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Christianity and Liberal Society$

Robert Song

Print publication date: 2006

Print ISBN-13: 9780198269335

Published to Oxford Scholarship Online: October 2011

DOI: 10.1093/acprof:oso/9780198269335.001.0001

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The Central Problem of Liberal Constitutional Theory

The Central Problem of Liberal Constitutional Theory

Chapter:
(p.176) 6 The Central Problem of Liberal Constitutional Theory
Source:
Christianity and Liberal Society
Author(s):

Robert Song

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198269335.003.0006

Abstract and Keywords

This chapter examines the key problem in liberal constitutional theory. It attempts to develop some theological understanding of the issues of constitutional and political theory connected with the judicial review of legislation, with special reference to the introduction of a Bill of Rights into British domestic law. It discusses Ronald Dworkin's defence of judicial review and John Finnis' criticism on Dworkin's position. This chapter also aims to produce a general theological account of the relation of the legislature and the judiciary.

Keywords:   liberal theory, constitutional theory, political theory, judicial review, legislative review, Bill of Rights, Ronald Dworkin, John Finnis

I Introduction

The concept of the democratic charter discussed in the previous chapter was elaborated by Maritain in an effort to secure a public definition of the personal and social rights of citizens without resorting to or presuming an agreed justification of those rights: he hoped for a practical moral consensus without philosophical or religious agreement. Natural law was to provide not only the Christian justification, for the charter and the specification of the rights listed in it, but also the ontological grounding for the belief that moral agreement was in principle obtainable. In Chapter 5 I argued that Maritain was insufficiently attentive to the problems posed for the democratic charter by its public dependence on conflicting and probably incommensurable rational justifications. These difficulties arose chiefly at two levels: at the level of the theory of rationality, concerning the possibility of adducing public moral reasons as a basis for public action, and at the level of constitutional theory, concerning the potential conflict generated by the commitment of the liberal democratic political order both to individual rights and to majoritarian choice. I noted the former at the end of the last chapter; in this chapter we turn to issues raised by the latter.

Maritain's conception of democracy comprised both a procedural component—namely, the electoral accountability of the government to the people and the use of majoritarian decision procedures at several levels of choice—anda substantive component, which included the rights detailed in the democratic charter. The former was ultimately derived from the right of the people to govern themselves;1 whereas the latter was based on the demand that the Christian lay polity expound and defend the common (p.177) tenets which formed the fundamental creed of its social and political life.2 Yet the relation between the two components, formal and substantial, was never systematically developed: although in one place he asserted that a ‘renewed democracy’ should be able ‘to defend itself against those who would use democratic liberties to destroy freedom and human rights’,3 he gave little guidance concerning either the proper institutional locus for settling conflicts between ‘democratic liberties’ and ‘human rights’ or the principles by which such conflicts should be adjudicated. Given the range of his preoccupations in political theory, and his orientation to the concerns of the time, this lacuna was barely reprehensible. But it occurred precisely at the node of a cluster of issues which together form the central problematic of present-day constitutional theory, concerning the nature and propriety of the separation of powers, the value of written and codified fundamental or constitutional law, the justification of judicial review of legislative action, and the alleged conflict between majoritarianism and individual rights.

These are problems which not only confront a full development of Maritain's political theory, but also lie at the core of Western political thought, since they manifest a conflict between its fundamental allegiance to both individual rights (the ‘liberal’ aspect) and majority rule (the ‘democratic’ aspect). As a matter of history, it was claimed in Chapter 2, liberals, while supporting equal political rights, have sometimes feared democracy, associating it with popular tyranny and the suppression of the rights of individuals and minorities, and have sought, in line with their habit of stressing the effectiveness of institutions rather than the virtue of citizens, to control majorities through a range of constitutional devices. The most prominent example of this is no doubt the United States Constitution's highly refined scheme of checks and balances, with its co-ordination under the Constitution of functionally separated powers, its system of federal and state governments, and its inclusion of such features as the Presidential veto of Congressional legislation, the bicameral legislature, the senatorial ratification of Presidential appointments, and the judicial review of legislation.

Of these features of the American system, the most discussed in the context of the defence of rights has been the last. Although the (p.178) power of the judiciary to declare unconstitutional any law that contravenes the Constitution is not made explicit in the text of the Constitution, none the less, the right of judicial review, and with it the interpretation of the relation between legislature and judiciary as one of potential conflict between majoritarian decision-making and the rights of individuals or minorities has been implicit in American constitutional practice ever since Chief Justice John Marshall's ground-breaking doctrine (formulated in Marbury v. Madison (1803)) that the American Constitution is fundamentally law, and that legal interpretation and adjudication is peculiarly the province of the judiciary.4

No such power has been invested in, or seized by, the British judiciary. While a Bill of Bights was passed in 1689, it has been largely repealed, and there exists no written constitution, in the sense of a body of fundamental law codified in a single document, which could be enforced by the courts against Parliament. There have, however, been calls for the incorporation of a new Bill of Rights, perhaps of the European Convention of Human Rights,5 into British domestic law, for a number of reasons, including the growth of executive power within the British Parliamentary system, the failure of the British governmental machinery to provide prompt (if any) remedies for grievances, and the creeping encroachment on individual and group rights in the name of the ‘public interest’ or ‘national security’, particularly in contexts such as Northern Ireland. In the last decade, alleged infringements of rights in connection with trade union membership, press freedom, and governmental secrecy, as well as an increasing concentration of power in the hands of government ministers and senior civil servants, have contributed to making the entrenchment of a written constitution and Bill of Rights into central demands of the largely left-liberal Charter 88 manifesto.6

(p.179) In this chapter I will attempt to develop some theological understanding of the issues of constitutional and political theory connected with the judicial review of legislation, making special reference to the introduction of a Bill of Rights into British domestic law.7 After giving at an outline of the precise problem and a brief account of some short cuts that do not succeed, I will turn to what is probably the most important general theoretical defence of judicial review, that of Ronald Dworkin. I will then survey some criticisms of Dworkin's position made by John Finnis; I argue that these need supplementing in order to produce a general theological account of the relation of legislature and judiciary. The remainder of the chapter is devoted to developing that account and showing its bearing on the question of adopting a Bill of Rights and judicial review in the United Kingdom.

Before that, however, I should make some remarks on the scope of this chapter. First, although we are principally concerned with the general problem of judicial review in North Atlantic types of democracy, by making special reference to the British system, we can afford to ignore several issues which are irrelevant in that context, and therefore not intrinsic to the general problem, but which are discussed at length in the American literature. Amongst them are federalism cases, in which the Court8 has to decide issues of ‘incorporation’ and the relation of state and federal law (although it should be recognized that federalization of the (p.180) United Kingdom through the transfer of power either to the British regions or to supranational European institutions would require some governmental body, most likely judicial, to resolve conflicts); separation-of-powers cases, where the judiciary must decide disputes between the legislature and the executive; historical questions concerning whether federal judicial review was constitutionalized by the framers of the US Constitution; and finally, issues of ‘substantive due process’ taken as issues of the interpretation of the Fifth and Fourteenth Amendments, even though many of the most controversial cases of judicial review (such as Lochner v. New York (1905)9 and its successors, and Roe v. Wade (1973)10) have been decided under this rubric.

Second, I will not discuss here questions of the merits of a written constitution in general, but only those questions which pertain to the enactment of fundamental law understood in the sense of a Bill of Rights. Certainly many issues concerning statutory constitutional law overlap with those concerning Bills of Rights (its provisions may not be amended by ordinary legislative process, for example), but they will not receive attention here outside that connection: no doubt the frequent assimilation of fundamental law to constitutional law in American writing is partly due to the US ‘Bill of Rights’ consisting of the first ten Amendments to the Constitution.

Third, we shall be concerned with judicial review of legislation, not with judicial review of executive action, provision for which is already well established in the United Kingdom; none the less, the discussion is clearly relevant to review of administrative action.

Finally, it should be emphasized that our interest in this context is not with judicial ‘innovation’ in cases involving either statutory delegation of authority to a court (whether explicit or implicit) or underdetermination of a case by statute law, common law, and judicial precedent, but rather with the judicial declaration of a law's unconstitutionality: not, that is, with the judiciary's role in fulfilling or interpreting the legislature's purpose, but with its capacity for frustrating that purpose.

(p.181) 2 The problem of judicial review defined and some unsuccessful short cuts

The teasing, central problem can be formulated more precisely in three ways, which differ according to the principle which is taken as axiomatic. The first, and perhaps the commonest, assumes a procedural understanding of democracy, and makes judicial review the problem: this questions how a system basically committed to electorally accountable decision-making can admit enforceable decisions made by the judiciary, which is composed of people who are appointed rather than democratically elected.11 The second, impressed perhaps by the US Supreme Court's racial desegregation decision in Brown v. The Board of Education of Topeka (1954),12 takes judicial review as fundamental, and with that side-constraint seeks to maximize the power of the legislature.13 The third takes the principles of both majoritarianism and judicial review to be derived from a common source which should be analysed in order to determine their rank-ordering. One example of such a source might be utility; another might be some understanding of equality; a third might be at the level of rights, with attention paid to both the political rights of equal participation in the political process and the civil (and, perhaps, welfare) rights of citizens.14

It is important to remember that there are different formulations of the matter: not all assume, for example, that majoritarianism should be taken as a given and that the undemocratic nature of judicial review is the problem. Which of these three (or others) is adopted will of course depend on the overall political theory from (p.182) which the question is approached. But in general terms the underlying issue may be stated as follows: on the assumption (to which we return below) that democratic fairness of procedure and the justice of legislation are both central political goods, how, institutionally, may they both be ensured? Should it be by means of judicial review of legislation? And if so, what should be the constitutional balance of power between legislature and judiciary?

All the accounts just outlined are united in the basic assumption that there is a fundamental tension between legislation by the elected representatives of the people and judicial review of legislation. Some have argued, however, that the tension is merely superficial. For example, it is claimed that in Britain, Parliament can override any judicial opinion not to its liking, and therefore that to the extent that the courts make decisions which are not reversed by statute, they in effect do so as delegates of Parliament. Again, it is urged that because Supreme Court judges in the United States are appointed by the President and ratified by the Senate, and the higher judges in the United Kingdom by the Queen on the advice of the Prime Minister in consultation with the Lord Chancellor, the judges are indirectly elected by the people. Third, at the opposite extreme from the last point, it is suggested that although judges are not popularly appointed, political representatives are themselves rarely responsive to their constituents.

None of these arguments is cogent. The first underestimates the force of practical obstacles, such as the pressures of time on the Parliamentary agenda and the political complications of reversing decisions in emotive moral areas. More important, it neglects the special conditions of entrenchment that would most likely accompany a Bill of Rights, and therefore the particular difficulty Parliament would have in reversing a judicial decision in precisely the most controversial and perhaps evenly balanced cases. The second argument ignores the categorical difference between appointment and election. The former implies the intrinsic inappropriateness of reference to the electorate in a manner which the latter does not: thus the principal reason for appointing, rather than electing, judges has been to avoid accusations of political bias. Certainly the history of appointments of, and decisions by, judges is scarcely a record of detached impartiality,15 but the solution to (p.183) this is not (though this would require further argument) popular election of justices. Moreover, at an empirical level, the argument fails to note that on the evidence from the United States, where Supreme Court judges must register their (at least nominal) party allegiances, the degree to which such explicit politicization of appointments affects the Court's judgments is difficult to prove: on the one hand, ‘packing’ the panel or increasing its number has not always helped, since judges have not always followed the policies which on appointment they might have been expected to pursue;16 on the other hand, the policies of the Court cannot oppose over the long run the wishes of a stable majority.17 Either way, there is a sufficiently indirect connection between electorate and the judiciary for the appointment of judges not to be simply equivalent to election by the people. The final argument—that representatives themselves are not very responsive to the electorate—does not do justice, to the extent to which it is true, to the critical importance for democratic government of elections, which are the primary and most effective means of securing such representative responsiveness as is possible.

3 Ronald Dworkin's defence of judicial review

The issue is not resolved, then, by these various arguments that there is no fundamental tension between judicial review and legislation by an elected assembly. A more robust defence is necessary if judicial review and majoritarianism are to be combined in the same constitutional system. The account we will take as a starting-point is that presented by Ronald Dworkin, who is an appropriate choice both because he has treated the underlying theoretical issues with more philosophical awareness and sophistication than any other current defender of judicial review, and because he has integrated his account of the relations of judiciary and legislature into a general anti-positivist jurisprudence and anti-utilitarian liberal political philosophy. In (p.184) addition, his grasp of the deeper issues makes transfer of his arguments to the British constitutional context particularly easy.18

Dworkin's theory of judicial review is based on his revisionary understanding of the proper functions of legislators and judges. He agrees with previous legal theorists that courts and legislatures cannot be simply contrasted with each other, the one issuing statutes and the other merely interpreting them, since the law may be vague, may appear to have ‘gaps’, or may produce conflicting provisions in particular cases. The positivist response to this issue has generally resembled that of Benjamin Cardozo, who argued that where the correct interpretation of the law was unclear, it was the duty of the judge to act as legislator: ‘interstitial’ adjudication was more akin to creation than to discovery, and the judge ‘ought to shape his judgment of the law in obedience to the same aims which would be those of a legislator who was proposing to himself to regulate the question’.19 Dworkin argues, against this kind of position, albeit in the analytically more refined version developed by H. L. A. Hart, that for two reasons the methods of reasoning employed by judges and by legislators cannot be straightforwardly identified: the first concerns the type of argument which it is appropriate for each to use, the second the nature of adjudication.

The difference between the kinds of argument suitable to each turns on Dworkin's contrast between arguments of policy and arguments of principle. Arguments of policy, he says, ‘justify a political decision by showing that the decision advances or protects some collective goal of the community as a whole’, while arguments of principle justify a decision by showing that it ‘respects or secures some individual or group right’.20 The distinction between collective good and individual or group rights is the distinction between two types of political aim: within any political theory a political aim is any state of affairs such that ‘it counts in favour of any particular decision that the decision is likely to advance, or to protect, that state of affairs, and counts against the decision that it will retard or endanger it’.21 A ‘goal’ is a non-individuated political (p.185) aim, while a right is an individuated political aim which may be pursued even at the expense of goals, should they conflict: rights are ‘trumps’ over goals. Using this distinction between rights and goals, Dworkin then defines questions of principle as questions about the rights of individuals or groups against each other and the State, and questions of policy as concerned with the overall goal of a society and the appropriate strategy for achieving it.22 The distinction between arguments of principle and arguments of policy then affords a contrast between the legislature and the courts: while the former should and does use both kinds of argument, the latter should and (Dworkin argues) do only operate with arguments of principle. The fundamental ground for offering this description of the contrast between the two institutions turns on the basic conviction that the demands of justice, of rights and duties, cannot be reduced to what will make the community ‘go better’ in any utilitarian sense, and that it is the duty of judges to adjudicate in accordance with the rights and duties which they believe people have.23

The other strand in Dworkin's insistence that courts are not deputy legislatures is drawn from his theory of adjudication and legal interpretation: even if judges may appeal to principle alone and not to policy in hard cases, they do not simply legislate their own moral principles.24 The positivist opposition of what is given in law and what is left to the judge's discretion is, he argues, amongst other things both phenomenologically inaccurate, in that judges find that law and precedent are constitutive of, rather than constraints on, their decisions, and morally unjust, in that by implication hard cases are decided by retrospective legislation. Instead, the law must be treated as a seamless web: if a law is insufficiently determinate to decide a case, that is not because it is incomplete and requires to be added to, but because it is too abstract and requires more concrete expression. There is a right answer in hard cases, even if it is disputed and even though there is no rigidly defined procedure for specifying it. For Dworkin this (p.186) does not imply ‘spooky’ metaphysical commitments, but only the responsibility of judges to reason in a certain way. The process of legal reasoning is a matter of developing a theory of the law which produces the best ‘fit’, sufficiently detailed to cover the case at hand, between legal provisions and the history of precedents. Clearly such a process will require judges to use their own judgement: in particular, they may have to elaborate contested concepts by reference to those considerations of political philosophy which they find persuasive. But their convictions will not be simply opposed to the community's convictions, since the theory they produce is generated out of their interpretation of the community's convictions as these have been expressed in law and precedent. To the extent, therefore, that it can be said that judges ‘innovate’, they do so in a manner very different from legislators.

For Dworkin, then, while on the one hand it would be naive to regard courts and legislatures as utterly distinct in kind, on the other, judges do not simply legislate. How then does he move from this account of courts as concerned with principle, and legislatures with policy as well as principle, to a defence of judicial review?

He appeals to the root notion of treating people as equals, the fundamental principle of his political theory. By ‘treatment as equals’ Dworkin does not mean ‘equal treatment’—that is, equal distribution within a society (whether of welfare, material goods, resources, or opportunities)25—but a more fundamental conception—namely, ‘the right to equal concern and respect in the design and administration of the political institutions that govern them’.26 Although this right of itself could be satisfied by any of the different kinds of equal distribution, it is not an empty category: amongst the things it guarantees is the claim of all those whose interests will be affected by a decision to be heard in the debate concerning whether the decision will serve the general interest.27

More importantly for our purposes, from the right to treatment as equals, Dworkin derives three grounds for the institution of judicial review. First, from this fundamental ideal come the ideas both of democracy and of the rule of law; thus Dworkin treats the central problem concerning majoritarianism and judicial policymaking in the third of the ways outlined earlier, by appealing to a (p.187) more basic value. But this deeper value implies, Dworkin appears to argue, that ‘justice is in the end a matter of individual right, and not independently a matter of the public good’,28 and such a claim for justice can be ensured only by an independent forum of principle. Democracy, when understood as a substantive and not merely as a procedural notion, is enriched rather than impugned by judicial review.

Second, the notion of treatment as equals also explains why certain kinds of justification for legislation are inadequate.29 Pure utilitarianism or pure majoritarianism, for example, could offer no grounds for opposing the legislature in the case of racially discriminatory legislation which a strong majority of the people want; and so, Dworkin argues, treatment as equals cannot mean merely the numerical equality demanded by these conceptions (‘each to count for one’, ‘one person, one vote’). Rather than the consequences of legislation, it is the types of argument used in defence of proposed legislation which should be scrutinized. Thus, ‘[r]acially discriminatory legislation is unjust in our own circumstances because no prejudice-free justification is available, or, in any case, because we cannot be satisfied that any political body enacting such legislation is relying on a prejudice-free justification’.30 And it is for such a scrutinizing role that Dworkin thinks judicial review is justified.

Third, through judicial review, minorities and the poor are treated as equals.31 Although Dworkin thinks that the power of individual citizens is weakened by instituting judicial review, some citizens are likely to gain more than they lose. In particular, since, on the one hand, the rich have in general more power over the legislature than the poor, and on the other, majoritarianism is by (p.188) definition biased against numerical minorities, judicial review may enhance the power of respectively the poor and (at least) numerical minorities.

All three arguments aim to benefit individuals and minorities, but they are each different kinds of argument. The first turns on the non-reducibility of rights to a function of the collective good, the second on the kind of reasoning for legislation that is impermissible, and the third on the relative distributions of access to political power found in systems with and without judicial review. The third also differs from the other two, at least in respect of the second of its limbs, in the following way: while at a formal level it is a contingent feature of legislatures that the rich have, all else being equal, more power over them than the poor, it is at the same formal level intrinsic to majoritarian decision procedures that minorities will have reduced power. That is, at this formal level only the version of the third argument which refers to the nature of majorities shows an intrinsic problem with majoritarianism; for the other two (and a half) some further argument is necessary to show conclusively that majoritarianism needs supplementing, perhaps by judicial review. Why can the right of moral independence, the ensuring that justice be a matter of individual right, and the rights of the poor not be attended to by a responsible legislature? Why need the judiciary be brought in?

Dworkin answers in the following terms:

Judicial review insures that the most fundamental issues of political morality will finally be set out and debated as issues of principle and not of political power alone, a transformation that cannot succeed, in any case not fully, within the legislature itself … It is a pervasive feature, because it forces political debate to include argument over principle, not only when a case comes to the Court but also long before and long after.32

The fear which underlies this position appears to be that in legislatures issues are decided by political power; by contrast, judges, who do not have to face re-election, may nurture their thoughts in a somewhat less inhospitable climate. The merits of an issue are for legislators often enough less important than the opinions of (some of) their constituents or their selection committees; they may debate at the level of reasons, but they vote in line with political pressures. The legislature is different from the (p.189) judiciary, not only in its use of arguments of policy, but also in the comparative unresponsiveness of its decisions to the merits of the issues.

This argument of Dworkin's supports judicial review as a necessary addition to a representative assembly in two ways. It suggests, first, the value of reflective debate on political issues, as well as the impetus judicial review gives to public discourse on questions of political and general morality, to a degree which Dworkin thinks will not be supplied merely by Parliamentary debate and its public reporting. Second, and more important, it may provide reasons for believing that the judiciary would generate a superior accuracy of results. Although there is no prima-facie strong reason for thinking the legislature less accurate, the relative independence of the courts from political pressure removes that potential form of distortion: in particular, judges are able to preserve ‘speculative consistency’ to an extent which legislatures would not ordinarily match.33

It might be questioned whether Dworkin's theory is compatible with a commitment to democracy. Amongst canvassed versions of the demand that judicial review be consistent with democracy or else be abandoned, one line of thought allows constitutional adjudication so long as judges ‘confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution’ (as John Hart Ely defines ‘interpretivism’)34; another version demands that judicial review confine itself to ‘process’ issues—that is, those issues which concern the effective exercise of democracy—and refrain from matters of substantive morality (Ely's own version of ‘non-interpretivism’). Dworkin's account, the argument in either of its forms continues, claims that adjudication of hard cases necessarily brings in the justice's own judgements of value, that this is incompatible with judicial review understood in the terms just given, and therefore that Dworkin's account of interpretation undermines his case for judicial review.

Clearly Dworkin cannot accept that democracy entails a refusal to import any substantive judgements of value into adjudication, since he accepts the former but rejects the latter; the reasons for his (p.190) rejection of strict constructionism as an approach to legal interpretation were outlined earlier. His answer to this objection must therefore rest in his argument given above that his conception of the rule of law, which includes judicial review, enhances rather than detracts from democracy; for democracy is not understood merely in a procedural sense, and both democracy and the rule of law are grounded in the deeper value of treatment as equals which forms the basis of Dworkin's defence of judicial review.

Dworkin's argument, for a concept of judicial review, then, is based on his account of the relation between courts and legislatures. This denies that courts simply legislate in hard cases, both because of the nature of adjudication and because of the kinds of argument which it is inappropriate for them to use. Judicial review ensures that justice is a matter of individual right rather than of an independent public good, that law is not enacted for certain kinds of reasons, and that minorities and the poor are treated as equals in their access to political power. These goods can be secured by judicial review principally because the courts' freedom from electoral accountability makes them more responsive than representative assemblies to arguments of principle. This account of judicial review is not impugned, he claims, by the argument that only strict constructionist accounts of legal interpretation are compatible with democracy; for true democracy, he notes, ‘is not just statistical democracy, in which anything a majority or plurality wants is legitimate for that reason, but communal democracy, in which majority decision is legitimate only if it is a majority within a community of equals’.35

4 John Finnis's criticisms of Dworkin

It will be recalled that Dworkin's defence of his understanding of the separation of powers turned on a distinction between arguments of principle and arguments of policy, which in turn depended on a distinction between collective good and individual right. In his 1985 Maccabean Lecture, John Finnis criticized this latter distinction on two grounds.36 The first is familiar and cogent against many forms of utilitarianism: the idea of a quantifiable collective good appeals to a notion of an aggregation of different (p.191) goods which is intrinsically incoherent and fails to recognize the incommensurability of the goods whose commensurability it presumes; there is, in other words, nothing against which individual right can be contrasted.37 The second is directed against Dworkin's allowance that in extremis rights may be overriden by policy. His assertion that ‘rights are not absolute and do not hold when the consequences for policy are very serious’38 does not ultimately take seriously the exclusionary or trumping nature of rights which it has been the centre-piece of his theory to affirm. Instead of rights being defeasible or subject to exceptions under extreme circumstances, they should rather be qualified when they apparently conflict with other rights.39

Behind Finnis's criticisms of the notions of the quantifiable collective good and the rebuttable right lies a different conception of the goal of government. Every governmental action aims not at ‘collective welfare’, which is independent of individual rights, but at the common good, which is itself constituted by individual rights. More precisely, to use the language of Finnis's wider political theory, moral rationality in governmental action implies fulfilment of the basic requirements of practical reasonableness, amongst which is the requirement of ‘favouring and fostering the common good of one's communities’,40 but which also includes the attempt to respect every basic good in every act, to admit no arbitrary preferences amongst basic goods, to be efficient within reason, and so on. The common good comprises rights in the sense that lists of rights, exemplified in the various charters and bills of rights, outline the basic features of the common good from (p.192) the point of view of the bearers of rights.41 No sense, then, can be given to an opposition between common good and individual right: arguments of policy properly understood just are arguments of principle. The policy-principle distinction cannot ground Dworkin's version of the separation of legislature and judiciary, and the constitutional supremacy of the Supreme Court cannot be derived from the trumping capacity of rights over utility.

Finnis's arguments in this regard are largely persuasive, and I will not pursue them further here. Nevertheless, Dworkin is not committed to utilitarianism as the best general normative approach to political theory, as Finnis recognizes,42 and this might suggest that Finnis's argument is too narrowly focused. Dworkin treats utilitarianism principally because he thinks that many find it an attractive general theory and that it is at least arguable that ‘the best justification of our own legal practice shows utilitarianism as the general background theory supporting most legislation’.43 He never seriously explores any other background justifications, though he mentions a ‘platonic interpretation’ which argues that the best conditions for human flourishing are those which will maximize the probability of people living in the manner which is really the most valuable for them,44 as well as other interpretations (p.193) which take as fundamental political goals the glory of the state, military success, class triumph, or material wealth.45 Yet the most pertinent interpretation concerns what is surely the most plausible descriptive account of governmental decisions, that which points to the vaguely systematic and only partially theorized congeries of reasons for policies. The question might still be asked whether rights should be accepted as judicially enforceable side-constraints of these laws. The coherence or otherwise of the background justification would here be irrelevant: the judicial enforcement of rights would be sufficiently justified by the fact that, because of actions permitted or required under law, an infringement of rights had in a particular case occurred.

This returns us to the central problematic of the chapter. For the argument as presented in the last paragraph begs the question of whether courts are the uniquely appropriate place for discussing questions of rights, or, more generally, whether they are a suitable forum for enforceable review of legislation. We have seen Dworkin's reasons for thinking so above. But not all have agreed with him: Thomas Jefferson, for example, claimed, by contrast, that Congress was equally competent to judge the constitutionality of laws. On a similar tack, Finnis argues for the supremacy of the legislature from considerations of institutional responsibility and competence.46 Legislatures, on the one hand, he says, have the responsibility for acting in accordance with the basic requirements of practical reasonableness, for assessing costs and benefits, and for choosing a society's public commitments concerning personal and political morality. Courts, on the other hand, must ‘ensure that their decisions are consistent with (i.e. “fit”) the derivative, institutional rights and principles created by the public commitments already made by the relatively determinate sources which can be the subject of legal learning: legislation, custom and judicial precedent’.47 The construal of open-ended constitutional provisions is not a task for which peculiarly ‘lawyerly skills’ are suited.

How are we to judge this? Finnis claims that legislatures have the responsibility for making commitments on behalf of a society, and that courts are institutionally better equipped to adjudge the relatively determinate sources of law. However, even if he is (p.194) correct in general terms, without pursuing the question further, we will still need to set his account within a broader theory, since his argument from legislative responsibility and judicial competence suffers from a number of inadequacies.

First, although his account explains why courts on the British model are not best suited to conducting judicial review of legislation or the interpreting a broadly worded fundamental constitutional document, it does not address the possibility of non-judicial review of legislation. That is, the function of review of legislation could be performed by an advisory body which is not part of the judicial system and whose officers are neither elected nor necessarily drawn from the ranks of the judiciary: the Conseil Constitutionnel of the Fifth French Republic is a body of this sort. Here the training of lawyers and the institutional competence of courts would be irrelevant, yet the fundamental question of review by an unelected body of an elected assembly's legislation would still stand.

Second, legislatures are prone to make mistakes. Although on Finnis's account they may be charged with the responsibility for acting in accordance with the criteria of practical reason which he enumerates, they do not always fulfil that responsibility; nor of course do many legislators understand their responsibility in those terms. But even if they did act as Finnis stipulates, they would still occasionally produce legislation which was by independent criteria poor or mistaken, because of the pervasive fact of limited information. That is, on the assumption that there is a right answer to the question of what legislation would meet the criteria of practical reasonableness,48 legislative procedures are, to borrow Rawls's terms, matters of ‘imperfect’ rather than ‘pure’ procedural justice: that is, rather than the procedure defining what will count as just, there are independent criteria of justice, even though no set of institutional legislative procedures can be guaranteed to achieve justice according to those criteria.49 But if accuracy of results is the primary goal (a premiss we shall discuss below), then institutions of government should be designed so as to maximize sound (p.195) outcomes; and if legislative process is a matter of imperfect procedural justice, then it may be that judicial review (or some other institutional arrangement) might serve to improve accuracy.

The third reason is an extension of the second, and echoes some themes mentioned earlier. Legislatures are liable not only to make mistakes, but to do so in a manner intrinsic to majoritarian democracies. Under such systems power may be systematically abused or the rights of some consistently mishandled in a manner peculiar to and inherent in majoritarianism: thus the rights of individuals, of minorities, or of the poor may in different ways fail to be recognized by legislatures because they cannot obtain stable majority approval. A tempting remedy for these problems might be a written Constitution on the US model, which would incorporate both structural provisions (such as the separation of powers) which minimize some distortions of democracy such as self-interested representation or factional tyranny and rights provisions which would insulate certain rights from majoritarian interference.50 At any rate, it would be inadequate merely to assert the legislature's responsibility, since the possibility of certain kinds of deformation are inbuilt in majority rule.

For these three reasons, then, a full treatment of the issues concerning the incorporation of a Bill of Rights requires not just an account of institutional competence and responsibilities, but also a broader theory of the relation of judiciary and legislature in the context of democratic theory and, more particularly, of the propriety of having unelected bodies pronouncing upon legislation. And since the present investigation is theologically based, we need to see how a theologically grounded account of democracy and political authority bears on the question.

5 Democratic procedures and just outcomes: a theological perspective

At the beginning of this chapter I said that there was a lacuna in Maritain's thought concerning the relationship between the formal commitment to democratic majoritarian procedures and the substantive commitment to the rights listed in the democratic charter. (p.196) Maritain did not develop an account either of the institutional locus of adjudication between the two commitments or of the principles which such an institution should follow in adjudicating. There is also a further, deeper tension in Maritain's approach which remains even if one abstracts from the notion of a democratic charter. For if the political authority is ordained to the common good, it would seem to follow that accuracy of the political authority's provisions in respect of the common good is its supreme goal and criterion. Yet the right of people to self-government suggests that (at least for this historical constellation) fairness of procedure through majoritarian democracy is the principal formal criterion of just decision-making. This tension could be resolved either by fencing off some courses of action from the range permissible to representative assemblies or by subordinating in principle the common good to majoritarianism, or conceivably by a mixture of the two. But the first option brings us back to the problem of the locus of adjudication between democratic procedures and codified rights, and also introduces, should judicial review or a similar solution be adopted, the issues of inaccuracy in judicial review; while the second runs severe risks of injustice.51 Clearly this tension between soundness of result and fairness of procedure, which Maritain never addresses,52 must be resolved by any theological account of judicial review.53

(a) Two models for popular consent

Let us open the political theological considerations by comparing two theological models of popular consent to political authority. Maritain's is a version of the Thomist ‘transmission’ theory of political authority, found in Cajetan, Bellarmine, and Suarez, (p.197) which I propose to call the conferral model of consent.54 According to this, the people ‘receive from God the right to self-government and authority to rule themselves in an inherent manner’.55 That is, ‘they are possessed of this right and this authority as a “principal agent” (though “secondary” or subordinate with respect to the Primary Cause) which through its own causal power—acting, as everything acts, in the virtue of God's universal activation—invests with authority the one or ones designated’.56 While God is the ultimate source of political authority, the people are granted the right to be the proximate source of authority. As such, they are entitled to confer authority on the ruler or ruling regime, but they never alienate or transfer their fundamental right to self-government; in this sense, democratic philosophy is the only true political philosophy, though this is compatible with aristocratic and monarchic as well as democratic regimes.57 The more specific argument for a democratic regime with universal suffrage is never expounded at length, though a passage in the essay ‘Democracy and Authority’58 suggests the line of his thought: universal suffrage, while it is valuable as a weapon against political slavery, is particularly important for its symbolic significance in witnessing to ‘the right of human persons to political life, and of the multitude to the constitution of the authoritative organism of the city’.59 Its symbolic value, he continues, must, however, be given genuine value, through features such as community representation.

By contrast, the confirmation model of consent, as I shall term it, does not grant the people the intrinsic right to self-government.60 On this view, the axiom that all authority is from God is interpreted to mean that God is not only primary cause but also (p.198) principal agent in conferring political authority: should a people take part in electing a government, their role in transmitting authority is instrumental rather than (subordinately) self-derived. The fundamental contribution of the people lies in their recognizing (or refusing to recognize) the government's edict, and this recognition is the barest minimum that is necessary for legitimate authority. But of course the divinely ordained good for political authority goes beyond the minimum: it is part of the bene esse of political society that the part played by the people lies not just in passive confirmation of authority but in active involvement in lawmaking, perhaps through representative deliberations in Parliament. This role for public consultation and debate concerning the common good is based theologically on the structural analogies between politics and ecclesiology, in this case between the giving of the Spirit at Pentecost and the participation by all in political life. Just as the prophecy of Joel was fulfilled that sons and daughters, menservants and maidservants, would declare the Word of God, so all are freed to speak a word of judgement or encouragement for the sake of the public good. Denial of this right of public speech, which is grounded primarily in the good of the public realm, and not in the right of individuals to say whatever they please, is not strictly tyrannous, inasmuch as legitimate government can proceed without public consultation; but it is autocratic, in that, in making rulings for a society, it refuses that public role for the people.

For the confirmation model, then, the role of the consent of the people lies not in conferring political authority, but in confirming whether it is present; and lack of consent is the sign rather than the substance of a lack of authority. Moreover, it is for the good of the political realm if there is a place for freedom of speech about the common good. But it is worth noting two other differences between the models, in addition to the contrast between the people's intrinsic possession of the right to self-government and their instrumental role in transmitting political authority. First, the conferral model, being based on the people's right to self-government, has the emergent implication of popular participation in political appointment (though further argument would be necessary to reach a specifically majoritarian or representative form of popular participation). Such an implication, though in itself merely conceptual, could with historicist premisses easily lend itself to claims about historical progress towards democracy, of the sort I criticized (p.199) Maritain for in the last chapter. The confirmation model, on the other hand, does not of itself lean towards democracy so directly. Second, the two models suggest different answers to the question of whether democratic electoral procedures are intrinsic or incidental to the common good. For the former, democratic fairness of procedure could be conceived to be of intrinsic (even if limited) value, and therefore to be essential for an accurate embodiment of the common good, at least in the historical climate of modern civilization; for the latter, the common good might be achieved without incorporating the right to vote.

How do the two models differ in their approach to the question of judicial review? It turns out that the answer to this depends in part on what formulation of the central problem of judicial review is suggested by each of them. Let us assume first, as we have throughout this discussion so far, that the problem is that decision-making by unelected bodies is incompatible with a commitment to electoral democracy. On this assumption, there is a prima-facie case for thinking that the conferral model's inbuilt leaning towards democracy makes it less open to judicial review and the role of non-elected bodies in government than the confirmation model; the latter, because it does not tend specifically towards popular electoral participation, cannot at this level of generality rule out the role of a non-elected review body.

In fact, on this assumption the conferral model does not rule out the possibility of judicial review, though it is clearer from Yves Simon's work than from Maritain's that there can be limitations on pure democracy within the conferral model. Discussing the party system, Simon accepts that democracy ‘may well be saved by a non-democratic principle acting as a check on its enemies’,61 and, concerning the rule of the majority, he allows constitutional restraints on the majority, though he mentions only proportional representation.62 Yet, if proportional representation is granted as a supposed brake on the majority, there might well be a place for judicial review too, provided that an important constraining principle, derived from the fundamental right of the people to self-government, was accepted: namely, that judicial review be in some sense an expression of, rather than a limitation on, the will of the people. Given this principle, the people themselves would not lose (p.200) power under a constitution with judicial review—even if their elected representatives would.

This consideration is adduced not in order to show that judicial review is therefore desirable in the British case, but merely that it is at this general level possible within the terms of the conferral model of popular consent, despite that model's predilection for democracy. Neither the conferral model nor the confirmation model finally either excludes or demands judicial review, then, on the assumption that the problem is that of the unelected nature of the court.

(b) A deeper understanding of the difference between the two models

But to put the question in this way is not to draw on the deepest impulses of each theory. In fact, the nature of ‘the problem of judicial review’ changes in accordance with the theory from within which it is addressed, as will become evident.

(i) The confirmation model

In the case of the confirmation model, we will consider two arguments which purport to rule out judicial review, one which turns on the good of public debate in relation to governmental decision-making, and a second which considers the fundamental legal nature of Bills of Rights.

According to the first argument, judicial review is ultimately problematic on the grounds that it insulates public decision-making from public debate: whereas the well-being of political society depends on the freedom of all to contribute to discussion about the common good, judicial review prevents such contributions. The central problem of judicial review lies not so much in the unelected status of judges, the confirmation theorist would insist, but in its potential for stifling public debate; the reason for defending electoral democracy—namely, its capacity for representing symbolically universal possession of the spirit of prophecy—is precisely the reason for rejecting judicial review. By rendering impermissible the universality of speech in relation to a selected class of public decisions, the role of the judiciary becomes autocratic, compromising the dialectical relation between divinely ordained authority and the popular confirmation of that authority which is given full expression in the right to freedom of speech.

However, this argument does not prove as much as it claims. Certainly it would rule out any form of ultimate judicial supremacy, (p.201) according to which there was no possibility of redress against a supreme court's rulings. But systems of judicial review do not usually propose this. Even models of direct review, such as that in the United States, allow for legislative response to the Court's rulings, though the entrenchment of the Bill of Rights designedly makes this difficult. Any version of judicial review which made a reality of the dialectical relationship between political authority and the people would fit the confirmation model, at this general level.

The second argument that claims to show that judicial review would be unacceptable within the terms of the confirmation model revolves around the nature of the law contained in Bills of Rights.63 If it could be shown, the argument goes, that Bills of Rights are not in a significant sense law, it would seem to follow that the court would be acting as a legislature. For in the order of being, laws have to be made before they can be applied, the act of judgment being the twofold process of legislation and adjudication; so, if a Bill of Rights had not been made law (in some significant sense, yet to be determined) by a legislature, the only evident institutional locus for its becoming law would seem to be the judiciary. Such legislative action would seem to subvert the primacy of the legislature, and thus to render judicial review unacceptable.

The case for asserting that Bills of Rights do not contain law might, the argument continues, proceed as follows. A Bill of Rights contains moral teachings about fundamental goods of a society; its provisions are superior to what we might call ‘non-fundamental law’, not through their capacity for trumping statute laws by being applied directly to particular cases, but in their being embodied in all ordinary legislation. Therefore, when a court applies a provision of a Bill of Rights to a case, it is not merely interpreting a broadly worded or open-ended statute, but is also legislating as well, since no truly legislative act had been performed previously. A Bill of Rights comprises a philosophy of law, and in order to pass into non-fundamental law (so as to be at a level where it can potentially conflict with other non-fundamental law), has to be legislated by the judiciary.

In assessing this argument, how are we to make sense of its distinction between ‘law’ or ‘non-fundamental law’ on the one hand and ‘philosophy of law’ or ‘moral teachings’ on the other? (p.202) The distinction no doubt could be seen as drawing inspiration from parallels such as Albrecht Alt's diversion of Israelite law into ‘casuistic law’ and ‘apodeictic law’. According to Alt, the former was adopted from the Canaanites, had its Sitz im Leben in everyday jurisdiction, and was concerned only with relations between people, not with Israel's larger destiny. The latter was peculiarly Israelite, was concerned with the unalterable will of God, formed the unconditional guiding principle of the laws, and was associated with the recollection of the ideals of Israelite society at the renewal of the Covenant: the Decalogue is a central example of this latter kind.64 The two kinds of law are fundamentally different, and the latter (so the argument would go) parallels a Bill of Rights.65

In response to this defence of the fundamental difference between two kinds of law, we should note that even in the case of the parallel just cited, the two are of sufficiently similar status for Alt to allow that the two may clash, the apodeictic in such instances invariably taking precedence. And we might note a similar point in the case of a constitution and a law conflicting, by referring to the language of the original Marbury v. Madison judgment:

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide the case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case.66

Both cases suggest that fundamental and non-fundamental law may clash, and therefore that non-fundamental law is law in some relevant sense.

These examples are not enough to settle the issue against the argument just outlined, however. Neither Alt nor Chief Justice Marshall may have had our problem in sight. Nor would it settle the problem to demonstrate that a charter or Bill of Rights was law (p.203) in the appropriate sense because it has been formally incorporated as statute law or has the status of authoritative custom, or whatever.67 For even if human rights provisions in such a charter were shown to have the appropriate formal status, they might still not be law in the focal sense of the term.

Rather, what matters is surely the degree of specificity a law possesses: the question of whether judges are legislating or adjudicating turns on the quantity of material they have to import. Of course, determining what counts as introduction rather than interpretation, and how much of the former is permissible, are the central questions around which flow the great tides of debate between interpretivists (or originalists) and non-interpretivists (or non-originalists), between judicial activists and believers in judicial restraint. For our present, very limited, purposes we do not have to attempt a resolution of them: all we need to note is that if the difference between the provisions of a formally enacted Bill of Rights and ordinary statute law is principally one of specificity, then the two differ not in kind, but only in degree. That is, there is no basic qualitative difference between ‘fundamental’ and ‘non-fundamental’ law with regard to their status as law, and the contrast (to refer back to the original putative distinction) between ‘philosophy of law’ on the one hand and ‘law’ on the other is misleading. In both cases judges are attempting to interpret or construe legal provisions, even if the one offers them considerably more scope for using their own judgement than the other. Certainly the greater specificity of non-fundamental law may give grounds for regarding it as a more central or focal example of law, but this is not sufficient to refuse the title of law to more open-textured yet still formally valid examples.68

(p.204) Moreover, in both cases interpretation may require some introduction of material: all courts legislate, to some degree. But from this it follows that if legislation by the courts is an argument against judicial review, it would also be in principle an argument against letting judges construe ordinary statute law. Or, more importantly for our purposes, it follows that if ordinary adjudication may be conducted by judges, so in principle may review of legislation. The second argument against judicial review, in other words, comes to a similar conclusion to the first. Instead of using the fear of judicial legislation as an argument against enacting a Bill of Rights, it would be better to consider the conditions under which such legislative activities by judges might be compatible with the supremacy of a democratic assembly.

What might these be? Judges are entitled to construe ordinary law because of two conditions, which need to be taken into account when considering possible constitutional arrangements which would include judicial review of legislation. First, on the confirmation model it is the primary responsibility of a body open to public debate to introduce content (even if the courts inevitably will also) and to furnish the judiciary with provisions which are as specific as is reasonably possible. This constraint may be overriden for the sake of a Bill of Rights, but not, of course, without cost.69

Second, if the constitutional primacy of a democratic assembly which the confirmation theory demands is to be observed, there must be some provision for legislative rejoinder to the court's rulings in review cases. In other words, judicial review can be justified within the terms of the confirmation theory, but only if substance can be given to the ultimate constitutional supremacy of the legislature. How this might be possible we return to below.

(ii) The conferral model

Maritain's theory, by contrast with the confirmation model, does not have concerns in the same way about freedom of speech. For since the transmission of authority runs entirely from the people as principal agent (though as secondary cause to God as first cause), and since freedom of speech is not essential to the public confirmation of that authority in the manner that it is for the confirmation model (although of course it is an important good), the actions of a judiciary in reviewing human (p.205) rights cases are not intrinsically problematic because insulated from public debate. In the conferral of authority through (say) an act of election, the people can in principle license judicial legislation as much as parliamentary legislation. This is not to argue that on this model the holders of authority are permitted to make any proposals they want: they are still bound by the natural law. Nor is it to say that authority is alienated by the people in a Hobbesian sense: the government holds it per participationem, vicariously, while per essentiam it still belongs to the people. But it is to suggest that thebody politic's natural right to full autonomy cannot exclude judicial review as a manner of exercising that autonomy.

This does not commit the conferral model to judicial review, of course, and we must introduce further considerations if we are to get a grip on the general question of the constitutional superiority of the court or the legislature from the premisses of the conferral theorist. To this end we need to look in greater depth at arguments which aim to settle the issue by appealing either to accuracy of results or to fairness of procedure, before turning to a third, more satisfactory, approach.

The first kind of argument, based on an appeal to the principle that, in Rawls's formulation, ‘[t]he fundamental criterion for judging any procedure is the justice of its likely results’,70 would consider whether an elected assembly or a panel that was not electorally accountable would produce the sounder or more accurate results. In favour of the courts it is often argued, with Dworkin, that the legislature cannot police itself; that the court's independence of electoral accountability implies that there is no reason for it to commit the typical vices of majoritarianism, and at least in that respect would be more accurate (or at any rate no less accurate) than the legislature; that it is a good defence of minorities and individuals, and that the majority would in such instances be acting as judge in its own case; and that it provides a good defence not just of ‘participational’ values of equal access to the political process and non-discrimination against certain kinds of minority (for which Ely argues), but also of substantive, ‘non-participational’ moral values.

Yet, for all those who would agree with Henry J. Abraham that no ‘sane citizen of the United States would wish to have the (p.206) ultimate exercise of his or her individual liberties, including the provisions of the Bill of Rights, be at the mercy of partisan political bodies’,71 there are many on the other side who would hold with John Hart Ely that ‘Our society did not make the constitutional decision to move to near-universal suffrage only to turn round and have superimposed on popular decisions the values of first-rate lawyers’,72 or with Learned Hand, who did not want ‘to be ruled by “a bevy of Platonic Guardians,” even if he knew how to choose them, which he did not’.73 The writers of The Federalist Papers were particularly wary of the tyranny of the majority. But the potential threat of the tyranny of the few cannot be neglected either: while the legislature may need guarding, so do the guardians of the legislature.

In general, the argument from accuracy is difficult to assess with any precision. Legislatures indeed have their characteristic distortions; but judges too may have their vices: the fashionable liberal attitudes of the intellectual elite, the dispositional conservatism of stability and conformity. One system has produced Roe v. Wade; the other the Abortion Act 1967. Undoubtedly any system which gave no role at all to democratic process would be liable to inaccuracy—procedural fairness is an intrinsic part of the common good. But without considerably more evidence (and an account of the values which are to be measured) the criterion of accuracy is not dispositive either way, and certainly not conclusive.

The second kind of consideration would argue for the constitutional supremacy of an elected assembly from the priority of procedural fairness: the question should be settled simply by appeal to the will of the majority expressed through its elected representatives. The problems with this approach were mentioned in our discussion of Dworkin: aside from inherent difficulties in the notion of the will of the majority,74 there are specific groups liable to be discriminated against under such circumstances—minorities, the poor, the powerless. Whatever vague content ‘democracy’ may have in public rhetoric, it has more substance than crude majoritarianism. (p.207) Every democracy needs constitutional brakes of some kind on the majority, though these need not include judicial review. While the criterion of fairness affirms the primacy of the legislature, it cannot rule out a role for those forms of judicial review that are in some sense subordinate to the legislature.

A third approach supports this conclusion. This criterion makes the decisive question that of which institution should be allowed to make the errors, given that both inevitably will. Adopting this approach does not imply a diminished view of the importance of soundness of results. On the contrary, against Hand, if a host of Platonic Guardians perfect in knowledge (like the cherubim) and love (like the seraphim) were to dispense law, it would in this respect be proper for them to hold authority. But in the conditionswhich obtain, where the holders of political authority are distinctly limited in knowledge and benevolence, and where, I have argued, neither systems with judicial review nor systems without it are indisputably more accurate, some other presumption-creating criterion must be sought. The most obvious such criterion appeals to the idea that constitutional supremacy must lie with that body which it is least unacceptable for mistakes to be made by.

To discern which body that would be in a North Atlantic democracy such as Britain, it would be inadequate merely to appeal to the right of tradition. For, first, it is precisely the claim to the right of tradition that is in question: some find that the principle of electoral accountability places final responsibility with Congress or Parliament, others that the country's commitment to the rights of individuals and minorities and to constitutional rule should give ultimate say (short of constitutional amendment) to the judiciary. Second, and more importantly, the right of tradition is merely one consideration, to be balanced by others. The argument cannot proceed simply by accepting inherited beliefs as the only relevant source of judgement, though of course the mere fact of their being inherited and held by the community may have a subordinate place in the argument.

Rather, we must look to the structure of the conferral model for the solution. The relevant feature of the model is the vicarious nature of the authority of those in power. Although, as was argued earlier, the transmission of authority from the people means that the conferral theorist has no worries about judicial review at the deepest level, of the kind that the confirmation theorist finds, this (p.208) does not imply that the theory generates no presumption about who should be allowed to make mistakes. Indeed, it is here that our initial observation about the conferral theory's inbuilt inclination to democracy takes its place. The body politic's right to full autonomy is expressed, at least in this society, through universal suffrage, and this suggests that, if anybody, it should be the people—through their elected representatives—who shouldbe allowed to make the mistakes about the common good that inevitably will be made. The proper locus of effectual moral and political debate about this society's commitments is the legislature, even if the deliberations of that body may typically be distorted by unbridled passion, self-interest, and the manifold corruptions of a sinful world.

(c) Judicial review in a democratic framework

Both theological models point, therefore, towards a system which gives constitutional primacy to a democratically accountable legislative assembly. Systems which answered to this principle would either contain no judicial review of legislation at all, or would adopt a form of judicial review which allowed some means of popular feedback. This latter approach would not entirely exclude direct judicial review of the US variety, inasmuch as the Court's rulings may always be reversed by constitutional amendment. Yet this system, with no provision for review within the legislative process itself and with constitutional amendment as the only means of overturning the Court's decisions, is relatively clumsy.

There are a variety of other review instruments which give more exact substance to the idea of the legislature's constitutional supremacy. In the case of the US Michael Perry has argued for a functional justification of non-interpretive review in human rights cases.75 This justification is based on an understanding of America's fundamental commitment as a society to a fallibilist moral evolution, a belief in the existence of a right answer about human rights (and political and personal morality as a whole) without the assumption that the truth has been found. The virtue of judicial review lies in its capacity for dealing with moral and political (p.209) problems ‘non-mechanically’—that is, as a matter of reflection, not of reflex, and by deepening moral understanding through dialogue with Congress. The process of conversation between legislature and judiciary which he envisages is likely to lead to more accurate opinions, he thinks, and therefore to help rather than hinder democracy (understood substantively), because of the self-critical disposition it engenders.

The dialectical nature of the relationship is ensured by the authority of Congress to exert significant political control over the Court. The source of this Perry finds in a rarely used clause of Article III of the Constitution, under which the Court ‘shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make’. Congress may define and thus limit the Court's jurisdiction. Such a power is not one of reversing decisions, which would render the Court a mere delegate of Congress. Nor is it equivalent to constitutional amendment: it is intended to control the value-judgements of justices, not of the original framers. Such a distinction depends on the possibility of distinguishing interpretive from non-interpretive review, which is, of course, controversial.76 Nevertheless, it is clear that attributing such a power to Congress gives rendering to the principle which I enunciated earlier that judicial review be in some sense an expression of, rather than a limitation on, the will of the people. The Court would not be justified in striking down such jurisdiction-limiting legislation precisely because its own moral legitimacy is tied to its submission to the legislature.

Clearly, similar provisions could be incorporated into any formal recognition of judicial review in the United Kingdom. By that means, respect for the presumption in favour of the legislature as supreme bearer of constitutional authority would be maintained, even if the demands of the common good incited general public recognition of the need for fundamental constitutional change. Moreover, it would make clear that a supreme court's role in such circumstances is properly one of judicial review, not of judicial legislation.

(p.210) 6 Conclusion

The problem of the relation between a democratically elected legislature and a rights-protecting judiciary is the institutional reflection of a deep tension within liberal democratic theory. In this chapter I have explored the extent to which theological conceptions of political authority and democracy can be brought to bear on the question. I have argued for a presumption in favour of the constitutional supremacy of the legislature: one model I have discussed bases this on the threat which judicial review poses to the right of public speech; the other urges it on the grounds that, if anybody, elected representatives of the people should be those allowed to make bad decisions on behalf of a society. Such a presumption is defeasible, however, should the exercise of power by the legislature exceed certain limits of tolerability. If judicial review should be implemented, there should be some means of increasing the court's responsiveness to the elected assembly in addition to resorting to the procedures of enhanced majorities or constitutional conventions.77

Although the main purpose of this chapter has been to probe some of the theoretical issues underlying judicial review, we cannot conclude without touching on one final question: should a Bill of Rights be introduced into British domestic law? Undoubtedly there are difficulties. Not only are there fears to be addressed: that the explicit politicization of judges would be a source of injustice, that the right of appeal to a supreme court higher than the legislature would spur on an increasingly litigious culture, that the possession of rights would come to be thought inconceivable without the possession of a Bill of Rights, that the perceived significance of legislative enactment would be diminished, and that the legislature would no longer internalize its responsibility to protect rights. Again, if the European Convention of Human Rights were not adopted en bloc, there would also be significant problems of incorporation to be overcome: the introduction of a Bill of Rights (let alone an entire constitutional document) would require (p.211) nationwide all-party support significantly greater than a mere numerical majority; the mass of technical legal and procedural details (including the difficulty of how a sovereign Parliament understood in Dicey's terms can bind itself for the future, and the relation of British constitutional instruments to superior European jurisdictions employing a possibly different enumeration of rights) would have to be negotiated; and, most importantly and controversially, the rights and provisions to be incorporated would have to be specified.

Moreover, there are alternative and intrinsically more democratic improvements compatible with the British system, which would reform Parliament while also strengthening individual and minority rights (I will not comment here on the plausibility of any of them, or of others not listed, or on their compatibility with the arguments presented above): detailed legislation in specific areas (freedom of information, supervision of the security and intelligence services, etc.); a strengthened and reformed House of Lords, allowing special representation of minority and regional interests; greater scope for legislative initiatives by individuals or groups in Parliament other than the government; mechanisms internal to the legislature to counteract discriminatory legislation; formal recognition of constitutional functions for the Leader of the Opposition; a separate Ministry of Justice, thereby ensuring that the Home Office is not responsible for justice and civil rights as well as public order and internal security matters; greater openness of government and access of citizens to executive decision procedures; increased powers for the Ombudsman; and procedures for appointing judges which would ensure a greater chance of political independence.

For all that, a Bill of Rights could turn out to be a force for justice such as could not be achieved by any amount of piecemeal reform. Grievances would be remedied, wrongs righted, and rights vindicated. The excessive power of the executive would probably be restrained. The law would on occasion be expanded to advantage, beyond the point to which Parliament or the executive would be willing to take it. And the moral consciousness of the nation would probably be educated out of its customary torpor on the matter of fundamental liberties. But the dangers of judicial review of legislation must still be taken seriously. Shorn of a corresponding emphasis on the duties of the citizen in addition to those of the State, it might entrench the idea that the (p.212) fundamental forms of human good can be stated in terms of rights—the abstract, individualist nature of which the British system may anyway rightly have suspected. As importantly, the choice to entrust to the judiciary the power, which they would be unlikely to relinquish, of construing a text whose time-bound nature may in future lend only increasing implausibility to an already precarious understanding of interpretive method, and to diminish the chance of reviewing the decisions thereby made, cannot be undertaken lightly. It is sometimes said that in the United States every political question is ultimately a legal question. What needs to be asked is whether the institution of judicial review ultimately betokens the strengthening of justice or the limiting of the freedom of the Word of God in the public realm.

Notes:

(1) MS 65; Maritain's defence of the formal component of democracy is discussed in more detail below. That it is termed a ‘formal’ component does not imply that a commitment to democratic procedures is value—neutral.

(2) MS 109.

(3) Range of Reason, 167.

(4) 1 Cranch 137 (1803).

(5) The European Convention is already binding on Britain in international law. For the issues concerning its incorporation into British domestic law, see Home Office, Legislation on Human Rights with Particular Reference to the European Convention: Discussion Document (London: HMSO, 1976), 8–19; Joseph Jaconelli, Enacting a Bill of Rights: The Legal Problems (Oxford: Clarendon Press, 1980), 246–81.

(6) Text in New Statesman and Society (2 Dec. 1988), IO-II. For a full list of reasons for adopting a Bill of Rights and a history of the British debate, see Michael Zander, A Bill of Rights?, 3rd edn. (London: Sweet and Maxwell, 1985), 1–42. More recent contributions include Institute for Public Policy Research, A British Bill of Rights, Constitution Paper No. 1 (London: Institute for Public Policy Research, 1990); idem, The Constitution of the United Kingdom (London: Institute for Public Policy Research, 1991); Frank Vibert, Constitutional Reform in the United Kingdom: An Incremental Agenda, IEA Inquiry Paper No. 18 (London: Institute for Economic Affairs, 1990); National Council for Civil Liberties, A People's Charter: Liberty's Bill of Rights(London: National Council for Civil Liberties, 1991); Rodney Brazier, Constitutional Reform(Oxford: Clarendon Press, 1991); and Ferdinand Mount, The British Constitution Now: Recovery or Decline?(London: Heinemann, 1992). On the state of civil liberties in Britain, see e.g. Geoffrey Robertson, Freedom, the Individual and the Law, 6th edn. (Harmondsworth: Penguin, 1989); K. D. Ewing and C. A. Gearty, Freedom under Thatcher: Civil Liberties in Modern Britain (Oxford: Clarendon Press, 1990).

(7) There is next to no theological literature on the subject. Reinhold Niebuhr is one interesting exception. He criticizes both Catholic (including explicitly Maritain) and Enlightenment liberal demands for charters of rights, on the grounds that they fail to recognize ‘the perennial corruptions of interest and passion which are introduced into any historical definition of even the most ideal and abstract moral principles’ (CLCD 51–8, at 52), and hence that they neglect the time-boundedness and ideological contamination of such charters.

(8) Throughout this chapter the phrase ‘the Court’ refers to the US Supreme Court, and ‘the court’ to the putative UK Court of Human Rights (however titled).

(9) 198 US 45 (1905) (limited hours for workers in bakeries are arbitrary interferences with freedom of contract).

(10) 410 US 113 (1973) (Texas criminal abortion statutes are unconstitutional, etc.).

(11) See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review: (Cambridge, Mass., and London: Harvard University Press, 1980), 7. Robert A. Dahl thinks the electoral process of ‘decisive importance’ for democracy (A Preface to Democratic Theory (Chicago and London: University of Chicago Press, 1956), 125). Evidently it is also Jon Elster's position (in Jon Elster and Rune Slagstad (eds.), Constitutionalism and Democracy (Cambridge: Cambridge University Press, 1988), 1–17) when he enquires why a political assembly should want to bind itself (8–14).

(12) 347 US 483 (segregation of public schools on the basis of race contravenes the equal protection clause of the Fourteenth Amendment).

(13) Not Michael J. Perry's position, but entertained by him (The Constitution, the Courts, and Human Rights: An Enquiry into the Legitimacy of Constitutional Policymaking by the Judiciary (New Haven and London: Yale University Press, 1982), ion.).

(14) The rights—based approach is adopted by e.g. Rawls, TJ 221–34, 350–62.

(15) See J. A. G. Griffith, The Politics of the Judiciary, 4th edn. (London: Fontana Press, 1991).

(16) See e.g. Perry, Constitution, 126–8.

(17) Dahl provides evidence for the conclusion that ‘lawmaking majorities have generally had their way’, though there may have been policy delays of up to 25 years due to Court action (‘Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker’, Journal of Public Law, 6 (1957), 291). Dahl's argument, it should be noted, could be turned either in favour of judicial review (it does not ultimately defeat democracy) or against it (it makes little difference).

(18) Dworkin's work has been developed largely through scattered essays, the most relevant of which are collected in TRS and MP. See also his A Bill of Rights for Britain (London: Chatto and Windus, 1990).

(19) The Nature of the Judicial Process (New Haven: Yale University Press, 1921), 120.

(20) TRS 82.

(21) TRS 91.

(22) See ‘A Reply by Ronald Dworkin’, in Marshall Cohen (ed.),Ronald Dworkin and Contemporary Jurisprudence (London: Duckworth, 1984), 263.

(23) Ibid. 266–7; TRS 84–8.

(24) See in general ‘Hard Cases’, TRS 81–130. Dworkin has elaborated his position considerably since this paper, but not in ways which affect the present discussion. It should also be noted that a number of interpretive difficulties are elided in this account.

(25) See Dworkin, Law's Empire (London: Fontana Press, 1986), 297.

(26) TRS 180; cf. 227.

(27) TRS 273.

(28) MP 32.

(29) MP 65–6.

(30) MP 66. Ely provides an extended argument in favour of treating legislative or administrative motivation as an appropriate reason for counting something unconstitutional, in cases such as ‘suspect classifications’ (Democracy and Distrust, 135–79). Of course, proof may be mighty difficult; certainly not all offences will be as unsubtle as that of the City of Tuskegee in Alabama, whose boundary lines, having originally been on a square plan, were redrawn so as to form an ‘uncouth twentyeight-sided figure’, thereby excluding nearly all the city's black voters (Ibid. 139–40).

(31) MP 27–8. Dworkin talks here of equality of political power, though he is probably referring to treatment as equals rather than equal treatment; even though his argument at this point appears to be about redistribution (and therefore perhaps concerned with equal treatment), it is better read as an attempt to remedy distortions in the access to power caused by poverty.

(32) MP 70.

(33) Questions of speculative consistency are questions ‘that test a theory of rights by imagining circumstances in which that theory would produce unacceptable results’ (MP 24).

(34) Ely, Democracy and Distrust, I.

(35) Bill of Rights for Britain, 35, emphasis original.

(36) ‘A Bill of Rights for Britain? The Moral of Contemporary Jurisprudence’, Proceedings of the British Academy, 72 (1986), 303–31, at 315.

(37) Ibid. 318–21. For the incommensurability of goods, cf. NLNR 113–15; Finnis, Fundamentals of Ethics (Oxford: Clarendon Press, 1983), 89–90; Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), 321–66; and Charles Taylor, ‘The Diversity of Goods’, in Philosophy and the Human Sciences, 230–47.

(38) TRS 83.

(39) Finnis, ‘Bill of Rights for Britain?’, 321–2. Cf. NLNR 218–21, 223–6; Paul Ramsey, Deeds and Rules in Christian Ethics, Scottish Journal of Theology Occasional Papers, n (Edinburgh: Oliver and Boyd, 1965). The point is just a logical extension of Dworkin's own distinction between abstract and concrete rights, according to which an abstract right is ‘a general political aim the statement of which does not indicate how that general aim is to be weighed or compromised in particular circumstances against other political aims’, whereas concrete rights are ‘political aims that are more precisely defined so as to express more definitely the weight they have against other political aims on particular occasions’ (TRS 93).

(40) NLNR 125. See NLNR, passim, for the basis of Finnis's philosophy of law in his account of practical reasonableness.

(41) NLNR 210–18.

(42) Finnis, ‘Bill of Rights for Britain?’, 317 n. i. Cf. Dworkin: ‘I doubt that in the end any package based on any familiar form of utilitarianism will turn out to be best’ (MP 370).

(43) Dworkin, in Cohen (ed.), Ronald Dworkin., 281. Finnis takes ‘neutral utilitarianism’ as the working theory, for Dworkin, behind current political practice: this ‘“takes as the goal of politics the fulfilment of as many of people's goals for their own lives as possible” … and is “neutral toward all people and preferences” … so that preferences are to be given full weight even when they “combine to form a contemptible way of life”’ (‘Bill of Rights for Britain?’, 317; the internal quotations are Dworkin's). He rightly argues that this is ‘both flatly unacceptable, and regarded as such in every civilized community’ (ibid.), because of the evil preferences it admits into the calculus. But properly it is restricted utilitarianism which Dworkin regards as, if not finally the best normative political theory, at least better than unrestricted utilitarianism as a descriptive theory of North Atlantic constitutional states (Cohen (ed.), Ronald Dworkin, 281). By restricted utilitarianism he means a version of utilitarianism which admits personal preferences (i.e. preferences about how the agent's life should go) into the calculus, but not external preferences (i.e. preferences about how the lives of others should go). Even so, restricted utilitarianism, whatever its normative merits over against unrestricted utilitarianism, still fails to capture the current political practice of excluding certain personal preferences (such as ‘a lifetime of immolation in slavery, sexual bondage, or drug-induced fantasy and oblivion’ (Finnis, ‘Bill of Rights for Britain?’, 318)).

(44) MP 414.

(45) TRS 365.

(46) Finnis, ‘Bill of Rights for Britain?’, 328–9.

(47) Ibid. 329, emphasis original.

(48) This assumption will not be defended here, though it would be satisfied by the kind of moral realism assumed throughout this book. Note (i) that this reference to a ‘right answer’ need not imply that a particular piece of legislation would be uniquely correct, and (ii) that the applicability of the concept of imperfect procedural justice merely requires the belief that there are independent criteria.

(49) TJ 84–6.

(50) For the distinction between structural and rights provisions, see Cass R. Sunstein, ‘Constitutions and Democracies: An Epilogue’, in Elster and Slagstad (eds.), Constitutionalism, 327–8.

(51) Another resolution of the tension might be through the claim that the formal commitment to electoral democracy and the substantial commitment to the common good refer to different stages in the process of government, the former addressing the question of who will make the decisions, the latter the question of what they will decide. But the same problem arises here: may or may not the government elected do what it wishes, without side-constraints?

(52) ‘I am no legislator, nor an inventor of constitutions’ (Scholasticism and Politics, 115–16).

(53) Note that the common good will of course include fairness of procedure, in terms of (e.g.) treating all with equal concern and respect; formally, there is no tension at the level of the exercise of authority between soundness of outcome and fairness of procedure. Rather, the problem arises at the level of electoral participation: here there is a real question, addressed below, concerning whether the common good includes electorally fair—i.e. majoritarian democratic—procedures.

(54) Yves R. Simon, Philosophy of Democratic Government (Chicago: University of Chicago Press, 1951), 158–76, claims that these Thomists give a ‘unified expression’ of the theory (175), and that it is (sketchily) present in Aquinas (158–60).

(55) MS 128, emphasis original.

(56) Ibid.

(57) MS 129.

(58) In Scholasticism and Politics, 89–117.

(59) Ibid. 113.

(60) This model approximates that defended by e.g. Oliver OʼDonovan in The Desire of the Nations (Cambridge: Cambridge University Press, 1996); I am grateful to him for clarification of a number of issues about it. Clearly it resembles the ‘designation’ theory, in contrast to the ‘transmission’ theory, of the traditional discussion (see Simon, Philosophy of Democratic Government, 157, 163–4); though the confirmation model makes clear the distinction between the human means of designating those who will exercise authority, which need not be popular, and the necessarily popular (though not necessarily formally instituted) confirmation of that authority.

(61) Philosophy of Democratic overnment, 108.

(62) Ibid. 99–103.

(63) This argument is one suggested to me by Oliver OʼDonovan; all responsibility for misrepresentation is of course mine.

(64) Albrecht Alt, ‘The Origins of Israelite Law’ (1934), in Essays on Old Testament History and Religion, trans. R. A. Wilson (Oxford: Blackwell, 1966), 70–132. His thesis has been subject to much criticism and amendment since, but this does not affect my use of it.

(65) Indeed, Walter Harrelson (The Ten Commandments and Human Rights (Philadelphia: Fortress Press, 1980)), having claimed that the Decalogue is not law in its ordinary sense (12–13), explicitly compares the US Bill of Rights and the Decalogue (191).

(66) I Cranch 137 (1803), at 178.

(67) The Universal Declaration of Human Rights and the American Declaration of the Rights and Duties of Man (both 1948) are two international human rights instruments which were not intended to create binding obligations in international law on their signatories: for their juridical status see Paul Sieghart, The International Law of Human Rights (Oxford: Clarendon Press, 1983), 53–5.

(68) Where does the difference between Bills of Rights and statute laws lie? Certainly they seem very unalike, as an elementary form-critical exercise would demonstrate. But, as argued in the text, that dissimilarity does not derive from the latter being formally law, the former not. Nor is it based on Bills of Rights being statements of moral truths, by supposed contrast with statute laws, as if the latter were devoid of moral content. The difference lies rather in two features: first, statute laws have a greater moral specificity; Bills of Rights being higher up the ladder of abstraction of moral claims; second, they contain particular determinations which are appropriate to particular empirical circumstances, but of themselves of no moral import.

(69) Finnis, ‘Bill of Rights for ritain?’, 325–31.

(70) TJ 230.

(71) Henry J. Abraham, The Judiciary: The Supreme Court in the Governmental Process (Boston: Allyn and Bacon, 61983),167. Cf. Thomas Nagel, ‘The Supreme Court and Political Philosophy’, New York University Law Review, 56 (1981), 519–24, at 522–3.

(72) Ely, Democracy and Distrust, 59.

(73) The quotation is Dworkin's (MP 27); the internal quotation is Hand's phrase.

(74) See e.g. Finnis, ‘Bill of Rights for Britain?’, 306–7.

(75) Perry, Constitution, 91–145. A ‘functional’ justification in this context is one which appeals to the inherent value of judicial review for the Constitution, not to anything in the text of the Constitution or the minds of the original framers.

(76) Ibid. 128–39.

(77) In this respect at least, the ‘semi-entrenched’ model of judicial review proposed by the National Council for Civil Liberties (A People's Charter) would be preferable to the model of direct judicial review put forward by the Institute for Public Policy Research (A British Bill of Rights). Jaconelli (Enacting a Bill of Rights, 23–91) discusses various possible constitutional models.