difference

is that unmodified ultra vires theorists explicitly argue, on what they take

to be democratic grounds, that the incorporating law must be a statute.

In contrast, both modified ultra vires theorists and inclusive legal tivists seem comfortable with the thought that morality is included unless the law explicitly excludes it The difference is that while modified ultra vires theorists are preoccupied with the prospect of a particular law that strains or contradicts an aspirational conception of the rule of law, inclu- sive legal positivists are preoccupied with the prospect of a whole legal order that does the same But both are examples of how some members

posi-120Hart, The Concept of Law, pp 250–4.

the rule of good law 227

of the legal positivist family have tried to adapt themselves to a world in which the legal orders with which they are familiar have travelled along

a path of realizing the aspirations of the rule of law in ways that make it difficult to sustain positivist claims about the contingent nature of con- nections between law and morality.

Indeed, even exclusive legal positivism is an example of such tion When exclusive legal positivists write about the rule of law in par- ticular legal orders, or about the process of judicial interpretation, what they have to say differs little from Fuller or Dworkin.121The main divide between them and their inclusive counterparts is the hair-splitting one that the latter concede more than that legal orders generally incorporate morality; they also concede that the incorporated morality is fully capable

adapta-of determining answers to questions adapta-of law And with that concession, as

in the move by ultra vires theory to a view that common law tions about the rule of law create an interpretative obligation on judges,

presump-so both collapse into an aspirational conception of the rule of law, though the collapse is muddied by the urge to cling to a positivist vocabulary.

In sum, legal positivism as a theoretical endeavour has made itself into something which has become increasingly detached from legal practice And it has become that because of its relentless conceptualism which has taken it away from the political roots of a noble tradition Once we see this, it becomes unsurprising that judges who are positivists are not con- ceptual but constitutional positivists They attempt to find some political anchor for their positivism, which is why they usually opt on democratic arguments to support a rigid doctrine of the separation of powers which reserves law-making authority to the legislature Such political arguments harken back to Bentham’s dream of a legal order as the mere instrument for the democratically determined judgment of the people But the argu- ments are shaky to say the least Because their legal orders have not been reformed on Benthamite lines, the judges have to try to come to terms with the fact that the legislature is not in fact the sole source of legal norms even if they consider it to be the sole legitimate source They have, that is,

to find ways of compromising with the fact that in a common law legal order their judgments potentially have authority beyond the particular case, that they are required to give reasoned arguments for their conclu- sions in which all the reasons are legal, and with the fact that international law, as well as written constitutional texts, claim authority over them.

121See Joseph Raz, ‘The Inner Logic of the Law’ in Raz, Ethics in the Public Domain,

pp 222–37 and ‘The Politics of the Rule of Law’, ibid., pp 354–62.

228 the unity of public law

It is not, however, a mere accident that Bentham’s dream was never put into practice.122 Significant in this regard is that Bentham saw the need

to have a staff of judges in place and that he gave them an even larger role than does the Human Rights Act, since he permitted them to suspend the application of a statute in a case where it wrought injustice; they would then inform a parliamentary committee of the need for statutory reform.

In making these institutional recommendations, Bentham saw the need

to move from the normative foundation of his political and legal theory

to the level of institutional design It is true that, unlike Hobbes, he did not think that there were constitutive conditions internal to the exercise of authority It is also true that he regarded rights talk with contempt so that

he must have disapproved of Hobbes’ attempt to show that there are laws

of nature, derived from a right of nature, which together make up those conditions Indeed, these two facts are deeply connected because Bentham sees law as the medium for transmission of utilitarian judgments about welfare, unmediated by any legal filter besides requirements of publicity and clarity.

But still it is a striking feature of Bentham’s legal theory that Parliament cannot, to revert to John Eaves’ image from the last chapter , do without some interesting bits of constitutional furniture that clutter the space between the command of the sovereign and the obedience of the subject It

is even more striking that in the work of the neo-Benthamites, Keith Ewing and Conor Gearty are distinguished examples,123 who seek to revitalize Parliament, legal space becomes even more cluttered by constitutional furniture And it becomes more cluttered because not only do these neo- Benthamites support the cause of human rights, but also because they see that cause as intimately connected to a principle of legality or the rule of law They thus share an aspirational conception of the rule of law but do not trust judges to implement it Rather, they put their faith in Parliament, suitably reformed.

Ewing and Gearty represent, in my opinion, the only plausible didate for taking forward the tradition which I called in chapter 3 ‘left legalism’ The functionalist school, associated with the London School of Economics, venerated the executive as the driver of a social democratic programme and so had a view of law even more instrumental than that of legal positivism: law is the instrument of policies initiated by government

can-122See Gerald Postema, Bentham and the Common Law Tradition (Oxford: Clarendon Press,

1986 ), ch 13.

123Ewing and Gearty, The Struggle for Civil Liberties.

the rule of good law 229and implemented by government, where Parliament is simply the body that gives legal form to policy mandates Thus, democracy was no less instrumentally conceived But, as I pointed out in chapter 3 , functional- ism loses its plausibility as soon as government departs from that political programme; indeed, when government with much popular support not only departs from that programme, but gets into the business of using law

to dismantle itself, functionalism’s veneration for the executive becomes worse than implausible – it becomes incredible.

The only hope for the legal left, for those who wish to construct a normative account of how law can make our societies better, is to argue for a renewed and reinvigorated legislature And in order to support that argument, they have to rely on the role of the legislature in promoting social progress through law, that is, through institutions and mechanisms that respect legality, taking into account that our understanding of legality today is deeply influenced by our sense that the subject of the law is the individual bearer of human rights.

Indeed, I think one can make the case that this understanding is not so much new but a retrieval of Hobbes’ natural law conception of the rule

of law, in which the laws of nature do not come from outside of the law but are the constitutive conditions of legal authority In Hobbes the idea

of the legal subject is highly ambiguous between the passive object of authority, he who is subjected to law, and the active subject, on whose consent authority depends In Hobbes’ account, power legitimates itself

if it is exercised through law but that is because the transformation of power into law requires respect for those constitutive conditions What these conditions are is generated by asking what is required for peace and stability, given the one inalienable human right in Hobbes, the right

to resist the sovereign when one’s existence is threatened.124 Thus, the transformation we have witnessed in public law of the idea of the indi- vidual from one who is subjected to the law, through the individual as citizen, to the individual as bearer of human rights is of great signifi- cance, but it might have deeper intellectual roots than one might at first suppose.

As Hobbes’ own theory shows, one cannot in constructing such an argument do away with judges, nor marginalize them altogether And one cannot do this even though, as I have shown in this book, distrust

124 See Yves Charles Zarka, ‘The Political Subject’ in Tom Sorell and Luc Foisneau (eds.),

Leviathan After 350 Years (Oxford: Oxford University Press, 2004 ), pp 167–82 at

pp 180–1.

230 the unity of public law

of judges is often supported by the judiciary’s willingness to be sheep as long as they can do so in rule-of-law clothing For it is still the case that it

is on those occasions when judges rise to the challenge of the exception, drawing on resources that they have developed in less dramatic situations, that we start to get a grip on the content of legality and its connection to human rights It is there that we encounter what I called in chapter 1 the moral resources of the rule of law.

I have also argued that even judges who do not lose their rule-of-law spine need allies For the rule of law to approach its ideals, to get closer to realizing its aspirations, one needs furniture like SIAC and parliamentary committees like the Joint Committee on Human Rights Such furniture is the concrete embodiment of the normative commitment of both Parlia- ment and the executive to be part of the rule-of-law project And without such furniture, the role of judges in upholding the rule of law in times of stress is confined to what I described in chapter 1 as the judge as weather- man So while I think that the label neo-Benthamite is an apt one for the position of Ewing and Gearty, they are not, in any meaningful sense of that word, positivists They have an argument about the best possible way

to arrange the furniture But that argument starts from the premise that what we are after is realizing commitments to the rule of law and human rights.

One way of understanding the point of this book is that those who value the rule of law and human rights should be greatly depressed The advances since the Second World War seem at the moment to be on the point of being reversed Politicians, judges and other elites seem determined to turn their backs on the lessons of their own history However, I think I can end on an optimistic note.

We have seen that even the most parsimonious conception of the rule of law requires a few sticks of rule-of-law furniture And without those sticks, without, say, independent judges, a legislature committed to enacting general, public, clear and prospective statutes, and a staff of public officials who are regarded as exercising delegated and hence limited authority, a political order will not look like a legal order, on any conception of law Once those sticks are in place, judges and others have powerful resources

to enforce the rule of law as long as they understand that the furniture is there for a purpose – to help them to ensure that law lives up to the ideals

of legal order And it is that furniture that is the concrete embodiment of the constitution of law.

My inquiry into what I called at the beginning the wealth Constitution’ was not designed to show the superiority of the

‘Common-the rule of good law 231Commonwealth model to others, for example, to the US Bill of Rights model, in which it might appear that judges are in fact supreme when

it comes to interpreting the Constitution While I do as a matter of fact think that this model might promote better than others a cooperative rule-of-law project between legislature, judiciary and government, I have not engaged in advocating that model Rather, I have tried to show how even in the common law legal orders out of which the Commonwealth model grew, legal orders in which parliamentary override of fundamental legal values is not only possible but actual, these values can claim con- stitutional status In this sense, we can see how an understanding of the common law constitution tells us something significant about the consti- tution of law itself That is, we cannot understand law itself unless we see law as a project which aspires to realize the values of the rule of law.

We can then place different legal orders on a continuum of legality, depending on how far along in that project they are In this process it does not matter much from the perspective of the rule of law how the furniture is arranged: whether the legal orders are civil or common law,

or have entrenched bills of rights, or statutory bills, or a division of powers constitution or no written constitution at all What places them on the continuum is the level of their commitment to the constitutional project

of realizing the values of the rule of law The further along the continuum

a legal order is, the better judges are able to fulfil their roles, both as guardians (though not exclusive guardians) of the rule of law and as rule- of-law weathermen Not only will the judges have allies in their task, but,

in addition, different sites where the values are articulated.

Legal positivism does not envisage this continuum of legality because

a legal order designed along strictly positivist lines does not aspire to anything more than being as effective an instrument as possible From its own perspective, there are no further points along the continuum of legality once the order is as close to perfection as it can be for transmitting the judgment of those with legal power to those subject to it Indeed, to

go further is to step off the continuum because any further step involves adopting principles which organize order in a way that potentially disrupts transmission.

In contrast, from the perspective of the aspirational conception of the rule of law for which I have argued in this book, a positivist legal order can be seen as a step along a continuum of legality because it insists on non-arbitrariness in the sense that no official may act unless there is a warrant in a valid law of that order The importance of this step should not be underestimated To the extent, for example, that the prerogative

232 the unity of public law

can still be invoked as the basis for an official act, a common law legal order has not yet fully taken that step.125

But, as we have seen, once this step has been taken, legislators can still attempt to enact the equivalent of the prerogative into the law by inserting privative clauses or subjectively framed delegations of discretion Here,

if judges adopt a doctrine of deference which amounts to deference as submission or abasement rather than deference as respect, the legal order will have taken that step in form, but not in substance And when the idea still lingers in the legal culture that officials may claim special deference when their statutory powers are powers they could have claimed in the past as prerogative powers, one will find functional equivalents of the pre- rogative power in areas such as security and immigration control, despite the fact that these areas are subject to elaborate statutes and regulatory regimes.

It is only if law is answerable to the principles of the rule of law that judges will regard themselves as under an interpretative obligation to ensure that the law always complies with such principles and thus to resist the idea that public power can be exercised other than in accordance with the rule of law But, as we have seen, in order for judges to make sense

of their review authority, it is not enough that they regard the law that rules when one has the rule of law as simply valid law with a determinate content Even on that positivist view of the law there is a puzzle when the law seems to exempt officials from legal controls But that puzzle is not one which positivism of any sort has the resources to solve For positivists start with the idea that law is valid law with a determinate content – a content that can be determined in accordance with factual tests, that is, not by tests that require that law up to some moral ideal By definition, the rule of law exists when a law has been determined to be a valid law

of the legal order and a determinate content for it has been ascertained There is no further question about the law’s authority qua law once it has been determined to be valid.

Thus a positivist legal order is only a step along the continuum of legality since a full realization of the rule of law requires the observance

of principles of the rule of law beyond those that assist in determining the content of the law Moreover, I doubt that that step can be taken without also putting in place significant elements of a rule-of-law regime The logic

of rule by law requires elements of the rule of law, for example, review

by independent, judge-like officials of the decisions of public officials in

125See Tomkins, Our Republican Constitution, pp 103–9.

the rule of good law 233order to ensure that the officials have stayed within the limits of their legal authority Such compliance with the rule of law is not required as a kind of moral addition to legal order, so that positivists can retort that a legal order which fails to comply with the rule of law is nonetheless a legal order The aspirational conception holds that what law is is answerable

to the rule of law, so that when an actual law of a legal order fails to comply with the rule of law, there is a serious question about that law’s authority.

I have argued that the question of how the institutions of a particular legal order attempt to bring to realization the ideal of the rule of law is less important than that they do While one can go much further along the continuum of legality than a positivist legal order, it is not as clear that

US style judicial review is necessarily even further along the continuum than say the United Kingdom, or Canada, or even a pure common law legal order, one where there is no written constitution When judges in the United Kingdom today call for a constitutional authority to invalidate statutory provisions, it is because the government is signalling that it will react to decisions upholding the rule of law by finding ways for it to escape its constraints But when a government is willing to do that, it is highly unlikely that any constitution, even if it is zealously guarded by judges, can stop it Ultimately, as I pointed out at the end of chapter 1 , and as Dicey so clearly saw, it is we the people’s dedication to a culture of legality that is the guardian of the constitution When push comes to shove, all that judges can do is take up the role of weatherman and make real to the people what kind of choice their government is making.

And in this thought lies some reason for optimism about the future of the rule of law The more constitutional furniture there is in place, the more judges and politicians will look hypocritical if they try to derail the rule-of-law project It is thus worth remembering that before Blair joined Bush in a momentous decision to secede partially from the rule of law, both internationally and domestically, he was at the forefront in putting more furniture in place to take forward that project While judges of the Court of Appeal and the House of Lords might seem at times intent on either ignoring the furniture, or in trying to alter it to fit an agenda hostile

to the rule of law, they and the politicians cannot wish it away To remove

it would I think exact a political cost which I hope no politician is yet willing to bear And as long as the furniture is there, it stands not only in rebuke of the judges and politicians – legality’s rebuke to those who wish

to govern arbitrarily It also stands in wait of a time when we will come back to our rule-of-law senses.

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