Where Our Protection Lies: Separation Of Powers And Constitutional Review [Hardcover ed.] 0199672253, 9780199672257

Table of contents :
Contents
1. The Possibility of Constitutional Theory 1
I. Introduction 1
II. ‘Three is a Company, Two is Nothing’ 4
III. Towards a Moralized Constitutional Theory 7
IV. Constitutional Theory and History 22
V. Constitutional Theory and Politics 27
VI. Constitutional Theory and Utopia 31
2. A Moral Map of Constitutional Polyphony 33
I. Introduction 33
II. Polyphonic Legal Systems 34
III. The Defects of the Traditional Conception 36
IV. Beyond the Traditional Conception 39
V. Democracy vs. Separation of Powers 54
VI. A Jurisprudential Aside 55
VII. Mapping Out Neptune 56
3. Are Courts the Forum of Constitutional Principle? 59
I. Introduction 59
II. Legal Bootstrapping 61
III. Constitutional Review and the Right to a Hearing 62
IV. The Principle/Policy Distinction 66
V. Principles and Policies in Action 70
VI. A Diagnosis 77
VII. Conclusion 80
4. Against the Democratic Objection 81
I. Introduction 81
II. Articulated Government 82
III. The Moral Appeal of Majority-vote 83
IV. Democratic Process vs. Constitutional Review 86
x Contents
V. Delegates and Citizens 89
VI. Back to Disagreement? 97
VII. Conclusion 98
5. A Little Less Conversation, a Little More Action 101
I. Introduction 101
II. Let’s Talk about Rights 102
III. Of ‘Precatory Pronouncements’ and Authoritative Rulings 107
IV. Dialogue, but Muffled 116
V. Conclusion 118
6. Constitutional Review in Representative Democracy 121
I. Introduction 121
II. Substance and Procedure 123
III. Governing Together 125
IV. Legislative Initiative 127
V. Judicial Independence and Varieties of Supervision 136
VI. Strong and Weak Constitutional Review 150
VII. Conclusion 151
7. Two Modes of Judicial Deference 153
I. Introduction 153
II. The Terms of Reference for Deference 154
III. Deference and its Discontents 170
IV. Conclusion 178
8. Moral and Constitutional Rights 181
I. Introduction 181
II. What Are Constitutional Rights There For? 182
III. Constitutional Rights Operationalized 189
IV. Disagreement. Again 192
V. Conclusion 197
Contents xi
9. Dynamic Separation of Powers 199
I. Introduction 199
II. Justification and Description 200
III. Constitutional Design by the Courts 201
IV. A Summary of the Argument 211
Bibliography 215
Index 221

Citation preview

W H E R E O U R P ROT E C T I O N   L I E S

Where Our Protection Lies Separation of Powers and Constitutional Review DIMITRIOS KYRITSIS

1

1 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © D. Kyritsis 2017 The moral rights of the author have been asserted First Edition published in 2017 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2017945359 ISBN 978–​0–​19–​967225–​7 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

To Denise

Preface This is a book about the legitimacy and scope of constitutional review of primary legislation for its compatibility with fundamental rights. Some of its central claims have their origin in my DPhil thesis. There my primary ambition was to draw out some implications in the theory of law of the idea of institutional cooperation. That ambition was also at the heart of my first monograph, Shared Authority (Hart Publishing 2015). In the thesis constitutional review was treated as an extended illustration, an opportunity to descend from the conceptual abstraction of the debate over the nature of law and sharpen the normative edge of the anti-​positivist theory I was developing. When I  started working on this book, Aleardo Zanghellini, my friend and colleague at Reading, pointed out that it was a good thing the two strands of my thesis had been disentangled and had become the subject of two separate books, with the jurisprudential one being written first. I can see now how right he was. For one thing, the audiences of the two books overlap only in part, as do their interests and theoretical concerns. Moreover, it was once I had put the jurisprudential debates behind me that the complexity of the issues I was about to explore came into full view. In grappling with the morally contentious aspects of constitutional review and trying to marry democracy and fundamental rights in sufficiently concrete institutional forms, legal theories can provide but little comfort. I do not mean by this to endorse the position that legal theory must remain detached from legal practice, though many legal philosophers hold just that position. Rather, I am thinking of the growing distance between the considerations that are commonly taken to be decisive in the theory of law and in constitutional theory. For this reason in this book I stay clear of jurisprudential controversies. Indeed, I go so far as to suggest that my account is compatible with both legal positivism and anti-​positivism. That being said, there are undeniable continuities between the two books. Apart from the general claim that courts and the legislature should be understood to participate in a joint institutional project, there is the connection between separation of powers and political legitimacy—​so central to my argument here—​which I first elaborated in Shared Authority. The book incorporates work that has appeared previously in article form. More specifically, much of Chapter 3 was published as ‘Principles, Policies and the Power of Courts’ (2007) 20 Canadian Journal of Law and Jurisprudence 379. Chapter 4 is largely based on ‘Representation and Waldron’s Objection to Judicial Review’ (2006) 26 OJLS 733. Chapter 6 includes material from ‘Constitutional Review in Representative Democracy’ (2012) 32 OJLS 297. I am grateful to the publishers for permission to reprint this material. As my thinking has evolved considerably over the years, I have decided to develop and expand some of the arguments contained in those earlier articles, sometimes significantly. I presented some of the claims advanced here to audiences at the University of Edinburgh, the Legal Philosophy Forum at UCL, the University of Leicester, the University of Sheffield, the University of Alberta, UCLA, the University of Warwick, the University of Oxford, the University of Antwerp, the University of Thessaloniki, the University of Reading, the 2nd International Conference on Constitutional Law and Political Philosophy organized by the Federal University of Minas Gerais and Dom Helder School of Law, the Capodistrian University of Athens, a workshop on ‘New Theories of State Authority’ organized by the National University of Singapore and funded by the MOE Academic Research Fund, a conference on representation organized

viii

Preface

by the Hellenic Parliament Foundation for Parliamentarism and Democracy in Athens, Pompeu Fabra University, a workshop on the ‘Current State of Constitutional Science’ organized by the Aristovoulos Manesis Foundation, a workshop on ‘The Methodology of Constitutional Theory’ hosted by Reading Law School and generously funded by the Modern Law Review, a symposium on separation of powers at the University of Milan, as well as a panel discussion on the final manuscript at the 4th ICON-​S Conference in Copenhagen. I wish to thank the organizers of all these events for the opportunity and all participants for their comments. The following people deserve specific mention for their input: Nicos Alivizatos, Richard Bellamy, Stefano Bertea, Thomas Bustamante, Arudra Burra, Emilios Christodoulidis, Matthew Clayton, Brian Hutler, Stephen Gardbaum, John Gardner, Tria Gkouvas, Swati Jhaveri, Aileen Kavanagh, Jeff King, Mattias Kumm, Kai Möller, Conrado Hübner Mendes, Konstantinos Papageorgiou, George Pavlakos, Filimon Peonidis, Nicole Roughan, John Stanton Ife, Pavlos Sourlas, Victor Tadros, Philippos Vassilogiannis, and Vasilis Voutsakis. I presented a first version of my critique of Wil Waluchow’s theory of representation and Alon Harel’s right to a hearing at two events dedicated to their books in Edinburgh and Reading. I am grateful to both authors for their gracious and thoughtful feedback. I am particularly indebted to Stuart Lakin, George Letsas, Matt Lewans, Haris Papadopoulos, Nicos Stavropoulos, Stavros Tsakyrakis, and Dimitris Tsarapatsanis. They have been my chief interlocutors all these years, as my views on the issues explored in this book were being formulated, the people I first turn to in order to try out my hunches and half-​baked arguments. Thanks to their feedback I avoided many mistakes and attained a better sense of what I was trying to say. Finally, I would like to acknowledge the great debt of gratitude I owe Larry Sager, whose work on judicial under-​enforcement of the constitution, it is fair to say, was the source of inspiration for the central thesis of this book. I met him many years after I had first encountered his writings, and he has proved equally inspiring in person with his wealth of insight and unfailing dedication to intellectual inquiry. In addition, his encouragement at the initial stages of writing gave me a tremendous boost. In spring 2011 UCLA Law School provided a hospitable and stimulating environment in which the seeds of the monograph were first planted and some of the initial research for it was conducted. This visit was facilitated by funding I received from the University of Sheffield. I wish to thank Mark Greenberg for the support he provided during my stay at UCLA, and Stephen Gardbaum for our many discussions. With the generous assistance of Reading Law School and a teaching buy-​out from the Research Fund of the University of Reading I was able to complete the most significant part of the manuscript during the autumn term of 2015. Finally, I wish to acknowledge the kind support of the Grant Agency of the Czech Republic through a project on ‘The Role of the Principle of Proportionality in the Decision Making of the Courts’ (Grant ID 15-​23955S) in spring 2017. Oxford University Press have stood behind this project throughout its long gestation. Natasha Flemming, Eve Ryle-​Hodges, and Elinor Shields have helped me enormously at various stages. The production team have been extremely efficient and professional. I am deeply grateful to Alex Flach and an anonymous reviewer for OUP who urged me to focus in my monograph on the topic of constitutional review, as well as David Dyzenhaus for providing corrections and useful advice on the final manuscript. I dedicate this book to my wife Denise. Living with me is not easy at the best of times, but it can be exasperating when I suffer from writers’ block, have to work towards a tight deadline, or just get obsessed with a project of this magnitude. It would have been impossible to complete it without her love and understanding.

Contents 1.  The Possibility of Constitutional Theory I. Introduction 

1 1

II. ‘Three is a Company, Two is Nothing’ 

4

III. Towards a Moralized Constitutional Theory 

7

IV. Constitutional Theory and History 

22

V. Constitutional Theory and Politics 

27

VI. Constitutional Theory and Utopia 

31

2.  A Moral Map of Constitutional Polyphony I. Introduction 

33 33

II. Polyphonic Legal Systems 

34

III. The Defects of the Traditional Conception 

36

IV. Beyond the Traditional Conception 

39

V. Democracy vs. Separation of Powers 

54

VI. A Jurisprudential Aside 

55

VII. Mapping Out Neptune 

56

3.  Are Courts the Forum of Constitutional Principle? I. Introduction 

59 59

II. Legal Bootstrapping 

61

III. Constitutional Review and the Right to a Hearing 

62

IV. The Principle/​Policy Distinction 

66

V. Principles and Policies in Action 

70

VI. A Diagnosis 

77

VII. Conclusion 

80

4.  Against the Democratic Objection I. Introduction 

81 81

II. Articulated Government 

82

III. The Moral Appeal of Majority-​vote 

83

IV. Democratic Process vs. Constitutional Review 

86

x

Contents V. Delegates and Citizens 

89

VI. Back to Disagreement? 

97

VII. Conclusion 

98

5.  A Little Less Conversation, a Little More Action I. Introduction 

101 101

II. Let’s Talk about Rights 

102

III. Of ‘Precatory Pronouncements’ and Authoritative Rulings 

107

IV. Dialogue, but Muffled 

116

V. Conclusion 

118

6.  Constitutional Review in Representative Democracy I. Introduction 

121 121

II. Substance and Procedure 

123

III. Governing Together 

125

IV. Legislative Initiative 

127

V. Judicial Independence and Varieties of Supervision 

136

VI. Strong and Weak Constitutional Review 

150

VII. Conclusion 

151

7.  Two Modes of Judicial Deference I. Introduction 

153 153

II. The Terms of Reference for Deference 

154

III. Deference and its Discontents 

170

IV. Conclusion 

178

8.  Moral and Constitutional Rights I. Introduction 

181 181

II. What Are Constitutional Rights There For? 

182

III. Constitutional Rights Operationalized 

189

IV. Disagreement. Again 

192

V. Conclusion 

197

Contents 9.  Dynamic Separation of Powers I. Introduction 

xi 199 199

II. Justification and Description 

200

III. Constitutional Design by the Courts 

201

IV. A Summary of the Argument 

211

Bibliography  Index 

215 221

1 The Possibility of Constitutional Theory I. Introduction In his seminal essay ‘The Origin and Scope of the American Doctrine of Constitutional Law’ James Bradley Thayer voiced an enduring form of scepticism concerning the legitimacy of constitutional review. He wrote:  ‘Under no system can the power of courts go far to save a people from ruin; our chief protection lies elsewhere’.1 Famously, Thayer pinned his hopes on the national legislature and cautioned that courts should be assigned a rather limited role in the protection of the constitution. It is fair to say that modern constitutionalism has not heeded Thayer’s admonition. In recent decades systems of constitutional review have proliferated worldwide and become more and more entrenched.2 Constitutional review, of course, rarely purports to achieve anything as momentous as saving a people from ruin. In fact, it is probably better suited to avert harms that fall far short of that. I have in mind its role in the protection of fundamental rights such as the right to free speech and freedom of religion.3 Fundamental rights are typically enshrined in the text of a formal constitution, but they need not be. In jurisdictions without a formal constitution they are sometimes contained in statutory bills of rights. For reasons that will become apparent below, their legal pedigree is not relevant for my purposes. Cases concerning such rights did not figure in the court dockets in the late nineteenth century, but they have now become the mainstay of constitutional adjudication around the world.4 To be sure, although rights violations are a serious thing, they could scarce be said to lead to the ruin of a people except perhaps in the most egregious instances. Still, Thayer’s scepticism seems to haunt us in such cases as well. Should we really entrust courts with the task of guarding our rights from encroachments? Or should we follow his advice and seek our protection elsewhere? For the most part such large theoretical questions stay below the surface of legal practice, and lawyers can carry on their normal business without having to tackle them. But now and again these questions become more pressing and are thrust into the spotlight. This happens when a court makes a decision in a highly controversial case. Think of the US Supreme Court’s decision in Roe v Wade that recognized a woman’s right under the US Constitution to have an abortion,5 or the more recent decision of 1   James B Thayer, ‘The Origin and Scope of the American Doctrine of Constitutional Law’ [1893] Harv L Rev 129, 156. 2   Ran Hirschl, Towards Juristocracy:  The Origins and Consequences of the New Constitutionalism (Harvard University Press 2007); Alec Stone Sweet, Governing with Judges (OUP 2000) 31. 3   In this sense I leave outside the scope of my inquiry constitutional review over structural matters, those that pertain to the distribution of political power, either vertical (amongst institutions operating at different levels of governance, say, the federal or central as opposed to the state or devolved level) or horizontal (amongst institutions operating at the same level of governance). I doubt that the distinction between structural and human rights matters is particularly sharp, at least as far as the legitimacy of constitutional review is concerned, but I shall not argue otherwise in this book. 4   Alec Stone Sweet and Jud Mathews, ‘Proportionality Balancing and Global Constitutionalism’ [2008–​09] Colum J Transnat’l L 72. 5   Roe v Wade 410 US 113 (1973).

Where Our Protection Lies. First Edition. Dimitrios Kyritsis. © Dimitrios Kyritsis 2017. Published 2017 by Oxford University Press.

2

The Possibility of Constitutional Theory

the same court in Obergefell v Hodges that ruled that it is unconstitutional to ban gay marriage.6 It also happens when courts confront the political branches, the legislature and the executive, as the House of Lords did in finding that the indefinite detention of foreign nationals suspected of terrorism was discriminatory and thus a violation of their rights.7 Such judicial behaviour invariably triggers controversy over the role of the judiciary in a constitutional democracy. In this book I  shall take up the gauntlet. However, I  shall not survey the whole of rights adjudication. Like Thayer, I  shall only be interested in cases where courts assert constitutional rights against the democratic legislature rather than the executive (or private individuals). Note that when I say ‘assert’ I have in mind a variety of institutional responses. They range from declaring a decision null and void or declining to apply it to inviting the legislature to amend it so as to bring it in compliance with constitutional rights. So for instance, UK courts may quash executive decisions, if they find them incompatible with human rights, but they cannot invalidate an Act of Parliament. They may only issue what is called a declaration of incompatibility, which essentially serves to flag up the problem but then leaves it to Parliament to resolve it if it so chooses. The situation is different in countries like Germany and the US. There courts have the power to override legislative decisions if they find that these decisions contravene a constitutional right, in the sense that they can invalidate or refuse to apply them. For ease of reference, I shall use the term ‘constitutional review’ to capture all such modes of judicial interference with the decisions of the democratic legislature. Needless to say, this book is not the first or the last to grapple with this topic. Since Thayer’s time constitutional review has become the Holy Grail of constitutionalism. Two main areas have attracted the attention of scholars and policy-​makers: (a) the legitimacy of constitutional review and (b) its scope. Start with the first. It is not surprising that constitutional review of primary legislation is morally controversial. Legislatures are widely regarded as the fulcrum of popular self-​government. At first blush, any institution that competes with them is at a moral disadvantage, especially if it cannot claim any democratic credentials of its own. Accordingly, those who argue for the legitimacy of constitutional review commonly fall into two camps. The constitutional review enthusiasts maintain that, despite the ‘countermajoritarian difficulty’ it faces, constitutional review of primary legislation is essential for fundamental rights protection and a precondition of good government. Opposed to them are the constitutional review sceptics who dismiss it as incompatible with the value of democracy. A satisfactory normative theory of constitutional review must engage with the arguments of both sides. It must weigh the merits and demerits of such an arrangement and explain under what conditions it is justified or at least permissible, if at all. Supposing that we clear the first hurdle, though, we must still account for the proper scope of constitutional review. However potent, constitutional review, especially in the area of fundamental rights, is a limited power. Sometimes its limits are shrouded in less than helpful metaphors. We say that judges cannot make new law or rewrite legislative decisions; or that they cannot second-​guess Parliament’s judgment; or that they ought to focus exclusively on matters of constitutional propriety and should not engage in political argument. A satisfactory normative theory must unpack these metaphors in a way that is both philosophically adequate and can be operationalized by actual courts. As far as the legitimacy of constitutional review is concerned, my aim in this book is to steer a path between the two extremes of the enthusiasts and the sceptics. I do   Obergefell et al v Hodges 576 US (2015).   A v Secretary of State for the Home Department [2004] UKHL 56.

6 7

Introduction

3

this, at the most fundamental level, by recasting the issue. I propose we do well to view constitutional review and the relationship between courts and the legislature, more generally, through the lens of the idea of institutional cooperation. Thayer was right in a sense. Our protection does not lie in courts. It does not lie entirely in any one institution. Protection of our fundamental rights—​and of the constitution more generally—​ requires that state institutions such as courts and the legislature work together in a joint project aiming at creating and maintaining a just and well-​ordered society. This project functions as it should when it adheres to the requirements of an overarching principle of political morality that has a venerable history but is also fraught with controversy and confusion, the principle of separation of powers. I shall explain what I understand by this principle and I shall defend it as the right one to organize our thinking about the legitimacy of constitutional review. That is, I  shall contend that constitutional review should be viewed as one aspect of that broader project, and, hence, that its justification must involve reference to the idea of separation of powers. Around the idea of separation of powers we will organize a host of other concepts of political morality such as legitimacy, stability, and representation. The arguments of the enthusiasts and the sceptics themselves will also find their place in this framework. In the process, though, they will lose some of their force. Contrary to the former, I shall argue that constitutional review is not always legitimate. But the sceptics are also mistaken, I shall suggest, because there is nothing inherently problematic about judicial supervision of the legislature. In other words, the debate over the legitimacy of constitutional review cannot be won in an all or nothing fashion: Though constitutional review is in principle a legitimate option for institutional design, its merits must be judged on a case-​by-​case basis. More specifically, I shall advance the view that the legislature has an important role to play with regard to fundamental rights protection because it instantiates an important value. Unlike many constitutional review sceptics I shall claim that this value is not political equality but rather democratic representation. Despite its value, however, government by a democratically representative body comes with risks, which we can guard against by having a different body supervising it. By virtue of their independence courts are well-​suited to perform such a checks-​ and-​balances role. This reason for instituting a system of constitutional review, though important, is not conclusive. Nor does it pick out a single institutional arrangement as the only legitimate. For instance, it is compatible with what has come to be called weak constitutional review, which the UK Human Rights Act exemplifies, as well as the strong constitutional review that finds its paradigmatic expression in Germany and the US. In the absence of a knockdown argument on either side of the debate, the legitimacy of practices of constitutional review turns more on delineating their limits. In this sense, the analysis of the scope of constitutional review becomes an integral part of its moral justification. Where it exists, is it configured in a way that allows or obstructs the valuable contribution that a democratic legislature is meant to make to the joint institutional effort? Does it help improve the overall record of rights compliance of a constitutional order? Is it appropriately responsive to changing circumstances? To answer these questions, we cannot restrict ourselves to abstract questions of political theory. Rather, we ought to explore the ways in which the cardinal considerations of political morality that structure the relationship between courts and the legislature can be embedded in constitutional adjudication and impose normative constraints on judicial reasoning. Ultimately, we must determine whether a meaningful practice of constitutional review can—​in its operation—​be reconciled with the role we must assign the democratic legislature. This is one of the primary convictions driving the

4

The Possibility of Constitutional Theory

book. Of course, whatever its appeal, a normative exercise cannot guarantee that institutional actors will do their job well. But it provides a standard against which we can reasonably measure their performance and towards which they and other constitutional actors (such as constitutional designers) can aspire. True to the aforementioned conviction, the book seeks to do two things. In Chapters  2–​6 it sets out the general theoretical framework of separation of powers that informs the overall analysis and critically examines alternative theories of the relationship between courts and the legislature. Building on from that, it then presents the main parameters of an alternative defence of constitutional review. Chapters 7–​9 apply the lessons of the first half to constitutional doctrine and judicial reasoning. My recommendations in this part of the book are not made with an eye to this or that jurisdiction. This reticence is in line with the general thrust of the book. Since constitutional theory cannot deliver an outright victory to either enthusiasts or sceptics, much will depend on the peculiar features of specific legal systems. What theory can do—​and what I hope to do too—​is to clear away some of the conceptual confusion that persistently stalls progress and refine our understanding of a number of important concepts (e.g. deference, constitutional right) that should structure constitutional doctrine across the board. I should add one last caveat by way of general introduction. For a book on constitutional rights adjudication I shall have surprisingly little to say about rights. In part this is because I doubt what some theorists strongly believe, namely that the very nature of rights gives us a reason to assign their protection to courts and not legislatures. This doubt will come into full view in Chapter 3. In part it is because under the banner of constitutional rights the most diverse range of values and principles are to be found. Accordingly, in the latter half of the book I shall try to inject a healthy eclecticism into our approach to constitutional rights. This eclecticism counsels that we avoid grand generalizations and instead opt for more fine-​grained analyses that focus, perhaps, on what courts may and may not do to protect a specific right or intervene in a specific area of social life. But more importantly this choice is fuelled by my desire to bring into sharp relief a different set of moral considerations, those pertaining to the place of courts in the political order. Such considerations are crucial for designing an effective system of rights protection but do not figure very prominently in the philosophical ammunition of the constitutional theorists arguing the merits of constitutional review, primarily its proponents. This book joins a broader effort to rectify their relative neglect.8

II.  ‘Three is a Company, Two is Nothing’ My focus in this work is courts and the legislature. I examine their relative position in the joint project of governing and on that basis draw lessons about the legitimacy of assigning one of them the power to assert fundamental rights principles against the other. I  thus leave out the third pillar in the classic understanding of separation of powers, the executive.9 In so doing I have academic tradition on my side: The debate 8   It is fair to say that this effort has been spearheaded by Jeremy Waldron, with whose substantive views I shall often take issue. See Jeremy Waldron, Political Political Theory: Essays on Institutions (Harvard University Press 2016) ch 1. 9   For an approach to separation of powers that encompasses the executive see Eoin Carolan, The New Separation of Powers: A Theory for the Modern State (OUP 2009).

‘Three is a Company, Two is Nothing’

5

over the compatibility of constitutional review with democracy is commonly framed in terms of a struggle between the courts against the legislature, so it is their relationship that constitutional review enthusiasts and sceptics primarily seek to elucidate.10 Still, it could be suggested that this omission seriously undermines the validity of my conclusions. A variety of reasons could be cited to support this charge. First, it could be argued that you cannot define the role of one branch of government without reference to the other two. So, for the identification of the legislative and judicial roles you need to know what the executive function is. I do not think this is true of the classic understanding of separation of powers. Even though on that understanding it is necessary for a well-​functioning political order that all three government functions be performed, one can define and understand each of them independently of the others. Presumably, you can make sense of the notion of applying general laws to a particular dispute, whatever creating general laws means. Be that as it may, it is definitely not true that the notion of separation of powers underpinning my analysis is stung by the aforementioned criticism. As I shall elaborate in the next chapter, separation of powers need not subscribe to a rigid one-​to-​one correlation between branches of government and government functions. It is a more flexible notion. It requires that government power be distributed such that the order as a whole merits our allegiance. Although the distribution of power may be rough around the edges, there is no reason in principle to think that one cannot enumerate the tasks assigned each body in isolation. A more plausible version of this objection would concede that, once tasks are distributed, it may well be possible to define the role of each body on its own. Nonetheless, because the various branches of government must hang together, the role you assign one branch is likely to have repercussions on what roles should properly be bestowed on the others. Hence, the executive cannot remain neutral in the debate over the legitimacy of constitutional review. Depending on its share of government power, we may need to calibrate the relationship of the other two. In other words, the problem is normative, not one of definition. It is because the courts and the legislature will also need to work with the executive that we cannot determine their roles independently of it. Here is one way to make this charge more specific. Someone could say that the exclusion of the executive from the ambit of this book is unwarranted because it is no longer possible to separate the executive and the legislature. Seeing constitutional review through the lens of the contest between the judiciary and the legislature might have made sense in Thayer’s time. But although he could have been excused for not thinking much of the executive’s role in law-​making, we cannot afford to be under a similar illusion today. In fact, the executive has a powerful say in the creation of law. For instance, parliamentary systems tend to give it the initiative in the drafting of legislation. In periods of stable majority governments this will likely mean that whatever the executive wants to become law will be passed by parliament. In light of this, the job of the legislature is solely to put ‘the final seal of national assent’11 upon decisions that 10   In a thorough and thoughtful article Matthew Adler has examined the relevance of the democratic argument for the legitimacy of judicial review of administrative action. See Matthew Adler, ‘Judicial Restraint in the Administrative State: Beyond the Counter-​Majoritarian Difficulty’ [1997] 145 University of Pennsylvania L Rev 759. For an account that highlights some similarities between executive and legislative power on the basis of the concept of representation, which is also central to the argument offered in Chapter 6, see Evan J Criddle, ‘Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking’ [2010] 88 Texas L Rev 441. 11   John Stuart Mill, Considerations on Representative Government (Floating Press 2009) 130. Mill argued that legislatures should not even have the power to amend legislative proposals, but only to reject or approve them after deliberation. Bernard Manin summarizes this point as follows: ‘[I]‌t is thus the concept of passing judgment that best describes the role assigned to the community, whether

6

The Possibility of Constitutional Theory

come from another source. Moreover, in both parliamentary and presidential systems the executive enjoys wide-​ranging delegated law-​making powers. By isolating the legislature and the judiciary, one is liable to take a very narrow view of our constitutional options or an exaggerated view of our constitutional concerns. Now, undeniably, there is truth in this view. The emergence of the administrative state has made an immense difference to the institutional division of labour in modern legal systems.12 It is also beyond dispute that across different types of constitutional system the executive and the legislature work closely together in making new law. These facts, however, do not make the legislature redundant. Although in many legal systems legislatures have a rather receptive role vis-​à-​vis the executive, they are not supposed to be mere smokescreens either. The views of legislators permeate decision-​making. Even in cases where the drafting of legislation does not originate in the legislature, legislators are typically empowered to pass amendments to tabled bills.13 Furthermore, drafters of legislation ought to consult legislators or anticipate their qualms so as to ensure their support. In Chapter  6 I  shall argue that these significant responsibilities reflect the weighty institutional credentials of democratic legislatures.14 Being a distinct locus of political power, the legislature also generates threats to our rights, and it is reasonable to ask how these threats can be contained. We may have all sorts of reasons to fear the executive (or trust it, depending on our predilections) more than the legislature, but surely these reasons do not eclipse other constitutional questions such as this one. That is of course not enough to put the objection entirely to rest. It is one thing to say that the legislature is not redundant and quite another that we ought to give judges the power to scrutinize its decisions. Arguably the executive could do this job in the course of sharing the legislative function as it has done since the days of the balanced constitution and was tasked to do by the Founding Fathers. Hence, to place it beyond the purview of the present inquiry would seem to unduly privilege judicial supervision of the legislature over other forms of supervision. Since this book does not prescribe constitutional review as a necessary feature of legitimate political orders, it does not seem to me to be guilty of such bias. It merely seeks to add constitutional review to the menu of options for politicians, lawyers, and constitutional designers. Nonetheless, it does not preclude the possibility that, as an all things considered matter, it will be deemed inferior to the alternatives in this or that jurisdiction. It is thus fully compatible with a wide-​scope vision of the constitutional order that encompasses the executive and can better describe those alternatives. Moreover, it is important to note that some of the recurring arguments against constitutional review in general or against expansive forms of constitutional review in particular are based on the virtues of the legislature. Surely, there is merit in assessing these arguments on their own. With its dual focus, this book allows this narrower inquiry. to the people itself or to its representatives. Representative democracy is not a system in which the community governs itself, but a system in which public policies and decisions are made subject to the verdict of the people.’ Bernard Manin, The Principles of Representative Government (CUP 1997) 192. 12   See JAG Griffith, The Politics of the Judiciary (4th edn, Fontana 1991); Louis Jaffe, Judicial Control of Administrative Action (Little Brown 1965). Again, we have to allow for variances between legal systems. For instance, the US Congress has much greater initiative than, say, the House of Commons. 13   For an argument in favour of the enduring significance of the legislature see Richard Ekins, The Nature of Legislative Intent (OUP 2012). 14   Instructively, Waldron, one of the most ardent critics of constitutional review of primary legislation, does not take issue with the power of judicial review of executive action. See Jeremy Waldron, ‘The Core of the Case against Judicial Review’ [2011] Yale L J 1346 [hereafter Waldron, ‘Core of the Case’].

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7

III.  Towards a Moralized Constitutional Theory A. The relevance of legitimacy Before proceeding to flesh out my preferred vision of the point and scope of constitutional review, it is important to elaborate and defend the methodology I adopt in this book. This task is all the more necessary given the state of flux constitutional theory finds itself in at present. This state of affairs is well summarized by Nick Barber: Constitutional theory suffers from an identity crisis  . . .  [I]‌ ts point and method remain obscure . . . There is no consensus about what constitutional theory is for or how it should be done; and, as a consequence of this, no agreement about what a good argument within the discipline would look like. Without some sense of what counts as a successful exercise in constitutional theory, a set of criteria against which accounts can be tested, we cannot judge the merits of any particular piece of work.15

The difficulty arises because constitutional theory lies at the intersection of a variety of disciplines whose goals overlap only partially and whose methodologies are sometimes widely divergent. Historians, political scientists, sociologists, and philosophers as well as doctrinal lawyers and practitioners—​not to mention politicians and political reformers—​are all vying to shape the direction of constitutional theory to suit their predilections. I do not intend to settle these methodological wars. What I  want to do is defend the value of a certain type of constitutional theory, which I shall call moralized. I do not think that moralized constitutional theory (MCT) is antagonistic to all of the aforementioned approaches to constitutional law. In fact, sometimes it is supplementary or runs parallel to them. But it differs both in its aims and in its method, so it is important to make clear what it consists in and how it is distinctive. MCT has two important features, generality and doctrinal relevance. It is general in the sense that it makes claims that reach beyond specific legal systems. (We shall see below that generality is not the same as universality.) Inevitably, this means it has to operate at a relatively abstract level. At the same time, though, it is doctrinally relevant in the sense that it purports to determine—​in part—​the correct answer to concrete questions of constitutional law. It supplies some of the main premises on which propositions of constitutional law in this or that legal system rest. Clearly, to do this successfully, it must be in some way continuous with the constitutional law of the relevant legal system. Thus, generality and doctrinal relevance seem to be pointing in opposite directions. How can these two aims be reconciled and pursued in a methodologically coherent way? How does MCT ‘[straddle] the local and the global’?16 Is this type of theory even possible? To respond to this challenge, I will need to say more about the character of MCT. In a nutshell, MCT treats questions like the one about the point and scope of constitutional review I will be focusing on as questions of political morality. So, when it asks how far courts may go when reviewing primary legislation, in effect what it is asking is whether this or that use of their reviewing power is morally appropriate. The relevant sense of moral appropriateness is to be found in the broader theory of political legitimacy. Legitimacy is sometimes used to denote the mere descriptive fact that a regime   Nick Barber, The Constitutional State (OUP 2010) 1 [hereafter Barber, Constitutional State].   Larry Sager, Justice in Plainclothes: A Theory of American Constitutional Practice (Yale University Press 2004) 137 [hereafter Sager, Justice in Plainclothes]. 15 16

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is by and large effective in securing acceptance and obedience by the populace.17 This is not the sense of legitimacy in play here. Legitimacy, as I am using it, is a normative concept that tells us what gives a regime the requisite moral warrant for exercising effective and coercive control over a certain territory. Not all efficacious regimes possess it. In addition to being efficacious they must also treat their citizens in what Bernard Williams labels an ‘acceptable’ way.18 There are, of course, other types of moral appropriateness against which it makes sense to judge political regimes. Justice, which for Rawls is ‘the first virtue’ of social institutions, springs to mind.19 But though justice, too, contains principles that justify state coercion, it differs from legitimacy. The difference is not solely that, as is commonly accepted, a state can be legitimate that is not fully just, from which it seems to follow that legitimacy poses a less stringent requirement than justice (hence Williams’ focus on acceptability). This is at best a derivative feature of legitimacy. More fundamentally, legitimacy is germane to a distinct moral problem. It is what you get when the quest for justice comes up against the basic realities of political life. To explain what I mean, I shall begin by presenting a number of illustrations. One of the most obvious political realities legitimate states must reckon with is that people reasonably disagree about justice.20 Given the fact of ineradicable reasonable disagreement about justice it is not enough to be convinced that yours is the superior conception of justice. Additionally, you need to supply an explanation about the conditions under which that conception may rightly be imposed on others, including those who are not convinced.21 A state of affairs where each individual has absolute licence to coerce according to his own view of justice is, as political theorists since Hobbes have taught us, the very antithesis of the political predicament. Legitimacy governs the exercise of coercion in precisely that predicament. Typically, it favours procedures that can produce settlements likely to be adhered to, even if they are sub-​optimal as evaluated against precepts of ideal justice. Within certain limits that we are going to explore further, we tend to think that such settlements can legitimately ‘[stand] for the time being in the name of the whole community’.22 Furthermore, we should remember that state authority does not merely or characteristically operate in retail fashion. States are more or less permanent organizations that claim a monopoly of legitimate force and comprehensive authority to 17   Max Weber, Economy and Society: An Outline of Interpretive Sociology (Günther Roth and Claus Wittich eds, Berkeley University Press 1978) I.5. Similarly Raz defines a de facto authority as someone who claims legitimate authority and is generally seen as having it by those over whom she claims it. Joseph Raz, Ethics in the Public Domain (OUP 1994) ch 10 [hereafter Raz, Ethics in the Public Domain]. A de facto authority has what Richard Fallon calls sociological legitimacy. See Richard Fallon, ‘Legitimacy and the Constitution’ (2005) 118 Harv L Rev 1787 [hereafter Fallon, ‘Legitimacy and the Constitution’]. 18   Bernard Williams, In the Beginning Was the Deed (Princeton University Press 2008) 4. Williams derives acceptability from what he dubs the basic legitimation demand (BLD). This demand is raised whenever someone claims to exercise coercive power over a given territory as a guarantor of peace and social order. 19   John Rawls, A Theory of Justice (Belknap Press 1971) 3. Fallon distinguishes ideal and minimal legitimacy. While ‘ideal theories establish the standards of justification to which political regimes ought to aspire’ (Fallon, ‘Legitimacy and the Constitution’ (n 17) 1798), ‘minimal theories of moral legitimacy define a threshold above which legal regimes are sufficiently just to deserve the support of those who subject to them in the absence of better realistically attainable alternatives’ (ibid). 20   See for instance Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Harvard University Press 1998); Jeremy Waldron, Law and Disagreement (OUP 1999) [hereafter Waldron, Law and Disagreement]. 21   Charles Larmore, ‘What is Political Philosophy?’ [2013] 10 Journal of Moral Philosophy 276. 22  Waldron, Law and Disagreement (n 20) 101.

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9

regulate a wide range of practical issues—​some say all—​within a territory. In addition, they do not tolerate citizens picking and choosing when to comply with the law. Accordingly, political philosophers say that one of the salient features of the state’s authority is its comprehensiveness.23 This gives rise to another basic reality of political life: As members of a political community citizens surrender control over many important aspects of their lives to the collective, which can dictate its preferred terms and impose them by coercive means. For this reason, they are exposed to a grave and standing risk. It is bad enough being vulnerable to attacks by other individuals. But the full force of a political collective is all but irresistible. Some theorists suggest that in light of this the only legitimate states are those to whose authority an individual has consented. This, they concede, is an extremely high bar that actual states almost invariably fail to meet, at least with regard to vast numbers of the people they govern. In recent years this view has been associated with John Simmonds.24 It lies beyond the scope of this book to evaluate it. Suffice it to say that for Simmonds legitimacy, as defined above, refers to the conditions under which a state has authority over an individual, in the sense that its law normatively binds her, that is, affects her moral rights and duties qua law.25 However, even Simmonds acknowledges that it is a morally important—​though separate—​issue when the state is justified to coerce those subject to it, whether or not it can demand their allegiance. To distinguish it from the previous issue, Simmonds states that this one pertains to a state’s justification. Being sceptical of the importance of consent in the theory of legitimacy I shall not draw this distinction. Therefore, I shall interchangeably speak of a state possessing legitimate authority and justifiably exercising its coercive force. But since I have not given any arguments against Simmonds, those who side with him should interpret my references to legitimacy as being about justification on his definition. How must a state be constituted so as legitimately to exercise the kind of control it typically does? It matters a great deal not only that it subscribes to justice but also that it satisfies certain ‘conditions of institutionalizing its own standards’.26 Since the state is here to stay and is exceptionally difficult to change, it must reliably employ its coercive force in a way that is geared towards attaining justice. Among other things, this means it must be equipped with an institutional apparatus that incorporates guarantees against the misuse of state power. The existence of such an institutional apparatus gives individual citizens confidence that submitting to the state’s immense power does not render them vulnerable to arbitrary whim but can in fact advance their reasonable interests in a fair way. A state that fares well along the institutional dimension becomes more stable: Citizens willingly adhere to its rules, knowing that others have good reason to do the same. In turn, it is a condition of a state’s legitimacy that it enjoys a measure of stability based on the right reasons, namely on a good-​faith

23   See Leslie Green, ‘Law and Obligations’ in Jules Coleman, Kenneth Himma, and Scott Shapiro (eds), The Oxford Handbook of Jurisprudence and Philosophy of Law (OUP 2002). 24   AJ Simmonds, ‘Justification and Legitimacy’ [1999] Ethics 739. 25   Life within a state is bound to affect our moral rights and duties regardless of whether the state is legitimate. That is because, say, the fact that the state may enforce its law and the fact that others around us are likely to comply with it are morally relevant and have an effect on what Mark Greenberg has called our ‘moral profile’. See Mark Greenberg, ‘The Standard Picture and its Discontents’ in Leslie Green and Brian Leiter (eds), Oxford Studies in the Philosophy of Law vol 1 (OUP 2011) 1. This is not the effect theorists like Simmonds have in mind. 26   Christoph Möllers, The Three Branches: A Comparative Model of Separation of Powers (OUP 2013) 6 [hereafter Möllers, Three Branches].

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judgment that it can reasonably be supported by everyone without resort to deception and intimidation.27 Note that states can satisfy this set of requirements which are less than fully just. By contrast, when the state lacks adequate institutional guarantees, it encourages citizens to defect. Without a reason to believe that their state will stay the course of justice citizens are less disposed to submit to its rule. At best, they are inclined to hedge their bets and give it only tentative support. It could be countered that tentative support is quite sufficient and that, in fact, a more enthusiastic and unqualified embrace of the state’s authority is a reckless strategy. But to say that a hedged attitude may not threaten a regime does not mean that it never does. If scepticism is widespread, it could undermine political stability by leading into a downward spiral. Seeing your readiness to defect I feel uneasy about holding my end of the bargain, which makes defection even more attractive for you, and so on. Alternatively, the absence of institutional guarantees would—​ to generalize a Rawlsian insight—​‘raise the stakes of politics’.28 If government power is absolute, I have a very strong reason to have it in my hands and not to cede it to you. This makes political victory a precious prize and could motivate opposing camps to resort to any means to secure it. The problem is exacerbated by the pervasiveness of reasonable moral disagreement. What could possibly shore up my commitment to a government that is now controlled by the party whose policies I find unjust (perhaps rightly so)? What could make me adopt a stance of ‘loyal opposition’ to that government?29 Realizing that the free exercise of one’s reason is likely to lead a majority of my fellow-​citizens to take a different view of the common good from me, I should in principle be prepared to pledge my allegiance to that government. What I could still object to, though, is for instance any undue attempt by the majority to entrench their position of power and thus cancel or unfairly diminish the possibility of political change. We think that a regime that did that would be tyrannical. Any harm of injustice I might suffer then would be compounded by my helplessness in the face of an unchallengeable collective force. Once again, effective institutional safeguards are supposed—​so far as possible—​ to stave off this type of tyranny.

B. Sources of legitimacy My analysis of legitimacy so far has bracketed issues about the content of legitimate policies. Such issues would seem to be relevant to legitimacy, too. Arguably, if a regime is to provide fair terms of social cooperation, it must enforce policies that do not hinder people’s reasonable interests, regardless of how it is institutionally set up. For instance, it must secure certain basic rights for everyone. What good, one might ask, is a regime with all the proper procedures that does not do that?30 An account of political legitimacy must be able to explain the relationship between considerations of this sort, considerations of content, as we might call them, and the considerations of institutional design that we have been focusing on up to now. In this vein Richard 27   See John Rawls, Justice as Fairness: A Restatement (Erin Kelly ed, Harvard University Press 2003) 186 [hereafter Rawls, Justice as Fairness]. 28 29  ibid 228.  ibid 49. 30   We should not exclude the possibility that the considerations of content that pertain to political legitimacy are only a sub-​set of all considerations of content. It may be for instance that the former comprise only ‘immediate, more or less non-​negotiable [demands] of constitutional conscience’ (Sager, Justice in Plainclothes (n 16) 150). As my interest is with the contrast between content and institutional design in general I shall leave this complication to one side.

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11

Fallon talks about different ‘sources of political legitimacy’31 and argues that the overall legitimacy of a political regime is the result of the proper balance between them. Crucially, Fallon believes that sometimes losses along one dimension of legitimacy can be compensated by gains along the other. For instance, the fact that an institutional arrangement promotes rights protection may legitimate it in spite of the sacrifices this imposes on the side of institutional design, say because it is antithetical to democracy. In subsequent chapters we shall examine theories that propose different combinations between considerations of institutional design and content as the litmus test for legitimacy. Now we must confront a more radical challenge to the view that judgments of legitimacy are supposed to balance content and institutional design. I shall set aside for the moment the sweeping claim that considerations of content and institutional design are incommensurable such that it is never possible to trade one off against the other.32 For the challenge that we are now considering is narrow. It says that there is something specific to the problem of legitimacy that blocks such trade-​offs. In recent years, this challenge has been characteristically pressed by Jeremy Waldron. Waldron is a prominent constitutional review sceptic, and Chapter 4 will take issue with his brand of scepticism. Presently, though, we shall focus on his account of legitimacy. Of course, his opposition to constitutional review is not unrelated to his understanding of legitimacy but they are sufficiently distinct to merit separate treatment. Here is a useful summary of his position: Suppose a citizen asks: ‘Why should I comply with or support this law, when I think its content is wrong?’ Appealing in response to a substantive principle may be reassuring for the sponsors of the law, but it will carry no weight for this citizen. For this citizen one has to appeal to something about the way the law was enacted in the circumstances of disagreement, so that he can see its enactment as fair even if he does not see its substance as just.33

In this passage Waldron juxtaposes the citizen’s perspective and the official’s perspective. Legitimacy, which concerns the conditions under which citizens are bound to obey the law, attaches to the former perspective. Waldron’s position brings echoes of Simmonds’ distinction between legitimacy and justification. What is ‘reassuring for the sponsors of the law’ may be relevant to the justification of their exercise of state power (provided that it is reassuring for the right reasons), but this does not entail that it settles the question of legitimacy.34 Still, there are important differences between the two approaches. Whereas Simmonds is interested in identifying the criteria for the legitimacy of an entire political system, Waldron is here talking about the legitimacy of specific laws. In addition, unlike Simmonds for whom the concern that legitimacy primarily aims to allay is one of individual autonomy, Waldron thinks that it is at bottom a response to the problem of securing action-​in-​concert in circumstances of 31   Richard Fallon, ‘The Core of an Uneasy Case for Judicial Review’ (2008) 121 Harv L Rev 1693. See also Mattias Klatt, ‘Positive Rights: Who Decides?’ (2015) 34:2 ICON 354; Nicole Roughan, Authorities: Conflicts, Cooperation, and Transnational Theory (OUP 2013). 32   We will revisit this point in Chapter 7. 33   Jeremy Waldron, ‘Principles of Legislation’ in Richard Bauman and Tsvi Kahana (eds), The Least Examined Branch: The Role of Legislatures in the Constitutional State (CUP 2006) 18. 34   For the same reason it is likely that moral explanations of official duty do not run into the same difficulties as accounts of legitimacy. Officials are meant to act justly, so their duty is determined by considerations of content. But they are also meant to look over their shoulder at what other officials are doing, so their duty is also determined by considerations of institutional design. Thus, the thought that they must combine the two types of consideration when figuring out what they may do appears much more natural. For an elaboration of this point with reference to Waldron’s theory see Dimitrios Kyritsis, Shared Authority: Courts and Legislatures in Legal Theory (Hart Publishing 2015) 77–​80.

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reasonable moral disagreement. For him, what matters is not autonomy but fairness. Given the fact of reasonable moral disagreement, Waldron claims, citizens must be treated fairly by the victorious political side. In turn, whereas Simmonds contends that in order to attain legitimacy we must give individuals a meaningful opportunity to choose whether to submit themselves to the authority of the state, for Waldron we must employ a strategy of avoidance. What we ought to avoid is justifying state policy by reference to the issues over which citizens reasonably disagree. According to this line of thinking, Fallon’s claim that we must balance together considerations originating in different sources of legitimacy constitutes a ‘category mistake’.35 With considerations of content blocked by Waldron’s strategy of avoidance what are our options? For him two types of reason may figure in judgments of legitimacy. He calls them process-​related and outcome-​related. The former are ‘reasons for insisting that some person make, or participate in making, a given decision that stand independently of considerations about the appropriate outcome’,36 while the latter are ‘reasons for designing the decision-​procedure in a way that will ensure the appropriate outcome (i.e., a good, just, or right decision)’.37 Both types of reason lie in the domain of institutional design. Notice how they can serve the strategy of avoidance.38 Process-​related reasons do so rather straightforwardly. They are about the moral appeal of the process that adjudicates an issue and have no regard to the merits of that issue. But equally outcome-​related reasons need not make reference to contentious issues. For instance, they may favour assigning power over a certain area of decision-​making to an institution that possesses the relevant expertise. Presumably, we can agree that it possesses expertise and is thus more likely to get it right most of the time even if we disagree about the correctness of a particular decision. For Waldron, legitimacy dictates neutrality towards competing moral positions regarding the content of political decisions. Is he setting too high a bar? To answer this question, we can begin by noting that on Waldron’s account there is an asymmetry between the reasons offered citizens to win their allegiance and the reasons on which officials act.39 Officials who pursue their sincere views about justice do not only seek reassurance but a moral warrant for their action. Nobody would ever claim that a legislator has properly discharged her responsibility by casting a flippant vote, one not based on her judgment about the common good, into an otherwise fair procedure. But resort to such a judgment, when it occurs, carries no weight in the justification addressed to citizens.40 In fact, it would be a sign of disrespect if it did. This is highly counter-​ intuitive. Its being so strongly suggests that we expect much more than fairness from a legitimate state. Should this be correct, it makes sense not to give considerations of   Jeremy Waldron, ‘The Circumstances of Integrity’ [1997] Legal Theory 1, 10. 37   Waldron, ‘Core of the Case’ (n 14) 1346, 1372.  ibid 1373. 38   Not everyone agrees. Waldron has been criticized on the grounds that disagreement afflicts questions of institutional design as much as questions of content. See Aileen Kavanagh, ‘Participation and Judicial Review: A Reply to Jeremy Waldron’ [2003] Law and Philosophy 451; Thomas Christiano, ‘Waldron on Law and Disagreement’ [2000] Law and Philosophy 537. Waldron responds to these arguments in Waldron, ‘Core of the Case’ (n 14) 1371–​76. 39   Chapter 4 makes the distinction between officials and citizens central in the case against constitutional review sceptics. 40   In this respect there is a difference, too, between Waldron and Raz’s account of political authority. Whereas for both authoritative directives have exclusionary force, that is, they pre-​empt individuals from acting on the merits, Raz insists that what makes an authority legitimate is that its directives reliably track the correct course of action. For him, then, the exclusion does not serve as an avoidance mechanism. In fact, Raz has been criticized for paying insufficient attention to the value of process. See Scott Hershovitz, ‘Legitimacy, Democracy and Razian Authority’ [2003] 9 Legal Theory 201. 35

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13

fairness absolute priority over other considerations of political morality in assessments of legitimacy but to accept trade-​offs between them, as Fallon recommends. Moreover, it seems far-​fetched to say that solely by admitting balancing between different sources of legitimacy the approach advocated here fails to respect reasonable disagreement. This, recall, is the reason Waldron cites for his antipathy towards such balancing. But, as we saw above, there are many ways for accommodating disagreement in institutional design. For instance, we could replace a ‘winner-​takes-​all’ constitutional arrangement with one that introduces checkpoints and veto-​players into political decision-​making. Legitimacy of the sort I have been discussing clearly recommends the latter precisely because it is easier to sell to those on the losing side of a political contest. It also recommends that the political order include adequate channels for political change. A citizen should be able to find in such safeguards sufficient justification for submitting to policies that he finds unjust. Perhaps, Waldron will counter that this does not address the real problem. He will insist that we ought to respect disagreement not because by doing so we lower the stakes of politics but because we show respect towards our fellow-​citizens as rights-​thinkers, as beings capable of forming their own view about the common good. Disagreement is the inevitable outcome of the free exercise of reason by such beings. Accordingly, fair procedures enable us to forge an agreement over a course of action, whose legitimating basis is not the (controversial) judgment that some of them have made a mistake. I am not convinced that moral respect entails anything as exacting as that, but I do not wish to open this can of worms. I shall restrict my attention to what political legitimacy requires in the constitutional orders with which we are most familiar. Starting in Chapter  4 I  shall seek to highlight the extent to which citizens of representative democracy are governed by the independent moral judgment of officials, elected and unelected. The basis of their decision is precisely that a certain moral view is correct—​ and others mistaken. There I shall use this fact to argue against constitutional review scepticism. Now I wish to draw its implication for our understanding of political legitimacy. If it is true that representative democracy allows that our officials decide by exercising their independent moral judgment, then Waldron’s argument from disagreement suffers from overkill. It would sting representative government root and branch. This should give us pause. It seems much more palatable to say instead that respect for disagreement—​at least in the political case—​demands much less. An account of legitimacy along the lines sketched here should be able to meet its requirements, even though it is not completely neutral towards competing moral views.

C. Legitimacy and constitutional theory How does constitutional theory fit into this analysis? I want to suggest that it forms an integral part of the theory of legitimacy. I hope that this suggestion will not strike you as wildly implausible. Constitutional theory can be defined as the study of the basic rules regarding the allocation and exercise of political power in a legal system. Inasmuch as constitutional propriety and its various parts—​including constitutional justice—​are there to constrain the exercise of political power, they furnish safeguards that can buttress the trust of the people in their political regime and are thus intimately linked with the dimension of legitimacy discussed in the previous section.41 In the 41   My claim, I hasten to add, is not that the sole purpose of a constitution is to secure this type of legitimacy. Constitutions serve a variety of purposes. Rather, my claim is that, unless a rule is also legitimate in the sense I have defined, it cannot be considered part of the constitution.

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words of Larry Sager: ‘Justifying and constraining the disappointments and burdens of membership in a political community is the crucial project of constitutional justice.’42 Think of regular elections, a procedure that holds pride of place in the constitutional regimes with which we are familiar. One of the salutary (and perhaps intended) effects of regular elections is to keep political contestation alive and expose the ruling party to the risk that it may be voted out of office. Plausibly, citizens have a pro tanto reason to submit to a regime where power is chastised by constitutional means of this sort. MCT generalizes this point. It contends that the purpose of constitutional law as a whole is to help achieve political legitimacy. But it goes further than that. It takes it that legitimacy is doctrinally relevant. This means that legitimacy partly determines what constitutional law requires in this or that jurisdiction:  For it to be true that constitutional law requires x, it must be the case that principles of political legitimacy count in favour of x. As we shall see in more detail below, this congruence is a necessary but not sufficient condition for the truth of propositions of constitutional law. But for the time being it is important to explain what it means, in general terms, that the content of constitutional law depends on principles of political morality. Consider the concept of justice. If something is to count as just, it must be shown to instantiate the relevant moral value. If we discover that pre-​emptive military strikes are unjust, we must exclude them from the extension of the concept of justice. It does not matter that pre-​emptive military strikes used to be considered just. MCT holds that something similar applies to constitutional law. Some rule may be considered as part of the constitutional law in this or that jurisdiction if it can be shown to serve the purpose of constitutional law, that is, if it advances the legitimacy of the corresponding political society in the way that constitutional law is supposed to. People may think otherwise. They may think that a rule is part of the constitutional law of this country which goes against the relevant sense of legitimacy. For MCT, they are making a legal mistake. This claim is not without precedent. It is well captured in a passage by Richard Fallon: Judgments of legal, sociological, and moral legitimacy all reflect concerns with the necessary, sufficient, or morally justifiable conditions for the exercise of government authority. Not surprisingly, legal, sociological, and moral legitimacy thus prove to be complexly interrelated in some cases. For example, when critics denounce controversial Supreme Court decisions such as Roe v. Wade and Bush v. Gore as illegitimate, it would be more misleading than helpful to understand them as asserting separately that these decisions were legally indefensible and morally unjustified. Some of the asserted moral wrongness, amounting to an abuse of office, is surely thought to inhere in the decisions’ (assumed) lack of legal justification.43

For Fallon, the function of constitutional argument, whether implicitly or explicitly, is (also) to ascribe moral legitimacy to institutional arrangements. Assertions that this or that constitutional ruling is legally illegitimate (which is just another way of saying that it is legally mistaken or ‘indefensible’) are premised on a view about the ‘necessary, sufficient, or morally justifiable conditions for the exercise of government authority’.44 Even if you remain unconvinced about the doctrinal relevance of legitimacy, you cannot deny that principles of political morality are present in constitutional discourse. I  have in mind principles such as democracy, liberty, equality, the rule of law, and  Sager, Justice in Plainclothes (n 16) 144.   Fallon, ‘Legitimacy and the Constitution’ (n 17) 1791. 44   ibid. See also Randy Barnett, ‘Constitutional Legitimacy’ [2003] 103 Columbia L Rev 111. 42 43

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15

separation of powers. Many constitutions make explicit reference to them, and they also feature prominently in constitutional argument, at least in the legal systems we are most familiar with.45 In this book we will have a lot to say about such principles, the way they contribute to legitimacy and the extent to which constitutional law configures and qualifies them. It should be noted, however, that my claim is not that questions of constitutional theory are best understood as questions of political morality because moral principles figure in constitutional argument. It should come as no surprise that this claim has gained considerable traction in the UK. In the absence of a formal constitution entrenching certain abstract moral principles and giving courts a standing power to scrutinize primary legislation for its compliance with them, many scholars and judges have sought to ground judicial recourse to such principles in the common law tradition, thus shielding it somewhat from the vagaries of an all-​powerful legislature. On this view, moral principles are relevant to constitutional adjudication because common law judges have always employed them, not because Parliament told them to do so. Let’s call this way of arguing for morality’s essential role in constitutional argument the hermeneutic approach. Albert Venn Dicey nicely exemplifies it. In The Law of the Constitution he writes that the general principles of the constitution (the right to personal liberty, or the right of public meeting) are with us the result of judicial decision determining the rights of private persons in particular cases brought before the Courts, whereas under many foreign constitutions the security (such as it is) given to the right of individuals results, or appears to result, from the general principles of the constitution . . . Our constitution, in short, is a judge-​made constitution, and it bears on its face, all the features, good and bad, of judge-​made law.46

Understandably, the hermeneutic approach will appeal to lawyers keen to resist the charge that the use of moral principles in constitutional argument is radical. But it may also be thought to hold philosophical appeal, if, as Barber argues, we take the aim of constitutional theory, like all social theory, to be ‘to bring to light the sense and significance of social phenomena’.47 Social phenomena acquire sense and significance within a certain community. They have sense and significance for its members. Accordingly, in deciding which features of a legal phenomenon to prioritize in her explanation, a constitutional theorist ‘should consider which of these features are of importance to the recipients of her theory’.48 This gives the constitutional theorist added reason to look at constitutional adjudication. The thought is that she must include principles of political morality in her account of constitutional practice, because they hold special significance for the courts in the legal systems with which we are familiar. They may be absent from constitutional adjudication in other jurisdictions, but they seem to be rather salient in ours. The hermeneutic approach has given rise to a number of criticisms. These criticisms are not always convincing. Thus, some theorists have urged that there are two concepts 45   I do not intend to take sides in the universalism/​relativism debate, so I shall not define the temporal and spatial scope of these principles. That is, I shall not explore whether there might exist legal systems unlike ours where they are not binding. Perhaps in these legal systems the same justificatory function is played by different principles or constitutional law is much more insulated from political morality than around here. I remain agnostic. But my claims are meant to apply to those legal systems where legitimate government is cashed out in terms of these principles. 46   Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (10th edn, Macmillan 1959) 195–​96. Similar views are propounded by Trevor Allan and Paul Craig. See TRS Allan, The Sovereignty of Law: Freedom, Constitution, and Common Law (OUP 2013) 9; Paul Craig, ‘Ultra Vires and the Foundations of Judicial Review’ [1998] CLJ 63. 47 48  Barber, Constitutional State (n 15) 3–​4.  ibid 11.

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of, say, DEMOCRACY, the full-​blooded moral concept and a technical legal concept with a stipulated meaning that is the peculiar province of lawyers. The fact that lawyers make reference to ‘democracy’ is no evidence that they dabble in morality. They merely engage in ‘lawyer speak’. But it would be bizarre to think that the concept of DEMOCRACY employed in constitutional argument is stipulative when there is so little agreement among lawyers about its meaning. What good is a stipulation if it does not resolve this kind of disagreement and, in fact, if nobody knows of it? It seems much more likely that, subject to constraints that we are going to examine in the next section, constitutional lawyers are articulating the meaning and implications of a moral concept, the same one that political philosophers study. This would explain both the existence of pervasive disagreement in constitutional discourse and the fact that this disagreement does not render constitutional discourse pointless.49 But perhaps this is not our only option. For instance, it could be suggested that lawyers do not appeal directly to the moral concept but to the beliefs about the moral concept held by officials, such as the framers of the constitution. This, as is well known, is the central premise of the style of constitutional jurisprudence called originalism that thrives in the US. I cannot enter into a detailed assessment of the merits of originalism here. I would readily concede, though, that originalism strikes a chord in its insistence that history and especially the momentous decisions made at the founding moment make a difference to the content of the law. MCT readily acknowledges that constitutional argument will involve pervasive appeal to facts about the political history of this or that jurisdiction. I shall give an outline of this form of dependence in the next section. What is distinctive of MCT is not that it negates this dependence but that it requires that some moral reason be ultimately furnished as a ground for it. According to MCT, originalists themselves have to defend the role they assign original understandings on the basis of an account of political legitimacy that supports deference to them. For instance, we can imagine an originalist telling a story that gives pride of place to the principles of democratic authority, fair notice, and federalism. I am sceptical such a story would wash. At any rate, it would buy originalists a costly victory. It would suppress principles of political morality at the level of first-​order constitutional argument only to allow them at a more fundamental level. Hence, it would draw originalists into the same discourse that MCT deems characteristic of constitutional practice in the legal systems with which we are most familiar. But the alternative is even worse. Without a moral story originalism is left with nothing to offer in support of its tenets.50 In particular, the mere historical fact that the founding fathers hoped or expected or intended that the constitution be interpreted according to their beliefs about its meaning cannot by itself give us today any reason to abide by them.51 Originalism cannot appeal to a supposed conceptual truth that the content of constitutional provisions is determined by such beliefs, since that would attribute a massive conceptual confusion to those anti-​originalists (and there are many) who claim not that originalism leads to morally bad results but that it offers an ill-​conceived picture of constitutional interpretation. The hermeneutic approach, though, is not made true by originalism’s failure. In fact, it is vulnerable to a number of criticisms that have more force and are not as parochial   See Nicos Stavropoulos, Objectivity in Law (OUP 1996).   The pitfalls facing originalism are rehearsed in Ronald Dworkin, ‘The Forum of Principle’ in A Matter of Principle (Harvard University Press 1985). 51   Again, I am not excluding the possibility that some principle of political morality can supply a reason to heed their hopes, expectations, or intentions. 49

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as originalism sounds to many outside the US. I will briefly rehearse these criticisms as much to explain why the hermeneutic approach falls prey to them as to show that MCT does not. Firstly, critics often point out that when you look at our political and, more specifically, constitutional practices, you will find that the invocation of moral principles is just one of its aspects. Given this complexity, theorists like Dicey seem to take a very lopsided view of the phenomenon to be explained. Why not emphasize the fact that constitutional practice is often a locus of the power struggle between factions that seek to advance their interests? In that power struggle you will arguably find far less political morality and far more rhetoric and tactics. One can rightly protest that it is not self-​evident on what grounds we should choose between these two perspectives. Relatedly, the hermeneutic approach has been criticized for its tendency to focus on the practice of courts. This, too, risks delivering a very narrow conception of the subject matter of constitutional theory and of the considerations that shape it. Arguably, just because something is important from the standpoint of the judge does not mean that it is important for other constitutional actors. Finally, if the goal of constitutional theory is to improve and deepen our understanding of the conceptual scheme of participants, we should perhaps also take at face value the persistent and systemic errors and misguided beliefs that it includes. The latter are as much likely to give us insights into the intellectual framework of participants, if that is what we are interested in studying. Suppose it is true that the ‘separate but equal’ doctrine was widely considered to be warranted under the equal protection clause of the US Constitution before Brown v Board of Education. By ignoring it we are failing to paint an accurate picture of evolving attitudes on this issue. In fact, we risk distorting the process that led to the abandonment of the doctrine, a process that for many years took place against the grain. The painstaking steps along the process would not make sense—​or would be cast in a bad light—​unless we kept that in mind. MCT is not saddled with these problems because it does not purport to elucidate the beliefs and self-​understandings of participants in this or that legal system and reveal the deep structure of the conceptual scheme they employ. Rather, the case for MCT is based on a simpler thought, namely that moral principles are the sort of thing that we properly rely on to determine the legitimacy of a political arrangement. This is not a sociological or historical claim. What makes a principle pertinent is not that participants think it is pertinent but that it bears the appropriate justificatory relation to the content of constitutional law. Sure enough, MCT eventually encounters constitutional practice and pays it its dues, because, as we shall see, morality assigns an important role to legal practice. But this happens further downstream. And when it does, MCT is not beholden to the mistakes of participants, however deeply ingrained. If participants hold a mistaken belief about the meaning of equality, MCT is not compelled to gerrymander the concept of equality to accommodate that belief. For, only the genuine concept of equality can settle questions of legitimacy. So MCT has the licence to correct the beliefs and self-​understandings of participants. That being said, it can also—​along the way—​advance the goal of participant understanding. It does so by articulating an ideal that the efforts of participants, even when mistaken, can be said to track. For MCT it is no accident that participants invoke the moral concepts that they do. They take or present themselves to be striving for legitimacy. The fact that they sometimes make errors of judgment is neither here nor there. It does not alter the moral aspiration (or pretension) of their effort or the standard against which that effort is judged. Furthermore, unlike the hermeneutic approach, MCT is not court-​centric. Legitimacy is the standard to which we hold all our public officials, not only judges. Constitutional propriety secures the legitimacy of the legal order as a whole. Accordingly, it covers

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more than just the ‘adjudicated’ or ‘judicially enforced’ constitution.52 For instance, it governs the conditions under which Parliament may be dissolved, despite the fact that courts are unlikely to police them. Undoubtedly, judges are more articulate about the bearing of legitimacy (and the principles of political morality that contribute to it) on their reasoning. Still, this does not give them a privileged position in MCT.53 In subsequent chapters we will draw out some of the substantive implications of this insight. But for now it suffices to note its methodological upshot. Last, being unhinged from the beliefs and motivations of constitutional actors and fixing on the moral question of what makes their use of state power legitimate, MCT is not perturbed by cynical views of politics. There can be no doubt that political morality applies to those constitutional actors who engage in politics to further their self-​interest. In fact, it probably applies to them more than others.

D. Moralized constitutional theory and the theory of law I argued above that, in assessing the legitimacy of constitutional arrangements, we are not judging them against an extraneous benchmark as when we judge a month for its cruelty. Rather, we are judging them against the benchmark that they properly aspire to. I also said that MCT does not merely state that principles of political morality are important for the study of a constitutional order; it argues for their doctrinal relevance. According to MCT such principles furnish (part of ) the ground of concrete propositions of constitutional law such as that courts may or may not exercise their reviewing powers in a certain way. In what relation more precisely do principles of political morality stand to such propositions? In an obvious sense, the principles of political morality justify an answer on a point of constitutional law. But this formulation is liable to mislead us. What we are trying to do is not to come up with moral reasons to shore up the moral defensibility of the law, identified in some other, value-​neutral way. To use a familiar mantra, we are trying to identify what the law is, not what it should be. Political morality is essential to that inquiry: it (partly) determines the right answer in law by vindicating that answer as a morally defensible way of achieving the moral purpose the law is there to serve. At this point, it could be argued that by treating the question about what the law is as a question of political morality I restrict the appeal of my account to those who embrace an anti-​positivist theory of law. Famously, it is anti-​positivists who maintain that moral considerations are a necessary determinant of the content of the law; by contrast, legal positivists deny this proposition. Now, it would clearly be counter-​ productive to make my claims hostage to the controversy between legal positivists and anti-​positivists. Fortunately, I  do not think it is necessary to get embroiled in that controversy. Neither do I think I am taking sides in it in any consequential sense. Although the approach to constitutional theory I am advocating is clearly inspired by anti-​positivism, it does not presuppose that we reject legal positivism. It is jurisprudentially modest in at least two senses. First, my claim is not one about all legal orders but about a sub-​set of them, those that are committed to some form of constitutional democracy and are generally well-​ordered and reasonably just. So, for current purposes I can remain happily agnostic about the jurisprudential status of wicked legal systems. Notoriously, such systems are test cases for competing theories of law. Anti-​positivism  Sager, Justice in Plainclothes (n 16).   Court-​centrism is particularly acute in analytical legal theory. I have argued against it in Kyritsis, Shared Authority (n 34) ch 4. 52

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is arguably hard-​pressed to explain how they are legal despite their wickedness, whereas positivists can contend that what makes them legal is that they are grounded in certain social facts about official behaviour, regardless of their moral flaws.54 Some theorists of an anti-​positivist bent have made valiant efforts to rescue the doctrinal relevance of principles of political morality in apartheid South Africa or Nazi Germany, for example.55 It may well be that they have the better argument from the point of view of the theory of law. However, I am not joining their cause. For, no matter what happens in wicked legal systems, even a positivist cannot deny the place of political morality in just ones.56 This can be seen most clearly in Joseph Raz’s theory of law. Raz offers the same core explanation of legal duty for both wicked and just legal systems. He contends that all law claims to have legitimate authority, which normally means that it claims that by following legal rules legal subjects are more likely to comply with right reason than by trying to figure out the right course of action by themselves. In wicked legal systems, of course, this claim is a sham. But in just legal systems, the law lives up to it, more or less.57 There, some standard is the law precisely by virtue of the fact that it constitutes a successful exercise of legitimate authority, that is, because it satisfies the appropriate conditions of political morality. For Raz, it is not the case that one story makes something the law and a separate one makes it legitimate. MCT envisages the same relation between political morality and the content of the law as Raz, and, since its focus is on just legal systems, it has no fight to pick with him. Now, you may reject Raz’s account of legitimate authority. But your disagreement will be one in political philosophy, not the theory of law. Being concerned with the true import of principles of political morality, MCT welcomes the first type of disagreement. It is the latter type that MCT is keen to sidestep. The convergence I am urging between positivists and anti-​positivists may be harder to discern if you are an inclusive legal positivist. Unlike Raz, inclusive positivists do not derive the foundation of legal duty from an account of political legitimacy. Take HLA Hart, whose doctrine of the rule of recognition is the fountainhead of inclusive positivism. Hart contends that the rule of recognition is a conventional practice among officials, by which he means that participants take themselves to be bound to do what their fellow-​participants do. All inclusive positivists accept that a practice of this sort is the ultimate foundation of law. The conventionalist twist of inclusive positivism seems to distinguish it from anti-​positivism not only in wicked legal systems (where the former will say that their iniquitous law is ultimately grounded in the fact that officials converge in treating it as law) but in just systems as well, where anti-​positivists will insist that the ground of law is not the social fact of its official acceptance but its moral merit. But that would be to ignore the notable steps of rapprochement between the two theories made by contemporary proponents of inclusive positivism.58 For them,   Jules Coleman, ‘Negative and Positive Positivism’ [1982] Journal of Legal Studies 139.   A characteristic example is David Dyzenhaus, Hard Cases in Wicked Legal Systems: Pathologies of Legality (2nd edn, OUP 2010). 56   That is not the same as saying that MCT cannot have repercussions in the theory of law. In the manner of what Jeremy Waldron calls particular jurisprudence we can reach philosophically interesting conclusions while examining a legal phenomenon that is avowedly parochial. Given its parochial character, of course, we must be cautious when extending those conclusions to other legal phenomena. Particular jurisprudence proceeds in small steps. 57   Raz insists that even there law’s claim to legitimate authority is not fully vindicated; for him, law typically strays beyond its proper sphere. Hence Raz’s famous claim that there does not exist a general duty to obey the law. See Raz, Ethics in the Public Domain (n 17) ch 15. 58   For instance see Jules Coleman, ‘Law and Political Morality’ [2007] APA Newsletter 7. For evidence of rapprochement from the other side see George Letsas, ‘The DNA of Conventions’ (2014) 54 55

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the ground of official duty under the rule of recognition is not the bare fact that ‘this is what everybody else does’. At least in just legal systems individual participants may have a composite reason to do their share, which includes the convergence with their fellow participants but also encompasses the moral appeal of those practices as opposed to other possible ones. Surely, these theorists say, the democratic pedigree of Parliament is an essential part of the explanation for the fact that UK judges follow the rule of recognition that they do. This concession reduces the difference between anti-​positivism and inclusive positivism to a vanishing point:  The same moral considerations that ground legal duty on the former account will figure among the constitutive elements of the rule of recognition on the latter. The two sides may still be divided on the alleged conventional nature of official practice. But their overlap creates sufficient space for MCT to flourish without having to commit to either. Furthermore, we ought not to exaggerate the practical import of the debate between legal positivism and anti-​positivism. While their profound philosophical differences simmer beneath the surface, the two sides are likely to present a unified front on most, if not all, of the issues that are the subject of this book. This is because none of our leading positivist theories of law deny that moral considerations sometimes play a crucial role in legal reasoning. Even those philosophers that have come to be known as ‘hard’ or ‘exclusive’ legal positivists accept that in order to decide what we ought to do according to the law we will often need to combine legal rules validated by their pedigree and moral premises. Famously, they maintain that pre-​existing law leaves gaps that need to be filled out through the exercise of judicial discretion. Acting as interstitial legislators, judges will rightly have recourse on these occasions to considerations about what morally ought to be done. How can we resist the thought that this will happen frequently in legal systems where courts have the power to review legislation for its conformity with constitutional norms?59 Such norms typically make reference to important moral ideas such as religious freedom or free speech. Therefore, they invite the kind of discretionary judgment that for Raz is not governed by pre-​existing law (at least not exclusively). This, we might say, is the area occupied by MCT. It supplies the moral considerations that should govern the exercise of judicial discretion in hard constitutional law cases. On this score, the gap that divides anti-​positivists and inclusive legal positivists is arguably even narrower. Inclusive legal positivists maintain that in many jurisdictions the criteria of legality include moral considerations. Moral reasoning in these jurisdictions is not confined to cases beyond pre-​existing law calling for the exercise of judicial discretion. Rather, it is essential to determining the content of pre-​existing law to begin with. Thus, it will be employed by judges as a matter of course. Inclusive positivists have argued that legal orders that refer to abstract principles of political morality in their constitution and make the legal validity of ordinary legislation depend on conformity with them fall in this pattern.60 It is these legal orders that are par excellence the object of study of MCT. The kind of moral considerations that inclusive positivists allow among the criteria of legality are very likely to be the ones that MCT is also guided by. 33 Law and Philosophy 535. See also Dimitrios Kyritsis, ‘What’s Good about Legal Conventionalism’ [2008] Legal Theory 135. 59   In fact, as Raz, the most prominent proponent of hard positivism, has acknowledged, the very nature of constitutions invites a high degree of judicial creativity. Joseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason (OUP 2009) ch 13. 60   See Wil Waluchow, Inclusive Legal Positivism (OUP 1994).

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Last, I should note another sense in which my claim is jurisprudentially limited. The law of constitutional review is fraught with controversy. As is well known, Ronald Dworkin has used disagreement as a launchpad to argue against legal positivism and in favour of his brand of anti-​positivism.61 He argues that legal disagreement is pervasive, and that it evinces a belief both that there exist right answers in contested legal questions and that what makes those answers right is not that people accept them as such but that they flow from the best moral argument. In response, legal positivists of all stripes have devised various theoretical strategies to account for the existence of widespread disagreement in law. For the most part these strategies do not aim to explain away disagreement but to reconcile it with their theories. For example, they purport to demonstrate that a lot of law is uncontested and therefore disagreement is more local than Dworkin makes it out to be. Or that disagreement about the application of a criterion of legal validity is compatible with the inclusive positivist tenet that this criterion be shared among legal officials.62 MCT stops short of turning disagreement into a jurisprudential sword à la Dworkin. All it maintains is that morality is appropriate for resolving certain disagreements that arise in the constitutional law of a subset of legal systems. This does not preclude that it may be redundant or unsuitable in other areas of law or even in other more settled areas of constitutional law. Also, it does not favour one or the other jurisprudential explanation of those disagreements. Thus, it should in principle be capable of appending itself to both positivist and anti-​positivist theories of law.

E. Constitutional theory as a normative discipline Non-​committal though it may be in the theory of law, there is no denying that MCT gives constitutional doctrine a distinctive normative—​indeed, justificatory—​edge. First, it does so in the rather obvious sense that, when we interpret a constitutional rule—​whether enshrined in a textual provision or established by convention—​and apply it to novel circumstances, the interpretation that meshes with those background principles of political morality is to be preferred. As I said above (and will elaborate further below), constitutional lawyers are guided by these principles of political morality in conducting legal argument. Simply put, this means that they take as a measure of the success of an interpretation of the law that it is more attractive from the standpoint of political morality. MCT vindicates this aspect of constitutional practice. In addition, it does so in a way that bolsters the systematic character and coherence of the legal order. It brings together the various components of a constitutional order as emanations from the same set of general political principles. Second, the methodology carries added normative force, because, by connecting constitutional doctrine back to fundamental principles of political morality that have independent moral appeal, it helps affirm and consolidate our conviction that our more particular constitutional practices are not simply a random collection of arbitrary rules but have a point that makes them worth adhering to. Hence, legal argument informed by this methodology can perform the same reconciliatory role that Rawls, following Hegel, attributed to political philosophy.63 In Rawls’ words, it can   Ronald Dworkin, Law’s Empire (Hart Publishing 1998) 31–​44.   Jules Coleman, The Practice of Principle (OUP 2001) 103–​19. 63  Rawls, Justice as Fairness (n 27) 3. 61 62

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calm our frustration and rage against our society and its history by showing us the way in which its institutions, when properly understood from a philosophical point of view, are rational, and developed over time as they did to attain their present, rational form. This fits one of Hegel’s well-​known sayings: ‘When we look at the world rationally, the world looks rationally back.’64

The importance of reconciliation—​the Hegelian Versöhnung—​is perhaps clearest in new democracies where systems of constitutional review often represent a sharp break from tradition. But even where they are firmly established, systems of constitutional review typically engender frustration from those who are on the losing side of constitutional disputes and see their political agendas either thwarted by judges or vulnerable to the will of political majorities. Moral principles are uniquely suited to achieve Versöhnung insofar as they offer moral reasons in support of existing constitutional arrangements. It is a characteristic of moral reasons that they are particularly weighty and that their bindingness is not dependent on particular conceptions of the good life, of which there are bound to be many in a pluralistic society. They can therefore perform the role of normative glue that makes reconciliation possible despite our differences and disagreements. In addition, law regulates the exercise of the state’s immense—​and, crucially, coercive—​power. It responds not to a problem of taste or preference but a most serious moral problem. Only moral reasons can give satisfactory guidance when we ask ourselves why we should go along with the law, thus conceived. Finally, moral reasons are urgently needed to account for practices such as constitutional review, whose legitimacy is fiercely contested, in terms that take seriously the concerns and arguments of the opposing camps. Both constitutional review sceptics and enthusiasts typically work under the assumption that constitutional review stands and falls on its moral appeal, which is why their contest is dominated by reference to political values such as democracy. To engage with them you need to speak the same language. The methodology of MCT achieves this, thus rendering constitutional doctrine an agent of reconciliation.

IV.  Constitutional Theory and History A. ‘A complexity within morality itself ’ The approach outlined in the preceding paragraphs is not without its challengers. One criticism comes from those who doubt that MCT can simultaneously deliver generality and doctrinal relevance. MCT, they say, runs the risk of being either parochial or imperialistic. Underlying both horns of the dilemma lies the same worry: Constitutional law originates in the peculiar political history of a given jurisdiction. It is no accident that in arguing for a proposition of law we typically invoke facts of that history like the creation or amendment of a constitution, the enactment of a piece of primary legislation, or a judicial decision. Vicki Jackson has rightly pointed out that ‘[c]‌onstitutional decisions . . . are always the product of particular institutional arrangements for judicial review in a particular polity and may have features attributable primarily to particularities of constitutional text, history or past precedents’.65 But political morality is not tied to any legal system. So, at best an MCT of the sort advocated here is going to brush aside national idiosyncrasies in favour of a morally optimal result. Hence the charge  ibid.  Vicki Jackson, ‘Constitutional Comparisons:  Convergence, Resistance Engagement’ [2005] Harv L Rev 109, 126. 64 65

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of imperialism. At worst it masks our preference for one of the many national alternatives, holding it out as validated by political morality and downplaying its contingent origins. Hence the charge of parochialism. There is a grain of truth in this criticism. Often in the work of constitutional review sceptics and enthusiasts alike, constitutional theory is presented as little more than applied political philosophy. Martin Loughlin has over the years criticized this kind of constitutional theory that ‘incorporates . . . transcendental or metaphysical ideas of justice’.66 But on my approach constitutional theory is not guilty of such a flaw. It is not just an idle wheel in a utopian exercise or a conveyor belt of abstract precepts of political morality. By contrast, it brings its own insights and solutions to seemingly intractable philosophical puzzles. It does so by showing how the political principles that we cherish are realized and harmonized in actual institutional arrangements. The constitutional democracies we are familiar with have struggled to create enduring political frameworks sustaining reasonably just and well-​ordered societies. MCT records their achievements. This understanding of constitutional theory’s aim heavily shapes its methodology. Critics sometimes assume that MCT only draws on principles about the rights and duties of citizens in a perfectly just society. But this is a mistake. The critics ignore that ‘there is a complexity within morality itself ’.67 The complexity arises from the fact that political morality also recommends procedures for making decisions in the name of a political community. There are distinct principles of political morality regulating such procedures. Earlier I  said that these principles pertain to institutional design. Democracy is a characteristic example of such a principle. Separation of powers, which occupies a central position in the argument of this book, is another. Both of these principles dictate the conditions under which a decision, say, by a majority in parliament, can have an effect on our political rights and duties. When a decision conforms to them, it rightly stands for the whole political community. It represents a collective commitment, from which flow moral consequences, for example about what each one of us owes to and can demand from our political community. As a result of such decisions our political rights and duties may deviate from the moral rights and duties we would have in a perfectly just society. In fact, it may well be that judged against the standard of perfect justice the extant scheme of rights and duties around here is sub-​ optimal. But the fact that it is sanctioned by the relevant principles of institutional design renders it morally binding, at least for now. By virtue of what do principles of institutional design affect the moral calculus in this way? Our discussion of legitimacy offers an answer. When a state’s procedures for making collective decisions are well designed (that is, in a way that conforms to the relevant principles), it makes a pro tanto stronger claim to the allegiance of its citizens because it gives them assurances that the power it wields will not be abused. In turn, the deviation from perfect justice that principles of institutional design warrant is a price worth paying, morally speaking, for living under a regime that is set up to respond to the realities of politics in an ‘acceptable’ way.

66   Martin Loughlin, The Idea of Public Law (OUP 2003) 163. Bernard Williams makes a similar point about what he takes to be two prominent models of theorizing in contemporary political philosophy, the enactment and the structural model. Though very different, both of these models assume a certain priority of morality to politics. Morality supplies the values and aims, which politics ‘seeks to express’ (according to the enactment model), or it lays down a vision of an ideally just political society (according to the structural model). See Williams, In the Beginning Was the Deed (n 18) ch 1. 67   Ronald Dworkin, Justice for Hedgehogs (Harvard University Press 2011) 409.

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B. A doctrinally relevant constitutional theory Given the aforementioned ‘complexity within morality’, we have seen that history matters morally, and in a sense that is relevant to legitimacy. MCT is sensitive to history’s moral significance. Of course, nothing is stopping constitutional theorists from devising an ideal institutional system. In doing so, they are entitled to be unconstrained by contingent political facts and instead proceed from some general assumptions about the operation of political societies. The morality of institutional design will then likely issue general recommendations or set outer limits. But the task of the constitutional theorist can be much more fine-​grained and situated than that. She may start from a political community’s history, understood as the set of political decisions being taken in its name and associated official and political practices. Among those decisions and practices, some of the most momentous concern not the granting of certain rights to individual citizens but the establishment of procedures for making political decisions. That is, they represent second-​order commitments to a framework of government. These are commonly contained in constitutional texts or other decrees of a similarly higher status but they need not. Often they are simply embedded in legal and political culture. The constitutional theorist is charged to identify these commitments and determine their import. She must ask:  Given that they were undertaken by this or that political community in the past, what do they entail regarding a point of constitutional law now? Once again, the morality of institutional design will provide (part of ) the answer. The constitutional theorist will take these commitments to determine the law on a certain issue only insofar as the relevant principles of institutional design justify their doing so.68 Needless to say, there is typically good moral reason to stand by the decisions a political community makes at a founding moment. It is not only the authority possessed by the bodies making those decisions that warrants their having the moral power to shape a political community’s constitutional arrangements. It is also the fact that these bodies have been effective in rallying the political community behind them, thus reinforcing the authority and stability of the institutions they create.69 I have been talking about political decisions but the same line of reasoning applies even in the absence of a discrete founding moment. You do not need one for a constitutional arrangement to attain salience. Often, the requisite salience will emerge from a sustained political practice. So, the proposed account does not ignore history but instead assigns it a critical role in the specification of the content of constitutional law. Thus, it establishes the doctrinal relevance of MCT. Since political morality determines how history, at the founding moment and subsequently, gives definite shape to our constitutional arrangements, we need to flesh out the relevant moral principles in a way that explains—​at least in general terms—​how it can do so. That is what MCT aspires to do, and that is the aim of this book too. Of course, such an exercise can only furnish some of the premises needed to arrive at answers to concrete constitutional questions. In addition, our reasoning must be supplemented by historical facts, say, that the Eighth Amendment uses the words ‘cruel and unusual punishment’ or that the Equal Rights Amendment was not ratified by thirty-​eight state legislatures. Our task is to combine the facts and morality in order to decide whether the US Constitution permits capital punishment

68  Kai Möller has recently dubbed this task moral reconstruction. See Kai Möller, The Global Model of Constitutional Rights (OUP 2012) 20–​22. Moral reconstruction is an elaboration of Ronald Dworkin’s interpretive methodology. See Dworkin, Law’s Empire (n 61) 45ff. 69   Leslie Green, ‘The Duty to Govern’ [2007] Legal Theory 165.

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or tolerates inequality on account of sex. Our efforts are likely to encounter considerable complexity, as historical facts interact with one another and with legal practice and help form the crust that is constitutional doctrine. Hence, as we descend the ladder of abstraction, the constitutional theorist turns into a doctrinal lawyer. This is as it should be. Paraphrasing Kant, political morality without history is (legally) empty; history without political morality is blind. MCT may be relevant to legal doctrine but does not supplant it. It could be argued at this point that political morality puts an unnecessary and potentially misleading gloss over political history. The objection goes as follows: ‘Either something is part of that history or it is not. If it is, then it must have a bearing on our legal rights and duties. That is what it means to be governed by past political decisions. We cannot pick and choose the parts that conform with our moral values.’ But this objection misses the normative aspirations of MCT. Not all decisions taken in the name of a political community have an effect on our political rights and duties. Efficacy by itself will not do. Nobody ever said that a tyrannical regime obligates those living under its yoke. Whether a political event like the enactment of a statute produces binding effects depends on the moral state of play. Even if it does, its effects may not be the same as those intended by the officials who brought it about. Again, they are mediated by the moral principles that bear on that event.70 To mention two examples, they could be modified by the legitimate expectations of citizens or by the requirements of fair notice. Of course constitutional assemblies and political elites cannot impose any form of government, however iniquitous, simply because the morality of institutional design gives them a general authority to govern. Political morality also limits that authority. We shall see in later chapters how fundamental rights represent such limits and how they are weighed up against considerations of institutional design. Again, this balancing exercise is dictated by our concern for legitimacy. A decision merits our allegiance and the respect and deference of other legal officials only if it has struck the right balance between these two types of moral consideration. Subject to a number of qualifications that we shall explore in more detail in the relevant chapters constitutional review should strive to track this standard.

C. Is MCT general? What I have said in the preceding two paragraphs may not have dispelled the lingering doubt that I am talking at cross purposes with doctrinal lawyers. Thus, it could be suggested that the doctrinal lawyer wants to specify what the law is, good or bad, whereas what MCT helps specify is always in a sense good.71 This sounds a lot like what a legal positivist would say to an anti-​positivist, but for the reasons I have already given, I think both of them can embrace MCT, at least when it comes to the morally momentous and fiercely contested problems of constitutional law this book is dealing with. What—​in addition to these reasons—​I have sought to do in this section is bring this project even closer to the concerns of the doctrinal lawyer. I have suggested that, rather than separate MCT and legal doctrine, history unites them. Doctrinal lawyers care about the legal significance of history, the set of political decisions and practices that are the source of constitutional law. However, I am extremely doubtful that doctrinal lawyers can determine that significance without at some point making reference 70 71

  See Dimitrios Kyritsis, ‘Intending to Legislate’ [2015] MLR 164.   I am grateful to George Letsas for urging me to clarify this point.

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to principles of political morality. It is to the same political decisions and practices—​ and away from ideal moral theory—​that political legitimacy, the touchstone of MCT, orients us to; and it does so in a way that structures our moral reasoning about them. The dependence of constitutional law on history tempers the ambition of the present inquiry.72 That is because it introduces an element of contingency in our moral calculations. In light of this, it would be surprising if it turned out that only one constitutional arrangement passes the legitimacy threshold. By contrast, we should expect that as the competent state bodies of different political communities exercise their authority to govern in different ways, they will legitimately shape the form of government of those communities, striking out a distinctive historical path and—​ when they are successful—​a distinctive route to legitimacy.73 After all, constitutions are themselves exercises of the authority to govern of the highest order. Insofar as they organize the primary state institutions of a political community, by opting, say, for bicameralism or unicameralism, presidentialism or parliamentarism, indeed one or the other type of constitutional review, they modify the moral effect and operation of considerations of institutional design as well. Here, too, the role of MCT is critical. By interpreting the relevant principles of political morality, it determines how far such constitutional creativity can legitimately go. Consequently, rather than uniquely identify a model of constitutional review as appropriate for all times and places, as the charge of imperialism suggests, MCT is likely to allow a number of different models of constitutional review. It thus seeks to vindicate the political efforts and constitutional choices of the many legal systems that have instituted systems of constitutional review but have calibrated its scope and intensity. I said a moment ago that the role of MCT is to delineate the moral contours of constitutional creativity. This is an important role because a perfect congruence between history and morality will not be forthcoming. Some constitutional experiments are failures. More troublingly, many political decisions, even though they may be taken in the name of lofty ideals, are plainly wicked. Morality may be complex, but there are limits to its elasticity. Historical contingency cannot justify all departures from ideal justice. Consequently, MCT will have to be revisionary to some extent. By this I mean that it is bound to treat parts of the practice as mistaken. Suppose that one of the rights that flow from the combination of history and institutional morality in a certain jurisdiction is a right to physician-​assisted suicide. Suppose, though, that in a suitable case the court declines to recognize and enforce it. No doubt, the court’s decision may lead many people to believe that they have no such legal right and many legal officials to act on this belief, by for instance prosecuting physicians who have helped terminally ill persons commit suicide. This is not an embarrassment for MCT. MCT stands critically towards such events. To repeat a point made earlier, the purpose of MCT is not to describe practice and thus cannot be judged solely or primarily by its historical accuracy. Hence, it can afford to say that, although the court’s decision in this case had other important moral effects (say, in terms of fair notice), it did not have the effect of erasing the right to physician-​assisted suicide. Moreover, and in the same vein, far from condemning us to parochialism, MCT gives us the resources to bring together and compare constitutional experience from a variety of legal systems. As Christoph Möllers puts it, it enables us to ‘find a normative framework that can be understood as being implicit in different constitutional   Conrado Hübner-​Mendes, Constitutional Courts and Deliberative Democracy (OUP 2013) 5–​9.   See relatedly Cormac MacAmhlaigh, ‘Putting Political Constitutionalism in its Place’ (2016) ICON 198. 72 73

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orders’.74 At the same time it helps us ‘make their similarities and differences more comprehensible’.75 Due to the ‘systematic connection between a normative argument from political theory and a phenomenon of comparative constitutional law’76 that it draws, it shows how these similarities and differences originate to some extent from the different articulations of the same concerns and principles of political morality. Though this is far from the only mode of examining and understanding a constitutional phenomenon, it is an illuminating one, because it makes explicit the normative standard which it is meant or claimed to strive for. In this book I will not be able to go very far in this comparative exercise. MCT may be doctrinally relevant, but its relevance is most clearly manifested when its moral premises are combined with historical premises. That’s the point at which the political philosopher must hand over the baton to the practitioner and the policy-​maker. Before we get to that point, though, we must do a lot of work to sharpen the philosophical concepts we will use to shed light on our constitutional practices. In this task we do well to anticipate some of the problems and controversies we are going to encounter there. For present purposes these problems and controversies need only be painted with a broad brush. Still, as they will be illustrated by reference to different jurisdictions, they serve to underscore the comparative benefits of MCT. There is a further reason why this book stops short of engaging with specific legal systems other than for the purpose of illustrating its philosophical claims. Given the way in which principles of political morality bear on the content of the law according to MCT, it is important to get the philosophy right. This need becomes especially pressing when we are confronted—​as we will be at various points in this book—​with accounts propounding absolute views regarding the legitimacy of constitutional review, claiming that either it or its absence is never legitimate. Such accounts purport to drastically narrow the bandwidth of constitutional creativity. This, as already mentioned, is not the view taken in this book. So before we can develop constitutional doctrine, we must remove the obstacles philosophy puts in our path.

V.  Constitutional Theory and Politics The previous section argued that history plays a central part in the methodology of this book. There may be a sense of history, however, that is not captured by the idea of a set of past political decisions and the practices associated with them. This is the sense Loughlin presumably has in mind when he says that constitutional government ‘must be conceived as a set of formal practices rooted within, and acquiring identity from, a wider body of political practices’.77 He contends that due to its roots in this ‘wider body of political practices’ public law, the discipline that studies constitutional government, ought not to be made subservient to moral philosophy but should be kept ‘pure’, underpinned only by ‘the immanent precepts of an autonomous discourse of politics’.78 There is what we might call a realist and a sceptical reading of the ‘wider body of political practices’ that Loughlin refers to. They represent very different challenges to MCT. Let’s take each of them in turn. On the realist reading, MCT misunderstands the nature of the achievement constitutional government represents. For theorists like Loughlin constitutional government

74 77

75  Möllers, Three Branches (n 26) 12.  ibid.  Loughlin, The Idea of Public Law (n 66) 157.

76  ibid.  ibid 145.

78

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is not a moral crusade, ‘a government founded upon a philosophical basis’.79 First and foremost, its aim is to maintain peace and order in a certain territory. Its success, we might say, is primarily judged not by its moral appeal but by the extent to which it works, that is, it manages to hold a political community together and save it from disintegrating into civil strife. The realists keep reminding us that political communities comprise factions with conflicting interests battling for control of the state. It is far from self-​evident that these factions will always choose the path of the law over force. To ensure that they stay in the fold it takes more than pronouncing moral truths ex cathedra. One ought to make their cooperation politically palatable. In other words, one must attend to the political necessities of the situation. Arguably, moral philosophy can do little to explicate these necessities. This is a serious and radical objection to my project, and I shall therefore address it in some detail. Let me start by conceding that there is more than a grain of truth in the realist assertion that the political achievement of uniting a society under the same system of government can be precarious. We can be forgiven for taking this achievement for granted in the more established constitutional democracies, but we do not need to look very far to expose our naiveté. The treacherous paths of transitional justice in Eastern Europe after the fall of communism, not to mention South Africa and Latin America, amply demonstrate that democratic stability is hard won and reversible. Besides, even the established constitutional democracies did not start out this way. Thomas Nagel points out that ‘political power is rarely created as a result of demands for legitimacy’.80 He adds: ‘Illegitimacy preceded legitimacy.’81 So, it would be a gross anachronism to suppose that the emergence of the states we are familiar with and the creation of the political structures that governed them responded to a moral imperative. More likely than not, they were initially meant to consolidate the power and further the interests of a dominant group. Much as it is healthy to be reminded of these harsh political realities, the lesson constitutional theorists should draw from them is slightly ambiguous. Here are a couple of possibilities. First, it could be argued that the realist reading targets constitutional theories that privilege the perspective of the judge. In fact, this is the leitmotif of a group of constitutional theorists who call themselves political constitutionalists in order to juxtapose their views from those of legal constitutionalists. Political constitutionalists argue that judges have a limited and slightly skewed outlook on the operation of public law. Furthermore, they are unsuited to evaluate and take into consideration the political necessities that shape public law.82 For instance, you would not expect grand political compromises to be forged in court, but it is such compromises that often produce defining constitutional moments. Hence, with its focus on judicial argumentation and its glorification of the common law legal constitutionalism ignores what lies beyond the courtroom and therefore misses out on important dimensions of constitutional government. I share many of the political constitutionalists’ misgivings. In this book I offer an account of constitutional review that seeks to give due weight to the contributions 79   Baronne de Staël, Des circonstances actuelles qui peuvent terminer la révolution et des principes qui doivent fonder la république en France (Lucia Omacini ed, Droz 1979) 270, quoted in Biancamaria Fontana, Benjamin Constant and the Post-​revolutionary Mind (Yale University Press 1991) 14. 80   Thomas Nagel, ‘The Problem of Global Justice’ (2005) 33 Phil & Pub Aff 113, 145. 81  ibid 146. 82   Sometimes Loughlin talks like a political constitutionalist. He writes that ‘the judiciary do not self-​evidently possess either the institutional or knowledge-​based competence to explicate’ the framework of government (Loughlin, The Idea of Public Law (n 66) 134).

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of both the judiciary and the political branches. Political morality, I  argue, recommends that some issues be dealt with by democratically accountable institutions, and institutional design must track this recommendation. The same applies to systems of constitutional review. Courts have an important role to play in protecting fundamental rights and reinforcing the legitimacy of the state, but this task is one that they share with the legislature. In fact, one of the reasons I offer in support of this division of labour is precisely that legislative decision-​making is better able to secure political stability of the right sort. Now, it may well be that political constitutionalists will find my accommodation of their insights unsatisfactory. However, in this case my dispute with them will be substantive. It will be about the best understanding of democratic rule and the relationship between elected and unelected branches of government. Political constitutionalists cannot define this dispute away at the level of methodology. To make their case they must address the substantive arguments I provide. They will then be as much engaged in MCT as I. Alternatively, realists may try to recast their objection in more strongly methodological terms. They may insist that the problems that public law is supposed to solve call not for reasoning from first principles but for a different, more ‘political’ methodology, which Loughlin labels ‘prudence’.83 ‘Prudence’ aims not at the realization of justice but at salus populi. Thus understood, it clearly can incorporate moral values. Undoubtedly, there could be a notion of salus populi that includes a conception of the common good as well as a measure of respect for standards of political justice. But this moral element is subservient to the more pragmatic overarching goal of preserving political society. A number of things seem to follow from this concerning methodology. For instance, whatever moral principles find their way into public law doctrine should be tempered by incrementalism and by a refusal to apply them as if they were ‘determinate rules of universal application’.84 A more categorical approach would fly in the face of prudence and risk catastrophe. Accordingly, alongside moral principles public lawyers must make room in their method for ‘techniques for the avoidance of potentially dangerous conflicts’.85 Legitimate polities are not suicidal. They must always seek to avert civil war. As Machiavelli brilliantly shows, this can sometimes be achieved through the efforts of a virtuous and cunning monarch. But constitutional democracies do not leave this task solely to civic virtue and the vagaries of politics. They also pursue it by creating a framework of government that is designed to diffuse political tensions in a systematic way. It is this framework that is the proper province of constitutional law. Now, invariably the framework will include power-​sharing and representative mechanisms whose purpose is to make decisions in the name of the political community, and it is these mechanisms—​rather than, say, adjudicatory ones—​that we primarily trust to settle serious political conflict. MCT will direct that these settlements not be brushed aside but that they determine the content of our constitutional law rights and duties, even if we judge that in the abstract a different settlement would have been preferable. That is because it acknowledges that thanks to such settlements and compromises it is possible to create and sustain a stable political regime, a goal that political morality—​and especially the theory of political legitimacy—​affirms. So, the goals of MCT and the realist are not really so different. But how about the method? Is MCT at odds with the incrementalism and pragmatism that appear to be 83

 ibid 149.

84

 ibid 151.

 ibid 150.

85

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the hallmark of the realist approach? To begin with, we should be sceptical about the connection between realism and incrementalism. Let’s not forget that Machiavelli’s leader must not always act incrementally—​sometimes he must act swiftly, daringly and violently. Besides, MCT cashes out the moral importance of political institutions partly also by appeal to pragmatic considerations. If we care for stability in the name of legitimacy, then we have reason to give some of our officials incentives to think and act pragmatically or give power over certain issues to those officials who do think and act pragmatically. But that is a far cry from saying that MCT itself should adopt an overarching pragmatic method. Given that it is primarily driven by moral principle, its relationship with pragmatism will be eclectic, dependent on the political context and the issues at stake. Perhaps it would be objected that I am drawing the wrong lesson from Machiavelli. What Machiavelli stands for, it might be argued, is the view that salus populi is not a moral project at all; it is a project that involves or even requires a lot of iniquity. Thus, he exposes that my very understanding of the achievement of politics is still far too moralized and insufficiently ‘political’. However, this is a mistake. Even assuming that some modicum of stability can be or indeed has been achieved by morally defective regimes, it does not follow that the same minimal standard of stability—​and perhaps also legitimacy—​should be appropriate for our regimes as well. So, I invite my Machiavellian interlocutor to split the difference. I make no claims about Renaissance Italy—​at least for present purposes—​and he accepts that in our constitutional orders the demanding precepts of political morality we subscribe to are not dispensable flourishes but conditions of legitimacy. Some might diagnose in this stance a problematic relativism, but in reality all that need underpin it is a form of agnosticism. Of course, there is an even stronger version of the objection that is fuelled by a thorough-​going scepticism about the place of morality in constitutional theorizing. Such scepticism is endemic among students of politics and not uncommon among constitutional lawyers. These theorists see in politics nothing but a constant power struggle and in constitutional law just one of its battlegrounds. They contend that it is scientifically valid to describe the forces that causally shape politics and inform the self-​interested calculations of political players but scientifically misguided normatively to evaluate it. For them, talk of legitimacy may be one of the weapons that political opponents use; however, it lacks any explanatory power. The scepticism that underlies this approach to constitutional law may either be global or local. It is global when it rejects the existence of any standard of moral correctness. It is local when, less plausibly, it only rejects the existence of standards of moral correctness that properly govern politics. I choose to assume away the challenge posed by the sceptical objection. I take as a given that it makes sense to ask whether the exercise of political power is morally appropriate and that in principle we can obtain fairly determinate answers to this question. That is not because I  think the challenge is evidently misplaced. For one thing, moral scepticism of various stripes has a venerable and long-​standing presence in metaethics, and it would be impossible to make an adequate case against it within the confines of this book. Still, I think it is not unreasonable to leave it outside my purview. To see why, consider how much more extreme it is compared to the other objections discussed above. Some of them, recall, accept that moral considerations may figure among the determinants of salus populi. Even more fundamentally, they insist that it is sensible to evaluate the appropriateness of different regimes or exercises of political power. As the preceding discussion evinces, there may be significant disagreement about how the notion of appropriateness is best cashed out. The range of

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positions encompassed within these parameters is already sufficiently wide to allow for a meaningful and constructive investigation.

VI.  Constitutional Theory and Utopia So far I have sought to defend MCT from those who accuse it of being overly utopian. Political morality, I have argued, does not recommend the uncompromising pursuit of justice but pays attention—​and assigns moral weight—​to the more ‘political’ factors that partly define the problem of creating and sustaining a well-​ordered state. According to a different group of critics, though, MCT suffers from the opposite flaw: It comes alarmingly close to an apology of the status quo. Surely, they argue, we want political philosophy to provide us tools to critique the status quo. Moral principles should point us in the direction of change. We can acknowledge that political philosophy is limited by what is ‘practicably possible under the conditions of our social world’.86 Nevertheless, as Rawls insists, ‘the limits of the possible are not given by the actual, for we can to a greater or lesser extent change political and social institutions, and much else’.87 Therefore, unless we insist à la Leibniz that ours is the best possible world, we should be prepared to identify aspects of our constitutional practice, sometimes whole swaths of it, which must be discarded. Constitutional theory should not stand in the way of this revisionary process. By contrast, the argument continues, MCT seems to trap us in the imperfections of the here and now. It gives us a moral reason in favour of the status quo, as this has been shaped by political history, but that reason might be a relatively weak one, especially when compared to the moral reasons counting in favour of change. This complaint finds a characteristic expression in the opposition to representative government. Proponents of direct democracy deplore the global prevalence of representative government as a fall from grace. For instance, in his book The Scepter of Reason Roberto Gargarella thoroughly documents a period in Anglo-​American history when it was still an open question, at least intellectually, whether to adopt a more populist alternative to the heavily mediated form of government that was ultimately established in the seventeenth and eighteenth centuries.88 Gargarella wants to bring this populist alternative back from the shadows and use it as leverage for questioning our existing—​and in his view morally sub-​optimal—​political arrangements. On the contrary, by focusing on whatever moral appeal representative government may have, just because it is the form of government handed down to us, MCT seems to stunt moral criticism and our willingness to imagine and work towards a more perfect politics.89 There is no doubt that a theory that whitewashes a tyrannical status quo is a bad theory. But we are interested in good theory. And a good moralized theory of the constitution does not rest content to provide any old reason in support of the status quo. It strives to provide a reason capable of performing a very specific function, namely genuinely legitimating the use of political power. To be sure, this is a different function from the one that, say, direct democrats prefer to assign moral philosophy. But that does 87  Rawls, Justice as Fairness (n 27) 4.  ibid 5.   Roberto Gargarella, The Scepter of Reason: Public Discussion and Political Radicalism in the Origins of Constitutionalism (Springer 2012). 89   Recall that a similar objection was levelled against natural law theory by HLA Hart in HLA Hart, ‘Positivism and the Separation of Law and Morals’ [1958] Harv L Rev 593. That objection fails for much the same reasons as the ones rehearsed in the text. 86 88

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not make it any less warranted. In fact, it is a function that responds to a pressing and distinct moral need: Never mind what the world will be like if and when representative government is abolished. As things stand, many people around the world are being coerced by regimes that conform to its requirements. They are owed a justification for this immense interference with their lives. They want to know under what conditions this interference is anything different from brute force. Saying that we can imagine a better world is no answer to this pressing question. MCT is meant to help answer it. As I said above, in the legal systems on which this book focuses this justification is likely to be particularly exacting. Conversely, we should expect many actual regimes to fail it. We will then need utopian moral theory to help us identify the requisite reforms. This does not mean that utopian moral theory is irrelevant to regimes that pass the hurdle of legitimacy. We should distinguish two questions we may want to ask of political regimes:  First, are they legitimate and, second, can they be improved? Understandably, given the urgency of the worry triggered by state coercion we tend to focus on the former question. Still, there is something deeply unsatisfactory about living in a barely legitimate state. This kind of legitimacy, ‘provides’, in Fallon’s words, ‘no warrant for moral smugness’.90 At least citizens of a barely legitimate state should strive to strengthen its claim to their allegiance. Presumably, this possibility revives the criticism I have been discussing in this section. MCT, the critic might say, is reactionary because it trains our attention on the first benchmark, that of legitimacy, and thus ignores the importance of ascending the ladder of legitimacy’s gradations. Admittedly, we must be alert to the risk of committing this kind of error. I doubt, though, that there is anything we can do at the methodological level to avert it. Our theories will be judged by the strength of the moral case they make for the legitimacy of the constitutional arrangements in question. So, for instance, the view that I shall defend in this book is that representative democracies are not so defective as to be barely legitimate, and that they can sometimes be further corroborated if supplemented by systems of judicial scrutiny of primary legislation. Should proponents of direct democracy want to take issue with this view, all they need to do is provide substantive arguments against it. So, MCT cannot be accused of being reactionary. It supplies a moral reason for our deference to political history. In this sense, the goal of the constitutional lawyer is different from that of the reformer. But equally it may be said to bridge constitutional law and constitutional reform. By looking at a constitutional phenomenon in light of its moral purpose, we can assess how well it fares and start thinking about how we can improve it so that it does a better job. To be sure, constitutional reform may be driven by a host of considerations other than the moralized one that I have just imputed to it. But regardless of its other aims, it must do so in a way that stays on the right side of the legitimacy line. No matter how efficient or effective a political order is, how it stimulates growth or accumulates prestige and clout, if it is not legitimate, none of these further benefits can make up for this defect.

90

  Fallon, ‘Legitimacy and the Constitution’ (n 17) 1813.

2 A Moral Map of Constitutional Polyphony I. Introduction Astronomers had postulated the existence of the planet Neptune long before they acquired the equipment to observe it, solely on the basis of data about the movements and positions of nearby planets. They had concluded that those data could only be explained by the existence of another planet of Neptune’s size and in Neptune’s position.1 Theorists who study the legitimacy of constitutional review of primary legislation find themselves in a slightly worse predicament. True, they agree on some important desiderata a successful account of constitutional review must meet and some salient intuitions and institutional facts it must explain. For instance, they are in broad agreement that constitutional review is in need of moral justification; especially when it pits courts against a democratic legislature it is placed under a significant moral burden. They also tend to agree that, even if it is permissible, it does not license courts to become a second legislature; constitutional review operates under substantial limits. Still, they vehemently disagree about how it should be limited and, indeed, whether it is justified. Moreover, unlike the astronomers of our story, constitutional theorists are still searching for a unifying principle that will provide a satisfactory normative basis for their various intuitions and the phenomenology of legal practice. They have not found their Neptune. And as we cannot count on the invention of moral telescopes, their search is not likely to be settled any time soon. In this chapter I  want to propose a general direction for their exploration. The Neptune for constitutional review enthusiasts and critics, I shall say, is the political principle of separation of powers. Like the planet, it is the source of the various normative forces that shape practices of constitutional review. Hence, it is this principle, properly understood and fleshed out, that will tell us whether constitutional review is legitimate and what its proper scope should be. In the following chapters I shall elaborate a conception of separation of powers that will yield answers to these questions. Here my aim is to present and defend the more abstract tenets of that conception. I shall suggest that separation of powers is the characteristic virtue of polyphonic legal systems, namely those that possess a plurality of state organs participating in a joint project of governing. I shall analyse separation of powers into two components, division of labour and checks and balances. When a polyphonic legal system combines these two components in the right way, I shall argue, it makes a pro tanto better claim to legitimacy, the touchstone of moralized constitutional theory (MCT). It does so in the same way as all constitutional law, namely by incorporating institutional safeguards for ensuring that it will reliably track justice.2

1   The story of Neptune’s discovery is found in Ronald Dworkin, Law’s Empire (Hart Publishing 1998) 183. Dworkin’s Neptune is integrity, a value he thinks justifies why it is appropriate to use the coercive force of the state as licensed by past political decisions. For my critique of integrity see Dimitrios Kyritsis, Shared Authority (Hart Publishing 2015) 97–​104. 2   See Chapter 1.

Where Our Protection Lies. First Edition. Dimitrios Kyritsis. © Dimitrios Kyritsis 2017. Published 2017 by Oxford University Press.

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Though a mainstay of the democratic societies with which we are most familiar, separation of powers is a fiercely contested idea, not only among those who embrace different conceptions of it but also by those who are sceptical about its point altogether. In this chapter I shall address two formidable criticisms of the latter type. The first maintains that it is unduly conservative and undemocratic to single-​mindedly look for checks and balances. The second criticism questions whether constitutional design should be primarily guided by instrumental considerations, as the separation of powers seems to recommend. These criticisms demonstrate that, even at a very abstract level, conceptions of separation of powers involve substantive commitments. Still, as I shall argue, this is not the right level at which to adjudicate these commitments. A point of caution is in order here. While I will be heavily relying on the tradition of thinking about separation of powers in this chapter, I do not pretend to be merely identifying the salient points of that tradition. However, I do not think this poses a serious problem to my account. In the words of Jeremy Waldron, ‘[i]‌t is common to excoriate judges and colleagues . . . for using the language of separation of powers loosely and inaccurately . . . But it is futile for the analytic philosopher to go on pedantically in those tones. People use a phrase as they use it.’3 Accordingly, the conception I put forward must be judged more on its moral merits, that is, by the extent to which it is in line with the goals of MCT, rather than by its hermeneutical value.

II.  Polyphonic Legal Systems Before I turn to separation of powers, I want to say a few things about the legal systems to which I shall apply it, since their characteristics will influence the shape of the entire inquiry. Separation of powers only makes sense in legal systems that are not, as it were, monologic but polyphonic.4 Like dramas with many protagonists, each with one’s own distinctive character and role in the plot, polyphonic legal systems have their own multiple protagonists. By this I am not referring to the politicians and legal officials who are in charge of running the legal system from time to time, although the impact individuals sometimes make is undeniable. Rather, I have in mind the variety of institutional roles these politicians and legal officials perform or, put differently, the variety of institutional positions they occupy.5 For example, I  shall not discuss Chief Justice Marshall’s contribution to US law, but try to understand what makes it the case that his contribution was judicial and not legislative. We shall talk more about the notion of an institutional role further down, but for the time being it suffices to note that, broadly speaking, we tend to distinguish one from the other on the basis of the tasks we associate with each, the composition of the bodies that carry them out, and the procedures these bodies follow when they act. With this clarification of institutional roles in mind we can get a better grasp of how polyphonic legal systems are similar to dramas populated by distinct characters. Political power in polyphonic systems is shared by at least two bodies that perform different institutional roles. It is their respective institutional roles that set them apart. 3   Jeremy Waldron, ‘Separation of Powers in Theory and Practice’ [2013] BCL Rev 433, 439 [hereafter Waldron, ‘Theory and Practice’]. 4   I  have borrowed the term, which originates in musicology, from M Bakhtin’s interpretation of Dostoevsky’s novels. Bakhtin praises Dostoevsky for giving independent voice and bringing together in the plot of his novels distinct and often eccentric personalities that interact in various ways. See M Bakhtin, Problems of Dostoevsky’s Poetics (Ceryl Emerson ed and tr, Manchester University Press 1984). 5   Henceforth I shall use the terms ‘institutional role’ and ‘institutional position’ interchangeably.

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Now, these bodies do not operate in isolation. Nor are they indifferent to the goings-​ on elsewhere in the legal system. Quite the contrary, as the characters of a polyphonic drama observe and converse and clash with one another, they, too, are woven together in intricate relationships. In previous work I argued that their relationships are best understood in terms of a joint activity, which I called the joint project of governing. This project exhibits the characteristics of mutual responsiveness and commitment to a common goal.6 By this I mean, first, that the acts and decisions of legal officials occupying one institutional position have an impact on what other legal officials do, and, second, that the various institutional roles are largely—​if not entirely—​moulded to serve the common goal. Moreover, their mutual responsiveness is meant to ensure that this goal is going to be jointly served. In the case of novels the principle that guides the plot is an aesthetic one.The author develops a conversation so as to produce a certain dramatic and emotional effect. Likewise, polyphonic legal systems aim to realize a value. As claimed in Chapter 1, they should be understood to aspire to legitimacy. According to MCT, constitutional law makes an important contribution to the legitimacy of a political regime, insofar as it structures and limits public power so as to provide assurances that it will be exercised properly. This overarching understanding of constitutional law informs the present inquiry. In constructing different institutional roles and organizing their interaction, we will be guided by the concept of legitimacy. We will be asking how the joint project of courts and legislatures must be organized so as to enhance the legitimacy of a political regime. The same applies for particular features or aspects of that joint project such as constitutional review of primary legislation, which is the topic of this book. From the preceding outline we can glean a number of desiderata for successful general theories of constitutional review. For ease of reference I shall collect them together into the following: 1) Distinctness: Successful theories ought to keep the institutional role they ascribe to courts distinct from the one they ascribe to legislatures. 2) Interaction: Successful theories ought to offer a satisfactory account of the interaction between courts and legislatures. 3) Merit: The allocation of power between courts and legislatures envisaged by a theory ought to be attractive as a matter of political morality; more specifically, it ought to be legitimate. In a nutshell, our task from now on will be to articulate an understanding of the distinct roles and interaction of the two bodies such that their joint project can make a better claim to legitimacy. As a first step, we shall connect these desiderata and separation of powers. We shall try to show that separation of powers picks out a moral concept that satisfies all three. Conversely, the desiderata provide a lens through which to interpret separation of powers in a way that cuts through the confusion and controversy that has surrounded the concept. Separation of powers, I shall claim, is

6   See Kyritsis, Shared Authority (n 1) ch 3. In that book I relied on Michael Bratman’s theory of joint action. (See among others Michael Bratman, ‘Shared Cooperative Activity’ [1992] Philosophical Review 327.) I referred to the two features discussed in the text as the plurality and interdependence of institutional roles. I also used the awkward term ‘C-​L legal systems’ instead of the more evocative ‘polyphonic legal systems’. This terminological choice was partly the result of the different focus of the earlier book.

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the ideal that institutional cooperation between courts and the legislature realizes when it goes well.7 At the same time the three desiderata limit our interest in separation of powers. We shall examine it, insofar as it relates to institutional morality, that is, insofar as it has something to say about how we should organize the relationship between state organs. Of course, separation of powers has a broader meaning as well. It can be taken to refer to how a society as a whole should be organized, with its various social groups and economic interests.8 Political scientists will insist that the latter dimension of separation of powers is much more consequential, and that separation at the institutional level is of little value if all state organs are controlled by the same segment of society. It falls outside the purview of this project to assess the relative importance of institutional separation of powers. However, as we shall see below, there are points where the broader meaning of separation of powers enters into the institutional analysis. As already mentioned, at this stage in the argument I shall not make reference to constitutional review except, sometimes, as an illustration of more general claims. The debate about constitutional review requires engaging with a whole host of moral and institutional considerations other than the very abstract ones that I shall invoke to flesh out the concept of separation of powers. But the abstract ideal regiments our thinking about constitutional review. Constitutional review, too, is an instance of constitutional polyphony.

III.  The Defects of the Traditional Conception The tradition of political thought has offered an enduring and seemingly straightforward response to the question how government in polyphonic legal systems should be organized. This response starts from a tripartite distinction of governmental functions—​ legislative, executive, and judicial—​ and a tripartite distinction of branches of government. And it claims that there should be a one-​to-​one correlation between governmental functions on the one hand and branches of government on the other: Each branch of government ought to perform only one of the functions. In fact, it is the function each branch of government performs that gives it its name, so that we can talk of the legislative, the executive, and the judicial branch. Let’s call this the traditional conception of separation of powers. For the traditional conception, courts and legislatures correspond to different institutional roles by virtue of the fact that only courts ought to discharge the judicial function and only legislatures ought to perform the legislative function. MJC Vile has summarized the traditional conception—​which he calls pure—​as follows:

7  In Shared Authority I argued that separation of powers is a philosophically crucial component of legality, the value that recommends that state power be used in accordance with political history, because what underlies this recommendation is (also) the value of institutional cooperation. It is partly by virtue of this value that different state actors should heed political history, that is, the acts and decisions of other state actors. 8   See for instance, Robert Dahl, Democracy and its Critics (Yale University Press 1989) chs 15, 17, and 18. I take it that this broader understanding of separation of powers encompasses the older notion of the balanced constitution. See MJC Vile, Constitutionalism and Separation of Powers (OUP 1967) 58ff [hereafter Vile, Separation of Powers]. Marco Goldoni has traced the same understanding in Montesquieu in Marco Goldoni, ‘Montesquieu and the French Separation of Powers’ [2013] Jurisprudence 20.

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It is essential for the establishment and maintenance of political liberty that the government be divided into three branches or departments, the legislature, the executive and the judiciary. To each of these three branches there is a corresponding identifiable function of government, legislative, executive, or judicial. Each branch of the government must be confined to the exercise of its own function and not allowed to encroach upon the functions of the other branches.9

I said earlier that accounts of polyphonic legal systems must satisfy three desiderata—​ distinctness, interaction, and merit. How does the traditional conception fare against them? First, by matching organs and functions it satisfies the desideratum of distinctness. Second, it incorporates an element of interaction insofar as it makes one organ depend on the other. Presumably the legislative will cannot be implemented, unless there exist courts to apply the law. In turn, courts cannot discharge their function without standards laid down by the legislature. Third, this allocation of power is morally compelling because it is supposed to avert many grave moral risks, which the classic theorists of separation of powers frequently allude to. Hence, Montesquieu writes: When the legislative and executive powers are united in the same person or in the same body of magistrates, there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them, in a tyrannical manner . . . There is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.10

Yet, we must hesitate before adopting the simple answer the traditional conception offers us. For even if we assume the correctness of the tripartite distinction of governmental functions, the requirement that there be a one-​to-​one correlation between these functions and the respective branches of government imposes a very tall order; most legal systems with which we are acquainted will probably fall short of it. The most striking departure from the one-​to-​one correlation concerns the branch of government we commonly have in mind when we talk of the executive. In many countries the executive has assumed, without tremendous backlash, a very active—​if not predominant—​role in legislation (drafting of legislation, rule-​making by delegation, and so forth).11 Equally, modern administration includes the discharging of duties that bear unmistakable similarities to dispute-​resolution that has traditionally been regarded as the core of the judicial function.12 But it is not only the executive that causes problems for the traditional conception. The case of the Senate participating in the appointment of Supreme Court Justices, or of Congress having a say in the appointment of the members of various administrative bodies13 or reserving the power to veto administrative decisions14 are instances of  Vile, Separation of Powers (n 8) 13.   Madison repeats this idea in The Federalist no 47 (J Madison) in The Federalist, or The New Constitution (Max Beloff ed, Basil Blackwell 1948) 247–​48 [hereafter The Federalist]. 11  See for example Louis Jaffe, Judicial Control of Administrative Action (Little Brown 1965) 33:  ‘Delegation of “law-​making” power is the dynamo of modern government.’ See also Vile, Separation of Powers (n 8) ch 10. 12  With regard to this trend in the US see Laurence Tribe, Constitutional Choices (Harvard University Press 1985) 84–​98. 13   Buckley v Valeo 424 US 1 (1976). Of course, in that case the Supreme Court held that the appointment by Congress of several voting members of the Federal Elections Commission is incongruent with separation of powers. However, as Laurence Tribe notes, ‘Buckley has had no acknowledged judicial offspring’ (ibid 66), which makes him inclined to regard it as ‘one more episodic judicial outburst against the pragmatic accommodations of our time’ (ibid 67). 14   INS v Chadha 103 S Ct (1983) 2764. On this issue see among others E Donald Elliott, ‘INS v Chadha: The Administrative Constitution, the Constitution, and the Legislative Veto’ [1983] S Ct L 9

10

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paradigmatic legislative bodies wielding powers that we are reluctant to characterize as legislative. What is more relevant for present purposes, is that constitutional review itself challenges the standard notion of the judicial function. Many opponents of constitutional review—​and many advocates as well—​feel that the power of judges to overrule popular will is nothing short of judicial legislation. Even those, though, who think that constitutional review is legitimate must acknowledge that it would dodge all the interesting questions to say that the constitution is no different from any other part of the law and therefore that, when judges interpret it, they are merely applying the law, as they ought to under the traditional conception.15 They cannot but admit that constitutional adjudication is something special and therefore stands in need of a special justification. To sum up, if we go along with the view of the constitutional review critics, constitutional adjudication violates the one-​to-​one correlation since it involves an exercise of legislative powers. And even if we do not, the traditional conception does not help us understand what motivates the legitimacy puzzle and how we are to resolve it. With its monolithic insistence on the tripartite distinction the traditional conception seems to force us to ask the wrong questions.16 More generally, the claim of the previous paragraphs is that actual state bodies are more likely to perform a number of tasks rather than exclusively the function the one-​ to-​one correlation thesis would have them perform. This undercuts the explanatory power of the traditional conception. If none of the institutions that we commonly refer to as legislatures and courts functions in the way the simple answer suggests—​and if, we should add, we do not think that there is in principle any moral problem with such an allocation of power—​then the simple answer starts to look irrelevant. It would discard as mistakes many aspects of legal practice that we are reluctant to throw away. But perhaps the argument proceeded too quickly. Someone may object that it tacitly relied on a criterion for individuating legislatures, courts, and executives that is arguably alien to the traditional conception. In other words, it assumed we know that a body is a legislature or a court independently of the functions it performs. Arguably, all the traditional conception need maintain is that the body that happens to perform legislative functions is a legislature or the body that happens to perform judicial functions is a court and so forth. This criterion is compatible with the same body, the same group of people, performing different functions at different times. When this body legislates, it is a legislature, and when it adjudicates, it becomes a court. This criterion is also compatible with different bodies performing the same function at the same time. In this case we have more than one legislature or court. However, this in itself does not render the traditional conception explanatorily deficient. In many states we have a plurality of legislatures and, in even more states, a plurality of courts. Analogously, every theory of separation of powers must explain in what sense a government body can be the same even if its members change. And this is precisely what the traditional conception does. According to the suggestion we are now considering, it explains these phenomena by correlating functions to bodies, whichever they may be. Hence, in this picture the one-​to-​one correlation is preserved.

Rev 125; Peter Strauss, ‘The Place of Agencies in Government: Separation of Powers and the Fourth Branch’ [1984] Columbia L Rev 573; Tribe, Constitutional Choices (n 12) 66ff. 15   This of course was Chief Justice Marshall’s rationale in favour of judicial review in Marbury v Madison. 16   See among others David Robertson, The Judge as Political Theorist: Contemporary Constitutional Review (Princeton University Press 2010) 13–​20.

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Nonetheless, it is preserved at the cost of having its moral appeal severely undermined. The risks the classic writers thought separation of powers averts were perceived as having their source to some degree in the fact that the same person or group of persons exercised different powers. In other words, the classic theories were based at least to a considerable extent on the assumption that the separation of powers entails a certain separation of persons as well, namely a requirement that at any given time the same physical person or group ought not to perform more than one governmental functions. This, we have seen, cannot properly be understood as an absolute prohibition. But even in a less absolute form it must have bite, it must condemn some accumulations of power in the same person or group of persons. In its revised version, the traditional conception does not have the resources to condemn any such accumulation. According to it the same person can be a legislator at one moment and a judge at the next and then also execute the law she has drafted in her capacity as legislator. In this picture, distinctness is completely lost. There is a further reason why a random allocation of governmental power cannot have moral appeal. Different tasks call for different decision-​making processes, so it is important to assign them to those state organs which by virtue of their composition and decision-​making process are suited to perform them well. The revised simple answer is oblivious to this constraint. It allows that any state organ can be a legislature or a court just by virtue of the fact it happens to carry out a legislative or judicial function, irrespective of the decision-​making process it follows. We expect a separation of powers to be stricter in how it allocates government power. Neither can the simple answer be rescued, if we choose to abandon the one-​to-​one correlation. In this case, all that is left of the traditional conception is a description of governmental functions which may attach freely and in all sorts of combinations to different state organs. Even if we set aside the serious problems that beset any attempt to draw the lines between the legislative, the executive, and the judicial functions in a meaningful manner, it is still the case that stripped of the one-​to-​one correlation the simple answer does not furnish any criterion at all by way of which we can distinguish one institutional role from the other. The differentiating feature of courts and legislatures cannot lie in the functions they perform, for they can perform all of them. If so, this manoeuvre flouts the desideratum of distinctness. It also flouts the desideratum of merit. How could a mere description of functions avert tyranny, as Montesquieu hoped, especially given that functions can be concentrated in one person? Alternatively, it may be maintained that what distinguishes one body from the other is the combination of functions they ought to perform or the degree to which they may perform each. This suggestion is much more plausible. However, it is of no avail to proponents of the simple answer, for what would do the work in this case—​what would distinguish courts from legislatures, account for their interdependence, and do so in a morally appealing way—​would in fact be the right combination or the right proportion of functions each branch of government can legitimately perform. And to avoid circularity, conceptions of the right combination or proportion would have to draw on values and concepts that are independent of the concepts of legislative, executive, and judicial function. The traditional conception cannot supply them.

IV.  Beyond the Traditional Conception By rejecting the traditional conception I sought to remove a persistent source of distraction from our thinking about separation of powers. In addition, by diagnosing

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its failure my aim was to draw lessons for the road ahead. So where did the traditional conception go wrong? I  venture that its fundamental shortcoming consists in the absence of a moral story in favour of the tripartite distinction. Such a moral story would establish the missing connection between separation of powers and the avoidance of tyranny, for example. It would also regulate the real-​life compromises in the one-​to-​one correlation between state organs and functions. Recall, such compromises were employed in the previous section to embarrass the traditional conception.17 Fundamentally, this moral story must be one about legitimacy. It must explain in what ways separation of powers makes a distinctive contribution to the legitimacy of polyphonic legal systems. If the one-​to-​one correlation does not have the right kind of legitimacy-​enhancing effect, then it must be discarded, regardless of whether it has been traditionally associated with separation of powers. In order to make some progress in this direction I propose two broad ideas as components of this moral story: 1) division of labour; 2) checks and balances. In the following sections I shall take these ideas in turn. Each collects a number of discrete considerations that are crucial for legitimacy for both intrinsic and instrumental reasons and is also intimately associated with the idea of separation of powers. Moreover, division of labour and checks and balances can account for the distinctness of institutional roles and their interaction in the joint project of governing in a morally appealing way.

A. Division of labour As every polyphonic legal system has a plurality of state organs, one of the pressing challenges it faces is how to divide government power among them. Separation of powers helps meet this challenge by recommending a certain scheme of institutional division of labour. It falls upon different elaborations of the idea to supply more specific criteria for assigning governmental tasks. It is possible that no state institution has any particular claim in the abstract to perform a task better than another. Even so we may want to assign it to one rather than another, say because it has the time and resources to deal with it. Importantly, it may be that other state institutions already have too much power, and we have reason to be wary of such concentration tout court.18 Power allocation may also be governed by more individualized criteria. I shall not go into them in any detail, as this will be the topic of subsequent chapters. Suffice it to sketch some of the more salient possibilities. To begin with, division of labour may direct that tasks be assigned to those participants that are better placed to perform them. Sometimes this will be done on the basis of a judgment about which institution is more likely to get it right over a certain range of issues. So for instance, on Joseph Raz’s influential account of political authority someone is an authority over me in the 17   Jeremy Waldron attempts to shore up the moral appeal of the traditional conception in his ‘Theory and Practice’ (n 3). I criticize his attempt in Chapter 4. 18   Waldron thinks that this wariness is fuelled by a separate principle, adjacent to separation of powers, which he labels the Division of Power principle. Waldron, ‘Thought and Practice’ (n 3) 438. Below I shall explain why I find this multiplication unnecessary and misleading. Eric Barendt puts the concern with accumulation of power at the heart of his conception of separation of powers. See Eric Barendt, ‘Separation of Powers and Constitutional Government’ [1995] PL 599, 606. Here it is presented as just one element of a constellation of constitutional concerns.

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normal case if by following her directives I am more likely to conform with reasons that apply to me than I would if I were left to my own devices (normal justification thesis).19 This can be due to the epistemic authority possessed by that person or her ability to secure coordination when coordinated action is part of what ought to be done. For Raz, then, the distribution of practical authority is determined primarily on instrumental grounds. Generalizing from this suggestion, we could say that division of labour is (at least sometimes) underpinned by a concern for efficiency. Thus, in his classic treatise MJC Vile has argued that separation of powers performs a coordination function, ‘the function of ensuring that the government works in an effective, coherent way towards the achievement of the goals set it by society’.20 More categorically, Barber argues that powers should be allocated to those institutions who are best able to make use of them. Separation of powers instructs drafters to attribute the correct function to the correct institution in order to serve better the purposes for which collective action is undertaken. Regardless of the specific political theory that underpins collective action, it is efficiency . . . which is at the heart of separation of powers.21

So Barber, too, seems to advance an instrumental approach to separation of powers. The quoted passage suggests that for him politics has certain purposes identified by political theory, and constitutional design is meant to select efficient means for attaining them. There is no denying that the ability of an authority to track right reason or, more generally, its efficiency is very important on any account of political legitimacy. But it is not the only criterion, and it may not even be the most important. At least equally important on many occasions is that a state institution exhibits virtues that are independent of any beneficial consequences that accrue from its carrying out a particular task. According to some strands of democratic theory participatory political processes are intrinsically valuable in this sense. As we shall see, some democratic theorists go as far as to claim that respect of this kind of intrinsic value competes with and overrides the pursuit of other instrumental values. Notice the difference with Barber’s efficiency-​ based approach. On the view under consideration, fair political processes are not a means to securing a valuable goal. Besides, it would be a mistake to say that an institution that instantiates the value of fairness is efficient in promoting fairness, unless of course we define efficiency to mean simply compliance with right reason, including the reason that we have to decide fairly. Efficiency and fairness are both important elements of political legitimacy. At least in principle, it is reasonable to claim that a hapless political regime that fails to deliver on the purposes assigned to it is unlikely to maintain the support of its citizens for very long. Moreover, a regime that does not accord them the respect encapsulated in fair procedures has a pro tanto weaker moral warrant to coerce them. But it is not enough that a regime declares its commitment to fairness and efficiency. In order for such declarations to be credible, legitimacy requires that the relevant values be embedded in institutional design, such that the joint project of governing is geared towards 19   Joseph Raz, The Morality of Freedom (Clarendon Press 1986) 70ff. Interestingly, Raz claims that law as a whole claims to possess practical authority over legal subjects. I have argued elsewhere that in the legal systems with which we are familiar this claim would need to be further analysed into the partial claims to authority of different legal institutions such as the courts and the legislature. See Kyritsis, Shared Authority (n 1) ch 2. It is at this level of analysis that the normal justification thesis should be able to contribute to the theory of separation of powers. 20  Vile, Separation of Powers (n 8) 334. 21   Nick Barber, ‘Prelude to the Separation of Powers’ [2001] CLJ 58, 65 [hereafter Barber, ‘Prelude’].

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attaining them. Thus, it would make a mockery of fairness if fair political procedures only decided trivial political matters or if their decisions were mere suggestions or pleas addressed to a body that did not comply with fairness. In the next section we shall take a closer look at how this embeddedness is achieved.

B. Purposive interrelation and its limits Whether you opt for a division of labour along instrumental lines or in terms of the intrinsic value of various decision-​making processes, it is a separate question what makes this or that body better suited to track right reason or instantiate an intrinsic value. Conceivably, the answer to this question could be highly contingent. One of us just happens to be particularly wise so that the normal justification thesis recommends that we follow her edicts rather than someone else’s. Once she steps down or retires, we will have to start all over again to identify who among us now satisfies the criteria of the normal justification thesis. Still, constitutionalism marks a preference for more enduring institutional arrangements, whereby authorities are constituted by more or less stable standards defining the ways in which individual officials can act in their name. As a result, there is room for legal officials in positions of authority to make mistakes as to what constitutes a legitimate exercise of their official power. Their status as mistakes normally remains unaltered by the fact that it would improve overall compliance with right reason if they were allowed to stand. In short, institutional roles have a normative character. The standards that constitute state institutions vary in kind. Thus, one important distinction often invoked in the literature is between substantive and procedural standards. Roughly speaking, substantive standards are limits to the ways in which and the purposes for which an institution may affect the lives of legal subjects, whereas procedural standards determine the composition of an institution and the process by which it reaches its decisions. Although the distinction is by no means sharp, it nevertheless serves to highlight two distinct strategies to keep those wielding political power at bay.22 Violation of these standards typically (though not necessarily) strips individual acts of their purported institutional significance or makes lawful some counter-​action or attracts a lawful sanction. The standards that define institutional roles tend to hang together in an understanding of the nature of an institution. In the words of TM Scanlon, this understanding ‘will include a conception of the social goals the institution is taken to serve and of the way in which the authority exercised by participants in the institution is rationally related to those goals’.23 In fact, the substantive and procedural standards constituting an institutional role will typically make sense in light of each other under the relevant understanding of the role. Procedures are fine-​tuned and substantive powers allocated on the basis of what the relevant state organ is there for. Nick Barber speaks of ‘the meeting of form and function’.24 I will refer to this linkage between procedural and substantive standards as their purposive interrelation. Take the example of a procedural rule dictating that a planning authority consult those affected prior to reaching its planning decision. The rationale of this rule lies in the purposes this body serves. It is the procedural rule compliance with which makes it possible for the planning 22   For an excellent discussion of the importance of substantive and procedural constraints on the exercise of power, whether public or private, see TM Scanlon, The Difficulty of Tolerance (Harvard University Press 2003) 42. 23 24  ibid 50.   Barber, ‘Prelude’ (n 21) 59.

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authority successfully to exercise the substantive powers it has been assigned or morally appropriate for it to do so. If it weren’t so structured, the case for the assignment to it of the relevant substantive task would be weakened. For example, it may enable the planning authority to collect information that will facilitate its decision. Or it may evince an attitude of respect. Applying the lessons of the previous section we can say that purposive interrelation recommends a division of labour in two senses. First, it may be that a body, given its constitution, will more efficiently perform a certain task. Second, it may be that it exemplifies an intrinsic value that gives that body the right to perform the task. For instance, those who propound epistemic accounts of democracy maintain that democratic processes are instrumentally valuable in identifying the right course of action.25 If such accounts are sound, the principle of purposive interrelation directs that political issues be allocated to institutions that decide democratically on instrumental grounds. Conversely, if democratic processes are taken to instantiate fairness and dignity, purposive interrelation makes the same recommendation on intrinsic grounds.26 Of course, I  do not claim that only one decision-​making process corresponds to each governmental task. Though we can think of procedural configurations that suit a particular task better than others, there will normally be more than one body which it is morally permissible to perform it. At a minimum, the principle of purposive interrelation will determine the range of morally permissible combinations between decision-​making process and substantive task from amongst which we can make our institutional choices. We should not exaggerate what purposive interrelation can deliver in another sense as well. It is unlikely that the extant scheme of division of labour in a legal order will always give determinate answers to questions of power allocation. It will sometimes fail to demarcate the remit of different institutions in a clear-​cut manner. Consequently, at any given time there may be governmental functions as yet undistributed or claimed by two institutions where it is neither true nor false as a matter of political morality that they belong to either. Division of labour tolerates indeterminacies at the margins. This is because, as we have already argued, the content of constitutional principles is ultimately determined by the goal of securing political legitimacy, and in politics we can live with a degree of indeterminacy.27 In light of these observations one might be tempted to think that, at least whenever there is a pressing political need that a task be definitively allocated, separation of powers should supply a determinate answer. That would be too quick. We might theorize about which division of labour would be appropriate in a given political community. Still, this would not suffice to make it binding for that community. In addition, it would have to flow from its institutional history in the right way, say, by being validated by a suitable process such as a constitutional assembly. This will not always happen. Sometimes politics falls short of ideal theory. Political communities simply fail to settle on an acceptable power-​sharing arrangement. As a result, inter-​institutional disputes may arise that risk undermining the legitimacy of a legal order root and branch. Think of the dispute between the King and Parliament that led to the English Civil 25  David Estlund, Democratic Authority:  A  Philosophical Framework (Princeton University Press 2009). 26   Thomas Christiano, The Constitution of Equality: Democratic Authority and its Limits (OUP 2008). 27   In the last chapter I shall argue that separation of powers also helps us deal with such indeterminacy by assigning this or that state institution the second-​order authority to make power-​allocating decisions.

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War. Similar examples remind us that legitimacy is forged in the real world, and in the real world success is not assured. Constitutional theory cannot window-​dress failures of legitimacy. What it can do—​and what indeed is the aim of this chapter—​is to present some of the dimensions along which success may be assessed.

C. A note on instrumental and intrinsic reasons It is now time to address a nagging doubt. In preceding sections, I suggested that separation of powers can rely eclectically on instrumental and intrinsic reasons in allocating government power. For instance, it may recommend a certain division of labour because it is fair or because it leads to the optimal results. Is such justificatory eclecticism tenable? Some constitutional theorists such as Alon Harel would answer this question in the negative. What underwrites their position is a deep-​seated scepticism about instrumentalist justifications.28 Several reasons are given for this. Thus, Harel suggests that instrumentalist justifications are plagued by radical indeterminacy. They depend on our ability to make reliable predictions about the likely outcomes of different institutional configurations. There is no denying that in order to make these predictions, we will need to factor in a host of parameters. But the mere fact that they are difficult to make does not mean that they are impossible. Indeed, Harel himself admits that they can be made with regard to particular legal systems. He nevertheless insists that instrumentalist justifications thereby render institutional design sensitive to ‘the particular contingencies of the relevant society’.29 They cannot offer recommendations that transcend ‘certain historical or social circumstances’, whereas presumably intrinsic justifications can be held constant across jurisdictions.30 Why, though, is this a disadvantage? Why would Harel ever think that the optimal constitutional arrangement ought to be determined by a priori philosophical reflection? This would go against the current of most constitutional theory. After all, designing constitutional arrangements that suit a certain society at a certain point in time is its bread and butter. In this exercise we should be prepared for the possibility that it would be impermissible or inadvisable to establish a system of constitutional review, given the social and historical predicament a society faces. But of course this should be no cause for concern. We are not here to defend constitutional review, come what may. So far I  have argued against the view that instrumentalist justifications are to be avoided across the board. Perhaps, though, the problem is that one of the intrinsic values we attribute to the joint institutional effort lies in tension with an instrumental 28   It is important to distinguish this position from the position of theorists like Waldron. Waldron, too, maintains that separation of powers primarily instantiates an intrinsic value. He takes it to reflect an ideal of articulated government. Public power, for him, is exercised well when it is staggered, with every institution making its distinctive contribution in turn. Waldron, ‘Theory and Practice’ (n 3). However, Waldron does not reject justificatory eclecticism. He allows that separation of powers, as he understands it, may co-​exist with other related but instrumental principles such as checks and balances. This seems to reduce the difference between my account and his to a point of definition. He wants to keep separation of powers distinct from these further instrumental principles, whereas I am more inclined to fold the latter into a broader concept of separation of powers. Now, it may be that his classification is superior in simplicity and clarity, but this does not change the moral state of play. In an all-​things-​considered moral judgment all those principles, intrinsic and instrumental, should presumably apply. Waldron says nothing to suggest that something would be amiss if our moral judgment combined them. He probably believes that the separation of powers principle, as he understands it, necessarily overrides those other principles. But this is different from saying that instrumental justifications are inapposite from the get-​go. 29 30   Alon Harel, Why Law Matters (OUP 2014) 201.  ibid.

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justification, such that we cannot jointly satisfy them. In this vein Harel argues that instrumental justifications of constitutional review are tainted by an attitude of disrespect because they are ‘depriving individuals of their power to make normative judgments on the grounds that they are incapable of doing so on their own’.31 We are going to explore this suggestion in further detail in the following chapter. But it does not follow from it that there is anything in the nature of intrinsic value that makes it incompatible with the pursuit of instrumental value. In any case there is an overarching reason to be sceptical about the justificatory austerity of theorists like Harel. We have argued that polyphonic legal systems strive to give a collective institutional response to the problem of legitimacy. The project must work well as a whole. Consequently, our institutional choice in one part of that project might end up disrupting others. To those who rely exclusively or primarily on intrinsic justifications, this may sound like introducing extraneous considerations into the moral equation. But if the disruption affects the overall legitimacy of the legal order, it is difficult to treat these considerations as irrelevant.

D. Interaction and the duty of respect The division of labour component of separation of powers does not merely make one state institution rather than another responsible for, say, waging war. It does not view its contribution in isolation. In addition, it is meant to combine that contribution with those of other state institutions into a common scheme of governing. We might say that underpinning the division is unity. This unity is reflected in the ways that the assignment of a task to one institution has an impact on the actions of another. Recall Vile’s claim quoted earlier that coordination aims at efficiency and coherence. In order for the roles of different state institutions to cohere, they must take account of one another. Otherwise they may engender confusion and conflict. In other words, they must look over their shoulder and heed the acts and decisions of their fellow-​ participants in the joint enterprise. By engaging in the joint project participants undertake not to brush aside their contributions but rather to build upon them. This is the true import of the desideratum of interaction. In what follows I  shall refer to this overarching requirement and the specific duties that flow from it as the duty of respect state institutions participating in a scheme of separation of powers owe one another.32 We can draw an analogy here with the concept of polyphony in literature. Characters do not operate in a vacuum but in a world populated by other characters. It would be unfortunate—​it would make a bad novel—​if their acts were presented as having no repercussion on those around them. It is the responsibility of the author to orchestrate actions and reactions in a manner that produces the intended artistic effect, to show how the effusive and eccentric proclamations of one hero triggers shocked and conventional responses in some, while at the same time thawing the cynicism in others, and so forth. As in a good novel, the content of the institutional duty of respect varies depending on the context. At a minimum, though, it provides that participants give one another leeway to do their share. Thus it is in principle a violation of the duty of respect for one institution to usurp power that is reserved for another. Relatedly Waldron speaks  ibid.   The idea that the interaction of state institutions is underlain by a duty of respect has been elaborated by David Dyzenhaus in ‘The Politics of Deference: Judicial Review and Democracy’ in Michael Taggart (ed), The Province of Administrative Law (Hart Publishing 1997) 279. 31 32

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of a ‘principle of institutional settlement’ that applies to officials and enjoins them not to re-​open an issue that has been decided upon by the competent body.33 In this sense the duty of respect is the flipside of the power allocation mandated by the scheme of division of labour. If a branch of government goes beyond its competence, it often interferes with the contribution of another branch. But all too often the duty of respect commands that state agents go beyond mere non-​interference and positively assist one another. So two state organs may have overlapping competence on a range of issues with one setting out the broad guidelines of a government plan and the other elaborating in more detail the implications of the plan. At other times, procedural rules allow for or require the participation of state organ A in the decision-​making process of state organ B.34 The classic example, of course, is the involvement of both legislative chambers in the production of primary legislation. In this type of case it is common that the two organs focus on different aspects of the same issue. For instance, it is sometimes said that the UK House of Lords brings its expert knowledge to bear on the scrutiny of draft bills or that the US Senate pays attention to the interests of individual states. So far I have outlined the content of the duty of respect but I have said nothing about its ground. Why should state institutions adhere to it? Why is it not permissible for them to ignore the contributions of the other branches of government depending on the exigencies of the moment or indeed claim plenary jurisdiction? Once again, the answer is given by the overall point of the project in which they take part. What justifies any division of labour is ultimately that, so divided, government power can justifiably claim the allegiance of legal subjects. Hence coherence is a moral demand. If a governmental task is better performed by one institution, efficiency dictates that the rest let it do its job. Equally, in cases where the achievement of a public aim requires or is facilitated by the cooperation of two institutions, efficiency gives rise to reciprocal duties of respect that operationalize this cooperation. In turn, if democracy is intrinsically valuable and one institution embodies it in its decision-​making process, then it is the value of democracy that gives other institutions a duty to respect the decisions it makes.35 Remember, legitimacy would be ill-​served if one institution complied with right reason, only to see its efforts cancelled out or obstructed by its fellow-​participants. Needless to say, politics is not an exact science. The duty of respect is not unexceptional. We can imagine extreme situations where it would arguably be appropriate for another state organ to step in and take the requisite measures beyond its jurisdiction. Perhaps, a political standoff has crippled the competent organ’s capacity to govern or an urgent measure is persistently vetoed by a powerful faction. This is one way to conceptualize the controversial judicial activism involved in the desegregation cases for 33   Waldron takes this principle from Henry Hart and Albert Sachs. See Jeremy Waldron, ‘Authority for Officials’ in Lukas Meyer, Stanley Paulson, and Thomas Pogge (eds), Rights, Culture and the Law: Themes from the Legal and Political Philosophy of Joseph Raz (OUP 2003) 45. 34   This list of possibilities echoes Timothy Endicott’s notion of inter-​institutional comity. Endicott takes the principle of comity to require ‘judges to respect each other’s role in a system of justice, to support each other (to the extent that they can) in carrying out that role, and to do nothing to interfere with each other’s opportunity and ability to carry out that role. It requires what makes it possible for them to work together in a way that promotes the doing of justice according to law’ (Timothy Endicott, ‘ “International Meaning”: Comity in Fundamental Rights Adjudication’ [2002] International Journal of Refugee Law 280, 288). There remains a crucial difference between my approach and Endicott’s, though. Whereas comity seems to be an extra-​legal consideration, I take the duty of respect to be part of constitutional law. I am grateful to an anonymous reviewer for helping me appreciate this difference. 35  See Dimitrios Kyritsis, ‘What is Good about Legal Conventionalism’ [2008] Legal Theory 135, 156ff.

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example. Clearly, it is not the courts’ job to design school bus routes. Nonetheless, if nobody else will do it in a non-​discriminatory way, then the courts’ reasons for abstinence may plausibly be said to be overridden by the urgency of doing justice under the circumstances. Still, the mere fact that it would be permissible to disregard the division of labour in an emergency does not ordinarily undermine the force of the rule. In the normal case the general argument for government efficiency applies and thus the duty of respect stands. This conclusion is corroborated by a further thought. Legitimacy is attained, when it is, in the midst of pervasive moral disagreement about the proper use of the coercive force of the state. Given this reality, it would be a mistake to view the project of governing as an uncompromising crusade for justice. Adherence to a reasonable scheme of separation of powers at least has the merit of organizing political struggle in a general manner, whichever side comes out victorious. The resulting sense of fair play (which should be real; a scheme that loads the dice against one camp is unjustified regardless of whether it is generally adhered to) can make defeat easier to swallow. By contrast, upsetting the scheme of separation of powers, even in a bona fide attempt to serve a just cause, is liable to strain the allegiance of the losing side, as it may be regarded as a sleight of hand. Consequently, it is warranted only exceptionally. Note that I have been talking about exceptions to the duty of respect in cases where what is at stake is government efficiency. A similar move is not available when the duty of respect is grounded in an intrinsic value. If only one institution instantiates it, then another institution cannot step on its toes without a loss to that value.

E. Checks and balances Suppose a legal order where governmental tasks are allocated to different state organs on the basis of a reasonable division of labour. This division delineates the boundaries within which state institutions may contribute to the joint project of governing and the ways in which they may or ought to respect each other’s contributions. This, we have seen, adds to the legitimacy of the legal order. But does it exhaust the content of separation of powers? In this section I want to argue that division-​of-​labour considerations are only part of an adequate scheme of separation of powers. To show this, I shall once again use as my guide the concept of legitimacy. I shall suggest that apart from a reasonable division of labour legitimacy requires that a legal order address another pervasive concern of political morality. To accommodate this concern, it is necessary to invoke a further strand in the concept of separation of powers, namely checks and balances. As we have so far depicted it, a division of labour is judged by its capacity or tendency reliably to serve or instantiate certain political values. Of course, even a division of labour that fares well along this dimension does not thereby become foolproof. But it would be a mistake to think that no legal order is justified unless it unfailingly serves or instantiates the relevant values. We have argued above that legitimacy favours stable institutional arrangements: a legal order can reasonably demand the allegiance of legal subjects if it is reliably arranged to deliver what it is supposed to, even if it occasionally misses the mark. What is more, we should not forget that a good legal order must serve many values and comply with a multitude of duties. Since institutions are not infinitely malleable (in fact, they can be quite rigid), unavoidably we must often make choices about the values a certain institution will primarily promote or instantiate. As a result, that institution may not be as well suited to promote or instantiate other values that it engages through its acts, say, because if it also attended to those further values,

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it would not be as efficient at performing its primary task. So, for instance, some theorists claim that democratic legislatures are good at respecting political equality because they give the same weight to everyone’s vote, but not as good at respecting minority rights because of their commitment to a majoritarian decision-​making process. Hence, entrusting a democratic legislature the fate of minorities carries the risk that it will make mistakes about the content of their rights. Yet despite this, many of us think that a democratic legislature retains a general moral warrant to govern a political community, including minorities. There is a further reason why a complete scheme of separation of powers should include more than an adequate division of labour. Political issues do not come with tags on them, ready to be pigeonholed as falling within the remit of this or that state institution. This opens the possibility that the wrong institution might claim them, thus disrupting the institutional division of labour and vitiating the values that sustain it. The disruption may be short-​term but often it will have long-​term repercussions. Thus, insofar as an agency is by virtue of its composition, decision-​making process etc so structured as better to perform certain tasks only, usurpation of power that belongs to a different agency will flout the values we have for assigning that power to the latter agency. If a certain task requires impartiality and a biased agent performs it, it is impartiality we are likely to be flouting. Such failures are of course likely to arise when an institution has been captured by illicit interests. Still, they are often the product of honest mistakes. In either case, institutional design should combat them. In order to do so a legal order ought to be equipped with mechanisms to discourage or counter incursions, re-​establish the institutional equilibrium, when it is disrupted, and assert the values it embodies. It ought to moderate what the victorious side can accomplish by allowing other institutional players to frustrate its plans in cases of misuse of power. In other words, it ought to include mechanisms of checks and balances. In this sense checks-​and-​balances considerations are integral to the legitimacy of the joint project. Vile has used the concept of control to denote the ‘notion of balance, whether this balance is expressed within the government machinery between government and people, or between the media of control themselves’ and juxtapose it to the notion of coordination that we encountered in previous sections.36 Now we must explore what more precisely is the bearing of checks-​and-​balances considerations on institutional design. The claim for the distinctive importance of checks and balances in a well-​ordered polity received its definitive defence in the writings of James Madison. Arguing for the system of checks and balances incorporated in the American Constitution Madison contends that it is not sufficient ‘to mark with precision the boundaries of [the departments of government] in the constitution of the government and to trust to these parchment barriers against the encroaching spirit of power’.37 The boundaries of the departments of government Madison talks about are the ones delineated by the scheme of institutional division of labour. But when seized by the ‘encroaching spirit of power’, Madison argues, politicians and legal officials are bound to overstep these boundaries. Since the good will of politicians and legal officials is easily overwhelmed, a polity must include in its constitution mechanisms to counter encroachments of one branch of government on another. This, according to him, can best be done, if ‘the interior structure of government’ meets three conditions: (a)  autonomy of its constituent parts, (b)  with each having a capacity for effective  Vile, Separation of Powers (n 8) 333.

36

37

  The Federalist no 48 (J Madison) (n 10) 252.

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action (and reaction), and (c) run by politicians and legal officials possessed of sufficient personal motivation to fend off encroachments. In other words, branches of government must be made sufficiently independent of the others and must be supplied with sufficient institutional weapons and personal motive to keep the rest at bay. With regard to the first condition Madison writes: It is evident that each department should have a will of its own; and consequently be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others . . . It is equally evident that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices.

The second and third conditions he sums up as follows: The great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of others . . . Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.38

In these respects, says Madison, the US Constitution is well designed, since it equips branches of government with the requisite independence and the ‘necessary constitutional means’ and also supplies sufficient personal interest to those who act in their name to resist attempts at usurpation of power coming from the other branches. Clearly, what Madison primarily has in mind are the federal legislature and the federal chief executive. It is these two poles of power the Founding Fathers intended to pit against one another, hoping that their constant institutional friction would result in less tyranny overall for the people.39 But it is reasonable to take Madison to be furnishing general criteria for an adequate system of checks and balances. We need not go as far as to suppose that they are jointly sufficient. Nevertheless, they seem salient enough to be thought of as necessary. In what follows I shall focus on the first two conditions. The third condition sets out the psychological prerequisites of a properly functioning system of checks and balances. It is evident that unless those who occupy the various government branches are willing and determined to police their competences by making effective use of the checks-​and-​balances arsenal at their disposal, encroachments will meet no resistance. There are institutional means for achieving this goal. Selection by popular election may be one of them. But as the topic of this book is constitutional review and personal motives appear less relevant to the design of the judicial role, I shall leave ambition to one side. Our discussion of autonomy and means of resistance will allow us to enrich our understanding of the distinctness and interaction of institutional roles under schemes of separation of powers and strengthen their connection with political legitimacy.

1) Autonomy of institutional roles Does separation of powers require that those performing the various institutional roles have ‘a will of their own’? If so, in what sense and how is that to be realized? These   Both citations are from The Federalist no 51 (J Madison) (n 10) 264–​65.   This dualistic conception of the American system of checks and balances is mirrored for example in Bruce Ackerman, ‘The New Separation of Powers’ [2000] Harv L Rev 633; Jesse Choper, Judicial Review and the National Political Process (The University of Chicago Press 1980); Strauss, ‘The Place of Agencies in Government’ (n 14). 38 39

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questions will be at the heart of this section. But before we can tackle them, there is a preliminary issue we need to consider. So far it has been taken for granted that different institutional roles must also correspond to different state organs and that different state organs are staffed by different people. In other words, we have implicitly included in the ideal of separation of powers the idea of a separation of persons.40 Is separation of persons a necessary component of separation of powers? Do we have any reason not to entrust all state power in one organ or even in the hands of only one person? The answer to this question was clear to Madison. The evil he thought constitutional checks and balances avert is the accumulation of power. He famously wrote: ‘the accumulation of all powers, legislative, executive and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-​appointed or elective, may justly be pronounced the very definition of tyranny’.41 Of course, this statement invites the further question: Why is accumulation of power the very definition of tyranny? We can gain some traction with this question by taking a lead from the idea of purposive interrelation. Thus we can reason in the following way: Purposive interrelation requires that governmental tasks be assigned to those who by virtue of their decision-​ making process are well placed or at least competent to accomplish them. Conversely purposive interrelation gives us reason not to entrust a power to someone who lacks the requisite decision-​making process. Now, we have a diversity of governmental tasks that require a multiplicity of decision-​making processes. It seems impossible to design a one-​size-​fits-​all decision-​making process. Insofar as each state organ is identified with one decision-​making process, purposive interrelation gives us a reason not to entrust all state power to one state organ. Of course, it may be argued that all the argument from purposive interrelation shows is that a state organ must assume the decision-​making process that fits the relevant governmental task. This is compatible with the assignment of all governmental powers to one state organ or even one person. All the state organ or person need do is switch decision-​making processes depending on the task at hand. This may be possible in many cases but not in others. Take the following example. Recall that I have included in the notion of decision-​making process the composition of the state organ. Now suppose that a certain governmental task requires popular election of the members of the state organ that ought to perform it. And suppose that another governmental task requires that those who perform it not be elected in this way. It is evident that in this situation division-​of-​labour considerations prohibit the assignment of the two tasks to the same set of persons. Admittedly, though, the objection under consideration urges us to put our point more cautiously: The argument from purposive interrelation furnishes a criterion for the assignment of governmental tasks, namely that each task is to be carried out by the state agent whose decision-​making process is best suited to this type of governmental task or—​put in a weaker form—​whose decision-​making process is such that it permissibly discharges this type of task. The accumulation of power is objectionable insofar as it flouts this criterion in either its weak or its stronger version. Another argument for resisting accumulation of power can be supplied by an outcome-​driven concern: Often misuse of power causes direct harm to the interests of individuals. For instance, it might lead to violations of fundamental rights. To combat such violations we need to set up an effective mechanism that aims to correct mistakes or discourage them in the first place. From this outcome-​driven concern there begins to emerge a further political rationale for the plurality of institutional roles that is 40 41

 Vile, Separation of Powers (n 8) Introduction.   The Federalist no 47 (J Madison) (n 10) 245–​46.

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typical of polyphonic legal systems. What is interesting about this rationale is that it ties the plurality of institutional roles with a certain separation of persons. The gist of it is that: 1) institutional roles also operate to some extent as bulwarks to one another; 2) in order to be able to perform this task they need to be to some degree independent from one another; and 3) a necessary condition of independence is the assignment of different jobs to different persons. In a more detailed form, the reasoning runs as follows:  Since government power is divided, the implementation of a state objective requires the cooperation of multiple state organs. This requirement rests on the duty of respect they owe one another. Suppose a branch of government purports to contribute to the joint project by initiating a certain measure. To assess whether this contribution merits the respect of the other participants (and hence whether they ought to cooperate to give the measure full effect) they—​the other participants—​ought to decide whether it is supported by the appropriate division-​of-​labour considerations. In short, they ought to decide whether it is a legitimate contribution to the joint enterprise. Thus, there is an element of supervision inherent in the very idea of a duty of respect. However, it is difficult for a state organ to carry out this supervisory function unless it is to some extent distanced from the state organ it supervises. It is the need for such a distance, I think, that motivates Madison’s concern to bestow on each branch of government ‘a will of its own’. This is not to deny that the notion of double-​checking also makes sense even at the individual level. The idea of someone making a decision at a certain point and double-​checking this decision at a later point is indeed very familiar. But it is at least arguable that we have good reasons of political prudence in certain cases not to assign both the decision-​making and the double-​checking functions to the same person or the same state agent. More important still, we have good reasons to make the decision-​making body and the supervisory body to some extent independent from one another. Our purpose in doing that is to preserve the effectiveness of the supervision. For, if the decision-​making body can illicitly influence the supervisory body, if, that is, it has the capacity to impose its will on the supervisory body by means of political pressure, the supervisory function will be compromised. The requisite distance will be cancelled. How can we achieve this purpose? This can be done in a number of ways. The passage from Madison already quoted contains two proposals:  First, each branch must have as little as possible to do with the appointment of the members of the other branch. Second, members of each department must be as little dependent as possible on other departments for the emoluments annexed to their offices. Important though they may be, these proposals are not exhaustive of our options. Nor do they point to necessary criteria of autonomy. Take the US Supreme Court. Even though its members are nominated by the President and their nomination confirmed by the Senate, this dependence on the political branches at the appointment stage is counterbalanced to some degree by their life-​tenure and by the fact that their appointment requires the cooperation of both the President and the Senate. We started off this section by asking whether we can come up with a political motivation for a qualified separation of persons. We can see now how this inquiry takes us some way in our understanding of the importance of the autonomy of institutional roles. Separation of persons does not stand independently in a theory of separation of powers. On one hand it flows from division-​of-​labour considerations and more specifically the principle of purposive interrelation. On the other it is subordinate to the aim of making institutional roles autonomous, which is in turn subordinate to the more general aim of including an effective system of checks and balances in the joint

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institutional effort to produce law that is worthy of the allegiance of legal subjects. The degree to which and the form in which we want separation of persons need to be calibrated in the light of these two aims. Admittedly, I have not identified any hard-​ and-​fast criteria like the ones Madison proposes but I hope to have articulated some plausible guiding principles echoed also in his proposals.

2) Institutional means of resistance The preceding sections argued for the importance of supplementing our conception of the ideal of separation of powers with a concern for checks and balances amongst the various state organs of a polyphonic legal system. Now we need to survey some of the institutional means that can be employed to make a system of checks and balances effective. Our starting point will be Madison’s second condition of a good polity, according to which branches of government must be equipped with sufficient weaponry to drive off incursions. One possibility has already been mentioned. An element of control is inherent in the very notion of the duty of respect and more fundamentally in the sense that state action in polyphonic legal systems is divided and requires the cooperation of different state organs (corresponding to different institutional roles). Generally speaking, state officials ought to respect only those contributions by other participants that merit respect, in the sense that they are supported by the right division-​of-​labour considerations. When a contribution does not merit their respect, they ought to withhold their assistance in the implementation of the plans of the aggressor. Notice how this type of institutional check provides an additional rationale for the interdependence of institutional roles characteristic of polyphonic legal systems. Interdependence includes a strong element of control. When for instance state organ A is required to consult state organ B before reaching a decision, it is indirectly compelled to think twice before it strays away from its proper role. Another possibility, perhaps more congenial to Madison’s spirit, is aggressive in character. It suggests that branches of government ought to have the means to counter-​ attack and so discourage or frustrate the encroachment by making it too costly for the aggressor.42 According to a third alternative, supervision (in some cases or over a certain range of issues or with regard to the performance of certain state agents) is triggered by individual grievance. This is very important since, as we have seen, misuse of power may have a grave impact on the interests of individuals and it can be more efficient to leave with individuals the initiative to make their complaint heard at the institutional level rather than wait for a state agent to notice malfunctions of the system that may well elude it. Besides, such an option also reflects a liberal attitude with regard to the proper relation between state and individual and how this relation ought to be expressed in political institutions. Thus, political communities that are committed to respect for individual autonomy have strong moral reasons to institute systems based on individual grievance. I do not intend this list to be exhaustive of the possibilities but I hope it provides a useful typology of some of the most important ones. There are two things that need to be mentioned however. Most of the time, a polyphonic legal system will combine 42   Choper illustrates this point with his enumeration of congressional powers that can be employed to resist presidential incursions. See Choper, Judicial Review and the National Political Process (n 39) ch 5. More generally see George Tsebelis, Veto Players: How Political Institutions Work (Princeton University Press 2002).

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all three alternatives and assign varying weights to each. How this ought to be done in every case is bound to depend on contingent factors. One of these factors has to do with the competence of a given state agent to perform a certain kind of supervision. At this level again division-​of-​labour considerations will play out. Importantly, with regard to supervisory functions as well it matters a great deal that they be assigned to the state agents who by virtue of their other characteristics are best suited to perform them. Second, checks-​and-​balances considerations give us reasons to design our institutions in a certain way but these reasons are not always overriding. They need to be balanced against the need for effective and expedient government action. There comes a point inevitably where we must abstain from further double-​checking and instead stick to what has been decided upon. This is not just a temporal issue. There are some governmental tasks or some aspects of governmental action concerning which it would do more harm than good to have another state agent second-​guess the best solution. In these cases, as long as we are satisfied that the competent body has not violated important side-​constraints, we have good moral and prudential reasons to keep its decisions immune from certain kinds of supervision. Consider for example Mark Tushnet’s view that judicial review tends to water down legislators’ sense of responsibility for constitutional issues.43 In legal systems with constitutional review, he argues, legislators leave it upon the reviewing courts to deal with any constitutional implications of the bills they produce, and as a result the legislation they draft becomes less sensitive to constitutional concerns than it would be if it weren’t subject to judicial scrutiny and legislators had to think about their constitutional duties themselves. Now it is difficult to accept this claim in any but a very qualified form. For one thing, it would be at least as plausible as Tushnet’s conjecture to argue that constitutional review can actually enhance the legislators’ sense of constitutional responsibility, insofar as the latter will want to avoid the embarrassment of being exposed to the criticism that they have violated the constitution. Besides, to the extent that legislators are interested in getting their political plans realized, they will prefer to accommodate constitutional concerns beforehand than to have the entire statute struck down by the reviewing court.44 At the very least a successful constitutional challenge costs champions of the invalidated statute time, and in politics time is often of paramount importance.45 However the case may be with Tushnet’s specific claim, we can recognize in it a very important worry of institutional design. In setting up or amending a framework of institutional coordination we are as preoccupied with the outcomes each institution will produce if it is assigned a certain task as with the impact this assignment will have on the other state agents and on the overall institutional equilibrium. So, accepting for the sake of argument that courts are more likely to get it right with regard to the implications of fundamental human rights than legislatures, this will still not be 43  Mark Tushnet, Taking the Constitution Away from the Courts (Princeton University Press 1999) 57–​70. 44   I am assuming here that the court may only uphold the statute or strike it down, as is by and large the case, for example, in the US. In other jurisdictions courts only have the power to construe the rights and duties flowing from a statute in conformity with constitutional limitations. But even in these cases legislators are at a disadvantage since the initiative for the amendment now belongs to the court, not them. 45   This is not to deny that at other times legislators are content to pass the buck to the courts. For instance, they enact a statute knowing that it will eventually be struck down. In this way they achieve two things at the same time. They superficially do their constituents a favour without in reality causing much harm. Or they tacitly devolve to courts the resolution of a heated issue that they fear will cost them votes.

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the only factor to take into account. Equally, we must consider how this division of labour affects the performance of legislatures, for instance. We may then come to the conclusion that the net balance counts against giving them the power to adjudicate fundamental rights disputes.

V.  Democracy vs. Separation of Powers In the history of thought separation of powers has had a mixed reception. Its critics frequently fault it for incorporating a bias in favour of limiting government.46 In particular, they argue, this bias afflicts conceptions such as Madison’s that erect multiple veto points in political decision-​making. Veto points may be effective in obstructing undue interferences with citizens’ liberties, as its proponents suggest, but they can also thwart valuable political action, especially political action that empowers ordinary citizens. It is no accident that Madison was especially wary of the tyranny of popular majorities taking hold of the legislative body. In a characteristic version of the democratic critique of separation of powers Richard Bellamy questions the importance of institutional autonomy, which, recall, occupies a central place in the account advanced here. He warns that ‘to the extent each separate branch of government retains autonomy over its own separate functional sphere it remains able to act arbitrarily on matters within its competence’.47 He favours instead systems of ‘balance of power’, as he calls them.48 What is distinctive about them is that they give various office holders incentives to serve their principals, namely citizens. They achieve this by putting in place a ‘competition for power’49 with the following characteristic: ‘To attain and stay in office politicians need to recruit and retain quite diverse support.’50 Competition for power is meant to achieve the benign aims that are typically claimed for separation of powers, because it blocks the way to the imposition of the will of a small faction. Unsurprisingly, systems of balance of power favour democratic procedures, inasmuch as they furnish a plateau for political competition of the type just described. By contrast, Bellamy contends that systems affording a significant degree of institutional autonomy have a very different and pernicious effect, as they encourage compromises between officials rather than between them and citizens. Constitutional review of legislation offers for him a striking example of this tendency. As judges are unelected, they are under no institutional pressure to decide in accordance with majority preferences. And of course, their own views are likely to represent only a small sliver of the broader society. By giving them a veto over policy, you skew the incentives of legislators, too. What good would it do to mobilize the support of a wide range of constituencies for a given policy, if its fate ultimately hangs on the decision of a few unelected judges? Is separation of powers anti-​democratic? I do not want to deny that separation of powers, as understood here, creates tension and competition between state institutions and thus shapes the incentives of officials. Nor do I want to deny the importance of ‘balance of power’ in Bellamy’s sense. As a matter of fact, in Chapter 6 I shall argue that it makes sense to assign legislatures the primary responsibility for the design of   Jeremy Waldron, Political Political Theory (Harvard University Press 2016) ch 2.  Richard Bellamy, Political Constitutionalism:  A  Republican Defence of the Constitutionality of Democracy (CUP 2007) 202. 48 49 50  ibid 196.  ibid 203.  ibid. 46 47

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state policy partly by virtue of their ability to secure popular support. At the same time, I shall argue that the legislators are not expected blindly to obey the people who elected them but to act on their judgment of the common good. Under this scheme, legislators are well advised in general to heed the views of their constituents. Nevertheless, it does not necessarily count against the legitimacy of a policy when a legislator goes against those views. So even the set-​up of representative legislatures allows a significant degree of institutional autonomy. But if institutional autonomy—​and the compromises among officials it makes room for—​is unproblematic within the legislature, it becomes less clear why it is objectionable in the case of the judiciary. Hence, Bellamy would need to show that it is only the kinds of compromise and competition engendered, say, under practices of constitutional review that undercut political legitimacy.51

VI.  A Jurisprudential Aside In Chapter 1 I announced my intention to stay largely neutral in the jurisprudential debate between positivism and anti-​positivism. I contended that, despite its moralized character, MCT can be appended to either a positivist or anti-​positivist account of the nature of law. However, it may be said that, as soon as I descended the ladder of abstraction, I jettisoned my neutrality. The starting point of my discussion of checks and balances is the risk that a participant in the joint project of governing may misuse her power, sometimes grossly so. It would seem that legal positivists are more aware of this risk than anti-​positivists. The former explicitly make room in their theories for the possibility that horrendous injustice sometimes passes off as law and is treated as such. Legal validity, they insist, is not necessarily tied to moral justifiability. With the possibility of unjust laws always vivid in their mind it would be no surprise if legal positivists took a particular interest in checks and balances in their constitutional theories. But arguably unjust laws are all but banished from the anti-​positivist universe. After all, according to the well-​worn anti-​positivist mantra ‘lex iniusta non est lex’. Although it is of sociological and political interest that the unjust decisions of a state institution are sometimes accepted as law, this empirical fact does not change the normative situation. And it is the normative situation that calls the shots for MCT. For instance, it is the normative situation that determines whether there exists a duty of respect towards a certain political decision by other state institutions. If that decision is unjust, it generates no duty of respect. Accordingly, anti-​positivists would say, why should constitutional theory bother about it? Checks and balances, it would seem, are there to solve a problem that does not arise for them. Perhaps there are anti-​positivists that hold such a view. However, in so doing they fail to exploit the full range of resources at their disposal. In particular, they overlook that political morality does not solely concern itself with the content of political decisions. It also places emphasis on the existence of an adequate and workable institutional arrangement geared towards maintaining a just and well-​ordered society. We have encountered this concern time and again in our discussion of political legitimacy. We have argued that a legitimate political order ought to contain assurances that citizens will not be exposed to heightened risks of suffering grave injustices at the hands 51   Indeed, Bellamy defends an understanding of democracy that is compatible with representation but not with constitutional review. I  shall postpone my final verdict on whether balance of power is preferable to separation of powers, until we have assessed the merits of that understanding in Chapter 4.

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of the state. We have also suggested—​and will elaborate in subsequent chapters—​that an adequate and workable institutional arrangement that aims at maintaining a just and well-​ordered society goes a long way towards supplying such an assurance. Having political morality as their yardstick, anti-​positivists cannot be deaf to this concern and its implications for institutional design. In addition, anti-​positivists, just as much as positivists, know all too well that the cogs of the state machinery are frequently set in motion without moral warrant or to achieve immoral ends. They also know that due to oversight, ignorance, fear, or partisanship, legal officials even in reasonably just regimes may give effect to decisions that constitute flawed exercises of the institutional role assigned a state institution and legal subjects may comply with them. You may call such acts law or not, depending on your jurisprudential leanings. But their effect is undeniable. Surely, it is small consolation to those whose interests have been harmed by them to say that they were legally unauthorized. Therefore, anti-​positivists who see the point of law as being, say, to regulate and constrain the exercise of state coercion52 should think that law fulfils an important role in fending off the negative effects of such acts, whatever their legal status. You can read the claims advanced in previous sections as a plea to anti-​positivists to see that law can fulfil this role through separation of powers.

VII.  Mapping Out Neptune In this chapter I defended a general framework for understanding institutional cooperation in so-​called polyphonic legal systems. The overarching value these systems adhere to when they are in good working order is separation of powers. The various state organs they comprise should be viewed as contributors to a joint project, commanding the respect of other participants by virtue of the division-​of-​labour and checks-​and-​ balances considerations that govern the joint project. In this book we are interested in mapping out only a small, though immensely significant, part of our Neptune, the one occupied by practices of constitutional review. How can the account of separation of powers proposed here help orient our thinking in this endeavour? It should be obvious that legal systems that have practices of constitutional review or for which such practices are an option are also polyphonic. Constitutional review involves (at least prima facie) two different bodies, the courts and the legislature, which have different roles in the legal system, with both of them depending on each other in the performance of their role. Thus we should expect to find in this subset of polyphonic legal systems the same general features that I have outlined in this chapter. Our assessment of constitutional review will be framed accordingly. For it to be legitimate, the combination of division of labour and checks and balances considerations must count in its favour. These very same considerations will assign the courts and the legislature distinct roles under systems of constitutional review and also structure the interaction between them. They will tailor the power of courts to their comparative advantages and construe constitutional review so as not to hinder the legislature’s valuable contribution to the joint project of governing. Starting in the next chapter we shall fill out this skeletal picture by elaborating what each of these two institutions brings to the table. In this effort our guide will be the principle of purposive interrelation. We shall encounter diverse and often conflicting 52

 Dworkin, Law’s Empire (n 1) 93–​94.

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accounts of what is important or salient about the institutional forms of a court and a legislature and why these forms lend themselves to a particular division of labour. Inevitably, we shall come up against variants of the claims and arguments that we got a taste of in the preceding sections. This is unsurprising. Some intuitions and moral judgments are so basic that they permeate all of our constitutional thinking, right down to concrete questions of doctrine.

3 Are Courts the Forum of Constitutional Principle? I. Introduction Chapter 2 ended with a hypothesis, namely that constitutional review may fruitfully be interpreted as a component of a general scheme of separation of powers underwriting the relationship between the main constitutional actors, the joint project of governing. This way of framing the issue bears on the justification of the practice. Constitutional review is justified, if it is, inasmuch as it contributes to the legitimacy of a political order in the distinctive way that the joint project of governing is supposed to. I shall test this hypothesis by surveying some of the principal answers to the question whether constitutional review is legitimate, before giving my own. I shall measure each one of them against the three desiderata for theories of separation of powers: distinctness, interaction, and moral merit.1 I shall ask whether they make a convincing case that it is worth having courts and the legislature tell us what we ought and ought not do in their respective spheres and that it is also morally justified that they depend on one another in the way they do. To be sure, not all of the answers I shall consider make explicit reference to the idea of separation of powers. Some, for instance, look at one body in isolation and do not discuss the other at all, while some set out to account for the relationship between the two bodies within a different conceptual framework, say, as a matter of the rule of law. Still, insofar as they defend a particular allocation of government power, they are ultimately to be measured against the ideal of legitimate institutional cooperation, which is what I  have argued separation of powers amounts to. The first set of positions to be examined defend the legitimacy of constitutional review on grounds of a special connection between courts and fundamental rights. I  shall start by briefly considering some arguments to the effect that constitutional review follows from a kind of constitutional logic. Against these arguments I  shall claim that they underestimate the degree to which constitutional interpretation is infused by moral considerations. No recourse to logic can ignore these considerations and cut through the controversy that attends them. Subsequently I shall turn to the view that sees in courts a forum for the realization of a general procedural right to lodge complaints against political decisions that set back our interests. This view is an example of an attempt to short-​circuit the institutional analysis that I recommended in the previous chapter. Whereas it accepts that defending constitutional review is a moral task (and hence subject to the desideratum of merit), it maintains that this defence need not be embedded in a conception of the relationship between courts and the legislature. Presumably, the aforementioned right furnishes a direct legitimating basis for constitutional review that is independent of considerations of separation of powers. It is meant to constrain permissible interaction 1

  Chapter 2, section II.

Where Our Protection Lies. First Edition. Dimitrios Kyritsis. © Dimitrios Kyritsis 2017. Published 2017 by Oxford University Press.

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between the two bodies rather than be constrained by it. The problem with this view is twofold: first, the procedural right it invokes is dubious; second, it moves too quickly from a very abstract moral notion to a requirement of institutional design; in this way it flouts the ideal of political legitimacy that governs the latter. In the main part of the chapter I  shall take issue with Ronald Dworkin’s well-​ known attempt to establish a connection between courts and fundamental rights through his use of the distinction between principle and policy. Dworkin introduced this distinction early in his work and made it the basis for understanding the division of labour between courts and legislatures. Courts, he claims in Taking Rights Seriously, ought to decide questions of principle and not policy and they are better suited for this purpose than legislatures. Despite the years that have passed since its inception, Dworkin’s theory is very much alive and also relevant to contemporary constitutional theory.2 For, I  believe it exemplifies a still common—​perhaps also the predominant—​way of conceiving of the role of courts and especially the practice of constitutional review. Unlike the formalistic arguments mentioned earlier, it acknowledges that logic alone has little to offer us on this topic. Rather it insists that our conception of the division of labour between courts and the legislature must be interpretive in character:  It must identify a genuine principle of political morality (or, more often, a set of principles) that justifies courts and the legislature having the roles that they do. If you and I disagree about what that conception should look like, it is not because one of us has made a logical error. Disagreement is perfectly normal in moral matters. A further reason for my interest in Dworkin’s theory is that it tries to take democracy as well as rights seriously. It acknowledges that in a democracy constitutional review must be circumscribed: even when courts have the power to override democratically reached decisions, they may do so only with regard to certain issues. Thus, the task of delimiting the domain of constitutional review is of the first importance for its viability.3 In this sense, Dworkin’s theory offers an illuminating contrast to the view that courts ought to afford claimants a hearing regardless of the relationship they have with the legislature. My main claim against Dworkin’s theory will be that it paints a picture of the courts-​legislature relationship that does not adequately square with the three desiderata. The argument will have the following structure: After briefly presenting the principle/​policy distinction, I shall critically examine how Dworkin seeks to carry it over to institutional design as an explanation of the courts-​legislature relationship. I shall claim that, other merits aside, the principle/​policy distinction cannot account for crucial aspects of the interaction between courts and the legislature and thus that without more it cannot motivate important limits to judicial power that flow from this interaction. Last, I shall try to offer a diagnosis for this failure. On the basis of my diagnosis I shall tease out some key ideas that I shall build on in my positive proposal.

2   See for instance R (on the application of Pro Life Alliance) v BBC [2003] UKHL 23, [2004] 1 AC 185 [76] (Lord Hoffmann); Jeffrey Jowell, ‘Judicial Deference: Servility, Civility or Institutional Capacity’ [2003] PL 592. For a detailed analysis of the ambivalent role of the distinction in public law doctrine see Jeff King, ‘Institutional Approaches to Judicial Restraint’ [2008] OJLS 409, 416–​19. 3   I am borrowing here the terminology from Larry Sager, ‘The Domain of Constitutional Justice’ in Larry Alexander (ed), Constitutionalism: Philosophical Foundations (CUP 1998) 235. For purposes of this chapter, the domain of constitutional review includes—​but is not necessarily limited to—​the domain within which courts may legitimately override democratically reached decisions.

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II.  Legal Bootstrapping A common view among lawyers is that constitutional review is not in need of any special justification. For them, the constitution is basically no different from any other source of law from the point of view of the judge. Hence, the courts are only applying the law, even when they interpret the constitution. Here is a classic formulation of this point by Alexander Hamilton: The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be, regarded by the judges as a fundamental law. It must therefore belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.4

But to say that the constitution is like any other part of the law that the judge must bring to bear on the resolution of the case before him is to ignore all the important respects in which constitutional law is like no other part of the law. It is these peculiar features, it seems, that render the legitimacy of constitutional review so controversial. For instance, sceptics who oppose this practice on the grounds that it is undemocratic will not be particularly swayed by the aforementioned argument. If judicial interpretation of the constitution flouts democracy, they will argue, so much the worse for judicial interpretation. Here sceptics would have moralized constitutional theory (MCT) on their side. Its goal, remember, is to explain how constitutional law can enhance the legitimacy of the political order, so it puts political values like democracy in the driver’s seat. Constitutional law should yield to them rather than the other way around. Perhaps, though, it is not the constitution’s status as law that entails constitutional review but its function, namely to constitute a legal order by allocating legal authority to the institutions of the state and specifying the conditions under which these institutions may lawfully exercise power, including the legislature. Again, Hamilton captures this nicely: There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representative of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.5

Arguably, Hamilton’s theory of delegated authority can also explain fundamental rights adjudication. The argument runs as follows:  Many constitutions guarantee certain important rights such as the right to privacy and freedom of expression. These rights should be counted among the conditions for the lawful exercise of public power. The legislature that derives its authority from the constitution has a duty to have due regard to fundamental rights. For example, it ought not to decide which books citizens must read or whom they marry. These are choices that are properly left to each individual. If the legislature decides in a way that flouts fundamental rights, it has strayed beyond its jurisdiction; it has done something that it was never given permission to do. Therefore, courts are under no duty to give effect to that decision. Of course, this explanation applies to jurisdictions with formal constitutions that are hierarchically superior to 4   The Federalist no 78 (A Hamilton) in The Federalist or, The New Constitution (Max Beloff ed, Basil Blackwell 1948) 398. 5  ibid.

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statutory law, for, it is only these jurisdictions that drive a sharp wedge between constitutive and constituted power. In systems of parliamentary sovereignty, the legislature arguably has no master. Of course, as a conceptual matter we can agree with Hamilton that the legislature operates under the strictures of the constitution and still reject constitutional review. The mere fact that one institution has been granted limited power does not entail that another institution should police those limits.6 On the suggestion we are considering what supplies the missing link is not a moral argument but a further conceptual argument. That is, constitutional review is grounded not in the moral attractiveness of judicial oversight of legislation but in the very nature of law application. Being bodies charged with applying the law, courts must surely find it first. To do that, they must ascertain whether a decision has been made in accordance with the conditions set out in the constitution. Statutory law is no different. A legislative decision that contravenes the Constitution is ultra vires and hence does not create valid law. Courts ought to disregard it as part of their most elementary function. Its being struck down merely dramatizes the fact that it lacks its purported legal significance. In previous work I  argued against the view that it is a conceptual truth that courts are law-​applying institutions.7 I claimed that the judicial role itself is determined by considerations of political morality and can differ from one legal system to the other. Regardless of whether this claim is sound, the conceptual argument rehearsed above does not satisfy the demands of MCT. What we are interested in is: Does political legitimacy require that a certain decision be given effect by judges? Whether we call this decision valid or not is neither here nor there. The fact that the decision is contrary to a constitutional provision will definitely count against it, but, as already mentioned, there are other considerations relevant to the question of legitimacy that point the other way. In order to grant judges the power to disregard the decision or even strike it down, we must engage with these further considerations and come to a conclusion about their force as compared to the constitutional infraction.

III.  Constitutional Review and the Right to a Hearing From here on conceptual shortcuts recede in the background and moral arguments take centre stage. We shall be asking if constitutional review can be morally justified. In fact, according to some constitutional review enthusiasts the justification we seek is quite straightforward. In particular, it does not involve recourse to the idea that courts and the legislature participate in the joint project of governing, from which it follows that they ought to interact with each other and respect each other’s contribution. Rather, it flows from an individual moral right to demand a justification or a hearing whenever we believe that our rights have been violated. The right to a hearing is procedural in nature. By this I mean that it does not entitle us to any particular outcome but only to a certain procedure that adequately addresses our complaint. In turn, a procedure adequately addresses a complaint that an act or a policy violates the complainant’s rights only if it affords the complainant an opportunity to raise this complaint and imposes a duty on the other side to justify the act   Wilfrid Waluchow, A Common Law Theory of Judicial Review (CUP 2007) 30–​41.  See Dimitrios Kyritsis, Shared Authority:  Courts and Legislatures in Legal Theory (Hart Publishing 2015). 6 7

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or policy. In addition, it must be ‘capable of rectifying the violation’8 should the justification be shown to be wanting. The existence of such a right has been defended in recent years by, among others, Alon Harel9 and Horacio Spector. Interestingly, it has been embraced by theorists who maintain that proportionality is an essential feature of human rights adjudication.10 These theorists see in the structure of the proportionality test with its requirement that rights limitations be justified for their suitability, necessity, and proportionality a manifestation of such a right. Before evaluating this proposal, let me add a little more flesh to the idea of a right to a hearing. To this effect I  shall primarily focus on Alon Harel’s analysis, making occasional references to other proponents of this view. For Harel the right to a hearing is meant to be triggered by certain types of dispute over rights. Sometimes two parties both agree that one of them has a prima facie right but disagree about whether that right is justifiably overridden by a competing consideration on a particular occasion. Call this a type A dispute. Other times one of the parties to the dispute claims that an act of the other violates a right of hers, a claim which the other denies. Call this a type B dispute. For Harel, when disputes of both types arise, the party claiming that her right has been breached is entitled to demand a justification for the other party’s action and rectification if the breach is found to be unjustified. I should note right from the outset that by connecting the right to a hearing with these types of dispute Harel gives it a breath-​taking scope, and this alone should give us pause. After all, as Bernard Williams put it, ‘we cannot say that it is either a necessary or a sufficient condition of there being a (genuine) demand for justification that someone demands one. It is not sufficient because anyone who feels he has a grievance can raise a demand and there is always some place for grievance’.11 So we need a moral story that grounds the right to a hearing and can differentiate cases where a genuine demand for justification arises from cases of vexatious complaints. Harel gives us such a story. He argues that the right to a hearing is grounded in the dominion of the right holder over the area demarcated by the corresponding right. That dominion, he says, ‘does not vanish even when the right is justifiably overridden’.12 Arguably then, the right to a hearing is the procedural counterpart of that dominion. It gives individuals a power to vindicate their rights. In fact, it gives them a power that befits their status. It is not the status of a supplicant but of a moral agent who can demand a particular treatment and is responsive to reasons. As Spector puts it: ‘Claiming and complaining are, as it were, the proper attitudes of a right holder.’13 Harel acknowledges that the story rehearsed in the previous paragraph is not available in type B disputes where the complainant mistakenly believes that a right of hers has been violated; in such disputes there was no dominion to begin with. But he makes up for that by marshalling the intuition that it is not out of place to complain of an injustice even if it turns out that our complaint was misplaced. By putting forward our misplaced complaint we are still participating qua moral agents in the project of ‘rights reasoning and deliberation’.14 8   Horacio Spector, ‘Judicial Review, Rights and Democracy’ [2003] Law and Philosophy 285, 289 [hereafter Spector, ‘Judicial Review’]. 9   Alon Harel, Why Law Matters (OUP 2014) [hereafter Harel, Why Law Matters]. 10   Mattias Kumm, ‘The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-​based Proportionality Review’ (2010) 4 Law and Ethics of Human Rights 140; Kai Möller, The Global Model of Constitutional Rights (OUP 2012). 11   Bernard Williams, In the Beginning was the Deed: Realism and Moralism in Political Argument (Princeton University Press 2005) 6. 12 13  Harel, Why Law Matters (n 9) 205.   Spector, ‘Judicial Review’ (n 8) 290. 14  Harel, Why Law Matters (n 9) 209.

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It is clear that the right to a hearing or justification provides the enthusiasts’ camp a short-​cut in the debate concerning the legitimacy of constitutional review: The rights enshrined in the constitution are moral rights, too. So presumably they come bound up with a moral right to demand a justification in cases of alleged breach. Constitutional review—​especially when it grants individuals an effective remedy—​is a procedure that meets the specifications of a hearing where rights complaints are raised and the justification for their putative infringement evaluated. In particular, it allows that such complaints be raised by the right holders ‘in their own voice’.15 Hence, arguably it is legitimate precisely because it upholds an important moral right. In fact, its legitimacy does not rest on its instrumental value in protecting moral rights but its intrinsic value as an expression of the right to a hearing. Note that by stressing the intrinsic value of constitutional review this justification is impervious to the messy vagaries of the real world that mar rival accounts. Crucially, it does not require that we work out the judicial role in light of their position in the joint project of governing. Neither does it involve speculation about the outcomes that different institutional arrangements will produce. Proponents of the right to a hearing are particularly keen to emphasize the intrinsic character of the justification they offer.16 They insist that it is not enough for legitimacy that a legal system as a whole is doing reasonably well, if it is not also giving courts the power to hear and adjudicate challenges to legislative decisions for non-​conformity with fundamental rights. Such a system shows the wrong attitude towards individuals. They come before the court expecting that their grievance, say, that their right to free speech has been violated, will he heard. If their case fails not because it is without merit but because there is no institutional avenue for assessing it and providing appropriate redress, the legal system cannot claim their allegiance. It has treated them as means, as a mere cog in a machine geared to produce good aggregate results. Neat though this proposal may appear, it suffers from a number of grave defects. First, I am doubtful that the moral story Harel offers can deliver the right to a hearing in all its ramifications. I do not dispute the idea of a right-​holder enjoying a kind of dominion. But I see his dominion extending as far as his right. It is by virtue of his dominion that others are under a duty not to violate his right. Obviously, that dominion remains unaffected when a prima facie right of his is justifiably overridden. It did not extend that far in the first place. However, I am unclear why the existence of a prima facie right by itself gives me any special moral dominion. If contemporary human rights discourse is anything to go by, we have a prima facie right to pretty much everything, albeit one that is justifiably limited as a matter of course.17 The more expansive the notion of prima facie rights—​and the more susceptible they are to being justifiably limited—​the less convincing it becomes to argue that they ground anything as consequential as a right to a hearing. In the same vein, although it is definitely intuitive that our standing to exercise our right to a hearing should not depend—​entirely—​on the substantive merits of our claim, we are still owed a theory that fleshes out the intuition and grounds a right to a hearing even when we are mistaken about the reach of our substantive rights. For one thing, it is Harel himself who connects procedure and substance. Recall, the right to a hearing is supposed to be anchored in the dominion of rights holders over the things that fall within their rights. More importantly, without a theory we cannot exclude 16   Spector, ‘Judicial Review’ (n 8) 291.  Harel, Why Law Matters (n 9) 199ff.   See Möller, The Global Model (n 10). I have criticized this view in Dimitrios Kyritsis, ‘Whatever Works: Proportionality as a Constitutional Doctrine’ (2014) 34 OJLS 395. 15 17

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the possibility that the intuition reflects an instrumental calculation that by granting a right to a hearing regardless of the substantive merits we are more likely to identify rights violations and that this benefit outweighs the costs. But an instrumental justification is precisely what Harel does not want. So far, I have argued that there is a bad fit between the moral story underpinning the right to a hearing and the scope that it is claimed to have. My misgivings, though, go deeper. I am not convinced that our substantive rights have such a procedural corollary to begin with. One could be carried away into thinking that they do by the language of moral contractualism. According to contemporary moral contractualists like Stephen Darwall judgments of justice must be understood as instances of holding someone to account, as being made from the second-​person standpoint. They must be capable of expressing demands that a person makes on an agent whom she has moral authority to hold accountable.18 Contractualists go on to claim that judgments of justice are correct when they are grounded in principles that are interpersonally justifiable. This briefest of outlines seems to confirm that the contractualist account of justice contains all the essential elements of the right to a hearing. However, that would be too quick. It would overlook that at this point contractualists offer an account of the most general features of justice, not a theory of its content. The thought that judgments of justice are expressible as inter-​personal demands does not entail that anything must actually be demanded and says nothing about how moral claims may be vindicated in actual social settings. In other words, although it may be true that ‘claiming and complaining are appropriate attitudes of a rights-​holder’, it does not follow that the right-​holder has a separate right to claim and complain. Whether there is a right to a hearing of the kind in question here depends on whether such a right follows from (interpersonally accepted) principles of justice. This requires substantive argument. No meta-​ethics can supplant it. Perhaps, though, I stacked the deck when I associated the right to a hearing with this form of moral contractualism. After all, there are other theories that do not merely claim that morality—​or justice—​should be cashed out in terms of universal justifiability but that persons have a corresponding right to be treated according to principles that are justifiable to them. A leading example is the theory propounded by Rainer Forst.19 Forst argues that the right to justification includes a procedural component whereby ‘no one should be subjected to a set of rights and duties—​to a political-​legal rights regime—​the determination of which he or she cannot participate in as an autonomous agent of justice’,20 as ‘a reason-​giving and reason-​deserving being’.21 I cannot go into a comprehensive assessment of Forst’s theory. Suffice it to say that, once again, it offers no short-​cut to the right to a hearing. The passage quoted above is illuminating. Our right to justification issues into a claim to participate in the determination of ‘a political-​legal rights regime’, not to complain of violations of that regime that affect one’s interests. If anything, Forst seems to be thinking of democratic processes, not the judicial forum, when he talks of participation as an autonomous agent of justice. That is not to deny the appeal of Harel’s proposal. It draws on the strong intuition that we should not stand powerless and silent while our rights are being in our view violated, that we should not simply allow others to decide how to treat us, hoping 18   Stephen Darwall, The Second-​Person Standpoint:  Morality, Respect and Accountability (Harvard University Press 2006). 19   Rainer Forst, ‘The Justification of Human Rights and the Basic Right to Justification: A Reflexive Approach’ [2010] Ethics 711. 20 21  ibid 712.  ibid 722.

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that they will judge well what rights we have in the matter.22 But if we leave aside for a moment interpersonal morality, it is not at all clear how this intuition should be translated into a political arrangement. Theorists like Harel assume too quickly that this putative right requires that individuals be afforded a retail justification, for every harm they have allegedly suffered. They have no arguments against an equally plausible alternative, namely that the demand for an adequate justification of the state’s coercive power is addressed further upstream, long before we get to concrete conflicts. It is resolved by our joining the political condition. By participating in a legitimate political community we hope to shield ourselves from our exposure to the unilateral actions of others that interfere with our rights. That is why the resolution of disputes is taken off our hands and placed into the hands of the collective and its procedures, judicial and otherwise. Contrary to the view under consideration, this does not evince an attitude of disrespect towards our ability for moral judgment. Rather, it is part and parcel of the political condition that we now solve such matters not on our own but collectively. Of course collective procedures for dispute resolution must still be morally justifiable. But what justifies them is political legitimacy. And legitimacy, as I have argued in the last two chapters, requires that the political order as a whole is structured such that it reliably and systematically promotes justice. It is at least conceivable that a political order will justifiably do away with constitutional review and thus curtail the right to a hearing because it has other mechanisms in place to protect citizens from violations of their rights. I should make clear that a political order’s latitude in these matters is not unlimited. I readily accept that there are procedural rights, though nowhere near as wide-​ranging as Harel’s right to a hearing, and that these rights act as side-​constraints on legitimate responses to the political condition. For instance, Immanuel Kant argues that we have a right to be persons beyond reproach.23 If this right exists, it may explain why we think it would be inappropriate to convict someone without affording him a hearing even though his guilt is certain. Or consider Ronald Dworkin’s claim that we suffer a special moral harm from an incorrect decision adjudicating our rights.24 Dworkin maintains that this moral harm is the basis of a right to a certain level of accuracy in the procedures that adjudicate our (substantive) rights. But neither proposal delivers what Harel is after. A decision that interferes with my rights is not a reproach against me. If anything, it is the person I accuse of violating my rights who has an interest in defending his standing as a person beyond reproach. Furthermore, Dworkin’s suggestion sees the value of procedures solely in terms of their likelihood to produce the correct decision regarding the content of our substantive rights rather than in terms of their intrinsic value as expressions of our status as rights-​holders.

IV.  The Principle/​Policy Distinction It is hardly surprising that constitutional review enthusiasts make much of the fact that the rights characteristically vindicated through constitutional review are extremely 22   Hence, it is not surprising that Spector associates the right to a hearing with the republican tradition of freedom as non-​domination. 23   Immanuel Kant, The Metaphysical First Principles of the Doctrine of Right (6: 237) in Practical Philosophy (Mary Gregor tr, CUP 1996) 393. 24   Ronald Dworkin, A Matter of Principle (Harvard University Press 1986) ch 3 [hereafter Dworkin, Matter of Principle].

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weighty. I have argued that a right to a hearing should not be counted among them. However, the procedural understanding of the value of constitutional review is not the only game in town. There are other views claiming that the legitimacy of constitutional review has to do with what is at stake when a citizen complains that one of her constitutional rights has been infringed. That is also the starting point of Dworkin’s theory that we shall consider next. Dworkin contends that constitutional review of primary legislation is justified inasmuch as it makes courts guardians of what he calls principles, which he juxtaposes to policies. Unlike Harel and Spector, Dworkin treats constitutional review as an aspect of the more general division of labour between courts and the legislature. Therefore, the desiderata of distinctness, interaction, and merit will be particularly apposite in our critique. For Dworkin, arguments of principle and arguments of policy are the two most important modes of justification of political decisions.25 When a principle is invoked as a ground for a particular political decision, in effect what is being contended is that the decision will enhance or protect an individual right. When in turn a policy is offered as a justification for a political decision, it is argued that the decision advances ‘some collective goal of the community as a whole’. We need not, for present purposes, decide which rights Dworkin contends we have as a matter of moral or political theory. More important is to examine what he thinks is the force of a claim of right. He writes: A political right is an individuated political claim. An individual has a right to some opportunity or resource or liberty if it counts in favor of a political decision that the decision is likely to advance or protect the state of affairs in which he enjoys the right, even when no other political aim is served and some political aim is disserved thereby, and counts against that decision that it will retard or endanger that state of affairs, even when some other political aim is thereby served. A goal is a non-​individuated political aim, that is, a state of affairs whose specification does not in this way call for any particular opportunity or resource or liberty for particular individuals.26

Here Dworkin makes the following ‘formal’ point: What is distinctive about the claim that one has a right to x is the special ‘distributional character’ of that claim.27 It is such that the force of my right to x is independent of any other political aims that are implicated by my having this right. I shall call this the normative-​independence thesis. Following on from this, Dworkin claims that rights can function as trump cards in political argument. They can frustrate the implementation of an otherwise desirable political aim. The normative-​independence thesis helps us see how individual rights can have this power. They have it, because their foundation is independent of the promotion of any such aim.28 Hence, when an individual right is at stake, the protection

25  Ronald Dworkin, Taking Rights Seriously (Duckworth 1977) 91 [hereafter Dworkin, Taking Rights Seriously]. 26  ibid 91. 27   ibid 90. Hence we know which rights we have according to a moral theory just by knowing which claims that theory equips with this special distributional character. 28   Dworkin does not mean to suggest that individual rights are necessarily absolute, in the sense that claims based on them defeat all competing considerations. He explicitly contemplates the possibility of less than absolute rights: Rights may also be less than absolute; one principle might have to yield to another, or even to urgent policy with which it competes on particular facts . . . It follows from the definition of a right that it cannot be outweighed by all social goals. We might, for simplicity, stipulate not to call any political aim a right unless it has a certain threshold weight against collective goals in general; for example, it cannot be defeated by appeal to any of the ordinary routine goals of political administration, but only by a goal of special urgency. (ibid 92)

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of the right furnishes a valid and distinct political justification for the decision-​maker to depart from the pursuit of that aim. Things are different with collective goals. Dworkin writes that their specification ‘does not in this way call for any particular opportunity . . . for particular individuals’. As he has put it in a later work: [Decisions in pursuit of some policy] must be tested by asking whether they advance the overall goal, not whether they give each citizen what he is entitled to have as an individual. Subsidies to one set of farmers may be justified on that test, even though subsidies to a different set, as part of a different overall strategy, would also have improved the general welfare, perhaps just as much.29

Of course, Dworkin does not mean to say that collective goals give us no reason to distribute benefits, resources, or opportunities. For, clearly, that’s what the state does when it subsidizes one set of farmers. What differs is the distributional character of the subsidies. This becomes evident when the state decides to redirect these subsidies to, say, a different set of farmers or military industries, on the ground that this change of policy will better promote the collective good. Since the basis of the subsidies is a policy, the first set of farmers may no longer claim those subsidies for themselves, whereas, if they were receiving the same benefits as a matter of individual right, their claim would survive the change of policy. Another way of putting the same point is this: By definition, collective goals promote the good of the community as a whole. In calculating the good of the community as a whole we need to take into account the interests of all individuals. Sometimes the common good thus specified will demand that the interests of some individuals be sacrificed. But there are some individual interests so vital or important that their normative power is not exhausted by their incorporation in the calculation of the common good. Put differently, their normative power is in part independent of their contribution to the good of the community as a whole.30 Thus, when the common good demands that these special interests be sacrificed, they give rise to a further claim on the part of the aggrieved individuals that they be respected regardless of the collective goals the decision-​maker is committed to, save the most urgent. As announced, my purpose in unpacking the distinction between principle and policy and introducing the normative-​independence thesis has been to offer a plausible plateau that the following analysis can build upon. So, I shall not examine whether the normative-​independence thesis is also true as a matter of moral theory.31 Instead, I shall take a closer look at how considerations of principle and policy are meant to function in political argument. More specifically, I wish to highlight a couple of ways in which the justification of political decisions may be a mixture of considerations of principle   Ronald Dworkin, Law’s Empire (Hart Publishing 1998) 223 [hereafter Dworkin, Law’s Empire].   The basis of their normative independence may then be taken to be an idea of equality (e.g. Dworkin, Taking Rights Seriously (n 25) 272ff) or an idea of moral independence (e.g. Dworkin, Matter of Principle (n 24) 373ff) or some other moral idea. For an account of individual rights and collective goals similar to the one outlined in the text see among others Thomas Nagel, Mortal Questions (CUP 1979) chs 6 and 9; Samuel Scheffler, The Rejection of Consequentialism: A Philosophical Investigation of the Considerations Underlying Rival Moral Conceptions (Clarendon Press 1982). 31   The literature that Dworkin’s theory of rights has spawned is indeed daunting. Here are some examples: HLA Hart, Essays in Jurisprudence and Philosophy (Clarendon Press 1983) 208–​22; Joseph Raz, ‘Professor Dworkin’s Theory of Rights’ [1978] Political Studies 123; Donald Regan, ‘Glosses on Dworkin:  Rights, Principles, and Policies’ [1979] Mich L Rev 1213. See also the three-​part exchange in Richard Pildes, ‘Why Rights Are Not Trumps: Social Meanings, Expressive Harms and Constitutionalism’ [1998] Journal of Legal Studies 725; Jeremy Waldron, ‘Pildes on Dworkin’s Theory of Rights’ [2000] 29 Journal of Legal Studies 301; and Richard Pildes, ‘Dworkin’s Two Conceptions of Rights’ [2000] Journal of Legal Studies 309. 29 30

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and policy. I shall refer to such types of mixed justification as combinations of principle and policy. The first combination I shall discuss functions at the epistemic level, so to speak, whereas the second at the institutional level. Taking stock of the possible combinations will pave the way for the next section, where I shall try to map the distinction between principles and policies on the courts-​legislatures relationship. A. In political decision-​making, there will surely be (a) cases where an entire scheme of policy is such an affront to a weightier principle that the only way to give the principle its due is to scrap the policy altogether. But equally there are (b) many cases where decision-​makers have fixed on a comprehensive goal that needs to be attained and only attend to arguments of principle as side-​constraints or as reason to make adjustments to the modes of implementation of the goal. In the latter type of situation, we may say that policy is modified under the pressure of arguments of individual right. As Dworkin puts it: Even a program that is chiefly a matter of policy, like a subsidy program for important industries, may require strands of principle to justify its particular design . . . In the subsidy case, we might say that the rights conferred are generated by policy and qualified by principle.32

There is nothing particularly ground-​breaking about the power of arguments of principle to qualify policy. If rights have the ability to frustrate a policy, surely they can also under certain circumstances qualify it. And a conciliatory arrangement whereby both the policy in question and the individual rights implicated by it are accommodated to some extent poses an overall more attractive course of action for rights-​sensitive policy-​ makers than any black-​or-​white alternative. Nor did I introduce (b) to challenge the ability of rights to trump. Both (a) and (b) depict the same situation in this respect, namely one where a principle trumps a policy by virtue of its independent normative force. It is just the formidability of the principle’s power to trump in the two situations that differs. In (a) the argument of principle defeats all the possible configurations of the policy in question, whereas in (b) the principle only trumps some alternative policies that might serve the comprehensive goal but is compatible with the reconciliatory scheme. The reason I  highlighted (b)  is epistemic:  it indicates an interesting complication from the viewpoint of someone working out the concrete requirements of an individual right or a collective goal. (b)  suggests that he proceed by interpreting the right and the goal in the light of each other, whereas (a)  might be taken to imply that the requirements of right and policy are worked out independently and the results are compared; from then on, the relative weight of each calls the shots. If the policy is of the ordinary sort, the right trumps it; otherwise the policy is implemented. To spell out in more detail the reasoning that takes place in (b), let’s suppose that the decision-​maker has to contemplate collective goals A and B. Let’s further suppose that A and B are merely two slightly different ways of accomplishing the more comprehensive collective goal C. Collective goal A sits more comfortably with considerations of principle D. It is still true in this situation that principle D trumps collective goal B, even if B may be a more effective way of attaining C. The point is epistemic because it concerns how we have arrived at the specification of policies A and B. In a sense we did not know what the conciliatory scheme A would 32

 Dworkin, Taking Rights Seriously (n 25) 83.

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look like, until we tried to accommodate considerations generated by principle D within the framework, so to speak, of the comprehensive goal C. In other words, this is a situation where principles maintain their independent normative force but are nonetheless ‘nested’ in collective goals. Thus, even if the formal structure of rights as trumps remains unaffected by my argument, it makes sense to say that we have here a distinct kind of interrelation between principle and policy at the epistemic level. In such cases, questions of policy do not operate in a principle-​free space. Neither do questions of right operate in a policy-​free space. B. A further combination between principle and policy arises when we embed principles and policies in an institutional arrangement. Decision-​makers are generally free to revoke a certain policy or try different combinations of policy without thereby interfering with individual rights. This statement is true but needs to be qualified. Once a scheme of policy is initiated and established, individuals may acquire an individual right to a certain opportunity or resource that this scheme provides by virtue of reasons of principle, say because their legitimate expectations ought to be protected. The opportunity or resource that they claim may be the same as what they would get under the policy. What has changed is the basis or justification of their getting it.33 It thus follows that a requirement of policy, for example that farmers must be subsidized for the purpose of overall prosperity, can under some circumstances be transformed into a requirement of principle. This combination evokes an important distinction Dworkin makes between background rights and institutional rights.34 Background rights are the rights individuals would have in the absence of political institutions. Institutional rights are the rights they have within an institutional arrangement. The two kinds of right are bound to overlap to some degree, but in equal measure there will be background rights without institutional foothold and institutional rights (like the rights acquired when a policy is decided upon by a political institution) that we would not have in the absence of the institutional arrangement that created them.

V.  Principles and Policies in Action A. Correlating tasks and institutional roles Having acquired a better understanding of the distinction between principles and policy, we can go on to see how this distinction bears on the determination of the institutional roles of legislatures and courts. Dworkin himself offers this distinction as part of an argument about the proper role to be assigned to courts. He contrasts his view to the standard positivistic doctrine of judicial discretion. According to it, where pre-​existing law has run out, as it were, in the sense that it does not dictate a unique outcome in a certain situation, judges must create new law. And in so doing, ‘they should act as deputy to the appropriate legislature, enacting the law that they suppose the legislature would enact if seized of the problem’.35 This line of argument, claims Dworkin, subordinates judges to legislatures ‘because it makes any understanding of

33

 ibid 83.

 ibid 93.

34

 ibid 82.

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what judges do in hard cases parasitic on a prior understanding of what legislators do all the time’.36 Contrariwise, Dworkin wants to take judging out of ‘the shade of legislation’. He insists that courts perform a special task that differentiates them from legislatures, even in what positivists would consider to be ‘hard cases’.37 More specifically, he contends that courts are best understood as grounding their decisions on principle, rather than policy. This is the standard that their institutional acts are subject to. We will not deny a judicial decision the institutional significance it purports to have, if it does not enhance and even if it retards a collective goal, just as long as it recognizes and gives effect to the individual rights that people have. Of course, that is not to say that it is up to courts to enforce the full load of background rights. The rights that it is within their competence to give effect to must have some institutional footing. They ought to ‘reflect rather than oppose political decisions of the past’. We might say that Dworkin proposes a one-​to-​one correlation between a specific institutional role, the one that corresponds to courts, and a specific mode of justification of political decisions, namely arguments of principle. What is more, Dworkin suggests that it also makes better moral sense of our legal practices to assign judges the power to decide cases on grounds of principle rather than policy. This conclusion follows from what I shall refer to as the argument of judicial independence: [A]‌n argument of principle fixes on some interest presented by the proponent of the right it describes, an interest alleged to be of such a character as to make irrelevant the fine discriminations of any argument of policy that might oppose it. A judge who is insulated from the demands of the political majority whose interests the right would trump is therefore in a better position to evaluate the argument.38

The opposite, claims Dworkin, is true of the assessment of arguments of policy. Policy decisions must therefore be made through the operation of some political process designed to produce an accurate expression of the different interests that should be taken into account. The political system of representative democracy may work only indifferently in this respect, but it works better than a system that allows nonelected judges who have no mailbag or lobbyists or pressure groups to compromise competing interests in their chambers.39

It must be stressed that this claim is explicitly intended as interpretive in character. Dworkin puts forward this one-​to-​one correlation as part of the theory that best explains and justifies legal practices. He writes: ‘The thesis presents, not some novel information about what judges do, but a new way of describing what we all know they do, and the virtues of this new description are not empirical but political and philosophical.’40 For the sake of argument, let’s grant Dworkin his claim with regard to the institutional role of courts. It remains to be seen what this view teaches us about the role of legislatures. For, if Dworkin is to succeed in taking judging out of ‘the shade of  ibid.   A  word of caution is in point here:  It may be objected that Dworkin offers his theory as an account of what judges do in hard cases, whereas I treat it as a general account of the institutional role of courts. But the difference is only illusory. For one thing, Dworkin, unlike most positivists, thinks that the distinction between easy and hard cases is merely epistemic, not deep or metaphysical. See Dworkin, Law’s Empire (n 29) 351–​54. Furthermore, the description Dworkin gives of what judges ought to do in hard cases is no different from his general account of interpretation, which furnishes the foundation of any proposition of law, not just propositions of law in hard cases. 38 39 40  Dworkin, Taking Rights Seriously (n 25) 85.  ibid.  ibid 90. 36 37

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legislation’, he has to take a stand on the institutional role of legislatures. Otherwise, we will not be in a position to assess his view with respect to the desideratum of distinctness, that being an aspect of any division of labour. For our purposes, we may distinguish two approaches to the institutional role of legislatures, a strong and a minimal. Dworkin would be adopting a strong approach, if he also proposed a further one-​to-​ one correlation, this time between the role of legislatures and the policy-​driven mode of justification. The attribution of such a position to Dworkin is underscored by the passage quoted above, where he claims that legislatures are by way of their mode of operation unfit to make sound judgments of principle and better placed than judges to decide issues of policy. Nevertheless, I believe that the strong approach is untenable both as a reading of Dworkin and, more generally, as an account of legislation. First, it must be false to say that principle-​based justifications do not figure in legislative proposals. And Dworkin admits as much when he writes: ‘The justification of a legislative program of any complexity will ordinarily require both sorts of argument’.41 Sometimes ‘the rights conferred [by a legislative program] are generated by policy and qualified by principle’, and sometimes ‘they are generated by principle and qualified by policy’.42 Second, it would cast legislatures in an irredeemably bad light to suggest that all they are institutionally bound to do is aggregate interests. Elected representatives of the people are at least as much supposed to be under an obligation to debate issues of background rights as issues of policy. The point I am trying to make can be brought out if we consider what the suggestion under consideration would imply for our understanding of the institutional duties and powers of legislatures. To my mind, the implication would be that legislative enactments acquire all the institutional significance they purport to have, just in case they have a foothold on considerations of policy, however intensely they violate individual rights; or put differently, that legislators discharge their institutional duties as long as they make considered policy judgments, however insensitive they are to issues of principle implicated by their decisions. But this would be deeply counter-​intuitive. The picture of legislatures I offer now does not necessarily conflict with the argument from judicial independence or with the conclusions about the role of courts Dworkin draws from it. We can consistently hold that one organ is better than another concerning a certain task and that both organs are institutionally bound jointly to perform that task one way or another. Hence, we must fall back on the minimal approach. The minimal approach says that, while courts will not be the only organs that may rely on arguments of principle to justify their decisions, they must be the state actor that does only that. As regards legislatures, the minimal approach would say that they ought to justify their decisions on both types of argument. In this way it would also satisfy the desideratum of distinctness. And it would do so in a way that has moral appeal based on the argument from judicial independence.

B. Taking interaction on board Given the version of one-​to-​one correlation that Dworkin puts forward in respect of the institutional role of courts, now coupled with the minimal claim regarding the  ibid 83.   ibid. Compare ibid 302–​03. This also follows from the epistemic combination of principle and policy highlighted in the previous section. Insofar as many considerations of individual right are worked out and accommodated at the stage of specifying policy, it will primarily be the task of the legislators to address them. 41 42

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competence of legislatures, we have to ask how Dworkin expects the two institutions to interact with one another. In other words, we have to ascertain whether Dworkin’s thesis satisfies the desideratum of interaction. The purpose of the analysis will be to demonstrate that, if we try to give interaction its proper place, we flout either distinctness or moral attractiveness. I shall give two arguments to that effect. First, it will be suggested that the allocation of power envisaged by Dworkin involves us in a problem of conflicting allegiances. Second, it will be contended that once we bring interaction in, it becomes inevitable for judges to consider arguments of policy as well as arguments of principle. From this it will further be concluded that even the one-​to-​one correlation between the institutional role of courts and the principle-​driven mode of justification fails and hence that Dworkin’s theory fails to meet the desideratum of distinctness. For both arguments I will rely on a case where the task of courts is obviously dependent on the decisions of the legislature. This case is derived from the second type of combination of principles and policies identified in the previous part, namely the combination that occurs at the institutional level. Recall that on the institutional combination requirements of policy may be transformed into requirements of principle once a political institution enacts a policy into law. This political institution is bound to be the legislature by virtue of the fact that it is better placed to make judgments of policy. Thus, when a legislative program is enacted on the basis that it promotes a collective goal, legal subjects thereby acquire individual rights grounded on arguments of principle, at least in the normal case. Even if the judge thinks that a different distribution of resources would actually better enhance a certain collective goal or a set thereof, he is under the scheme of division of labour we are now considering institutionally bound to give effect to those individual rights. In short, legislative decisions will determine in part what is the right judicial decision on some issue. And this, of course, is as it should be, since courts are not supposed to enforce all the background rights individuals have, but only those rights that have institutional support.

1) The conflicting-​allegiances problem Here arises the problem of conflicting allegiances. On the one hand, given that the job of the legislature is not confined to considerations of policy, it is to be expected that in laying down such programs the legislature will assign weights to competing principles and policies, determine ways of reconciling principles and policies etc. (in short it will make epistemic combinations of policy and principle). To repeat, these programs will create legal rights and duties, originating in principle or policy or some epistemic combination thereof, which the court has a duty to enforce by virtue of the institutional combination. I  will say that the institutional combination furnishes a second-​order reason of principle for the courts to defer to the determination of other—​ call them first-​order—​issues of principle made by the legislature. I shall say more about the distinction between first-​and second-​order considerations in the next section. For the time being, let me suggest what I am after with an example. Suppose a legislative program dictates that in cases of emergency the maintenance of public order (a policy) requires that the right to free assembly be subjected to certain strict conditions. Hence, in pursuing this type of policy the legislature has also given more concrete content to an individual right. Courts have what I have called a second-​order duty to implement this program and thus also the conception of the right to free assembly that the legislature has opted for. As much follows from the institutional combination of policies and principles.

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On the other hand, the existence of such a second-​order reason of deference on the part of courts is potentially at odds with the political rationale for having judges decide questions of principle, encapsulated in the argument of judicial independence. The argument from independence, as we saw, stated that judges are better placed to decide issues of individual right and less prone to give in to the demands of majorities whose interests these rights may trump. But if it is to have any edge at all, it must be the case that, where legislatures also have a say on questions of principle, courts’ determinations on these questions must prevail, at least sometimes, when the two branches disagree. In effect, the argument from independence urges us to beef up the institutional role assigned to courts such that it includes some sort of supervisory function over legislative decisions, the final say, with regard to questions of principle. It is this supervisory function and hence also part of the moral attractiveness of Dworkin’s proposal that find themselves under threat when an argument of principle, the only kind of argument that can justify a judicial decision, commands that judges be subdued to the will of the political majority in respect of other critical questions of principle. To go back to our example, if the court is to be considered the guardian of principle, it must be the case that, when it finds that the right to assembly has been overly restricted by the legislative program, it will have the power to correct the legislative decision. But it seems it can only do this by violating the (second-​order) duty to defer to that decision. By this I do not mean to challenge the argument of judicial independence. Quite the contrary, I believe it is an important insight that we must bring to bear on our account of the institutional role of courts. And the same goes for the representative character of democratically elected legislatures. I shall invoke both ideas as part of a positive case for the legitimacy of constitutional review in Chapter 6. For the moment I only want to cast doubt over the compatibility of these two arguments and the carve-​up of institutional roles that Dworkin propounds, namely the one-​to-​one correlation with regard to courts coupled with the minimal approach with regard to legislatures. Against this line of reasoning it may be objected that the second-​order principle directing judges to enforce the individual rights flowing from a specific legislative program is only one principle among many. It carries a certain weight and therefore it can be overridden by weightier considerations of (first-​order) principle bearing on the case before the court. In our example, this objection might say that if the restriction of the right to assembly in the legislative program is extremely severe, what happens is that the duty to correct this (first-​order) injustice outweighs the (second-​order) duty to uphold the legislative program. I think this is by and large correct, but it does not save the relevance of the principle/​policy divide for present purposes, namely as key to the allocation of power between courts and legislatures. Our initial hope was that the distinction would help us demarcate the domains or institutional roles of the two branches of government. Now it turns out that concerning a very crucial aspect of the division of labour between them (whose views will prevail over questions of individual right), what in fact demarcates them is not the principle/​policy distinction itself but the right combination between what we dubbed first-​and second-​order questions of principle.

2) Are courts policy-​blind? The preceding paragraphs aimed to demonstrate that even the more plausible account of the division of labour between courts and legislatures (whereby both are institutionally

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bound to take principles into account) flouts the desideratum of merit. Now I want to question whether courts may only appeal to considerations of principle after all. Let’s start by taking a closer look at the kind of reasoning that leads a judge to accept and enforce on grounds of principle a requirement of policy that is included in a legislative scheme. The inquiry of the judge will often begin and end with the plain meaning of the words of the statute where the legislative scheme has been engraved. But this relatively easy way out of the problem will not always be available. All too often the litigants will claim that the legislative scheme grants them rights that go beyond or run contrary to the plain meaning of the text of the statute. To respond to such claims, the judge cannot simply state the obvious, namely that they have no foothold in the wording of the statute. Besides, for an interpretivist like Dworkin, this is not what makes these claims true, if they are true. Rather, it’s whether they are warranted under the interpretation that best explains and justifies legal practices. As we have seen, one of the aspects of this more complex investigation will be whether there is a conflicting principle—​enforceable by courts—​that overrides the policy justifying the legislative scheme. This aspect, you may recall, gives rise to the problem of conflicting allegiances. But for simplicity suppose our judge is faced with a legislative scheme that does not implicate competing considerations of principle. He now has to decide which legal rights and duties flow from the legislative scheme. This will not always be an easy task with a straightforward solution. For, sometimes what a policy requires or what a legislative scheme requires that aims to implement a given policy is not translatable into hard-​and-​fast rules. There will be cases with regard to which disagreement can arise and which it takes some interpretive effort to resolve.43 In these cases the judge is called upon to work out in more detail the policy that it is reasonable to impute in the legislative decision. Only in this way will he be in a position to assess whether recognition of a claim will advance or obstruct the scheme of policy that the legislature has opted for. Let’s take for example a statute that imposes fishing quotas.44 The judge needs to decide whether the same quotas ought to be imposed on whale fishing. There is disagreement on the issue by virtue of the fact that according to the best scientific evidence whales are not fish. Let’s also suppose that there is no legislative record that the judge can resort to. The only way out of this problem seems to me to be this: the judge ought to contemplate which overall policy the legislative scheme promotes and on this basis decide whether imposing the quotas on whale fishing accords with that policy. Of course, there are a number of things that we expect the judge not to do in this respect. For example, he cannot go about balancing competing policies or even cancel the implementation of the legislative program just in case he believes that a different scheme would better serve a given goal or that under the circumstances another goal must take priority. He also ought to consult the legislative record and other formal declarations of officials in order to resolve ambiguities in the wording of statutes.45 In other words his decision must be to some extent dependent on the legislative determination. But this dependence merely suggests that arguments of policy will play a more circumscribed role in judicial reasoning than in legislative decision-​making, not that   Dworkin addresses similar questions in Dworkin, Law’s Empire (n 29) ch 9.   The example is taken from Stephen Munzer, ‘Realistic Limits on Realist Interpretation’ [1985] S Cal L Rev 459. A similar point as the one in the text been raised by Kent Greenawalt, ‘Policy, Rights and Judicial Decision’ in Marshall Cohen (ed), Ronald Dworkin and Contemporary Jurisprudence (Duckworth 1984) 88, 103–​06. 45  Dworkin, Law’s Empire (n 29) 342–​45. 43 44

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they will play no role at all. Thus, the example militates against the proposition that in justifying his decision the judge is altogether blocked from having recourse to arguments pertaining to the advancement of collective goals, as the one-​to-​one correlation requires. In other words, my second argument defends the thesis that the demarcation of the judge’s institutional duty vis-​à-​vis the legislature doesn’t map on the principle/​ policy divide; rather it stems from the right conception of courts’ dependence on legislative determinations, which cuts across the principle/​policy divide. To avoid the conclusion that judges actually cross the principle/​policy divide, three defensive strategies can be employed. First, someone may seek to weaken the one-​to-​ one correlation between the institutional role of courts and the principle-​driven mode of justification by insisting that arguments of principle are the predominant mode of justification of judicial decisions, not the only one. Second, it may be objected that my criticism has relied on an impoverished understanding of what the principle-​driven mode of justification involves. In fact, this argument runs, this mode of justification incorporates arguments of policy as well as more straightforward arguments of individual right. Third, a different construal of arguments of principle and policy may be offered from the one proposed here, which presumably avoids the problems I  have identified. I think all three strategies fail. The first fails because it underestimates the interplay between principle and policy in the judicial decision argued for in this section. My argument was meant to bring out the fact that, insofar as the role of courts is dependent on prior decisions made by the legislature, it is impossible to disentangle principle and policy in judicial decisions in a meaningful way. If the strategy wants to suggest that in the rest of the cases, where principle and policy are not interlocked, the courts’ role will be principle-​driven, then it argues for a very weak sense of predominance indeed. Courts, it can reasonably be objected, are typically, not exceptionally, dependent on legislatures. In turn, the second strategy, which proposes a more comprehensive understanding of the principle-​driven mode of justification, fails because it effectively concedes the point that the distinction between principle and policy cannot be the basis of the allocation of power between courts and legislatures. Since according to this strategy the mode of justification relied upon by courts includes both kinds of argument, the institutional role that they perform is no different in this respect from the institutional role of legislatures. If there is anything that differentiates them, it must be in the right mixture of arguments of the two sorts that courts and legislatures respectively can draw on. But to define the right mixture we need to bring in considerations that are at least partly independent of the things to be mixed. Finally we come to the third strategy, which Dworkin advances in his reply to Kent Greenawalt’s criticism. He writes that [t]‌he question of principle appeals to the judge’s theory of legal rights, which in turn draws on his theory about the personal or ‘moral’ rights members of the community have against one another and the political rights they have against the various officials of the community, including him. The question of policy draws on his convictions about the ideal society and the best strategy for reaching that ideal.46

This is a very different understanding of principle and policy from the one I  have relied on in this chapter. According to this new understanding, the principle/​policy 46   Ronald Dworkin, ‘A Reply by Ronald Dworkin’ in Marshall Cohen (ed), Ronald Dworkin and Contemporary Jurisprudence (Duckworth 1984) 263.

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distinction is not about individual rights as opposed to ways of promoting the common good. Rather, what is distinctive about policy is that, when we justify a decision by appeal to it, we are not concerned to respect past political decisions. By contrast, justifications on grounds of principle are constrained by past political decisions. Although this reformulation rescues the one-​to-​one correlation between courts and arguments of principle, it achieves it at the cost of rendering the principle/​policy distinction uninteresting, at least for present purposes. For it merely restates that courts ought to do what is in their power to do according to the theory that best explains and justifies past political decisions. No interpretivist denies that. For, every interpretivist accepts that this formula identifies the legal duties of every state official and not just of judges. But we started off with the assumption that the principle/​policy distinction went further than that; that it was meant to shed some light on what an interpretivist must hold, more specifically, is the role of courts, as opposed to other legal officials, particularly the legislature (first desideratum), and in view of the fact that different legal officials including judges take part in a joint enterprise (second desideratum). The strategy in question goes back on this assumption. It therefore drastically deflates the distinction’s original force and intended place in a theory of institutional division of labour. Moreover, it is not entirely clear that the idea of policy in its revised version captures the role of legislatures either. For, it can plausibly be maintained that legislatures are not oriented to the pursuit of the ideal society, unconstrained by political history. Obviously, legislatures enjoy much wider latitude than courts. But this does not mean that they are altogether unfettered.47 Here are two examples. First, it is commonly accepted that legislatures are not allowed to interfere with pending cases before courts except in extraordinary circumstances. Likewise, they have a strictly circumscribed role in the appointment of legal officials. A typical example in this respect is the US, where constitutional theorists argue that Congress’s involvement in the appointment of members of independent regulatory agencies is checked by the ideal of separation of powers and, more specifically, by the requirement to preserve the unity of the executive.48

VI.  A Diagnosis It is now time to situate the argument thus far within the bigger picture. Many of us are intuitively drawn to the idea that it is the courts’ peculiar role to interpret and enforce claims of individual right and that it would be inappropriate for them to appeal to arguments about the best strategy to achieve some collective goal. It is an idea with a long history and with undiminished support, and Dworkin’s view, as I have tried to show, provides a sophisticated elaboration of it, as well as a point of reference for its supporters. This view, I have argued, is vulnerable to a number of objections. 47   I have assumed here that policy on the revised view involves the absence of constraints from political history. Richard Bronaugh has invited me to consider a different reading. He has pointed out that in Dworkin’s response to Greenawalt’s questions of policy may be understood as drawing on other considerations apart from considerations about the ideal society—​Dworkin does not say that they only draw on considerations of the latter type. However, if those further considerations include past political decisions, then policy on the revised view is all but identical to principle; and hence the distinction between them becomes unstable. 48   See for instance Peter Strauss, ‘The Place of Agencies in Government: Separation of Powers and the Fourth Branch’ [1984] Col L Rev 573. Importantly, Dworkin himself later came to acknowledge the existence of moral constraints on the power of legislatures to realize justice. He referred to ‘integrity in legislation’, which ‘restricts what our legislators and other lawmakers may properly do in expanding or changing our public standards’. See Dworkin, Law’s Empire (n 29) 217–​18.

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But I  think that its flaws are instructive, and that, if we understand what is wrong with it, we may be in a better position to address some of the persistent concerns and puzzles about the power of courts—​and also salvage what’s worth keeping from the original idea. So, why has Dworkin’s attempt gone astray? Before I  offer my diagnosis, let me revisit and sharpen a distinction I introduced in my critique, the distinction between first-​and second-​order considerations. First-​and second-​order considerations correspond to two different parameters of good governance by political institutions. In Chapter 1 I referred to them as considerations of content and institutional design.49 These considerations form part of our answer to the question: How is political power to be exercised in order justifiably to lay claim to our allegiance? First-​order considerations or considerations of content bear on the content of the decisions political institutions have produced. Ordinarily our understanding of good governance and therefore our answer to the question just mentioned make reference to the goals that political institutions must pursue, the states of affairs they ought to promote or try to attain, and so forth. Political institutions are there to protect our rights, promote justice, and facilitate social cooperation among other things; part of what it means to say that they are doing well is that they are achieving these goals. Of course, the extent to which this is true crucially depends on such things as their effectiveness, but it is also necessarily a question of the content of their decisions, of whether their decisions actually track what is the right way to order society. On the other hand, our assessment of political institutions—​our judgment as to whether they are governing well—​will also focus on such things as the makeup of those institutions or the processes they have followed in producing their decisions. Assessment of the latter kind will draw on second-​order considerations or considerations of institutional design. These considerations are generally to do with the reasons we have (or the conditions under which we are willing) to give an institution of some sort or a number of institutions acting together the power to make decisions of some sort that are to be binding on us. I take it that due process, the rule of law, separation of powers, and checks and balances are all political ideas that are primarily intended to articulate second-​order moral concerns.50 Let me illustrate the distinction with an example. Take the decision of an administrative authority imposing a duty on automobile manufacturers to install airbags in cars. In assessing whether this is a good decision, we must of course take into account the value of safety, the manufacturers’ freedom to do business, consumers’ rights etc. Relative to this decision, these are the relevant first-​order considerations. But we will also be interested to know such things as whether in reaching its decision the administrative authority has observed standards of fairness and natural justice, whether it strayed beyond the powers that were delegated to it by the legislature etc. Relative to this decision, these are the relevant second-​order considerations. Notice how the two types of consideration are distinct. So, for example, it makes sense to ask whether the decision, though duly passed, has properly addressed the demands of safety. And conversely, we   Chapter 1, section III.B.   This is not to exclude the possibility that a conception of these ideas might include substantive elements. This is the case with a number of accounts of the rule of law. For an overview of such accounts see Paul Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ [1997] PL 466. A prominent example is offered in TM Scanlon, The Difficulty of Tolerance: Essays in Political Philosophy (CUP 2003) ch 3. What is important, though, even in such mixed conceptions is that they primarily reflect second-​order concerns. It is the latter that give the overall tenor. Accordingly, the place of substantive elements must necessarily be circumscribed. 49 50

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can imagine the authority violating fair-​hearing requirements and yet arriving at a just outcome. It is important not to confuse the distinction I have just introduced with the more familiar distinction between ‘substantive’ and ‘procedural’ values. No doubt, there will be many instances where the two distinctions map on each other. But this will not always be the case. Suppose the legislature enacts a rule granting those accused a right against self-​incrimination (assuming that they do not have such a right by virtue of the constitution). Protection against self-​incrimination is surely a procedural value, but relative to this decision,51 it is also a first-​order consideration. So, procedural considerations can function as either first-​or second-​order considerations, depending on the legal issue we are facing. However, the same does not apply to substantive considerations, as traditionally understood. It is hard to imagine how, say, road safety may play the role of second-​order consideration (the idea of road safety is to be distinguished from expertise in matters of road safety; the former is a substantive consideration, while the latter is not). How does the distinction that I just proposed bear on our discussion? The defect that lies at the heart of Dworkin’s view can be formulated in the following terms: Dworkin starts from a distinction of kinds of first-​order moral concerns that government is to promote. Holding this distinction constant, he then tries to work out which allocation of power most accurately tracks it; put differently, he seeks to determine which state agent is best suited to promote each type of concern. For Dworkin, we could say, the determination of the institutional roles of courts and legislatures flows from a projection of first-​order moral concerns on institutional design. My critique sought to demonstrate that this projection does not work. The reason of this failure is that Dworkin does not adequately factor considerations of institutional design into his account. Such considerations are of course not totally absent. So, for example, we have seen that judicial independence and democratic accountability play a crucial role in his argument, furnishing bases for the allocation of tasks to courts and legislatures. However, considerations of institutional design are not only about what government ought to do to legal subjects (which is what Dworkin focuses on) but also about what branches of government ought to do vis-​à-​vis one another (so that they can jointly better claim the allegiance of legal subjects). Judicial supervision of legislation is one response to the latter question of joint action. So is judicial deference to legislation. Both of these ideas, which the preceding discussion has brought out, must be put in their rightful place in a conception of separation of powers. But in order to do justice to them we must acknowledge and spell out the interaction between courts and legislatures and the second-​order principles of institutional design that shape it. That is, we must examine their interaction on its own and not merely derivatively from an analysis of the first-​order considerations we believe they must take into account. Importantly, we will have to factor into our analysis the fact that legislatures, too, participate in the articulation and specification of the abstract principles contained in the constitution and confront the tension between that part of the legislative role and judicial oversight. It may be useful to frame our diagnosis in terms of the desiderata of theories of separation of powers. I have said that Dworkin accounts for the distinctness of the institutional roles of courts and legislatures at the cost of downplaying their interaction. At best the interaction he makes room for is a by-​product of the distinct roles he ascribes 51   I write ‘relative to this decision’, because I take the most common case, where there is a decision that adjudicates on a specific issue. But perhaps the following more general formulation is more accurate: ‘Relative to this question of law’.

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to courts and legislatures, not constitutive of those roles. But interaction points to a host of additional considerations that inevitably feed back into the desideratum of distinctness. When tested under the strain of such considerations Dworkin’s view yields unacceptable results.

VII. Conclusion The debate over the appropriate relationship between courts and legislatures has for long been dominated by attempts to carve out for each institution a province, in which it is the sovereign. It is in this spirit that the connection between courts and issues of fundamental right—​issues of ‘principle’—​has typically been couched. In fact, this understanding of the courts’ role is common in many constitutional-​review enthusiasts and constitutional-​review sceptics alike. In this chapter I have sought to move away from this frame of mind. I have argued that there is no royal road to a connection between the judicial role and rights protection, either conceptually or morally. At the moral level, I have maintained that political legitimacy does not privilege the judicial route for challenging laws. In addition, taking Ronald Dworkin’s seminal contribution I have shown that the legislature also acts on considerations of principle and hence an adequate account of separation of powers must explain what respect its judgment on such issues is entitled to from the courts. Merely saying that the latter are guardians of principle is not enough. Hence, we do better to see the relationship between courts and legislatures as far more interactive than the common understanding sometimes seems to suggest. It is a relationship, where both institutions depend on one another’s acts and decisions in different respects. In the normal case, the court will be charged with giving effect to legislative decisions. In this sense it depends on the legislature. But it may sometimes be empowered to supervise the quality of those decisions. Now, it is the legislature that depends on courts.

4 Against the Democratic Objection Representative government is, thus, a system in which the representatives can never say with complete confidence and certainty: ‘We the people’.1

I. Introduction The previous chapter examined a variety of claims to the effect that issues of individual right are the preserve of the judiciary. Popular though they may be, these claims were found wanting. The scheme of separation of powers they propose gives an illusory sense of neatness. But this neatness collapses in the face of the complexities surrounding the relationship between courts and the legislature. I have suggested that by virtue of their receptive function courts have a general reason to defer to the judgment of the legislature concerning matters of right. To the extent such a reason exists in a particular case, we need an account of how it interacts with other reasons that exert a pull in judicial decision-​making, including, crucially, reasons dictating that a certain right be recognized and enforced. It is here that the constitutional review enthusiasts have little to offer. In this chapter we shall turn our attention to the other end of the spectrum, which is occupied by theorists who dispute the legitimacy of constitutional review. These theorists, whom I called constitutional review sceptics in previous chapters, take issue primarily with the power of judges to strike down democratically reached decisions, which they find in contravention of the abstract moral principles enshrined in the constitution. They argue that this type of judicial oversight is an affront to democracy, however popular it may have proved in the real world and regardless of its contingent beneficial consequences. In other words, they claim, we can accept constitutional review only at a substantial cost to democracy and thus, ceteris paribus, to the legitimacy of the legal order. Let’s call the sceptics’ argument the democratic objection. We have already encountered the sceptics on a number of occasions in this book. We briefly rehearsed their distrust towards notions of legitimacy making reference to the content of state policy (as opposed to the process that produced it) in Chapter 1. In the same chapter we also saw that some of them would maintain that the project of this book is methodologically ill-​conceived because it privileges the status quo. Finally, we noted the affinity between their commitment to democracy and a certain version of the doctrine of separation of powers in Chapter  2. Of course there are important connections between all these positions, and in the course of this chapter I shall highlight some of them. Here, however, my aim is to tackle the democratic objection head-​on. As my primary target I  shall take the formulation of that objection offered by Jeremy Waldron. Waldron expounded the democratic objection in his book Law and Disagreement,2 refining it in ‘The Core of the Case

1   Bernard Manin, The Principles of Representative Government (CUP 1997) 174 [hereafter Manin, Principles of Representative Government]. 2   Jeremy Waldron, Law and Disagreement (OUP 1999) [hereafter Waldron, Law and Disagreement].

Where Our Protection Lies. First Edition. Dimitrios Kyritsis. © Dimitrios Kyritsis 2017. Published 2017 by Oxford University Press.

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against Constitutional Review’.3 I shall also consider some of the arguments against constitutional review, at least of the strong form found in the US and Germany, advanced by Richard Bellamy, which he elaborated in Political Constitutionalism4 and subsequent publications. My case against Waldron and Bellamy deviates from a popular defence amongst proponents of constitutional review, whereby the purpose of this institution is actually to enhance democracy.5 Now, there is no denying that, if democracy is conceived broadly enough, constitutional review will often come out as pro-​democratic.6 But I shall not pursue this line of argument. Nor shall I rely on the ‘tyranny of the majority’ argument, whereby there is something inherently bad about majorities deciding for the rights of individuals. I shall try a different tack. Waldron and Bellamy insist that the debate between constitutional review sceptics and enthusiasts must proceed from a proper appreciation of the nature of legislatures. Before we decide whether we must have judges supervise the legislature, we must first try to understand what is the point of having legislatures decide anything. It is claimed that this theoretical exercise reveals a fundamental defect in the practice of constitutional review. I wish to challenge what I take to be a crucial assumption of this claim and of the democratic objection more generally, namely the equation of democratically elected legislatures with the people conceived of as a self-​governed collective. I think this assumption is false. Despite their indubitable democratic credentials, legislatures in the legal systems with which we are most familiar ought not to be regarded as expressing the voice of the ‘People’.

II.  Articulated Government This book proposes that systems of constitutional review, if they are justified, must be understood as components of schemes of separation of powers. This is also the way Waldron frames his critique of such systems. He argues that constitutional review is at odds with the value underlying separation of powers. For Waldron, key to unpacking this important principle is ‘a theory of articulated governance’.7 Articulated governance requires that the exercise of public power ‘be housed in and channelled through the procedural and institutional forms, successively one after the other . . . The legislature, the judiciary, and the executive—​each must have its separate say before power impacts

3   Jeremy Waldron, ‘The Core of the Case against Judicial Review’ [2005–​6] Yale L J 1346 [hereafter Waldron, ‘Core of the Case’]. 4  Richard Bellamy, Political Constitutionalism:  A  Republican Defence of the Constitutionality of Democracy (CUP 2007) [hereafter Bellamy, Political Constitutionalism]. 5   Here are a few recent examples of this trend: Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Harvard University Press 1999) 1 [hereafter Dworkin, Freedom’s Law]; Christopher Eisgruber, Constitutional Self-​Government (Harvard University Press 2001); Alon Harel, ‘Constitutional Review:  A  Democratic Justification’ [2003] Law and Philosophy 247. This line of argument was inaugurated by John Hart Ely in his seminal book Democracy and Distrust: A Theory of Constitutional Review (Harvard University Press 1980). Though sympathetic to constitutional review, Larry Sager has expressed his doubts about the fruitfulness of this approach in Justice in Plainclothes (Yale University Press 2004) 132–​37. 6   This is the crux of Dworkin’s claim. Importantly, Dworkin insists on the contingent nature of this justification. He writes: ‘Democracy does not insist on judges having the last word, but it does not insist that they must not have it’. See Dworkin, Freedom’s Law (n 5) 7. 7   Jeremy Waldron, ‘Separation of Powers in Thought and Practice’ [2013] Boston College Law Review 433, 441.

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on the individual’.8 Articulated governance refers to a moral ideal. It is what you get when the law rules as it ought to. Hence, it does not detract from it that the institutional roles of the bodies we now call the legislature, the judiciary, and the executive do not fully correspond to it.9 Insofar as this happens, our legal systems diverge from the ideal and are pro tanto less legitimate.10 What exactly does articulated governance amount to? What kinds of arrangement does it recommend? This ideal does not merely state that each of the three branches ‘must have its separate say before power impacts on the individual’. On any conception of separation of powers, it will be the case that the legitimate exercise of public power requires respect for the distinct contribution of each branch of government. Waldron is after something more specific than that. He puts emphasis on the sequence of contributions: The legislature must have its say first; a court would be acting out of turn if it had its say before the legislature. This is not solely a matter of temporal priority. For Waldron the legislative function also enjoys hierarchical priority. A legal order organized by the separation of powers principle could be likened to a conveyor belt that transfers legitimacy from its primary seat, which for Waldron is the democratic legislature, to the decisions of the other branches of government. This idea lends a certain shape to the interaction between courts and the legislature. In the ‘assembly line of fidelity’ courts act legitimately only if they act in a way authorized by democratically enacted legislation.11

III.  The Moral Appeal of Majority-​vote Why should we go along with Waldron’s conception of separation of powers in terms of the chain of authorization described in the previous section? In order to answer this question, we must delve into Waldron’s understanding of the value of democratically elected legislatures. For him, the purpose of law is to produce action-​in-​concert in the circumstances of politics. These circumstances include ‘the felt need among members of a certain group for a common framework or decision or course of action on some matter, even in the face of disagreement about what that framework, decision or action should be’.12 Indeed, Waldron believes the problem of reasonable disagreement lies at the heart of the explanation of law’s authority, more prominently so in democratic  ibid 459.   In fact, Waldron notes, the tripartite distinction of functions would even make sense if all power were vested in only one office. Arguably, the ideal of separation of powers would place the officeholder under a duty to break down her omnipotence into the three forms and exercise them in the right order (ibid). 10   That being said, Waldron’s conception of separation of powers can—​and should—​have practical implications even in those legal systems. Perhaps, where an official role is left undetermined or indeterminate, it should be exercised in a way that complies with the separation of powers principle, all else being equal. Perhaps also, when an official shares in a task that belongs to a different branch of government according to the separation of powers principle, she should perform it with restraint or deference to the appropriate branch, again all else being equal. 11   A similar proposal has been advanced by Christoph Möllers. He writes that ‘the ratio of separation of powers in democratic constitutional states is not the repression and facilitation of political power but rather the organization of a model of law-​making in which individual and collective matters of self-​determination gain equal recognition’ (Christoph Möllers, The Three Branches: A Comparative Model of Separation of Powers (OUP 2013) 109). In language strongly reminiscent of Waldron he insists that separation of powers is ‘an instrument to let all different parts of a system of separated powers contribute to the process of law-​making in their own specific procedural way’ (ibid 108). 12  Waldron, Law and Disagreement (n 2) 102. 8 9

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polities. Each of us is not merely a rights-​bearer, someone whose rights may be infringed and need protection. He is also a rights-​thinker. He deliberates about what rights he and other citizens have, about their implications and about the proper way to balance them against other rights and against different kinds of moral considerations. Now, there is bound to be great disparity in the views individual citizens entertain about these issues. One social arrangement will strike one group as unjust, and an alternative will seem unjust to another group. In view of this situation we must, argues Waldron, design our public institutions so that the law can claim the allegiance of its subjects despite persistent disagreements about which vision should govern our common life. But why, one may ask, is deep-​rooted, reasonable disagreement pertinent to the problem of law’s authority? To this Waldron responds that the authority of law is not just a matter of the law being justified but, more specifically, of the law being justified to those whose life it purports to regulate. He writes: At least since the seventeenth century, our conception of argument in political philosophy has been guided by the idea that social, political and legal institutions are to be, in principle, explicable and justifiable to all those who have to live under them. We have rejected the esoteric in political theory; we have rejected the idea of arcana imperii  . . .  Modern political philosophy evinces a commitment to the idea that theoretical argument aims not merely to justify laws or political proposals, but to justify them to the ordinary men and women whom they will affect.13

Of course, reasonable rights-​thinkers will be sensitive to good arguments. But it is not to be expected that, after all is said and done, everybody will be convinced to adopt the same conception of the just and well-​ordered polity. Reasonable disagreement is likely to persist, not least because reasonable arguments can be summoned for almost every conceivable outlook of the just and well-​ordered polity. This, for Waldron, sets the task for our accounts of law’s authority. We have to conceive of law’s authority in terms that can provide the appropriate justification without invoking the same kinds of argument that have failed to command unanimous support in the first place. According to Waldron, it would be a sign of disrespect towards those fellow-​citizens who hold a particular view on a given issue to reiterate the same substantive arguments that they have found unpersuasive as a justification for the adoption of a conflicting view. Here is a characteristic formulation of this point: An adequate answer to the question of authority must really settle the matter. It is no good saying that when people disagree about rights, the view which should prevail is the truth about rights or the best account of the rights we have . . . The theory of authority must identify some view as the one to prevail on criteria other than those which are the source of the original disagreement.14

This is not to suggest that there is no right answer on moral and political issues. There may well be. Waldron claims that he need not take sides on this.15 He insists, however, that when asking about law’s distinctive authority we should not focus on the substantive content of legal requirements. Otherwise, we lose sight of an important dimension  ibid 229.   ibid 245 (emphasis in the original). Relatedly Waldron endorses what he calls Raz’s Argument (ibid 107): Certainly any decision-​procedure which addresses the circumstances of politics has to look technical . . . law can be authoritative (in [Raz’s] sense) only if recognizing something as law is an alternative to trying to figure out for oneself what is to be done about the matter that the law addresses; it can be authoritative therefore only if the method of recognizing something as law seems arbitrary in relation to the substantive merits. That applies also to decision in the circumstances of politics. 15   ibid 164–​87. 13 14

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of law’s purpose, namely that it aims to regulate the collective life in a way that makes its requirements justifiable to (and in this sense for Waldron also binding on) those who disagree with the content of the law. Furthermore, we have to put lawmaking in a dynamic perspective. The problem of law’s authority for Waldron is a problem of finding a normative foundation for the ‘demand for a certain sort of recognition and . . . respect—​that this, for the time being, is what the community has come up with and that it should not be ignored or disparaged simply because some of us propose, when we can, to repeal it’.16 We do not need to change our minds about whether capital punishment is right simply because the law permits it, assuming that it does. But until we have it our way, there is a sense in which the permissibility of capital punishment ‘stands for the time being in the name of the whole community’.17 Explaining the normative standing the law enjoys, even amongst people who think legal requirements ought to have been different and are willing to campaign for their amendment—​the fact that the law speaks in their voice as well—​ sets in Waldron’s eyes the challenge for accounts of law’s authority. He responds to this challenge by shifting attention from the substantive content of legal requirements to the procedure that produces them. If the decision-​making procedure is fair, in the sense that it does not prejudice one substantive view over another, it provides an acceptable answer to the problem of deciding what to do collectively in the face of disagreement about what it is that we ought to do. However, numerous procedures pass the test of fairness. Take the following example. You and I disagree. Yet, we acknowledge that we have to live together or do something together, say paint a house, under a scheme of rules that we both accept as binding. One thing we can do to solve our problem is flip a coin or draw a lot. In this case both of us have equal chances to have it our way. So whatever the outcome of the coin-​toss or the lot, we can be content that it was not prejudiced in the other one’s favour; that it was fair for both parties. If you win, I may still think that the colour you picked is horrid, but I ought not to complain. Furthermore, if I refuse to cooperate, you are justified in being angry. Waldron favours a different procedure, majority-​vote, which he considers central to our conception of democracy. Do we have any reason to think decisions reached by majority-​vote are morally superior to the coin-​toss or the lot? Waldron answers this question in the affirmative. He contends that democratic decision-​making in the form of majority-​vote is a procedure that has due regard to each citizen as participant in the political community. Although the lot would settle political questions in a way that does not engage the substantive merits of alternative proposals, it would significantly curtail the power of citizens to influence the principles they are to be governed by.18 Unlike the lot, majority-​vote gives ‘positive decisional weight to the fact that an individual member of the group holds a certain view’.19 What is more, it gives ‘each individual’s view the greatest weight possible in this process compatible with an equal weight for the views of each of the others’.20 For, with each vote in favour of a certain option, the possibilities of that option being implemented increase. Now, by according each one’s views the same effective decisional weight, majority-​vote treats citizens with respect, as persons who ‘are entitled to govern themselves by their own judgments’.21 It thus vindicates a positive view about the possibility of responsible individual moral thinking, a view that ‘the right-​bearer is one who is self-​aware and vigorously conscious of both the extent of and the limits on what he is entitled to demand from others’.22 17  ibid 100.  ibid 101.   On the other hand, it does not leave them without any power at all. They retain the power to introduce an option in the lot, when nobody else advocates it (ibid 113). 19 20 21 22  ibid 113.  ibid 114.  ibid 264.  ibid 223. 16 18

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IV.  Democratic Process vs. Constitutional Review By insisting on the connection of majority-​vote with the liberal commitment to equal respect, Waldron has offered an interesting and plausible defence of an enduring political practice. In what follows, I shall not take issue with it in the abstract. Rather, I wish to focus on the implications Waldron draws from this account regarding the relationship between courts and legislatures and in particular the legitimacy of constitutional review of legislation. Waldron espouses a theory of legislative supremacy, as we might call it, namely a theory that claims that courts ought not to have the power to review decisions made by democratically elected legislatures and occasionally substitute their judgment of what ought to be done. What is the connection between democratically elected legislatures and the ideal of equal respect that according to Waldron underlies majority-​vote? To begin with, majority-​ vote largely determines the composition of democratic legislatures. In democracies citizens periodically elect their representatives by majority-​vote. In fact, the right to vote is regarded as the pinnacle of democratic participation. The periodic popular election of legislators underwrites their special responsibility to the electorate. Legislators, we tend to think, have a special duty to heed the interests and convictions of the people who elect them (what it means to ‘heed’ the citizens’ interests and convictions is something on which I will have more to say below). They are also under institutional pressure to do so, since, if they fail to heed their interests and convictions, they are likely not to get re-​elected. Majority-​vote also plays a crucial part in legislative decision-​making. To be sure, there is a lot of deliberation going on in legislatures (or perhaps more accurately legislatures are normally structured to foster it). And the purpose of the deliberation is presumably to make it possible that arguments will be exchanged, aspects of complex public issues revealed and a better decision reached. But once deliberation is over, decisions are made by majority-​vote. What counts is the sheer number of those supporting a bill as compared to those who have voted against it. For Waldron, what the winners will say to the losers to demand their allegiance to the bill, once passed, is not that it is a morally better bill than the alternatives but that it has satisfied a procedural criterion that doesn’t directly implicate its merits. In this way, they show their respect for the fact that the losers may still be unconvinced, while at the same time maintaining that the resulting act ‘stands for the time being in the name of the whole community’. Of course, the winners and losers in this case are not ordinary citizens but their representatives. Still, due to the relationship between citizens and their representatives, the respect towards the latter manifested by majority-​vote in the legislature reflects an attitude of respect towards the former as well. Waldron writes in this regard that ‘in the [context of a representative legislature] a representative’s claim to respect is in large measure a function of his constituents’ claim to respect; ignoring him, or slighting him or discounting his views is a way of ignoring, slighting or discounting them’.23 Courts, unlike legislatures, bear no close institutional relation to the electorate. In Waldron’s words, ‘most judges whose interpretations will be influential in the legal system [are not elected]. Moreover, those judges who are elected are seldom regarded 23   ibid 109 (emphasis in the original). As will be argued below, there are different conceptions of how the institutional role of the representative is a function of the constituents’ claim to have their views and interests respected.

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by voters (and hardly ever regard themselves) as popular representatives in the way that legislators are’.24 This means that the authority of their decisions cannot stem (neither is it regarded as stemming) from their democratic pedigree, if they have any. Hence, for Waldron a system of constitutional review of legislation where the court has the final say on a certain political issue and may overturn a contrary legislative decision on the grounds that it has made a mistake is a loss to democracy. It is a loss to democracy because it removes certain matters from the ordinary political process, where the view of each citizen presumably counts the same as everybody else’s, and assigns them to a small group of judges, whose decision may override a decision supported by millions. That loss, claims Waldron, does not disappear where the decision reached by the court is right from a moral point of view. It does not even disappear if the court had to decide an issue about the nature and implications of democracy itself and got it right. In that case, Waldron notes: there is something democratic to set against that loss; but that is not the same as there being no loss in the first place. On the other hand, if an institution which is elected and accountable makes the wrong decision about what democracy requires, then although there is a loss to democracy in the substance of the decision, it is not silly for citizens to comfort themselves with the thought that at least they made their own mistake about democracy rather than having someone else’s mistake foisted upon them.25

To add insult to injury, the constitutional decision ‘foisted upon them’ comes with the reasons adduced by the judges to support their substantive conclusions, the same reasons over which they so fervently disagree. Thus, Waldron objects to constitutional review of legislation because presumably it displays an attitude of disrespect towards citizens in the sense that it holds them ineligible to decide for themselves, via the ordinary legislative route, matters of such pivotal importance as the scope of fundamental rights. It does that by according the views of a handful of judges ‘superior voting weight’ to the extent that it enables them ‘to override or set aside settlements reached among the citizens and their representatives on the grounds that the judges believe the settlement is wrong’.26 The objection does not disappear in case the court makes a correct determination on a question of fundamental right. As Larry Alexander has aptly summarized this point, the right to participation ‘is . . . a moral right the violation of which cannot be traded off against minimizing the violations of other rights’.27 Richard Bellamy has added a further layer of moral criticism. Constitutional review, he argues, is problematic not only because it fails to recognize the ability of ordinary citizens to reason about rights but also because it violates their freedom understood as non-​domination. The concept of non-​domination is central to the republican tradition. It is employed to evaluate social relations in terms of whether they are characterized by the capacity of one party wilfully to interfere with the interests of others. A social relation is dominating when such interferences ‘result from and promote or produce mastery over others’.28 The interaction between free and equal members of a political community is commonly held up as a paradigm of a non-​dominating relationship. 25  ibid 120.   ibid 293–​94.  Jeremy Waldron, ‘Disagreements on Justice and Rights’ [2002–​3] 6 NYU J Legis & Pub Pol’y 5, 7. 27   Larry Alexander, ‘Is Constitutional Review Democratic: A Comment on Harel’ (2003) 22 Law and Philosophy 277, 279. 28  Bellamy, Political Constitutionalism (n 4) 159. 24 26

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Arguably, insofar as I am as liable to have my interests interfered by you through your participation in democratic political processes as you are by me, ‘no difference of status exists between [us]’.29 Unlike other republican theorists,30 Bellamy goes on to argue that systems of constitutional review fail to exhibit a similar reciprocal structure. Under such systems the capacity for interference seems to be one-​sided, expressing an attitude that ‘those on the bench are more equal than the rest’.31 Here, too, disagreement plays a key role. Bellamy is as troubled as Waldron by the fact that in constitutional adjudication ‘the reason the views of some citizens may count for less than those of others in the actual decision [is] because some people hold the “right” view and others the “wrong” one’.32 He takes it that this, too, is a form of domination on the part of those who claim to be ‘superior’ in wisdom or virtue: ‘In this case, domination will result because, in the absence of a convincing process of authorisation that shows equal concern and respect to citizens as autonomous reasoners holding different views, imposing the view of judges on the rest of us will be arbitrary.’33 In both its guises the objection that I have just rehearsed gives us what Waldron calls a ‘process-​related reason’ against constitutional review.34 Process-​related are ‘reasons for insisting that some person make, or participate in making, a given decision that stand independently of considerations about the appropriate outcome’.35 Clearly, the connection between equal respect for citizens or non-​domination and legislative decision-​making discussed above does not depend on whether the legislature gets it right. As Waldron clarifies in subsequent work, there are other reasons that should be taken into account when assessing the legitimacy of constitutional review. Importantly, these include outcome-​related reasons, ‘reasons for designing the decision-​procedure in a way that will ensure the appropriate outcome (i.e., a good, just, or right decision)’.36 According to Waldron, if constitutional review systematically produced the correct outcome, this would have to be factored into our moral calculus and could tip the balance.37 Even so, the democratic objection gives us a sweeping reason against constitutional review of primary legislation, as it undermines its moral legitimacy in the abstract and not only in particular cases. Before we proceed, let’s pause to consider how this objection, if sound, impinges on separation of powers. The heart of the objection is a particular conception of political legitimacy. The division of labour between courts and the legislature it proposes seeks to provide a legitimate response to the problem of moral disagreement. We can say that it recommends that the most important decisions—​including, crucially for our purposes, those that distribute important political rights among citizens—​be made by processes that give every citizen an equal say. In turn, the role of courts is to give effect to the decisions produced via these processes. Negatively, it is to refrain from questioning these decisions. Of course, this is not a full-​fledged theory of separation of powers but it provides one of its important components. Institutional arrangements that comply with it satisfy the desideratum of moral merit such that they can justifiably  ibid 164.   See for example Philip Pettit, Republicanism: A Theory of Freedom and Government (CUP 1997) 172–​83. 31 32 33  Bellamy, Political Constitutionalism (n 4) 166.  ibid 164.  ibid 171. 34 35 36   Waldron, ‘The Core of the Case’ (n 3) 1372.  ibid.  ibid 1373. 37   As it happens, Waldron argues, the outcome-​related reasons are ‘at best inconclusive’ (ibid 1375). Consequently, the process-​based defect of constitutional review becomes decisive. In this chapter I am not interested in the outcome-​based assessment of constitutional review, so I shall set it aside. Once the process-​based objection to constitutional review has been neutralized, I shall address questions of outcomes from Chapter 6 onwards. 29 30

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claim the allegiance of those that live under them. Although it may not always be easy to distinguish the decisions that are the province of majoritarian processes from those that courts can legitimately make in the name of the political community—​after all, neither Waldron nor Bellamy denies that courts make such decisions too—​the approach discussed here clearly signals the primacy of one institutional actor over the other, which sets the tone of their interaction.38 In what follows, I shall try to show that the democratic objection—​and hence the version of separation of powers that rests on it—​fails. To this effect I shall for the sake of argument proceed on the assumption that there is some value of the kind Waldron and Bellamy talk about in the practice of majority-​vote. I shall ask: even if it makes sense to speak of this kind of value, does it make any difference in the debate concerning the legitimacy of constitutional review? I shall answer this question in the negative. I shall claim that in the hands of Waldron and Bellamy the democratic objection trades on an ambiguity regarding the relationship between legislators and their constituents and the concept of representation that this relationship is based on. More specifically, it underestimates the distance between them. I shall try to bring this distance back in focus, drawing on an account of the institution of representation in democracies. I shall contend that legislators are best viewed as trustees of citizens rather than as their proxies. From this I shall conclude that their views, no less than those of the judges, are accorded, to use Waldron’s terminology, ‘superior voting weight’. Therefore, if we have no problem in the abstract with this arrangement, we should not have a problem in the abstract with a system of constitutional review of legislation either (not for this reason anyway).

V.  Delegates and Citizens Waldron admits his argument does not include ‘an adequate discussion of representation’.39 But I believe that this omission has important repercussions for his claim. For without such a discussion we cannot appreciate how the right to participation is factored into the workings of the legislature. Accordingly, we cannot appreciate whether this right suffers any loss from a system of constitutional review of legislation. The reason for this is that the controversy over the legitimacy of constitutional review is not one over the compatibility of constitutional review with the value of democracy in the abstract, but with a particular type of democratic polity, namely representative democracy.40 Constitutional review is a system that pits the judiciary not against the ‘collective will of the people’, whatever this may mean, but against another institution, which, though representative of the people in a sense to be explored below, is not the same as the People (not without further argument). Put differently, in order to assess whether constitutional review entails a loss of the right to participation, we ought to see how the right to participation is conceived of, how it is supposed to function, and what value is placed upon it in representative democracies. 38   It may be that this primacy can be cashed out in different ways and not only through a system of legislative supremacy, thus introducing an element of choice among morally permissible arrangements. For instance, Waldron has suggested that systems of so-​called weak constitutional review are not vulnerable to the democratic objection (ibid 1354–​57). 39  Waldron, Law and Disagreement (n 2) 110, fn 60. 40   It is noteworthy in this respect that hardly any theorist cares to raise the question whether constitutional review would be compatible with a system of direct democracy, which is the obvious alternative to representative democracy. Admittedly it is hard even to pin down what a direct democracy would look like more precisely.

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One can simply say that legislators ‘represent’ the people in the sense that they speak in their name. But this will not get us far. Both formulations are ambiguous between two conceptions of representation, which we might refer to as the ‘proxy’ and the ‘trustee’ model.41 The distinction between the two models is not intended to capture all aspects of the concept of representation. As a result, my discussion will gloss over a number of important controversies.42 My purpose in introducing the distinction is solely to draw attention to two different ways of understanding the dependence of representatives on their constituents. Both models agree, of course, that the point of legislative decision-​making is to have someone else decide what the people ought to do. The decisions of legislatures are made on behalf of the people and are meant to be binding on the people, but they are not made by the people in any but a metaphorical sense. However, the two models diverge in their explanation of how representatives ought to discharge their duty. In a catch-​phrase, the difference between the two models is that the ‘trustee’ model asserts that there is a distance between legislators and the body of participating citizens, while the ‘proxy’ model negates that distance.43 More specifically, the ‘proxy’ model urges us to conceive of the job of the representative as one of expressing the views actually held by his constituency. On this model, when the representative casts his vote, he has no freedom to resort to his own view of the merits of the decision to be made. He acts as a conduit of the convictions of his constituents (however these ought to be defined). Hence, the legislature is like ‘a people in miniature, spontaneously thinking, feeling and acting like the people at large’.44 The ‘proxy’ model is motivated by a certain political ideal of ‘the identity of the dominant and the dominated, the ruler and the ruled, of those who command and those who obey’.45 It is based on the assumption that the ground of political obligation 41  Hanna Pitkin speaks of mandate—​ and independence—​ conceptions of representation. See Hanna Pitkin, The Concept of Representation (University of California Press 1967) 144–​67 [hereafter Pitkin, Concept of Representation]. Her distinction captures the element that the distinction between the ‘proxy’ and ‘trustee’ models aims to bring out as well, namely whether we think legislators are independent from their constituents or not and in what way. But the ‘trustee’ model, as presented here, falls somewhere in the middle of the mandate/​independence spectrum. 42  Recent years have witnessed a revival of theoretical interest in questions of representation. See Samantha Besson, ‘The Paradox of Democratic Representation: On whether and how disagreement should be represented’ in Luc Wintgens (ed), The Theory and Practice of Legislation: Essays in Legisprudence (Ashgate 2004) 125; Nadia Urbinati, Representative Democracy: Principles and Genealogy (The University of Chicago Press 2008); Ian Shapiro, Susan Stokes, Elizabeth Wood, and Alexander Kirshner (eds), Political Representation (CUP 2010). 43   Christopher Eisgruber draws attention to this distance in ‘A Comment on Jeremy Waldron’s Law and Disagreement’ [2002/​3] NYU J of Legis & Pub Pol’y 35, 40: ‘But “the people” is not the same thing as “the legislature”. National legislatures are tiny, elite bodies; there are more than 260 million Americans, but only 535 members of Congress’. But mainly Eisgruber relies for his defence of constitutional review on a different kind of distance, this time between the People as an idealized self-​governing collective and citizens as voters. See also Eisgruber, Constitutional Self-​Government (n 5)  49–​ 52, and more explicitly Christopher Eisgruber, ‘Constitutional Self-​ Government and Constitutional Review: A Reply to Five Critics’ [2002] USFL Rev 115, 135–​40. The institutional role of the voter, he argues, is such that citizens tend to vote for their representatives with a diminished sense of responsibility for questions of fundamental rights. From this he draws the conclusion that legislatures are less suitable for deliberation on these questions. This task should therefore be assigned to courts, which are not dependent on voters. Although I have greatly benefited from Eisgruber’s analysis of the institutional role of the voter, I do not share his central theoretical aim. I believe on the one hand that it is a contingent matter whether courts ought to be entrusted a robust supervisory role on human rights issues and on the other that there is an important connection between human rights protection and legislatures. See similarly Sager, Justice in Plainclothes (n 5) 202–​7. 44  Manin, Principles of Representative Government (n 1) 153. 45   Carl Schmitt, Verfassungslehre §17 (Duncker & Humblot 1928) 235, quoted in Manin, Principles of Representative Government (n 1) 151.

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is the will of the people (at least under the circumstances of politics, as defined above). And since legislators vote what their constituents want, their decisions reflect the will of the people. The law of the country is then the law that the people have willed. If the ‘proxy’ model were right, Waldron’s objection, whereby constitutional review shows an attitude of disrespect towards citizens, would make sense. It would make sense to say that by striking down a legislative decision, judges are replacing their own will for the will of the people, as embodied in that decision.46 By contrast, as its name denotes, the ‘trustee’ model, even though it acknowledges the responsiveness of legislators to their constituents, draws attention to the fact that the former have the power to think and decide to some degree independently of the latter’s convictions. Citizens choose representatives for the purpose of placing in this position of power someone who will decide political questions in their interest. To do this, their representatives will have to take into account their wishes and convictions. But equally they are allowed leeway to consider what by their own lights would be in the citizens’ best interest. Thus, the ‘trustee’ model stresses the existence of an element of independent judgment in the institutional role of representatives, which the ‘proxy’ model downplays. A better way to capture the contrast between the two models would go as follows. The proxy model assumes that democratic legitimacy is conferred on a decision if in fact it reflects the set of wishes and convictions of voters. The trustee model rejects this assumption. It insists that the set of wishes and convictions of voters is neither immutable nor inviolable. What is important for the legitimacy of legislative decisions is that legislators reconstruct from this set of wishes and convictions the best possible vision of the just and well-​governed polity, in which the interests of individuals deserve a place. It is this vision that informs the exercise of their role. In the process they are likely to discard parts of that set as unjust, unrealistic or counterproductive and hence expel them from the vision they construct.47 Even where their actions in their official capacity are in line with what their constituents happen to believe and want, the ground for their actions is not that their constituents want them so to act. Rather, the ground is the more complex idea that they think that certain wishes and convictions of their constituents fit into a morally attractive vision of the just and well-​ordered polity.48 I do not purport to show that the proxy model is conceptually incoherent. To do this, I  would have to argue that at a conceptual level it is impossible for legislators to represent their voters without the exercise of any independent judgment. Nor do I claim that the ‘trustee’ model offers a morally superior articulation of the value of democracy.49 Rather, I want to suggest that the ‘trustee’ model more accurately reflects 46   Of course I am not saying that Waldron is committed to anything like this model or that his theory entails it. In fact, in his later work he explicitly rejects it. See Jeremy Waldron, Political Political Theory (Harvard University Press 2016) 134ff. My point here is that the proxy model could underpin the democratic objection, while, as I shall show below, the trustee model does not. 47   The Anti-​Federalists/​Federalists debate that took place during the ratification process for the American Constitution centred around these two models. Manin provides an intriguing account of this debate in Manin, Principles of Representative Government (n 1) 108–​31. 48   As Philip Pettit has put it, their job is to be interpretively responsive to their voters, namely to ‘ascribe a coherent, enactable set of attitudes to them—​a single mind’. Philip Pettit, ‘Varieties of Political Representation’ in Shapiro, Stokes, Wood, and Kirshner (eds), Political Representation (n 42) 61, 75. Pitkin is in agreement: ‘Nor does it help to ask whether the representative ought to act in his constituents’ interests as he sees it or as they see it. Both formulations distort; he must act in their interest, period. Their view of their interest may or may not be definitive, depending on the issue and the situation; but if he follows it, it should be because the action really accords with their interest, not merely because they merely think it does.’ Pitkin, Concept of Representation (n 41) 165. 49   I shall have more to say about the model’s moral appeal in Chapter 6.

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certain fixed points of the practice of political representation, as we know it. In other words, it better captures our conception of representation. I believe an element of independent judgment is central to our understanding of the institutional role of legislators. Let me briefly give some examples. First, if it were the case that our practices of representation exemplify the ‘proxy’ model, mechanisms like the imperative mandate or the revocability of the representative by her constituents would be much more popular than they actually are. In fact, they are quite rare.50 In most legal systems the most that voters can do to express their dissatisfaction with a delegate is vote her out of office in the next election.51 Even then, of course, their disapproval does not affect the institutional significance of the decisions she had voted for. Nobody has ever said that, because a delegate has been voted out of office, the decisions she had voted for in her former capacity lose part of their legitimacy or that her vote now has to be discounted from every decision she took part in. By contrast, both the imperative mandate and the power to revoke the delegate aim to make sure that she not only heeds the views of her constituents but is also bound to decide on a given issue in accordance with the views actually held by them. The fact that in most (if not all) modern legal systems representatives are not revocable except after an election and that they are not subject to imperative mandates is not coincidental. It reflects, I think, the degree of independence we tend to associate with the institution of representation. The proxy model is further undermined if we bear in mind that on many issues citizens do not even have determinate views, which it would be the representative’s job to implement at the institutional level. For one thing, electors often vote for a candidate on the basis of her views on a limited number of political questions but have no view on the rest of her agenda. Nonetheless, we do not think there is anything wrong with a legislator voting for a bill on which her constituents have not expressed any preference. In fact, this is quite common. New issues are added to the legislative agenda concerning which voters either have not had a chance to have a say in advance or lack the kind of detailed and specialized information that is available to legislators. Importantly, in such cases citizens tend to rely on their representatives to explain to them what is at stake with regard to a certain piece of legislation. Here, it is the legislators that crucially shape the citizens’ attitudes rather than the other way around. From these examples we can infer that in our political practices the relationship between the representative and the constituents she represents is not one of identity between the acts and decisions of the former and the wishes and views of the latter. Rather, it is a relationship based on the idea that the representative enjoys some degree of independence vis-​à-​vis her constituents. Does the trustee model of representation support the democratic objection to constitutional review? First of all, on the trustee model the putative attitude of disrespect cannot lie in the mere fact that judges make independent moral judgments in the name of the political community, even against the expressed views of (many) participating citizens, as is often claimed. Put differently, the disrespect cannot lie in the fact that the views of judges on certain political questions have ‘superior voting weight’ than those of ordinary citizens. For this, we have seen, is also in the nature of the legislative task according to the trustee model. The views of citizens determine who is going to 50   Pitkin mentions the Imperial German Bundesrat, the modern American Electoral College, the United Nations Assembly, and some early American state constitutions as examples where the practice of binding instructions by the electorate has been instituted. Pitkin, Concept of Representation (n 41) 149. 51   Even then they can only vote for her opponent. They cannot cast a negative vote.

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be a member of Parliament. They also influence legislators when they form their views regarding the bill. But the decision is not made by them, but by their representatives. It is the latter’s views that count. It is because a certain bill has been passed by a majority of members of Parliament that it becomes part of the law. No doubt, the way legislatures work ‘ensure[s]‌a hearing for the largest possible variety of opinions and political ideals concerning the issues that are raised when a change in the law is being contemplated’ and ‘full public awareness that there are many opposing views about social justice and social policy in society’.52 No doubt also, it is valuable to make sure by institutional means that many different social perspectives and viewpoints are expressed in the legislature. But diversity and the awareness of diversity are the result of the set-​up of legislatures rather than part of the job-​description of legislators. When the legislator decides how to cast her vote, she must consult her own best judgment. She is under no institutional duty to keep equal distance from every reasonable view actually held by her constituents. In other words, she ought not to be fair toward competing views of justice. The convictions of citizens are among the starting points for constructing her own vision of the just and well-​ordered polity, which ultimately determines whether she votes for or against a certain proposal. This is the crux of her independence. Now, unless we indulge in large-​scale revisionism, we do not think that the right to participation is compromised by the fact that one type of political official, elected representatives, may act and decide in an important sense independently of the views of their constituents. It thus appears doubtful why it is a mark of disrespect towards citizens to have other officials, judges, do the same thing. The same goes for the argument from non-​domination. Given the power asymmetry between legislators and their constituents, we cannot fault constitutional review for being dominating without also faulting representative government. Legislators, too, are ‘more equal than the rest’. It goes without saying that there is a big difference between legislators and judges. Only for the former is the notion of accountability to the electorate crucial to the determination of their institutional role. Drawing on this, someone favourably inclined to the ‘proxy’ model might concede that legislators too exercise independent judgment and yet insist that their decisions ought to prevail in every case, by virtue of the fact that they approximate popular will. Unlike legislators, judges do not have any institutional incentive to heed the convictions and interests of citizens. They are therefore further removed from the will of the people than legislators. Let’s call this the ‘approximation’ view. Waldron holds it. He writes: For legislatures we use a version of MD [majority decision] to choose representatives and we use a version of MD for decisionmaking among representatives. The theory is that together these provide a reasonable approximation of the use of MD as a decision-​procedure among the citizenry as a whole (and so a reasonable approximation of the application of the values underlying MD to the citizenry as a whole).53

On this view, the reason for the illegitimacy of constitutional review is the proximity of the legislature to the voters. Admittedly proximity is not the same as perfect reflection. But for Waldron, ‘[l]‌egitimacy is partly comparative’.54 Since judges do not possess credentials that are ‘remotely competitive with the democratic credentials of elected legislators’,55 it is the latter—​despite their own shortcomings—​whose decisions must prevail. 52   Both citations from Jeremy Waldron, ‘Legislation’ in Martin Golding and William Edmundson (eds), The Blackwell Guide to the Philosophy of Law and Legal Theory (Blackwell Publishing 2005) 242. 53 54 55   Waldron, ‘The Core of the Case’ (n 3) 1388.  ibid 1389.  ibid 1394.

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It is important to note that the ‘approximation’ model retains the basic insight of the original democratic objection. The understanding of political legitimacy that motivated the latter also underpins the former. Waldron values democratic representation insofar as it approximates ‘the application of the values underlying MD to the citizenry as a whole’. The closer an institution gets to those values, the more legitimate it is. But the ‘approximation’ model misconstrues the significance of independent judgment in the job description of legislators. It is not as if legislators should strive as far as possible accurately to reflect the convictions and preferences of their voters, but because of practical necessities they sometimes cannot and are therefore obliged to fill the gaps by exercising independent judgment. Stated from a slightly different angle, it is not as if the standard they ought to comply with is to approximate the actual views of their voters and it is only because of the restrictions of the real world that they stop short of this. On the contrary, independent judgment occupies a much more prominent role in the workings of legislatures. To begin with, the independence of legislators does not only play out at the margins. We have seen that it is logically and institutionally possible and acceptable that legislators decide in ways that conflict with the views of (some or even most of) their constituents. In this case, constituents and representative disagree and it is the latter’s view that prevails.56 The approximation model cannot account for this. It must be committed to the view that, at least when the constituents’ views are explicit and unambiguous, legislators are bound to decide in accordance with them. Furthermore, even when legislators decide on questions about which their constituents have no determinate views, it would be wrong to depict them as exercising independent judgment at the margins. As noted, this will be the rule rather than the exception. These examples suggest—​contrary to Waldron—​that the normative basis of democratic representation cannot be that it reasonably approximates ‘the application of the values underlying majority decision to the citizenry as a whole’. Rather, they are evidence that some other value, different from and independent of the value of majoritarianism among citizens, is doing the work. This value probably includes some kind of commitment to political equality but goes beyond it. Richard Bellamy elaborates the approximation model to meet the counter-​arguments of the last couple of paragraphs. As a general matter, he maintains, ‘[t]‌he reason that the legislature favours certain people’s views more than other is because more people have voted for a given party’s representatives than for those of other parties’.57 In turn, ‘[w]hen we choose political representatives we are not electing experts on governing so much as professional advocates for our values and concerns—​albeit with leeway to apply them to situations or in ways we have not foreseen, though with the ability to oust them should we dislike what they do in our name’.58 So far, Bellamy’s claim appears to be equally vulnerable to the arguments made above concerning the degree of independent judgment under the trustee model. But Bellamy makes a further argument. He contends that the contrast between the proxy and trustee models is too sharp.59 Even absent a legal duty to act on instructions from the electorate, legislators still track its views as a matter of fact. To show this, he employs Jane Mansbridge’s 56   When this happens, there arises, according to Pitkin, a need for an explanation or justification on the part of the representative. But this doesn’t mean that ‘[a]‌cting contrary to [the constituents’ wishes] is . . . necessarily wrong, . . . necessarily bad representation or a violation of a representative’s duty’. See Pitkin, The Concept of Representation (n 41) 164. 57 58  Bellamy, Political Constitutionalism (n 4) 165.  ibid 170. 59   Richard Bellamy, ‘The Democratic Qualities of Courts: A Critical Analysis of Three Arguments’ [2013] Representation 333, 343.

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distinction between promissory, anticipatory, and gyroscopic representation.60 These forms of representation correspond to three different methods of aligning legislators’ choices and voter views. Legislators are not only bound by the promises they make before the election and on the basis of which they presumably get elected (promissory representation). Even absent sufficiently precise promises, legislators who want to get re-​elected will still sometimes seek to anticipate where their constituents stand on the issues that will decide the next election (anticipatory representation). Finally, according to the gyroscopic form of representation legislators are selected because they possess characteristics on the basis of which the voter can predict that they will act in ways she approves. While the promissory form comes closest to the proxy model, all three include mechanisms for aligning the legislators’ behaviour with what voters expect of them. The fit may be rough but it offers a much better approximation than that between judicial decisions and voter views. So arguably the democratic objection stands. Mansbridge’s framework enables us to ground the relatively abstract discussion of the previous sections in an empirically informed understanding of the practice of democratic representation. However, it is doubtful that the framework bears out the philosophical lesson Bellamy wants to draw. The mark of the trustee model, recall, is not indifference to constituents’ views but the exercise of a degree of independent judgment. This is the feature that distinguishes it from the proxy model, which makes the legislator subservient to the will of her constituents. But in this respect, the trustee model is not undermined by Mansbridge’s framework. Setting aside promissory representation, all the other forms of representation she describes allow the legislator significant slack. This is clearest in cases of gyroscopic representation, where the choice of representative is guided by certain character traits, dispositions, and general outlook. Their possession inspires trust in voters that the representative will exercise her independent judgment in a way they can affirm. But the voters’ choice of representative need not be anchored in any view the representative takes on concrete issues except perhaps a few particularly emblematic ones. Arguably, in order to qualify as truly conservative, a representative must take a tough stand on law and order issues. Nonetheless, a representative that has thus shown her conservative credentials can then proceed to act on her own conception of the common good with regard to other matters (though of course it is expected that her conception will chime with that of her voters). Moreover, as has already been noted, even her tough stand on crime she adopts not out of deference to her voters but out of a conviction that it is the right policy. Likewise, while anticipatory representation clearly induces a concern for what voters will think of the representative’s track record at the next election, the temporal gap complicates matters. What the representative is primarily interested in is not what voters want her to do regarding a given bill now but how her decision will affect her chances of re-​election at a later date. It is quite possible that going against her voters’ wishes on a given occasion will not affect those chances. In such instances anticipatory representation does not seem to favour deference to her constituents at all. To summarize, the mere fact that a legislator votes as the voter would have wanted does not entail that the legislator lacks the kind of independence that is the hallmark of the trustee model. Indeed, it seems that independence is part and parcel of the 60   Jane Mansbridge, ‘Rethinking Representation’ [2003] American Political Science Review 515. Mansbridge also identifies a fourth type, surrogate representation, which is not relevant for our purposes.

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legislator’s institutional role. Theorists like Waldron and Bellamy make much of the putative power inequality and indignity afflicting relationships that involve someone else’s view about what ought to be done being imposed on one. They insist that in political societies fraught by reasonable moral disagreement there is no other way to avoid such inequality and indignity other than by giving everyone an equal say. In the following section we are going to examine whether disagreement on its own can bolster the democratic objection. For the time being it is important to clarify that the supposed moral wrong does not arise only when an official makes a decision that goes against the views and wishes held by (a majority of ) citizens, but whenever the official decides on the basis of her own view of the common good. Whether or not her view coincides with that of (the majority of ) citizens, she asserts the power to tell all of them (including the minority that disagrees) what they ought to do because she believes it is right. Hence, although we should expect a significant degree of congruence between legislators’ decisions and their constituents’ views and wishes given the nexus of incentives structuring the former’s role, this congruence cannot satisfy Waldron and Bellamy. It will be a by-​product of the exercise of independent political judgment by a multiplicity of institutional actors in a complex institution rather than a reflection of a duty on the part of individual legislators to make decisions that approximate what citizens want. If so, systems of constitutional review are not morally inferior to systems of legislative supremacy from the get-​go. At least not for the reason that Waldron and Bellamy put forward. The political societies with which we are most familiar are confident to entrust the common good to the independent judgment of public officials, some elected, some unelected. Needless to say, the line of argument of this section leaves it open for proponents of the proxy model to adopt a thoroughgoing revisionist stance and claim that our practices of political representation are defective root and branch; hence, that we ought to change them in the direction they favour: If the inequality and indignity that Waldron and Bellamy protest against is ingrained in our system of representative government, so much the worse for representative government. After all, Waldron’s critique of constitutional review assumes that the institutions, procedures, and practices of legislation are kept under constant review [from the perspective of political equality], so that if there are perceived inequities of representation that derogate seriously from the ideal of political equality, it is understood among all the members of the society that this is an appropriate criticism and that, if need be, the legislature and the electoral system should be changed to remedy it.61

This would not be a wild claim. However, arguing that legislative trusteeship itself falls foul of democratic equality is a far cry from the claim commonly made by critics of constitutional review.62 Part of the appeal of the democratic objection lies in the fact that it pictures constitutional supervision of legislation as an aberration or inconsistency that all we need to do is abolish in order to bring our political systems in line with certain important moral ideals. For instance, Waldron purports to attack ‘the   Waldron, ‘The Core of the Case’ (n 3) 1362.   That is not to say that this position has not had its advocates. Here is a good example: ‘Either the representative must vote as his constituents would vote if consulted or he must vote in the opposite sense. In the latter case he is not a representative at all, but merely an oligarch; for it is surely ridiculous to say that a man represents Bethnal Green if he is in the habit of saying “Aye” when the people of Bethnal Green would say “No”.’ See Hilaire Belloc and Cecil Chesterton, The Party System (S Swift 1911) 17, quoted in Pitkin, The Concept of Representation (n 41) 150. 61 62

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heart of the case made for judicial review in countries like the United States, Britain or Canada’.63 On the ambitious claim, this appeal would be lost, for its advocates would effectively invite us to undertake a major restructuring of our political institutions.64 Constitutional review would then appear to be a symptom of a deeper crisis and not merely an aberration.

VI.  Back to Disagreement? Before I conclude this chapter, I shall consider a final manoeuvre by the constitutional review sceptic that attempts to by-​pass the problem with the democratic objection identified in the preceding analysis. The revised objection to constitutional review goes as follows: True, constitutional review is not problematic by virtue of the fact that it affords the views of a few officials ‘superior voting weight’ to the views of ordinary citizens. A representative system does the same. Yet, constitutional review sceptics do not need to invoke the right to participation to make their case against constitutional review. If we go one step back in Waldron’s analysis, we will see that constitutional review is shown to be inadequate already as a response to the problem of disagreement, since the grounds of the constitutional decision are typically the same moral considerations that fail to gain universal assent among reasonable citizens. This argument is deeply flawed. Waldron himself bears witness to this. Among the ways to ensure action-​in-​concert in the face of intractable disagreement that Waldron considers is what he labels the Hobbesian method. This method consists in granting the views of one individual—​the sovereign, in Hobbes’s idiom—​great weight and no or little weight to the views of those subject to his authority. Waldron’s critique of the Hobbesian approach is not that it does not address the problem of disagreement. Rather, it is that it does not accord each authority-​subject the kind of respect that Waldron deems characteristic of majority-​vote.65 Now, if the Hobbesian sovereign passes the test of disagreement, then surely the judiciary does too. In fact, the preceding discussion has shown that representative government itself has more in common with the Hobbesian method than Waldron would admit, in the sense that it is a system of government where the independently formed views of delegates do not count the same as the views of ordinary citizens. However, the constitutional review sceptic will insist, isn’t it true that judges will rely on their substantive views of the merits of a certain decision? To this the answer is; of course, but so does everyone else. So do delegates, even if, when they do, they are institutionally bound to pay special attention to the convictions of their constituents. So does Hobbes’s sovereign. Granted, to ensure the stability of the political community, he may need to adopt a policy that splits the difference and gives everyone part of what each one wants. But the crucial point is that, when setting up the framework of his subjects’ common life, the sovereign has no duty to hold equal distance from   Waldron, ‘The Core of the Case’ (n 3) 1366.   Compare Dworkin, Sovereign Virtue (n 5) 191: ‘How could our political structures and practices be revised, short of destroying representative government altogether, so as to give every citizen of voting age the same power over national affairs as a junior congressman, let alone as much as the president?’ 65  Waldron, Law and Disagreement (n 2) 114. 63 64

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their conflicting views. And even when he appears to do just that, he is only making a decision based on his independent judgment as to how best to arrange their common life, given that among other things he ought to promote stability. Another way to put the same point is that he privileges the view that he thinks is most reasonable, given the constraints that apply to his institutional role (one of those constraints being the desideratum of stability).66

VII. Conclusion In this chapter I  sought to defend the legitimacy of constitutional review of legislation from the democratic objection, which states that constitutional review flouts democracy. I  argued that it is wrong to think that a system of judicial oversight of primary legislation is morally unattractive on the grounds that it gives the views of a few unelected judges superior power over the views of ordinary citizens. Against the democratic objection I first claimed that legislative decision-​making also involves an analogously aristocratic element. The fact that representative institutions are answerable to the citizenry may have many beneficial consequences, including that it ensures the responsiveness of representatives to the citizens’ views and interests. But the equalization in effective decisional weight of the views of every citizen is not one of them. Because of this, I maintained, there is in the abstract nothing particularly objectionable about judges also being given the power to make independent judgments in the name of the political community. The aristocratic element that I have suggested is part of the nature of political representation, although in a sense so obvious, may still seem to many hard to swallow (which partly explains why it is so often overlooked). That’s because it is premised on an affirmation of elitism that we consider alien to our most fundamental moral commitments. But this reluctance is misconceived. The equal respect we owe every person is not compromised by our recognition of authorities (even when these authorities are our delegates), if recognition does not amount, in John Stuart Mill’s memorable formulation, to ‘blind submission of dunces to men of knowledge but the intelligent deference of those who know much, to those who know still more’.67 Mill, for one, as John Skorupski has shown, thought that the two are compatible. His problem was a practical one, to set up institutions that accommodate proper recognition of authority without giving way to tyranny and oppression. This is a problem we face today as well. And perhaps the first step toward solving it is openly acknowledging the elements of elitism that are already latent in our public culture. Our conception of political representation is but one example. How should other state institutions such as courts interact with a legislature that is thus constituted? The views examined in this chapter sought to establish—​in the name of political equality—​a single chain of legal authorization that starts with primary 66  Interestingly, Waldron agrees that the reasons an official ought to consider overlap to some extent with but are not the same as the reasons that apply to ordinary citizens. See Jeremy Waldron, ‘Authority for Officials’ in Luke Meyer, Stanley Paulson, and Thomas Pogge (eds), Rights, Culture and the Law: Themes from the Legal and Political Philosophy of Joseph Raz (OUP 2003) 45–​67. 67  John M Robson (ed), The Collected Works of John Stuart Mill (Toronto University Press 1963–​91) vol x, 314. The phrase is quoted in John Skorupski, Ethical Explorations (OUP 1999) 204. I am indebted to Skorupski’s analysis for alerting me to some broader philosophical implications of the views I have been discussing.

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legislation. According to them, a court that invalidates a legislative determination as incompatible with the constitution breaks this chain. But since the argument from political equality fails, it is necessary to look more closely at the value that elected and unelected elites add to the joint project of governing. It is possible that the relationship between courts and the legislature that emerges bears little resemblance to an assembly line.

5 A Little Less Conversation, a Little More Action Having been checked, should the people persist; having been educated, should the people insist, must they not win over every fundamental principle save one—​which is the principle that they must win?1

I. Introduction Constitutional dialogue theories are in vogue. Unlike constitutional sceptics of the sort we encountered in Chapter 4, they do not reject constitutional review outright. Also, unlike constitutional review enthusiasts such as Dworkin, constitutional dialogue theorists do not claim that human rights protection is the sole province of the courts or that there is an exclusive connection between the judicial role and fundamental rights protection. Rather, they contend that courts and legislatures are best seen as partners in a common enterprise. They view these two branches of government as engaged in a dialogue about the proper meaning and scope of fundamental rights provisions and thus as contributing to a perennial search for their best understanding. In this picture, when courts declare the incompatibility of a piece of primary legislation with a fundamental right, they register their disagreement with the legislature in this ongoing dialogue and alert it to problems that it may have overlooked. Rather than pitting themselves against the legislature, courts are understood as inviting it to reconsider its decision in the light of their objections. Now, it is conceded by some constitutional dialogue theorists that the model primarily applies to legal systems where, unlike the US, courts do not have the final say on the validity of primary legislation either because they do not have the power to invalidate or decline to apply legislative acts at all or because the legislature is given the power to override judicial invalidations. It makes intuitive sense to say of systems of the latter type that they institute a kind of dialogue between the two branches with successive rounds of deliberation. Systems of strong constitutional review, by contrast, seem to pre-​empt such dialogue or at least cut it short because they give courts the last word on fundamental rights questions. I want to argue that constitutional dialogue theory encounters problems across the board. My argument is simple. To the extent that constitutional dialogue theories stress the discursive element of judicial decisions they downplay their authoritative impact; the fact that judicial decisions determine our legal rights and duties. Of course, there are some constitutional dialogue theories that do not focus exclusively on the discursive aspect of judicial decisions. However, much as they try to balance the discursive and authoritative aspects of constitutional adjudication, they cannot adequately account for the limits we tend to impose on the courts’ reviewing power. Judges may have lots of brilliant ideas about the content of rights and may see all sorts of injustices 1   Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (2nd edn, Yale University Press 1986) 28 [hereafter Bickel, The Least Dangerous Branch].

Where Our Protection Lies. First Edition. Dimitrios Kyritsis. © Dimitrios Kyritsis 2017. Published 2017 by Oxford University Press.

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that legislators fail to notice because of role-​induced myopia. But they cannot put all of these ideas and moral insights into their judgments, however strong a signal this would send to civil society and across the political establishment. There are some ideas and insights that it is not part of their institutional role to bind the political community to. For, courts have their own, circumscribed place in the legal enterprise. They, too, gravitate around Neptune. Naturally, even supposing that constitutional dialogue theory is descriptively flawed, it may still be morally superior. At the end of the day our accounts are also crucially judged by the cogency of their response to the problem of political legitimacy. If constitutional dialogue theory has the upper hand along this dimension, we may have reason to adjust our practices of constitutional review in this or that jurisdiction so as to strengthen its discursive potential or outcome. Maybe in their current form our practices stunt what constitutional review could become. Indeed, more recent incarnations of constitutional dialogue theory focus on proposing amendments to existing practices to bring them more in line with what they take to be their morally appropriate or desirable ends. Yet, as I shall argue, even at the normative level constitutional dialogue tells us only part of the story, and not the most basic one at that. The theory’s dissonance with our actual practices of constitutional review is unlikely to go away, because it stems from a misunderstanding of what our commitment to legitimacy amounts to. It is not the same as a commitment to discovering moral truth.

II.  Let’s Talk about Rights A. The Commonwealth model Constitutional dialogue is often presented as the intermediate between two extreme positions, on the one hand systems of parliamentary sovereignty and on the other systems of so-​called strong judicial review, neither of which is satisfactory.2 Arguably, the former are unattractive because they supply no bulwark against majority tyranny, whereas the latter take too much power away from the elected branches, thereby undermining democratic rule. Constitutional dialogue can be operationalized in a variety of ways. For instance, some scholars argue that a form of dialogue is triggered by constitutional provisions that grant the political branches the power to sets limits on the enjoyment of rights, those limits then being reviewable by the courts. A characteristic example is s 1 of the Canadian Charter of Rights that subjects certain rights and freedoms to ‘such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’. The specification of the content of such ‘qualified’ rights is seen to be the outcome of the combined contributions of the political branches and the courts. Apart from this mechanism, it has been argued that dialogue inheres in systems that—​as a matter of constitutional law—​refrain from granting courts the ‘last word’ on the interpretation of rights norms. Thus, in the UK courts do not have the power to strike down a piece of primary legislation that they find incompatible 2  Note that according to some theorists systems of so-​called strong constitutional review also instantiate a form of constitutional dialogue. See Barry Friedman, ‘Dialogue and Judicial Review’ (1992) 91 Mich L Rev 577.

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with fundamental rights norms. When confronted with such legislation, all they have the discretion to do under s 4 of the Human Rights Act (HRA) is issue a declaration of incompatibility, which ‘does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given’ (HRA s 4(6)). Less modestly, the Canadian constitution assigns courts the power of invalidating unconstitutional statutes but compensates this by allowing the legislature to override their decision notwithstanding the finding of unconstitutionality (Constitution Act, s 33). According to Stephen Gardbaum mechanisms of this sort amount (or at least aspire) to a distinctive model of constitutional review, which he calls the Commonwealth model.3

B. Why dialogue? It is obvious that the mechanisms outlined in the previous section envisage a sequence of interventions between the two bodies. But what is dialogic about this sequence? In order to answer this question, we must reflect on some of the conditions of genuine dialogue.4 To begin with, genuine dialogue is un-​coerced. The use of threat or force is antithetical to it. Thus, it should be up to my interlocutor to choose whether he will accept my viewpoint or not. Arguably, a rough indication that this condition is met is the fact that he does not always concur with me. Similarly, it is argued, the Commonwealth model establishes a dialogue between courts and the legislature insofar as it allows for ‘legislative responses to judicial interpretations of the Constitution that reject or at least resist those interpretations’.5 Indeed, a judicial decision that challenges the compatibility of a statute with human rights norms but does not invalidate it seems to have a provisional or revisable character.6 It is always ‘open to reversal, modification, or avoidance through the ordinary legislative process’.7 Moreover, dialogue is as a general matter an exchange that adheres to norms of mutual respect between the parties. Sincere participation in dialogue requires that I recognize the other party’s ability to give and understand reasons. It seems that systems that adopt the Commonwealth model cultivate a similar attitude in courts and the legislature. According to its proponents, the point of the Commonwealth model is 3  Stephen Gardbaum, The New Commonwealth Model of Constitutionalism:  Theory and Practice (CUP 2013). Apart from judicial oversight of primary legislation combined with a legislative final word Gardbaum defines the Commonwealth model in terms of two further characteristics: a codified bill of rights and pre-​enactment legislative scrutiny for compliance with rights norms (ibid 30ff). It should be remembered that my aim is not the Commonwealth model itself but the dialogic explanation of its moral appeal. In this chapter, I make reference to it solely to illustrate the claims of dialogic theory. 4  See for instance Luc Tremblay, ‘The Legitimacy of Judicial Review:  The Limits of Dialogue between Courts and Legislatures’ [2005] ICON 617, 631–​32 [hereafter Tremblay, ‘The Limits of Dialogue’]. 5   Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton University Press 2008) 44 [hereafter Tushnet, Weak Courts, Strong Rights]. 6   Dan Coenen, ‘A Constitution of Collaboration: Protecting Fundamental Values with Second-​ Look Rules of Interbranch Dialogue’ [2001] Wm. & Mary L Rev 1575, 1582–​83. Similarly Michael Perry speaks of the penultimacy of constitutional review under systems of constitutional dialogue. See Michael Perry, ‘Protecting Human Rights in a Democracy: What Role for the Courts?’ [2003] Wake Forest L Rev 635. Arguably, the same applies when the legislature can override the court’s decision. 7   Tremblay, ‘The Limits of Dialogue’ (n 4) 623.

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not to enable the imposition of the courts’ constitutional judgment on the legislature but to elicit the latter’s considered and reasoned reaction.

C. Should we care? Mechanisms such as the declaration of incompatibility and the legislative override are held up as exemplars of a morally appealing institutional arrangement. Presumably, then, they instantiate some moral or political virtue. There must be something good about constitutional dialogue. Here I shall review only three of the more prominent reasons adumbrated in the literature: (1) Dialogue bolsters the legitimacy of constitutional review (2) Dialogue helps state institutions arrive at more satisfactory determinations of the content of rights (3) Dialogue does not commit us to an objectivist conception of moral truth. 1)  Start with the connection between legitimacy and dialogue. According to dialogue theorists, the supposed dialogic quality of constitutional review (wherever it is practised appropriately) is not just another benefit to be factored into an overall cost-​ benefit analysis. Rather, it is the ingredient that is supposed to make up for the democratic deficit of courts and put to rest the counter-​majoritarian difficulty. Thus, it is central to the question of legitimacy that lies at the heart of moralized constitutional theory. According to this line of argument, what creates the difficulty in the first place is that in systems of strong judicial review courts have the final say on fundamental rights issues, ‘a veto over the politics of the nation’.8 This veto power gives the judges’ views vastly superior weight over the views of other citizens. Thus, it violates political equality. There is a grain of truth in this thought. Surely, if there is a tension between constitutional review and democracy, it must be greater when courts have the power to replace their judgment for the legislature’s and entrench that judgment against repeal or modification by inscribing it into the constitution. This substantially raises the justificatory bar for proponents of constitutional review. Constitutional dialogue stops short of saddling constitutional review with this heavy burden. In the words of Po Jen Yap ‘the people’s right to equal participation is in no way affected if the legislature retains the right to use the ordinary political processes to reverse any judicial invalidation/​reading of legislation that it disagrees with’.9 The dialogic case for the legitimacy of constitutional review may be said to find further support in the theory of deliberative democracy. Similarly to Waldron, constitutional dialogue theorists are concerned about the intractability and pervasiveness of reasonable disagreement regarding the content of fundamental rights. They, too, ask under what conditions a determination of rights can be deemed legitimate in the face of reasonable disagreement. But unlike Waldron, they reject a purely proceduralist answer to this question. Before we cast and count our votes—​in a popular election, in Parliament or in court—​we must engage in public political deliberation. This, of course, is the central tenet of deliberative democracy.10 For some deliberative 8   Peter Hogg and Allison Bushell, ‘The Charter Dialogue between Courts and Legislatures (Or Perhaps the Charter of Rights isn’t such a bad thing after all)’ (1997) 35 Osgoode Hall LJ 75, 105 [hereafter Hogg and Bushell, ‘The Charter Dialogue’]. 9   Po Jen Yap, ‘Defending Dialogue’ [2012] PL 527, 534 [hereafter Yap, ‘Defending Dialogue’]. 10   See generally James Bohman and William Rehg (eds), Deliberative Democracy: Essays on Reason and Politics (MIT Press 1997).

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democrats, the value of political deliberation is intrinsic; it consists in the fact that it is inclusive in a spirit of equality and reciprocal respect. For others, it is instrumental: a decision that results from deliberation is likely to also be more stable, thus propping up its legitimacy. For, those that are involved in a decision-​making process and have their views taken seriously will have a stronger inclination to support the outcome of that process than if they had been excluded or felt that their views are overlooked or assigned little weight.11 In addition, insofar as constitutional review on the dialogic model treats the legislature as responsible for and capable of deliberating on questions of constitutional right, it vindicates its dignity. Conversely, the attitude it imbues in judges vis-​à-​vis elected officials is neither one of condescension and paternalism nor one of submission, but rather one of partnership between two equally important actors. In fact, the roles of the two partners are not insulated. Ideally, their relationship involves a great deal of interaction in terms of a mutual making and assessing of competing claims about the content of rights. Hence, constitutional dialogue adopts a very different conception of separation of powers between courts and the legislature from the theories we encountered in the two previous chapters. Both constitutional review enthusiasts and sceptics assign constitutional matters to one institution without involving the other. This is clearest in the story offered by the sceptics. For them, it is the legislature’s job to reach a decision on constitutional matters, and it would be illegitimate for a court to question it. But the same line of thinking underpins, though perhaps less obviously, the division of labour proposed by the enthusiasts. Even when they concede that legislatures, too, decide on principle as well as policy, they cannot account for the way their decision could have an impact on the court’s judgment on an issue of principle. Dialogue theory replaces these images of institutional monologue with one that sees the two institutions genuinely cooperating. The task that it assigns them, participating in a dialogue, can only be achieved jointly. 2)  Second, constitutional dialogue is thought to be valuable on the grounds that it makes an important epistemic contribution to the project of rights protection. In particular, it draws the legislature’s attention to the blindspots of application, perspective, and accommodation that its action typically allows.12 Moreover, it rouses it from the inertia that afflicts it. This is all the more important because for a number of reasons inertia is endemic to legislatures: First, it is impossible to fit all the important issues into a severely time-​limited legislative agenda, and, second, the vagaries of democratic politics often produce fragile political majorities that lack the capital or support to push through necessary or just measures.13 From this perspective, constitutional dialogue ‘capitalizes on the institutional advantage courts have in constitutional attentiveness by allowing the courts to bring constitutional values, in connection with specific problems, into focus in the legislative forum’.14 By facilitating a more thorough and holistic analysis of the political issue at stake, it makes for epistemically superior decisions. On this score, then, it is superior to systems of parliamentary sovereignty, which furnish no outlet for the expression of the courts’ judgment on constitutional matters and deprive the legislature of this kind of   Conrado Hübner Mendes, Constitutional Courts and Deliberative Democracy (OUP 2013).   Rosalind Dixon, ‘Creating Dialogue about Socio-​economic Rights’ [2007] ICON 391, 402 [hereafter Dixon, ‘Creating Dialogue’]. 13   ibid 402–​03. 14   Mark Tushnet, ‘Dialogic Judicial Review’ [2008] Arkansas L Rev 205, 212. 11 12

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‘constitutionally attentive’ analysis. At the same time, since constitutional dialogue does not allow courts to impose their judgment on the legislature, ‘it makes possible a form of “proportional representation” among the strengths of both [parliamentary and judicial supremacy], whilst also severing or minimizing the major weaknesses of each’.15 Needless to say, there is no guarantee that, in deciding how to respond to a declaration of incompatibility or whether to use the power of override, the legislature will sincerely and squarely address the human rights issues raised by the court, as opposed to being swayed by strategic and tactical considerations. It would be a mistake, though, to fault institutional design if this happens. Institutional design is appropriate, provided it offers a structure of options and incentives that are calculated to produce the desired outcome. Arguably, this is what the Commonwealth model does. It calls on courts to focus the legislature’s attention on matters of constitutional principle by offering a set of reasons for interpreting a constitutional standard in one way rather than another. Their rulings structure political expectations. Faced with such a prompt, ‘the lawmakers must openly deliberate and take political responsibility for their courses of action’.16 They must at least appear to be ‘constitutionally engaged rather than constitutionally uninterested’.17 They have a powerful incentive to do so: A judicial pronouncement on the constitutionality of primary legislation has raised the stakes. It would be politically embarrassing and a sign of disrespect towards a co-​ordinate branch if this pronouncement went ignored. 3)  Finally, the dialogic account of constitutional review seems to find further support in a kind of philosophical modesty. For many, strong constitutional review is underpinned by a belief in the objectivity of morality. According to this view, there would be little reason to entrust judges with the task of determining the meaning of rights unless it were objectively true that rights had this or that content and judges possessed reliable access to that objective truth. Conversely, you will be more drawn to dialogue if you are sceptical either about the ability of individuals to discover moral truth on their own or, more radically, about the very existence of a relevant moral standard that is independent of the agreement among equal and rational interlocutors. Clearly, the second form of scepticism will appear as an appealing position to those with a meta-​ethical commitment to an intersubjective theory of moral truth such as Habermas’.18 But even if you do not adopt Habermas’ theory, you may still dispute the existence of right answers in constitutional matters out of a more local scepticism. That is, you may think that some questions of political morality, including those regarding the proper scope of fundamental rights, do not admit of a determinate or uniquely correct answer.19 In the absence of a standard that our answers to those questions can track, it may be best to settle them by un-​coerced agreement among affected parties. Constitutional dialogue appears to be congenial to sceptics of all of the aforementioned stripes. At the same time, though, it can be endorsed by  Gardbaum, The New Commonwealth Model (n 3) 61.   Yap, ‘Defending Dialogue’ (n 9) 541.   Tsvi Kahana, ‘Understanding the Notwithstanding Mechanism’ [2002] UTLJ 221, 255 [hereafter Kahana, ‘The Notwithstanding Mechanism’]. 18   Jürgen Habermas, Between Facts and Norms:  Contributions to a Discourse Theory of Law and Democracy (MIT Press 1996). 19   Relatedly Tushnet claims that one of the conditions for the stability of weak review is that ‘the nation’s political-​legal culture accepts the possibility of a range of reasonable specifications of general or abstract rights’. Tushnet, Weak Courts, Strong Rights (n 4) 51. 15 16 17

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proponents of moral objectivity. As Waldron has eloquently shown, you may believe in the existence of objective moral truths and still doubt that individuals have reliable access to them. In this case, the epistemic benefits of joint institutional deliberation must appeal to you, too.

III.  Of ‘Precatory Pronouncements’ and Authoritative Rulings A. Who is a moral equal? The previous section suggested that constitutional dialogue theory marshals a wide range of arguments in its defence. It is not possible to take issue with all of them at the depth at which they are invoked. Besides, it should be remembered that I do not seek to give a normative argument against weak judicial review and in favour of strong judicial review. My aim here is not to take sides on matters of institutional choice. In fact, later in the book I shall argue that both systems represent morally eligible institutional options. What I object to is that the moral merit or demerit of these systems should be fundamentally cashed out in terms of their dialogic qualities, and in the rest of this chapter I shall seek to substantiate this objection. Given that I am opposed to dialogic theory but not weak judicial review, I will need to exercise caution. I do not want to throw the baby out with the bathwater. Sometimes, I will straightforwardly reject the moral merit of constitutional dialogue. Other times, I will have to isolate the kernel of moral truth in dialogic accounts, only to dissociate it from the idea of dialogue. It goes without saying that dialogue has positive connotations. As a general matter, it is better to talk sense into someone than to impose a view on her that she does not share. But this is too vague to be useful. You are under no duty to refrain from using force to repel an act of unjustified aggression until you have had a chance to discuss the matter with your aggressor. And often you are under a duty not to so refrain (say, if someone else is being attacked and you can defend him from the attacker without unreasonable cost to yourself ). So, when evaluating the arguments for constitutional dialogue, we must always do so against the background of the prior question whether and under what circumstances dialogue is appropriate to begin with. Let’s first consider the relationship between constitutional dialogue theory and deliberative democracy. While there appears a natural link between the two, in fact they are only tangentially connected. Proponents of deliberative democracy maintain that a reasoned and un-​coerced agreement among equals is binding on them because arguably you are only supposed to treat equals in accordance with principles that they have agreed to in a rational and un-​coerced procedure. What is doing the normative work is an ideal of moral equality. According to it, moral equals are entitled to have their moral agency respected. For example, they are entitled to be offered reasons that they can reasonably accept. But this ideal does not hold in the relationship between the legislature and courts. There may be all sorts of reasons for the two institutions to show each other respect. However, it would be odd to suggest that they are entitled to it because they are moral equals. Hence, it becomes far from clear why a dialogue between them would enhance the legitimacy of the legal system. At a minimum, it cannot do so for the same reason that democratic theorists suppose public deliberation does. Someone who is not a moral equal cannot demand the treatment that is reserved

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for moral equals. Extending such a treatment to him may actually be a sign of disrespect to those who receive it as a matter of right. Recall that a very similar line of argument is employed by constitutional review sceptics. If we give judges—​qua judges—​an extra bite at the cherry compared to ordinary citizens, we do not promote democracy; we undermine it.

B. The difference that judicial decisions make Of course, the link between judicial review and deliberative democracy is only one strand in the case for constitutional dialogue. The absence of an intrinsic value in constitutional dialogue does not entail that it also lacks instrumental value. We have noted in the previous section that deliberating with others could also be epistemically valuable. Those others need not be entitled to a place at the table. It may simply be that they possess relevant expertise or offer a fresh pair of eyes to a vexing problem such that including them in the process of deliberation will make it more likely that we are going to discover the right answer. Can we describe constitutional dialogue in these terms? If we do, we avoid the objections rehearsed in the previous section. However, this description would leave some crucial features of constitutional adjudication out of the picture. If constitutional dialogue aims at facilitating the search for the truth about rights, persuasion should be the peculiar mode by which it is meant to achieve it. One can attain the truth in other ways, say, by independent reflection, intuition, or experiment. If one chooses dialogue, it is because one believes that it will eventually lead to convergence on the truth. It would seem to follow from this that constitutional review is unsuccessful unless it persuades. But something even stronger would seem to follow, too, namely that constitutional review would be illegitimate if it had a more drastic effect than merely persuading the legislature. Dialogue is compromised and, at the limit, collapses, when one of the interlocutors employs force instead of reason. Clearly, being the ‘least dangerous branch’, courts cannot use coercive force against the political branches. But I shall argue that when exercising their power of constitutional review, even under the Commonwealth model, they do more than adduce reasons to an ongoing and un-​coerced discussion. To see this, we need to distinguish between what we might call the authoritative and discursive dimensions of constitutional review.20 There is no doubt that with their reasoning judicial decisions have discursive value. I  can read an archaic decision of a court in faraway jurisdiction and engage with it discursively, even though it does not affect me in any way, just as I can with a piece of legal scholarship. But, apart from facilitating reflection, judicial decisions are also authoritative rulings. Paradigmatically, they determine legal rights and duties in cases that come before them. When they decide on a dispute, courts are acting, to use Joseph Raz’s terminology, as practical authorities, not merely theoretical authorities.21 A  common mark of the former is that they have some kind of binding effect. As Jeremy Waldron has put it, they produce ‘institutional settlement’.22

20   Similarly, Dixon distinguishes between coercive and communicative effects of constitutional adjudication, attributing this distinction to Habermas. See Dixon, ‘Creating Dialogue’ (n 12) 405. 21  Joseph Raz, The Morality of Freedom (Clarendon Press 1986) 54 [hereafter Raz, Morality of Freedom]. 22   Jeremy Waldron, ‘Authority for Officials’ in Lukas Meyer, Stanley Paulson, and Thomas Pogge (eds), Rights, Culture and the Law: Themes from the Legal and Political Philosophy of Joseph Raz (OUP 2003) 45, 56.

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It is crucial for the argument that follows that we sharpen this distinction. What do we mean when we say that judicial decisions are authoritatively binding? We should not confuse authoritative bindingness with finality. Authoritativeness is not the same as immunity from legal change. There is no doubt that a statute is fully binding and thus counts as a settlement in the requisite sense despite the fact that a new legislative majority can just as easily overturn it. For the same reason, authoritativeness does not attach only to decisions that have the highest legal status in a jurisdiction. A judicial decision adjudicating an ordinary dispute is perfectly authoritative even in legal systems with a sovereign Parliament. Finally, and more controversially, an authoritatively binding decision is not one that pre-​empts consideration of its merit. As is well known, this is thought to be part of the essence of authoritative guidance according to Raz’s theory of law. Raz claims that, when an authority issues a directive, its subjects thereby acquire an exclusionary reason not to act on the reasons that the directive was meant to be based on. For him unless authorities had this pre-​emptive effect, they would not be making any difference to the practical reasoning of authority subjects.23 Elsewhere I have argued against the Razian view. I shall not repeat my arguments here.24 What I shall try to do is broaden our options. I submit that, although an authority’s decision sometimes has the pre-​emptive force that Raz believes is essential to it, there are other ways in which an authority’s decision may make a practical difference to subjects and—​importantly—​other authorities. As explained in Chapter  2, state institutions that participate in the joint project of governing have a duty to respect and possibly help advance the contributions of their fellow-​participants. This duty may foreclose certain courses of action or may require one institution to go along with a course of action that would have been sub-​optimal had it not been for the fact that another institution mandated it. In this sense, participation in a practice of authoritative guidance has a very palpable normative effect that has nothing to do with pre-​emption. This casts doubt on Raz’s claim that anything short of pre-​emption makes no practical difference. The Razian view is overly restrictive not only because authoritative guidance does not require pre-​emption but also because it is sometimes incongruent with it. I have said that the duty of respect in the context of the project of governing will only be triggered by contributions that merit it, and that this in turn depends on the balance of considerations of institutional design and content for and against it. Often a judge cannot know if he ought to respect a legislative decision without having recourse to precisely the considerations that he would be pre-​empted from acting on according to the Razian account.

C. Putting the last word in its place I shall revisit the duty of respect and its relationship with Raz’s account of authority in Chapter 7. The analysis so far will do for present purposes. It suggests that authoritative guidance takes various guises. Crucially, the potency of an authoritative decision may fall short of totally pre-​empting the judgment of its addressees.25 Equipped with this insight, we can now return to our original worry. Is constitutional adjudication an

 Raz, Morality of Freedom (n 21) 57ff.   Dimitrios Kyritsis, Shared Authority:  Courts and Legislatures in Legal Theory (Hart Publishing 2015) ch 2. 25   See similarly Waldron, ‘Authority for Officials’ (n 22). 23 24

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essentially discursive or authoritative process? That it is the latter is captured nicely by Alexander Bickel: But the Court does not make precatory pronouncements. It is not a synod of bishops, nor a collective poet laureate. It does not sit, as Mr Freund has remarked, ‘to compose for the anthologies’. If it did, its effectiveness would be of an entirely different order; and if it did, we would not need to worry about accommodating its function to the theory and practice of democracy. The Court is an organ of government. It is a court of law, which wields the power of government in disposing of concrete controversies.26

Naturally, Bickel speaks of the US Supreme Court that practises strong constitutional review. What of systems of weak review that are held up as exemplars by dialogue theorists? As constitutional dialogue theory has so often been defined in juxtaposition to its rivals, by what it isn’t, it is understandable that its proponents tend to assume a rather robust notion of authoritativeness. If a decision is not as final as a constitutional ruling of the US Supreme Court, if it can be overridden by another body that is deemed supreme, legally speaking, or if it does not end discussion about a constitutional matter, it cannot be authoritative. It must be something else. Maybe, dialogue theorists propose, it is only a round in an ongoing dialogue. However, once we acknowledge that authoritativeness takes on less robust forms, the stark contrast between strong and weak review becomes more difficult to sustain. For, even in legal systems that adopt the Commonwealth model there is more to a constitutional ruling than a mere opinion, however thoughtful and convincing. Consider, first, jurisdictions such as Canada where courts are bestowed with the power to strike down unconstitutional legislative provisions. There the authoritative effect of constitutional rulings appears undeniable. Vis-​à-​vis citizens and administrative agencies such rulings eliminate any rights and duties the provisions in question had created or purported to create. Things are a bit trickier when we consider their effect vis-​à-​vis the legislature. To begin with, we cannot fail but note that the institutional situation is not the same before and after the judicial pronouncement. If the legislature wants to bring these rights and duties back into existence, it must do so by taking the constitutionally prescribed measure, namely by making a section 33 declaration. So the ruling has imposed additional manner and form conditions on law-​making. Instructively, while Gardbaum attributes to weak review the ‘interpretative, alerting and informing function’ that is the hallmark of the dialogic approach, he also likens it to ‘a “checking point” in the system’.27 Checking points need not bar entry but they normatively constrain free movement: you have a duty to stop at the checking point, albeit briefly.28 According to dialogue theorists, though, this interpretation of constitutional review under the Canadian Charter misconstrues the significance of a constitutional ruling and downplays the legislative override. Tsvi Kahana makes this point forcefully. He rejects Bickel’s model of the relationship between courts and the legislature as ‘more power-​oriented than reason-​oriented’.29 That model proceeds from the assumption that the judiciary is there to check the legislature. However, on that assumption ‘[a]‌  Bickel, The Least Dangerous Branch (n 1) 246–​47 [internal reference omitted].  Gardbaum, The New Commonwealth Model (n 3) 64. 28   Checking points also slow you down, thus altering the structure of incentives that apply to your predicament. The same goes for legislators under the Commonwealth model (ibid). Time matters politically, so the legislative override involves tactical as well as normative costs. 29   Kahana, ‘The Notwithstanding Mechanism’ (n 17)  261. Both Kahana and Bickel agree that assigning constitutional review a purely discursive role would minimize its tension with ‘the theory and practice of democracy’. Bickel recoils from such a move, whereas Kahana, as is explained below, embraces it. 26

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legislative re-​check of this check is inconsistent with the idea that it is the role of the court to protect the constitution’.30 For Kahana the power of legislative override under s 33 of the Canadian Charter (the focus of his proposal) amounts to just that, a legislative re-​check. The authoritative effects I pointed to in the previous paragraph pale by comparison. Kahana contends that the mismatch between the traditional model and systems assigning the legislature the last word will not go away, unless we give up on the assumption that the point of constitutional review is to check the legislature. Instead, he thinks, we ought to adopt what he calls a ‘deliberative disagreement’ explanation of systems such as the Canadian.31 In such systems ‘the role of judicial review is not to block or protect anything but, rather, to deliberate. Since the legislature is free to accept or reject the result of this deliberation, legislative finality therefore becomes consistent with judicial review’.32 Arguably, the fact that judicial decisions have binding effect—​and will stand as the law unless the legislature uses the override—​does not contradict the deliberative disagreement approach. Rather, it makes the dialogue between courts and legislatures more effective by giving legislatures no choice but to engage with the judicial decision in case it disagrees with it. Note that Kahana does not mean to offer a general account of the judicial function. After all, he could not plausibly dispute that the bread and butter of the judicial function is to dispose of concrete controversies; to this extent, judicial decisions definitely have an authoritative rather than discursive character. So we must restrict the application of his proposal to the use of the override and similar arrangements. What interests us here is whose interpretation of the constitution, the legislature’s or the courts’, has superior legal force under such arrangements. Ultimately, Kahana bases the deliberative disagreement approach on a certain understanding of the relationship between courts and the legislature. For him strong constitutional review is fuelled by distrust towards government power, which results in a preoccupation with checks and balances. In this picture legislative majorities are prone to tyranny and therefore pose a standing risk of invading the rights of individuals and minorities. By contrast, weak review is premised on the view that the relationship between courts and the legislature is a partnership of trust. It treats the legislature as having a genuine and generally effective interest in promoting rights and a standing willingness to take a judicial pronouncement on questions of fundamental rights seriously, deliberate its merits and use the power of the override only if it remains unconvinced. The deliberative disagreement model seems to have even more purchase in systems like the UK and New Zealand where courts are not even empowered to strike down a piece of primary legislation and thus heeding their view at all is, constitutionally speaking, at the mercy of the legislature. In addition, when, say, the UK Supreme Court issues a declaration of incompatibility, it does not change anyone’s legal rights and duties. In this sense, some might say, it does not have any authoritative force at all. If it has any practical function, it is to persuade the legislature. In the rest of this section I wish to show—​contra Kahana—​that the focus on the legislative re-​check fails to capture the main thrust of weak review; conversely, that the authoritative impact of constitutional rulings cannot be side-​lined as peripheral. Some theorists have sought to achieve this by extrapolating from the way weak review operates in practice. They have suggested that, when we look at the record of legal  ibid 248.

30

31

 ibid.

 ibid 248.

32

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orders that have implemented the Commonwealth model, we notice that the effect of judicial pronouncements on constitutional matters is gradually strengthened, rendering their overturning or their not being heeded by the legislature extremely costly.33 In practice, according to this view, the model morphs into its competitor: It ends up reinstating judicial supremacy. In fact, some theorists have gone as far as to suggest that it reproduces the same legislative inattention to rights issues that the critics disparage in systems of strong review. It goes well beyond the scope of this book to evaluate the diagnosis offered by these theorists. This would require a host of data from across various jurisdictions—​including analysis of the case-​law and empirical data about the capacities of the legislature and the courts, the composition of legislative majorities, the structure and operation of government, public political culture and civil society etc.34 So I  shall set aside the question whether or not the diagnosis accurately reflects the record. Be that as it may, we cannot dismiss this kind of diagnosis as legally—​or, more broadly, normatively—​ irrelevant. It does not go without saying that facts about how state actors behave have no normative significance. Constitutional rules are not only those you can read off from the constitutional text. Regularities of official conduct may reflect the existence of a constitutional convention or an ascendant interpretation of the constitution that goes beyond the literal meaning of the text. Hence, if it is true that legislatures do not disregard declarations of incompatibility or refrain from using the override to cancel a constitutional ruling, this might be an indication that they see themselves under a constitutional duty to do so, in which case they view its effect primarily in authoritative rather than discursive terms. Even assuming that the model does what it says on the tin, the courts’ role goes beyond the strictly circumscribed one of facilitating or contributing to political deliberation. We should not be too quick to see dialogue where there is simply action and reaction.35 We should be put on alert by the fact that in accounts of weak review the language of dialogue is often conflated with the language of competition or struggle. To give an example, Tushnet characterizes the interaction between the courts and the legislature under weak review as a ‘conversation’, but he describes their options in terms of ‘capitulation or resistance’,36 ‘resigned acceptance’, and ‘simple acquiescence’.37 We capitulate to or resist an aggressor, not a persuasive argument. We resign to or acquiesce in an imposition, not a moral discovery. We cannot appreciate the relevance of this language unless we move beyond the legislature’s formal power to resist judicial pronouncements of unconstitutionality or incompatibility and evaluate the system of review as a whole. Even in jurisdictions without an entrenched constitution such as the UK the formally non-​binding declaration of incompatibility under s 4 HRA is but one feature of a system of judicial review which includes, crucially, the interpretive rule of s 3.  According to s 3 courts must strive ‘so far as is possible’ to construe primary legislation in a manner consistent with 33   For a version of this claim with reference to the UK see Aileen Kavanagh, Constitutional Review under the UK Human Rights Act (CUP 2009) 416–​20 [hereafter Kavanagh, Constitutional Review under the HRA]. In Canada a similar claim has been made in Christopher Manfredi and James Kelly, ‘Six Degrees of Dialogue: A Response to Hogg and Bushell’ [1999] Osgoode Hall LJ 513. More generally see Tushnet, Weak Courts, Strong Rights (n 5) ch 3. 34  Gardbaum, The New Commonwealth Model (n 3) chs 5–​9; Alison Young, ‘Is Dialogue Working under the Human Rights Act 1998?’ [2011] PL 773. 35   Hogg and Bushell, ‘The Charter Dialogue’ (n 8) 80. It is telling that, whereas in his earlier work Gardbaum played up the dialogic virtues of the Commonwealth model, in his recent book he refrains from basing his normative case primarily on such alleged virtues. 36 37  Tushnet, Weak Courts, Strong Rights (n 5) 46.  ibid 48.

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fundamental rights. It is accepted that this interpretive rule is the primary method by which courts give effect to fundamental rights. In turn, the declaration of incompatibility is treated as a ‘last resort’.38 Section 3 undoubtedly furnishes an authoritative, not a discursive, mechanism. At least, it is as authoritative as a judicial ruling of unconstitutionality under the Canadian Charter. Both of them produce an effect on the law, which Parliament has to positively act to overturn. Just as the Canadian Parliament has to employ the device of the override in order to bring the impugned statute back into effect, so the UK Parliament can reverse a s 3 judicial interpretation of a statutory provision but only by enacting new legislation to re-​instate the meaning that the courts found inconsistent with fundamental rights.39 In deciding whether to take these options, Parliament in Canada and the UK will do well to consider the human rights issue that prompted the judicial intervention in the first place, and nothing pre-​empts it from acting on its own view of the balance of reasons. Recall, however, that pre-​ emption is not the mark of authoritativeness. Authoritative decisions re-​configure the rights and duties of institutional actors and citizens; they need not also impose deliberative constraints on them. The mechanisms we have been discussing are authoritative insofar as they enforce particular rights of individuals (when they interpret a statute in a way that vindicates them or strike down a statute that flouts them) and trigger or foreclose particular constitutional options for legislative reaction. The foregoing observations demonstrate that we should not judge the distinctive effect—​discursive or authoritative—​of a system of constitutional review exclusively or even primarily by the agent who is assigned the last word. At a minimum we ought not to see the last word in isolation, independently of its place in the overall system and practice of rights protection. Systems of weak review, we have seen, make ample room for authoritative contributions by the courts, even though these contributions are not final. It makes sense to say of the legislature that it sometimes ‘acquiesces’ to these contributions, in the sense that it allows them to shape our legal rights and duties. And it makes sense to say of courts that they are ‘resisting’ given the practical edge of these contributions. Deliberative disagreement is of little relevance. I shall end this section by saying a bit more about the other element of weak review that is commonly held up as evidence of its dialogic character, that is, the limitations clauses that attach to many fundamental rights. By dint of such clauses Parliament may impose proportionate or otherwise appropriate restrictions on the exercise of the right. The role of courts is merely to evaluate these restrictions, not replace Parliament’s vision of the scope of the right with their own. So even when they do not uphold the restrictions in question, their ruling is not the end of the matter. Rather, Parliament can go back to the drawing board and come up with a revised version of the original policy that complies with the ruling. Here, it seems, judicial action informs legislative deliberation and prompts a more reasoned reaction. Of course, this explanation does not have much traction in systems where courts are authorized to strike down a piece of primary legislation that on their view overly restricts a right. That undoubtedly authoritative intervention essentially forces the legislature’s hand. Calling a process dialogic, in which Parliament’s only option is to agree with the court, makes a mockery of the notion of dialogue—​not to mention the last word. As for systems where a finding of incompatibility licenses a non-​binding judicial declaration, what I said above applies. Parliament may still have the power to ignore   R v A [2001] UKHL 25, paras 44–45 (per Lord Steyn).   Even then there is no guarantee that the fresh enactment itself can escape being interpreted in a rights-​consistent manner. See Kavanagh, Constitutional Review under the UK HRA (n 33). 38 39

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the court’s ruling, but its institutional options are authoritatively constrained in other ways. Whatever dialogue this arrangement makes room for takes place against that authoritative background.

D. The moral state of play In the previous section I sought to paint a more balanced picture of the interaction between courts and the legislature under systems of weak review, stressing the authoritative character of the courts’ input. I  argued that constitutional dialogue cannot account for this input. Needless to say, this line of argument leaves it open for theorists like Kahana to concede that actual systems of weak review fall short of the recommendations of dialogic theory and nevertheless insist that they must be reformed to be brought in line with it. This move takes us to the philosophical heart of the issue. For, it directs our attention away from doctrinal exegesis and towards questions of political morality. Remember, theories of separation of powers must articulate a morally appealing conception of the roles of courts and the legislature and of their interaction. If systems of ‘deliberative disagreement’ enjoy a comparative advantage in this regard, then reform may be our best option after all. It is this challenge I shall now address. I shall claim that the more robust judicial role I described earlier not only has a better fit with current law but also adds decisively to the legitimacy of the political order. What stands in the way of such a claim is, of course, the counter-​majoritarian difficulty. Presumably, when courts impose their constitutional judgment on the legislature with no possibility of come-​back, they not only cut dialogue short but also offend democracy. The same thought is echoed in Kahana’s claim that constitutional review in the shadow of the legislative override has a deliberative rather than a checks-​and-​ balances function. Assigning courts a checks-​and-​balances function seems to invite the counter-​majoritarian difficulty. By contrast constitutional dialogue avoids it because it gives legislatures the final say. It thus reconciles constitutional review and democracy.40 The argument of the last paragraph assumes democracy dictates that ordinary legislative majorities should always have the final word (or, at least, that the more power is taken away from the legislature and given to judges, the higher the justificatory bar constitutional review must clear). I have expressed some doubts about this assumption in the previous chapter, and I shall elaborate a full-​blown account of (representative) democracy that rejects it in the next one. I  shall argue that this important political value is not best cashed out in terms of superiority or finality but in terms of initiative. Here, though, I am going to make a narrow negative claim. I am going to suggest that dialogic theory does not give us sufficient moral reason to prefer its conception of democracy. If we are to steer the middle way between the supposed extremes of absolute legislative and judicial supremacy that it recommends, we need more than the notion of deliberation as our guide.41

40   The democratic rationale is embraced in Gardbaum, The New Commonwealth Model (n 3) ch 3, where the Commonwealth model is presented as ‘an intermediate hybrid’, which ‘preserves and promotes’ (ibid 65) the ‘democratic legitimacy of collective decision-​making procedures’ (ibid 64). Note the difference, though. Gardbaum offers the democratic rationale to defend the Commonwealth model, not necessarily its supposed dialogic character. 41   Remember, I am not taking issue with the Commonwealth model as an institutional option but rather with a certain explication of its moral merit. Although different explications will inevitably issue into differing accounts of the distinct roles of courts and the legislature and their interaction, I do not think that the failure of the dialogic explication dooms the Commonwealth model root and branch.

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To this effect, I shall invoke the notion of political legitimacy that has informed our discussion up to now. There is no denying that moral deliberation under favourable epistemic conditions is relevant to legitimacy. To the extent that it is conducive to arriving at the morally correct decision, institutional design ought to divide the epistemic labour in such a way as to foster it. It would seem that constitutional dialogue provides a recipe for this kind of division of labour and for a corresponding scheme of institutional interaction and cooperation. However, deliberation does not take place in a vacuum. In the real world the value of deliberation must compete with other important considerations of political morality. Chief among them is the risk that political power may be misused and our fundamental interests set back as a result. This risk, we have seen, has to be met with a systemic institutional response. Unless a political regime puts in place standing checks on the exercise of public power, it is likely to lose the trust of many citizens, crucially those belonging in vulnerable and politically weak groups, and thus also their allegiance. If citizens lack assurances that the regime will reliably track the demands of justice, they have little reason to wait until their own rights are violated before withdrawing their support from it. In Chapter 2 I argued that the moral point of separation of powers is precisely to provide this form of assurance by structuring the joint project of governing such that it will reliably track the demands of justice. What institutional checks can shore up public trust in this way? Again you might say that a process of public deliberation that exposes decision-​makers to the various determinants of the morally correct course of action has a better claim to legitimacy precisely because it facilitates the making of good political decisions, ones that respect citizens’ rights. Presumably, this is what constitutional dialogue achieves. When a judge strikes down a piece of legislation on the grounds that it infringes on someone’s rights, it brings into public discourse a valuable perspective that may have eluded the legislature the first time around due to the informational and motivational constraints it faces and the limited capacities it possesses. Thus, a political regime that institutes such a feedback loop has something to say to citizens anxious that they might be exposed to injustice at the hands of a political order gone wrong. However, this claim is premised on a highly stylized view of the problem of political legitimacy. It is not only that citizens should not be expected to always wait patiently while deliberation unfolds. It is also—​and more critically—​that the process does not move forward through arguments and counter-​arguments. The legislative decision that kicks it off is undoubtedly an authoritative one. If it is unjust, the wrong it will cause, unless stopped, is very real. Naturally, the wrong I am talking about is not the misperception about the meaning of rights but their violation. Thus, the legislative decision engages the interest citizens have in their polity getting it right in the most urgent manner. I am not sure that by merely registering their disagreement courts can meet the urgency. So Kahana is wrong after all. The power of courts to strike down a piece of legislation subject to the override should not be construed as supplying discursive resources for legislative deliberation but, at best, providing a remedy for a rights violation and, at a minimum, stalling it. And as we know from the Founding Fathers, the latter effect is also something that a theory of separation of powers should be sympathetic to. The same goes for the even weaker system of review that operates in the UK. Its legitimacy would be questionable if declarations of incompatibility were all there was to it (assuming that such declarations were freely and routinely ignored by the legislature, which, recall, some theorists doubt). Or, I should say, such a system would fail to address a most serious aspect of the problem of legitimacy, and in this sense its contribution to

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the legitimacy of the overall political order would be rather negligible. However, once we see declarations of incompatibility as the ultimum refugium with rights-​consistent judicial interpretation producing authoritative effects as the driver of the HRA, a completely different picture emerges, whereby courts are there primarily to resist encroachments upon our rights and thus steer the political order back onto the course of justice. In this picture, though, the discursive value of constitutional review recedes in importance; it ceases being the feature that gives the system its distinctive character. It is no good countering to this line of argument that it paints a bleak picture of legislatures. It doesn’t. It takes legislatures to be no more prone to mistakes, no more subject to inertia and systematic bias than dialogue theory does. What it does is alter (or perhaps refocus) our understanding of the moral significance of these legislative shortcomings. It is not that because of them the legislature needs external help to find the correct answer but that it risks wronging people with its decisions and hence must be kept in check. Nor can the preceding argument be faulted for having assumed that the legislature is always wrong and the court right. It hasn’t. The claim I am advancing does not rest on a comparative assessment of judicial and legislative performance but rather on the importance for legitimacy of averting misuse of power. The risk of such misuse is endemic to the joint project of governing, given the fallibility and relative fragility of social institutions. Hence, the imperative to establish checks-​and-​balances mechanisms applies generally. It applies to legislatures because even with the best intentions they sometimes err, not because they are more likely to err. It applies to courts, too. To the extent that they also make mistakes, there are moral costs attached to judicial finality. Of course, these costs must be discounted by the relative inability of courts to pursue and implement policies. Still, they are real and ought to inform institutional design. Arguably, it is because of these costs that the Commonwealth model adds safeguards for curbing judicial power such as the legislative override. The argument advanced here is fully compatible with such an assessment of judicial performance.

IV.  Dialogue, but Muffled Until now I have been arguing that it is a mistake to emphasize the discursive dimension of constitutional adjudication at the expense of its authoritative dimension. The moral appeal of constitutional review does not lie in its potential for improving public deliberation. If anything, such improvement is a valuable side-​effect of what is—​ essentially—​a checks-​and-​balances mechanism aimed at bolstering the legitimacy of the political order by taming legislative power. To use Kahana’s term, this mechanism is primarily ‘power-​oriented’. That is hardly the end of dialogic theory’s woes. Insofar as constitutional review has a primarily authoritative effect, it becomes imperative that it be controlled and limited. Why so? If all we expected from judges were to give us an opinion, which we are free to heed or not, then it would make sense to allow them to pass judgment on any matter of constitutional import. Opinions do not cost much, but decisions that thwart or disrupt legislative policies do. So assuming my construal of systems of constitutional review is accurate, we cannot but take into account the institutional limitations of courts and their position in the institutional nexus in determining the scope and intensity of their power. Earlier, I hinted at how this inquiry might play out institutionally when I considered the cost of judicial finality. There is a further possibility, though, namely that division of labour might recommend that courts not pass judgment on particular constitutional issues but rather defer to the elected branches.

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Dialogic theory would be hard pressed to respond to this set of concerns. With its focus on the deliberative potential of systems of constitutional review it is hostile to the very notion of judicial deference, which stifles rather than propels inter-​institutional debate. It seems much more comfortable with the view that judicial responsibility requires that judges be guided only by ‘reasons they sincerely believe are good and sufficient according to their best understanding of the law’.42 Even if it does accept a duty of deference, dialogic theory lacks the resources to determine the range of issues over which this duty must apply. The existence of the legislative override looms so large in its understanding of constitutional review that it seems to make any further constraints on judicial power unnecessary.43 Some constitutional dialogue theorists, though, think that we can have our cake and eat it too. For instance, Rosalind Dixon has argued for a version of dialogic theory that includes an element of judicial deference.44 One of her recommendations relates to cases when the legislature resists a constitutional ruling and re-​enacts the impugned law or a slightly modified version of it. Faced with such a legislative sequel, Dixon says, courts must display a measure of self-​restraint. They must revert to a narrow definition of the rights at stake in order to accommodate a legislative sequel that contradicts their original ruling and thus put an end to their feud with the legislature. What is the basis of this ‘internal weakening’ of constitutional review?45 Dixon contends that a more defiant court risks imposing reverse burdens of inertia on the political order.46 Given the high cost, political and otherwise, of overturning a constitutional ruling even under a system of weak review, legislatures may be disinclined to use this option unless the stakes are very high, the result being that in the vast majority of cases public deliberation ends with the judicial ruling. Also, unless courts are willing to narrow the understanding of a right in response to a legislative sequel, legislatures will be discouraged ‘to create narrow or specific carve-​outs from constitutional rights guarantees’.47 This will further diminish public deliberation. The purpose of constitutional dialogue is precisely to urge legislators to think more closely how to achieve their legitimate aims by minimizing any negative effects on rights. But they will have little incentive to do so in the teeth of a court determined to stand by its initial broad ruling. Of course, these burdens of inertia would at best license selective, not blanket, deference.48 If legislatures were able to override the courts’ ruling whenever they find that ruling incompatible with majority will and courts had to defer to their decision, what would call the shots would be democracy, not persuasion.49 Dixon is aware of this. This is why on her account the duty of deference is nowhere near as absolute. In order for courts to uphold a legislative sequel, she argues, they must be satisfied that it is ‘both reasonable and also consistent with [the courts’ earlier] decision’.50 She explains:   Tremblay, ‘The Limits of Dialogue’ (n 4) 634.   Kent Roach, ‘Dialogic Judicial Review and its Critics’ [2004] Sup Ct L Rev (2d) 49. 44  Rosalind Dixon, ‘The Supreme Court of Canada, Charter Dialogue and Deference’ [2009] Osgoode Hall LJ 235 [hereafter Dixon, ‘Dialogue and Deference’]. 45 46 47   Dixon, ‘Creating Dialogue’ (n 12) 409.   ibid 408–​9.  ibid 409. 48   For instance, they seem to support Dixon’s separate recommendation that courts should refrain from fashioning their own remedies to rectify the violation of a right before the legislature has had a chance to respond to their ruling that there has been a violation. Especially when it comes to remedying violations that affect many people and have broader societal implications, courts are out of their depth. 49   Tremblay, ‘The Limits of Dialogue’ (n 4) 645. That the legislative override is simply an affirmation of majoritarianism and should not be understood as an episode of a dialogic search for the truth is also supported by Lorraine Weinrib. See Lorraine Weinrib, ‘Learning to Live with the Override’ (1990) 35 McGill LJ 541. 50   Dixon, ‘Dialogue and Deference’ (n 44) 252. 42 43

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Under this principle, in determining whether to defer to a reasonable legislative sequel, Canadian courts will still be required to make a number of important substantive findings. First, they must decide whether a legislative sequel is reasonable in light of the basic constitutional commitment to freedom and democracy in section 1 of the Charter. Second, they must determine whether it is reasonable in light of their own prior judgments. In either instance, rather than suspending its own judgment, the Court will be required to make complex evaluative judgments about the nature of both prior judicial and prior legislative reasoning.51

This is a welcome qualification, but it is hard to square it with dialogue theory. Either the judicial decision evaluating the legislative sequel is another contribution to the dialogue or it isn’t. If it is, then why should courts refrain from deciding according to the best understanding of the right at stake? Why should they settle for ‘reasonable’? The reason could only be that the judgment of the legislature is morally weightier than that of the courts. This may well be true, but it is not because dialogue so dictates. Dialogue does not ground the principle that ‘the people must win’. In addition, it is not clear how courts can even determine what is reasonable—​as distinct from morally correct—​drawing only on dialogic resources. The concept of ‘reasonableness’ makes most sense in practical settings. We accept a reasonable position, even though we may find it sub-​optimal, when we have to compromise, say because we need to do something together. By contrast, constitutional dialogue keeps our—​and the courts’—​sights trained on moral truth. Of course, even the search for moral truth yields to practical considerations. However, the idea of constitutional dialogue offers little to elucidate the practical considerations that apply to the relationship between courts and the legislature and ‘qualify’ that search. Perhaps, though, the argument proceeded too quickly. Perhaps, occasionally bowing to majority is the price we must pay in a democracy, even as we are searching for the truth. The fact that at the end of the day might, not right, wins does not negate the beneficial influence of dialogue at previous stages. So it would appear that we can have it both ways. The dialogic process until the override stage or the legislative sequel builds up the necessary deliberative resources for making the right decision. These resources are then placed at the legislature’s disposal for it to settle the issue. This argument would work if it were the case that our legitimacy concerns with legislative errors dissipate at that further stage. In fact, it is doubtful that they do. Perhaps we also want the legislature to be ‘educated’. But we do not give courts reviewing powers solely in order to educate it; we want them to keep it in check. Dixon’s anxious effort to place limits on judicial deference is evidence of that. These limits ensure that courts do not relinquish control of the iterative process envisaged by weak review; rather, they are still guided by their own view of the issues at stake. If they have to defer to some extent, the reason cannot be that at that point they have taught the legislature everything it needed to learn.

V. Conclusion Dialogue is at best a metaphor.52 In fact, it is one that conceals as much as it reveals. While it highlights the interaction between courts and legislatures involved in  ibid 269.   Peter Hogg, Allison Bushell Thornton, and Wade Wright, ‘Charter Dialogue Revisited—​Or “Much Ado About Metaphors”’ (2007) 45 Osgoode Hall LJ 2. For criticism see Aileen Kavanagh, ‘The Lure and the Limits of Dialogue’ (2016) 66 UTLJ 83. 51 52

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constitutional adjudication, especially under systems of weak judicial review, it attributes to it a chiefly discursive character. But the primary purpose of practices of constitutional review is to give courts the power to make decisions in the name of the political community, whose binding effects overshadow whatever persuasive force they may also possess. We give courts this power because legitimacy requires that we keep the legislature in check lest it encroaches our rights, whether intentionally or unintentionally. Nevertheless, such a great power must be regulated and limited. We must be wary of expanding the courts’ authority to pronounce on constitutional matters in case they stray into territory that they are not well equipped to traverse. Dialogic theory does not supply the normative resources to account for and justify such limits on constitutional review. In the ensuing chapters we shall remedy this omission. We shall articulate the separation of powers between courts and the legislature in a way that responds to this dual pressure. That is, we shall make a fresh attempt to ground judicial oversight of legislation while at the same time specifying the space within which legislative decisions merit judicial respect. In addition, we shall elaborate a conceptual apparatus for making sense of the courts’ Janus-​faced responsibility.

6 Constitutional Review in Representative Democracy I. Introduction Democracy is a powerful political ideal. It is widely regarded as an essential ingredient of political legitimacy. It is no surprise, then, that appeals to it figure so prominently in the case against judicial practices of constitutional review of legislative decisions for their compatibility with fundamental rights. In most political systems that have such practices of constitutional review the legislature is the main locus of democratic legitimacy. Thus, for many, the fact that constitutional review cuts away from the power of the legislature and gives it to unelected judges is reason to object to it, even if it is true that such a practice better protects the fundamental rights of citizens. This reasoning has obvious force—​and rhetorical purchase—​in political systems that assign courts the power to strike down legislative decisions, which they find in contravention of the constitutional norms they are called to protect. But it also has considerable force, though perhaps less so, in political systems where a finding of incompatibility does not have this dramatic effect. Consequently, constitutional review enthusiasts seem to find themselves caught in a dilemma. Arguably, they have to decide between democracy, on the one hand, and the values that constitutional review is said to promote (where those values crucially include fundamental rights), on the other. At the very least, it appears that they cannot maintain their commitment to constitutional review without a measure of regret. This dilemma is not confined to academic circles. It resonates across the political system and thus has important practical implications as well. Should legislators resent the fact that judges interfere with their decisions, when they are forced to acquiesce to this interference? Should they actively try to circumscribe the supervisory authority conferred on judges by, for instance, narrowing the grounds of constitutional review, if it is within their power to do so? Conversely, should judges be timid and embarrassed when they engage in constitutional review? Or should they do so explicitly and confidently? The dilemma, then, typically arises within a certain institutional environment and informs the options and decisions of actors occupying certain positions in that environment. Thus, instead of talking about the tension between democracy and fundamental rights in the abstract, we had better focus on the two state institutions at the heart of this tension, the legislature and the courts, and explore the way in which they are structured to accommodate our dual allegiance. To do this we need to delve deeper into the institutional credentials of each and understand the nature of the joint enterprise in which they are partners. As partners, courts and the legislature ought to be responsive to each other’s contributions and to the distinctive values that each brings to the common project. This was the approach adopted in previous chapters. But the theories we examined failed to articulate a convincing conception of separation of powers that does justice to these values and enhances political legitimacy. The theory contending that Where Our Protection Lies. First Edition. Dimitrios Kyritsis. © Dimitrios Kyritsis 2017. Published 2017 by Oxford University Press.

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judges ought to decide questions of principle, such as those pertaining to the meaning and content of fundamental rights, cannot account for the important constraints on courts that stem from their place in the project of governing and the respect they owe the legislature. The same flaw bedevils the theory of constitutional dialogue, which in addition overestimates the discursive impact of constitutional review. And the theory that constitutional review violates political equality by giving the opinions of a few unelected judges ‘superior voting weight’ over the opinions of everybody else neglects that this kind of power asymmetry between officials and citizens is inherent to representative democracy. In this chapter, I shall offer an account of the relationship between the legislature and the judiciary that makes room for the permissibility of constitutional review. I shall start by explaining why legislatures ought to have a prominent role in a democratic legal system. I shall claim that they deserve to be given the initiative in the project of governing. To this effect, I shall draw particular attention to the fact that legislatures are representative institutions, which lie at a certain distance from the citizenry, and I shall explore the implications of this for institutional design. I shall further contend that this grant of power raises a checks-​and-​balances concern, and that courts, by virtue of their independence, can effectively meet this concern. The case for the permissibility of constitutional review that I seek to put forward is modest in two senses. First, it contends that legislatures have the primary responsibility for the realization of constitutional principles and that the role of courts under systems of constitutional review remains subsidiary to that of the legislature. By taking into account its subsidiary character within the broader constitutional framework, we can make best sense of and map its limits. Indeed, the fact that it can be limited, hence remaining subsidiary to legislative initiative, buttresses its legitimacy. Second, although the account advanced here furnishes an important reason of political morality that counts in favour of constitutional review, it insists that this reason is not necessarily overriding; it ought to be balanced alongside other considerations, whose force varies from one legal system to the other. It thus allows for the possibility that constitutional review may be deemed ineffective or suboptimal in a given legal system. With its modesty, the conception of constitutional review put forward here rejects the polarization that earlier attempts have engendered without watering down the potency of judicial supervision. Thus it puts us in a better position to appreciate that the permissibility of systems of constitutional review in a democratic regime is not decided in an all or nothing fashion but is rather a matter of fine-​grained, context-​specific institutional balances and adjustments. To achieve the optimal result in this exercise, constitutional design can choose from among a number of institutional options and experiment with variables such as the scope and intensity of review. This, as I  shall argue, is precisely the lesson to be drawn from the contrast between weak and strong systems of constitutional review. I shall not side with one or the other system, but I hope that what my analysis misses in terms of concrete institutional predilection it makes up with its clearer appreciation of the resources at our disposal in setting up systems of constitutional review of either sort. Once it is acknowledged that the legitimacy of constitutional review turns more on our ability to create an effective and limited practice that is reasonably responsive to a wide array of moral concerns than on knockdown arguments, such an appreciation becomes vital.

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II.  Substance and Procedure The controversy over the legitimacy of constitutional review epitomizes a tension in theories of political legitimacy more generally. This tension springs from the fact that political legitimacy is a function of both substance and procedure. Legitimate government is one that exercises its coercive force in a way that both respects and promotes certain values such as the basic rights of citizens and is in accordance with decisions reached by appropriate procedures. Importantly, theories of political legitimacy tend to determine the authority of procedures to some extent independently of their outcomes.1 But procedures, however appropriate, do not always deliver the right results in terms of substance. They may fall short in a number of ways, but—​what’s more relevant for present purposes—​they sometimes fail optimally to respect the basic rights of citizens that are vital to the continuing legitimacy of a political regime. The tension just described is particularly acute in democratic theory. That is because democratic theory typically assigns great weight to procedures that embody the principle of political equality among all citizens. Some theorists, like Jeremy Waldron, give this principle a distinctively proceduralist twist.2 They understand it to entail a requirement that everyone’s views be assigned equal weight in political decision-​making. Accordingly, majority vote is for them of the very essence of democracy, because it is the procedure that gives every citizen’s view the most weight that is compatible with an equal weight for everyone else’s view. Proceduralists do not dispute that majoritarian decision-​making will sometimes produce substantive outcomes that we have good reason to morally object to. In such cases our concern for substance and our concern for procedure will pull in opposite directions. It is no wonder then that theorists of this persuasion oppose constitutional review. We may decide to have unelected judges override majoritarian decision-​making in order to give priority to substantive norms, but this choice necessarily involves a sacrifice in democratic self-​government. However, the tension between substance and procedure is not peculiar to such proceduralist versions of democracy. Importantly, it does not go away if we adjust our conception of democracy to include a substantive commitment to fundamental rights. A characteristic example of the latter approach is the one put forward by Ronald Dworkin.3 Dworkin argues for what he calls the ‘constitutional conception’ of democracy. According to it, a democratic state owes every citizen equal concern and respect. Put differently, the precepts of equal concern and respect are ‘conditions’ of democratic legitimacy.4 The constitutional conception rejects the common wisdom that democracy is identical to majority rule. Decisions that deny the most fundamental rights of a minority are undemocratic, even if they are endorsed by popular vote. Contrary to the 1  John Rawls, Political Liberalism (Columbia University Press 1996) 427:  ‘[B]‌eing legitimate says something about [laws’ or governments’] pedigree’. See also Thomas Christiano, Constitution of Equality: Democratic Authority and its Limits (OUP 2008) ch 6. 2  Jeremy Waldron, Law and Disagreement (OUP 1999) 88–​118 [hereafter Waldron, Law and Disagreement]. 3   See Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Harvard University Press 1999) 1–​38 [hereafter Dworkin, Freedom’s Law] and Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Harvard University Press 2000) ch 5 [hereafter Dworkin, Sovereign Virtue]. 4   Accordingly, Dworkin proposes a ‘moral reading’ of the abstract clauses included in bills of rights. Such clauses make best sense as entrenchments of the conditions of democracy, which every democratic state must comply with.

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proceduralist view rehearsed above, Dworkin thinks that setting aside such decisions is not at odds with the value of democracy. Quite the opposite, doing so promotes democracy because it affirms the concern and respect that members of the minority are entitled to as citizens of a democratic polity. So, Dworkin juxtaposes a substantively rich idea of democracy to the proceduralist conception that identifies democracy with majority vote. At first sight, his conception dissolves the tension between substance and procedure in favour of the former. What determines the democratic quality of a policy is what equal concern and respect truly mean, not what some people said they mean. But this will not get us far. Those who, like Dworkin, think that a polity committed to democracy ought to determine the meaning of equal concern and respect must also ask a further question:  How should it make this determination? This question brings procedure back onto the scene. We need procedures about certain issues in large part because we need to identify whose judgment about the meaning of equal concern and respect will count as binding and for how long. This need applies to Dworkin’s theory, no less than others. Indeed, Dworkin is acutely aware of it. His solution is that the standard for the right decision-​making procedures is an outcome-​oriented one. You start by identifying the substantive entitlements and you then evaluate procedures by their capacity or tendency to protect the entitlements. I  do not intend to assess the plausibility of this solution. I am only interested in highlighting the way in which it is also stung by the tension between procedure and substance. Suppose it turns out that judges are better at discovering what equal concern and respect entails. If so, democracy recommends that they be given the power to decide issues of fundamental right in the name of the political community. Even then, though, this recommendation will be based on a general tendency and not on any putative infallibility that judges enjoy. Judges may get it wrong in a specific case, but our commitment to a procedure that gives them the power to decide will compete with our moral objections to the substance of that specific decision. At any rate, it is not necessarily the case that judges are best equipped to make this kind of judgment:  The constitutional conception does not entail the legitimacy of constitutional review, and contrary to common wisdom Dworkin acknowledges this fact. As he readily admits, ‘[l]‌egislatures are guardians of the constitution, too, and that includes constitutional principle’.5 He concludes that: I do not mean that there is no democracy unless judges have the power to set aside what a majority thinks is right and just. Many institutional arrangements are compatible with the moral reading, including some that do not give judges the power they have in the American structure. But none of these varied arrangements is in principle more democratic than others. Democracy does not insist on judges having the last word, but it does not insist that they must not have it.6

But if it is open which institution should have the final say in constitutional matters, we need to have recourse to procedural considerations in order to decide whose view prevails. Besides, we need to make up our minds not on a case-​by-​case basis but in a more systematic way. Our views about the substance of government policy will be of no avail here. In fact, despite its focus on substantive outcomes, the constitutional conception of democracy itself explicitly allows that procedures may also be shaped by considerations that are distinct from substance. So, for instance, it reserves a special place for the ‘one man one vote’ principle or for majority rule. 5

 Dworkin, Freedom’s Law (n 3) 31. See also Chapter 3.

6

  ibid 7 (emphasis added).

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Both principles are supported by weighty considerations of political morality. The ‘one man one vote’ principle affirms equal respect at the symbolic level, and majority rule gives citizens assurance that their views can make some difference in politics—​though not necessarily equal. Hence, both have participatory value quite independently of the outcomes that procedures which affirm those principles produce.7 It is the importance of that value that makes Dworkin reject an extreme preoccupation with substance: Democracy would be extinguished by any general constitutional change that gave an oligarchy of unelected experts power to overrule and replace any legislative decision they thought unwise or unjust. Even if the experts always improved the legislation they rejected—​always stipulated fairer income taxes than the legislature had enacted for example—​there would be a loss in self-​ government which the merits of their decisions could not extinguish.8

III.  Governing Together The tension between substance and procedure in the theory of democracy forces us to shift our attention to institutional design. Even if we go along with Dworkin that the idea of democracy carries with it a commitment to a set of robust individual rights, it still remains to be determined who gets to decide what this commitment amounts to.9 Is it going to be the legislature or the courts? Or is it both bodies together? Which institutional structure is going to be systematically more faithful to values of political morality, both procedural and substantive? We cannot hope satisfactorily to answer these questions unless we start from further upstream and develop a better understanding of the relationship between the two bodies. To begin with, we must clarify why it is good to be governed by institutions that have the credentials and characteristics that the courts and the legislature do. In other words, we must identify what makes the contribution made by the courts and the legislature valuable. Further, we must ascertain which risks government by these two bodies carries and what institutional design can do to minimize those risks. This two-​sided exercise will help explain the interaction between courts and the legislature. We should expect that the two bodies are responsive to each other’s contribution because and insofar as they must be responsive to the value that underpins it. In addition, we should expect that their interaction is structured in a way that mitigates or checks some of the risks associated with each of them. In short, we must measure the relationship between courts and the legislature against the precepts of separation of powers. As we saw in Chapter 2, separation of powers includes a division-​of-​labour and a checks-​and-​balances component. The former dictates that governmental tasks be assigned to those who will perform them adequately and the latter dictates that they be distributed among institutional actors so that government power will be internally checked.

 Dworkin, Sovereign Virtue (n 3) 200–​03.  Dworkin, Freedom’s Law (n 3) 32. The problem with such an arrangement according to Dworkin is that it deprives citizens of ‘the opportunity for some influence—​enough to make political effort something other than pointless’ (Dworkin, Sovereign Virtue (n 3) 203). A true democracy, he continues, ‘permits anyone who wishes it enough leverage or engagement to make it possible for him to treat politics as an extension of his moral life’ (ibid). 9   In a similar vein, Dworkin acknowledges that the ‘moral reading [of the constitution] . . . is a theory about what the Constitution means, not a theory about whose view about what it means must be accepted by the rest of us’ (Dworkin, Freedom’s Law (n 3) 12). 7 8

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In what follows, I shall identify the role that the courts and the legislature are set up to perform and explain why this role is valuable. Since both the judiciary and the legislature are complex institutions, it is only to be expected that they serve a variety of values. Here, I do not intend to offer a full account of those values. I shall thus focus on what I consider most pertinent to the debate about the legitimacy of constitutional review. I shall say that legislatures are meant to combine the demands for popular support and moral innovation, whereas courts, by virtue of their independence, are good candidates for assuming the task of legislative supervision. I shall show how this division of labour explains some of the most characteristic powers we assign the two bodies as well as the duties they have vis-​à-​vis one another, when it comes to governing together. More specifically, I shall say that the legislature ought to be given the initiative in the project of governing. Correspondingly, courts have a duty to implement and further legislative decisions. In other words, implementing those decisions is the appropriate response to the value that they are meant to instantiate. At the same time, decisions of an independent court that scrutinize a piece of legislation for its conformity with constitutional principles serve a valuable checks-​and-​balances function. To this extent, they, too, merit the legislature’s respect. Before I  turn to the main analysis, I  must issue a methodological reminder. How are we to go about assigning a role to each of the two bodies? The answer to this question is given by the principle of purposive interrelation we introduced in Chapter  2:  We build upon certain familiar procedural features of the institutions that we commonly refer to as courts and legislatures. We then claim that by virtue of those procedural features the body that displays them instantiates a certain kind of value or is well-​equipped to perform a valuable institutional role and thus enjoys a certain authority, especially vis-​à-​vis other state institutions. This is a familiar and, I hope, more or less uncontroversial form of argument in constitutional theory. To the extent that constitutional theory is also about who gets to make decisions in the name of the political community, it must ask: What is good about being governed by this or that political body? Typically, answers to this question make reference to the composition of that body and the decision-​making process it follows.10 They contend that bodies with that composition and decision-​making process reliably instantiate the relevant value or reliably perform the relevant role. Of course, in view of the daunting diversity of actual and possible institutional configurations some degree of idealization will be unavoidable in what follows. But idealization is necessary for another reason as well: Particular institutional choices, whether wise or unwise, can only make sense in the light of the purpose they are supposed to further and the standard they are regarded as trying to comply with. It is in the articulation of that purpose and this standard that the following sections aim to contribute. In the words of François Guizot: ‘Le principe détermine les formes; les formes révèlent le principe.’11

10   Even those political theorists who espouse an epistemic criterion of institutional legitimacy must make reference to what I have called procedural features, in order to explain why one institution is more likely to make the right decision than another. 11   ‘The principle determines the forms; the forms reveal the principle’: François Guizot, Histoire des origines du gouvernement représentatif en France (Didier 1851) quoted in Carl Schmitt, The Crisis of Parliamentary Democracy (Ellen Kennedy tr, MIT Press 1988) xiii. For a similar methodological approach see Jeremy Waldron, ‘The Core of the Case Against Judicial Review’ [2006] Yale L J 1346 [hereafter Waldron, ‘Core of the Case’]. But see below section V.A for a crucial difference between the two approaches.

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IV.  Legislative Initiative A. Deliberation and support In a democracy, I suggested above, the legislature must be viewed as having the initiative to shape public policy. What could possibly be the basis for the assignment of this power? In this section I shall argue that the answer lies in the fact that the legislatures that we are familiar with combine two characteristics: (a) Their accountability to the electorate. (b) Their deliberative distance from the electorate.12 I tend to think of these two characteristics as intermediate. By this I mean that their fuller articulation depends on higher-​order normative assumptions, for example about the point and value of democratic participation or about the nature and purpose of legal authority. These normative assumptions form the foundation of more comprehensive theories where these two characteristics find their place. Understandably, different theories will assign different roles and importance to each. But the fact that they are not ultimate should not lead us to the conclusion that they are unimportant. For one thing, neither of them seems easy to dispense with. Both have a firm grip on our understanding of the role of legislatures. While different theoretical approaches and institutional designs may focus on one, they cannot eliminate the other. Inevitably, they must reserve a place for both. Moreover, while their implications are drawn and their content fleshed out in the light of more fundamental philosophical and political commitments, one can still talk about them to some extent in abstraction of those commitments. It is this thin plateau of agreement that the ensuing analysis will draw on. As a result, the analysis is bound to be less apt to yield or support concrete judgments. But this is as it should be in the light of the limited theoretical goal of this chapter, which is not to provide a full articulation of the institutional role of either the legislature or courts. Rather, it is to account for their interaction in a way that makes room for the moral permissibility of constitutional review. That is not to say that my proposal will be compatible with all major accounts of the legislative role. Indeed, as will become obvious, it conflicts with one very influential account. After this brief clarification, let’s turn to the first feature, accountability to the electorate. Procedurally, its most characteristic expression is the popular election of legislative 12  On legislatures see generally Bernard Manin, The Principles of Representative Government (CUP 1997) 192 [hereafter Manin, Representative Government]; John Stuart Mill, Considerations on Representative Government (Ronald B MacCallum ed, Blackwell 1946) 168–​74; Hanna Pitkin, The Concept of Representation (University of California Press 1972) [hereafter Pitkin, Representation]; Jeremy Waldron, The Dignity of Legislation (CUP 1999) [hereafter Waldron, Dignity of Legislation]; and more recently Alexander Guerrero, ‘The Paradox of Voting and the Ethics of Political Representation’ [2010] Philos Public Aff 272, as well as the essays included in Philip Norton (ed), Legislatures (OUP 1990). For an approach that connects the role of legislatures and separation of powers see Nick W Barber, ‘Prelude to the Separation of Powers’ [2001] CLJ 59, 74–​87. As already noted, legislatures are likely to have other very important features that contribute to the prominent institutional role they are assigned in modern legal systems. Among them one cannot fail to note their centralized structure that arguably makes possible a stable framework of interaction and expectations. Moreover, it has been argued that due to the diversity of its composition the legislature can better synthesize the various societal interests into a general will. See Nadia Urbinati, Representative Democracy: Principles and Genealogy (The University of Chicago Press 2006) and Jeremy Waldron, Political Political Theory (Harvard University Press 2016) ch 6 [hereafter Waldron, Political Political Theory]. A useful overview of the functions representative legislatures serve is provided in Anthony H Birch, Representation (Pall Mall 1971) 106–​23.

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bodies. Legislators regularly submit themselves to popular vote. So, they depend for their election and re-​election on what voters think of them. This fact creates a variety of institutional incentives. First of all, it pushes legislators to explain their past decisions and future plans to the electorate. Based on this explanation, citizens can make an informed judgment about who to vote for. In addition, popular accountability encourages legislators to offer a justification for their agenda and official record. Their justification can give citizens new reasons to vote for them and even convince them to change their mind. More strongly, it gives legislators incentive to heed the views and interests of their constituency and integrate them into their agenda.13 Obviously, their doing so often improves their chances to be re-​elected. It is all too common to identify this last aspect of accountability exclusively with vested interests, economic lobbies, bargaining, cajoling and the like. This is a tendency heavily criticized by Waldron:  ‘Not only do we not have the normative or aspirational models of legislation that we need, but our jurisprudence is pervaded by imagery that presents ordinary legislative activity as deal-​making, horse-​trading, log-​ rolling, interest-​pandering, and pork-​barelling—​as anything, indeed, except principled political decision-​making’.14 However, it would be a mistake to suppose that legislators ought to merely aggregate the self-​interested preferences of their constituents.15 In endorsing or rejecting a candidate, in approving or disapproving of a legislator’s performance, voters often consciously express some vision of what a just and well-​ordered polity ought and ought not do and how individuals like themselves can fit in it. It is also this vision (or specific judgments inspired by it) that the elected representatives are moved to take into account in their decision-​making through the mechanisms of popular accountability that determine the composition of democratic legislatures. To this extent, then, they are expected to exercise what I shall call dependent judgment, namely judgment that is informed by the views and interests of voters. Recall that constitutional review sceptics like Waldron have taken the dependence of the legislative role on popular views to mean that the legislature embodies a strong form of political equality. Since this dependence is realized through an electoral system that gives each citizen’s vote equal weight, elected legislators that are thus dependent on their voters also promote political equality; for example, it may be that they have reason to take every voter’s view equally into consideration. In addition, the fact that they do constitutes an important component of their authority. Waldron captures this approach nicely when he describes legislatures as forums where ‘representatives of the whole society, elected on a basis that treats all individuals in the society as equals, vote as equals’.16 From this follows an argument against constitutional review that we 13   I do not intend to take sides in the debate about what it is exactly that legislators ought to take into account, whether it is the interests of their constituents or the interests of the whole political community and not just their constituents or the interests of some class within the community. It suffices for present purposes to say that there is some connection between the role of the representative and the interests of the citizenry or segments thereof. As to the connection between views and interests, I think one can safely assume, along with Hanna Pitkin, that the constituents’ views are at least useful indicators of their interests. But there are other reasons that direct legislators to heed the constituents’ views, some of which are reviewed below. For an overview of the relevant debate see Samantha Besson, ‘The Paradox of Democratic Representation: On whether and how disagreement should be represented’ in Luc Wintgens (ed), The Theory and Practice of Legislation (Ashgate 2005) 125. 14  Waldron, Dignity of Legislation (n 12) 1–​2. 15   The theoretical problems facing this tendency, which echoes one of the main tenets of social choice theory, have been brilliantly discussed by Jon Elster in a number of publications. See among others Jon Elster, ‘The Market and the Forum: Three Varieties of Political Theory’ in James Bohman and William Rehg (eds), Deliberative Democracy (MIT Press 1997) 3. 16   Jeremy Waldron, ‘Judges as Moral Reasoners’ [2009] ICON 1, 20.

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examined in Chapter 4: Whereas legislative decisions affirm political equality in the sense suggested above, constitutional review denies it, because it gives the views of a few unelected officials far superior weight than those of ordinary citizens. Hence, constitutional review is pro tanto undemocratic.17 But this view overlooks the second feature of legislatures that I mentioned earlier, namely their deliberative distance from the electorate. By virtue of this distance, I shall now suggest, legislators feel an opposite normative pull towards making independent judgments, that is, judgments that reflect their own vision of a just and well-​ordered polity rather than that of their constituents.18 The deliberative distance between legislators and their constituents is sustained by a matrix of familiar procedural rules that regulate the function of elected legislatures in the legal systems we are familiar with. Consider, for instance, the rules defining the legislators’ term of office. Legislators are ordinarily elected in relatively large constituencies for a term of a few years. During this period, the electorate does not have any institutional means to control the way they vote. Importantly, the electorate lacks the power to issue imperative mandates to its representatives or to revoke them at will. Though not without exceptions, this is the political reality in the overwhelming majority of modern states.19 Let me pursue the implications of this arrangement a little further. Due to the length of the legislators’ tenure there will inevitably arise situations where they are called upon to make decisions regarding issues on which voters had no opportunity to reflect before the elections or currently have no unambiguous view.20 Besides, even if voters do form a discernible view on a given issue after the election, they have no way of imposing it on their delegate. They can, of course, punish her in the next election, if she goes the other way. But the difference is crucial. Although there certainly are issues that sometimes decide an election, a delegate will typically be judged on the basis of her entire agenda and/​or record as well as on the cogency of the justifications she offers in her defence, when she seeks re-​election. At any rate, the verdict of the people at the next election does not affect the standing of the decisions that the delegate made during her tenure. In all these respects, then, the legislative role leaves ample room for independent judgment. The aim is that the legislator does not operate as a mere conduit of popular opinion but instead deliberates and decides at a certain remove from the influence of her constituents. In order to discharge her institutional duty, she will have to form her own view about what ought to be done. Often, she will reach different conclusions from those of her constituents, and there is nothing in her job description that dictates that she defer to them.21 It is open to her to vote according to her conscience and then  Waldron, Law and Disagreement (n 2) 232–​54.   In Chapter 4, recall, we argued that, insofar as legislators follow their independent judgment, the argument of the constitutional review sceptics just rehearsed fails. Legislators, no less than judges, have superior political power than ordinary citizens. See also Dworkin, Sovereign Virtue (n 3) 190–​200. 19  Manin, Representative Government (n 12) 163–​67. 20   This indeterminacy is reinforced by the common phenomenon of single-​issue voting. More often than not, voters will pick a candidate on the basis of a single issue or of a small sub-​set of issues that they consider most crucial. Hence, it may well be that a number of citizens who voted for candidate A because she champions strict anti-​drug regulations are indifferent about her views on fiscal discipline. But they voted for her nonetheless because of the importance they attach to the war against drugs. Still others favour her precisely for her stance on the economy. Suppose now that the second group of people is less than a majority of her constituency. In such a situation, it is indeterminate what would count as deciding according to the constituents’ views on the new budget. 21   The degree of independence will vary from one institutional arrangement to the other. Thus, the fewer the issues on the legislative agenda, the shorter the tenure and the smaller the constituency, the more legislators will understand their duty as one of merely giving voice to the views and interests of their voters, other things being equal. The longer the tenure and the larger the constituency, the 17 18

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justify her choice to her constituents, hoping either that this choice will not carry significant weight in the next election or that her justification will sway them. No doubt, legislators are subject to other types of constraint. Constraints from one’s membership in a political party are an obvious example.22 But, if anything, those constraints render the relationship between the legislator and her constituents even more mediated.

B. The value of representative government So far, we have examined accountability and deliberative distance in isolation. We now need to bring these two features together and ask whether an institutional role that combines both has any value. Why is it good to be governed by officials that are subject to these opposite forces? At first blush, nothing good can come out of this mishmash.23 In fact, it appears that legislators face an impossible task. If they are supposed to exercise independent judgment, why are they subject to electoral pressure? If they are meant to be sensitive to popular opinion, why can’t they take it at face value? To my mind, the combination of the two features does not constitute a defect in the system of parliamentary democracy, but is rather the basis of its normative appeal. Like all representative institutions, an elected legislature is neither a ‘gouvernement des sages’ nor a plebiscitarian forum, but it partakes of both. Because of this, it can best balance the requirements of popular support and moral innovation. Start with popular support. A just and well-​ordered polity is one that citizens are by and large also motivated to uphold. A representative government is more likely to secure popular support for two main reasons. First, it makes citizens less resentful at the exercise of state coercion. Second, it makes citizens less fearful of political authority. Representative government has the first effect, insofar as it fuses government policy with the views and interests of citizens and is supposed to do so. Members of a political community would be disinclined to support its regime, if they thought that they had no input in political decision-​making or if its outcomes persistently frustrated their reasonable expectations and views as to what those outcomes should be. Recall Dworkin’s justification of majority vote mentioned above. Government by bodies that are popularly elected, he claims, ensures that citizens are actually heard to some extent in political decision-​making.24 It thus fosters the identification of the people with the political decisions taken in their name and reduces feelings of resentment. Of course, experience shows that for popular support to be secured it is not necessary that each and every policy matches voters’ views. Still, government cannot get away with a ‘fiat-​justitia-​pereat-​mundus’ spirit for too long; it must be responsive to the electorate. more free they will tend to regard themselves to tackle the issues on the agenda according to their own best judgment. On the connection between legislators’ independence and large constituencies see The Federalist no 10 (James Madison) in The Federalist (Max Beloff ed, Blackwell 1948) 46–​48. Manin offers a detailed account of the independence of representatives from the electorate in Manin, Representative Government (n 12) 167–​75. 22   As Waldron notes, ‘it is the function of political parties to organize opinion into a relatively small number of comprehensive and well-​thought-​through programs and proposals . . . In this way, there is a more or less well-​organized process of abstraction from the particular opinions held from time to time by any individual to a type of opinion …’ (Waldron, Political Political Theory (n 12) 140). The transformative effect of mass political parties on the institution of political representation has been explored in Nancy Rosenblum, On the Side of the Angels: An Appreciation of Parties and Partisanship (Princeton University Press 2008). 23   Carl Schmitt has famously pressed this point. Schmitt, Crisis of Parliamentary Democracy (n 11). 24   The two effects are inextricably intertwined. Few of us would care about the status conferred by equal voting rights, if the exercise of those rights made no difference whatsoever.

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As Christopher Eisgruber puts it: ‘Designing effective strategy requires among other things, enlisting other actors: individuals, businesses, interest groups and so on. To get the cooperation of these actors, it helps to know what interests motivate them.’25 People who live under representative institutions are also less fearful of political authority. This is because they are educated in thinking that political authority changes hands and that it is up to them collectively to effect that change. In the words of George Kateb, submission to regular election ‘chastens political authority’, and correspondingly ‘loosens the authority’s hold’ on the citizenry.26 For Kateb, this is evinced by the fact that representative democracy nourishes a general attitude of pervasive scepticism toward authority; a reluctance to defer; a conviction that those who wield authority must themselves be sceptical toward their roles and themselves and that necessary authority must be wielded in a way that inflicts minimum damage on the moral equality of all people. Furthermore, there is a tendency to try to do without authority wherever possible or to disperse or disguise it, and thus to soften it.27

In short, it entrenches a sense of individual independence. Importantly, rather than undermine political authority, this sense is more likely to generate support for political institutions, insofar as those institutions affirm and promote a conception of persons (as independent) that each one of us can willingly relate to and make part of our own idea of the good life. That is not to contest that political regimes can be and have been sustained over time by fear or blind deference. However, when citizens abide by and support a regime not out of fear but out of independent commitment to their political communities and a positive valuation of their membership, these communities attain the right kind of stability or stability for the right reasons.28 Note that this second type of connection between representative government and political stability does not require any systematic correlation between constituents’ views and legislators’ decisions. The ‘chastening’ effect is realized through the mere fact that legislators ought to regularly submit themselves to popular election. It goes without saying, of course, that a political official so constrained will as a matter of fact be motivated to heed her constituents’ views. But if popular support is so important, why are legislators allowed significant leeway to decide contrary to the views of their constituents? In short, what is the political rationale underlying the deliberative distance between the legislature and the electorate? The answer has to do with the transformative effect of public institutions. The views, interests, and motivations of citizens should not be taken as fixed. Instead, they are amenable to change by means of, among other things, moral reasoning. Nor, as I have argued above, is fidelity to them intrinsically valuable; if it were, the set-​up of legislative decision-​making would not leave room for the exercise of independent judgment. We need not for present purposes take sides in the age-​old meta-​ethical question whether moral reasons are the kind of things that are both universal in scope 25   Christopher Eisgruber, ‘Constitutional Self-​Government and Judicial Review: A Reply to Five Critics’ [2002] USFL Rev 115, 166. 26   George Kateb, ‘The Moral Distinctiveness of Representative Democracy’ [1981] Ethics 357, 358. 27  ibid 358. 28   Compare Rawls, Political Liberalism (n 1) IV §2. Rawls distinguishes two kinds of stability, one where compliance to certain terms of social cooperation is ‘if need be prompted by penalties enforced by state power’, and another based on ‘a sense of justice and a reasoned allegiance’ developed through growing up in a just political regime. The claim I am making here is that the sense of independence imbued by representative government reinforces the second kind of stability because it forms part of an attractive conception of ourselves as citizens. Thanks to Matthew Clayton and Victor Tadros for pressing me to clarify this point.

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and necessarily motivate moral agents or alternatively whether they have motivational power but their applicability is relative to specific moral agents. It suffices that by and large agents are sensitive to right moral reasons and may come to alter their views in light of them. If this possibility is open, we can make sense of legislators as moral pioneers, pushing forward the moral horizons of the citizenry. When a legislative scheme is supported by the right reasons, it may well transform the vision citizens have of the just and well-​ ordered polity. In particular, it may urge them to see differently to what extent self-​ interest can legitimately figure in this vision.29 Thus, James Madison famously wrote that it is the very purpose of a national legislature ‘to refine and enlarge the public views by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations’.30 How radically this vision can or should be forced to change at any given time is a question to be settled also by appeal to considerations of political prudence. In general, it is fair to say that political prudence favours incremental measures. It is one thing to aspire to be a moral pioneer; it is quite another to be quixotic. However, this is no reason to give up trying altogether. If change makes sense at all, we need to have public institutions powerful enough and self-​confident enough to initiate it. By virtue of their deliberative distance from the electorate, legislatures definitely fit the bill. But they are suited for this role in another sense as well: First, electoral accountability gives them a strong institutional incentive to do their best to explain the desirability of change to citizens. Second, it enables them to gauge the requirements of political prudence.

C. Representation and authenticity The case for deliberative distance rehearsed above does not rest on a distinction between authentic and inauthentic expressions of popular will. This distinction is central to Wil Waluchow’s theory of democracy. Waluchow argues that a representative may vote against the expressed wishes of her constituents on the grounds that they are inauthentic.31 In turn, a wish is inauthentic when it fails to satisfy one or more of a list of demanding conditions including what Waluchow calls the ‘evaluative dissonance condition’.32 To avoid evaluative dissonance, express wishes must ‘be consistent with the basic beliefs, values, commitments, and settled preferences’33 of the person who makes them. Waluchow applies this framework to political communities. He writes that, similarly to informed consent rules, norms of political representation aim to track authenticity. He explicitly refuses to make the claim that ‘representatives should sometimes override a community’s expressed wishes on grounds of best interests’.34 As presented by Waluchow, the notion of authenticity opens up the conceptual space for a similar deliberative distance between citizens and their representatives as the one I  have been advocating. There is an important difference, however. In Waluchow’s sense, the representative is enjoined to act as an enlightened, clear-​headed version of the citizen, the better angel of the latter’s nature. Citizens may think they want a policy that negates fundamental rights but they do not genuinely want it. It is the   Thomas Nagel, Equality and Partiality (OUP 1991) ch 10.   The Federalist no 10 (James Madison) (n 21) 45. The emergence of this view and its hold on the Founding Fathers are recounted in Manin, Representative Government (n 12) 102–​31. 31 32   Wil Waluchow, A Common Law Theory of Judicial Review (CUP 2007).  ibid 89. 33 34  ibid.  ibid 96. 29 30

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responsibility of the representative to ascertain that this wish of theirs does not match up with their basic values and settled preferences. Note the difference with my view. Although I readily grant that the representative is deciding in the name of the political community, and hence in a sense also for individual citizens, I insist that this is not the same as saying that she is there to give effect to their wishes. How should we adjudicate between the two views? Why should authenticity be the touchstone of genuine political representation? Do we gain anything from saying that only the wishes of citizens may figure as ground for a representative’s choice, provided that they are authentic? Why not say that the representative is under a duty to make morally sound decisions, decisions in which the interests of individual citizens deserve a place but not their immoral wishes? One reason to prefer Waluchow’s framework may be that it seems to come closer to the belt-​conveyer imagery that was mentioned in Chapter  4, whereby the representative is there to carry out the wishes of the citizens. By so doing, it borrows some of the legitimacy aura of that imagery. Representatives ought to show fidelity to the wishes of the people, because only then can they claim to have their consent to govern. As Waluchow pithily puts it, ‘the “inputs” [of political decision-​making] . . . must be authentic. Otherwise the “outputs”—​the laws actually passed—​will not contribute to the realization of self-​rule’.35 Of course, as already argued, the belt-​conveyer imagery is incongruent with our practice of political representation, which affords representatives a significant degree of independence from their constituents’ wishes. But someone could maintain that the incongruence disappears if we give representatives the power to correct their constituents when they are not being true to their authentic self. So presumably, with Waluchow’s framework we can have our cake and eat it too. We can get the legitimacy boost from the belt-​conveyer imagery without its implausible implications. Fidelity to the wishes of the people remains the standard to which we hold our representatives but is now understood to require discerning and acting on their genuine wishes. By contrast, the alternative defended here seems to suffer from paternalism, insofar as it allows the representative to ‘violate the autonomy rights’36 of the represented by appeal to something like their best interests. I cannot launch into a full-​scale attack of consent-​based theories of political legitimacy. I shall limit myself to pointing out some difficulties with Waluchow’s approach. First, even if you believe that consent is the litmus test of legitimacy, you do not have to accept his notion of political representation. Waluchow seems to think that, just as a patient should have her wishes respected for every treatment she receives, respect for people’s wishes determines the legitimacy of individual political decisions. But political communities do not tend to work on a retail basis. That’s why according to consent-​based theories political legitimacy depends on consenting to submit to a political system rather than individual laws. Clearly, it would not be irrational to give one’s consent in this wholesale manner. But the point goes deeper than that. Politics is what we do together with lots of very different people. In these circumstances, it would be unreasonable to withhold your obedience unless you always have it your way. If so, it suddenly becomes puzzling why we should treat giving effect to people’s wishes as the criterion of legitimacy of individual laws. The asymmetry between patients and citizens has a further consequence: It takes the wind out of the sails of the argument from paternalism. It may be that on a personal level (e.g. qua patients) we have a moral right not to be compelled to do something because it is good for us. However, the value 35

 ibid 111.

36

 ibid 93.

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of autonomy does not give us a blanket political right not to be compelled to do something that goes against our wishes. Hence, the mere fact that a system of government so compels us does not make it paternalistic. Second, any extension from the individual to the political case runs into well-​known problems of collective agency. A political representative is under a duty to act in the name of a multitude of individuals. Even if she wanted to, she could hardly be expected to uncover the basic commitments and settled preferences of each one of her constituents. Assuming that this were possible, it is unlikely that they would all share the same ones. What is she to do? It is by no means evident, for instance, that she should attribute to her constituents as a group a wish just because it is embraced by a majority of them. The minority may accept the result as fair without changing their mind about what they wish. Nor will it help to resort to notions of a median constituent. It is likely that no real constituent can see herself in the set of views of the median constituent, and it is the former’s autonomy that Waluchow’s representative must respect. Perhaps, though, the representative can avoid such detective work. It could be argued that what she should be looking for are a community’s basic commitments and settled preferences. Those ‘are expressed via, for example, the community’s basic laws and political institutions, as well as through its many and varied social practices’.37 This simplifies things. Perhaps it is impossible to attribute to a pluralistic community a determinate wish to build a football stadium or an opera (How could we ever convince opera-​lovers that what they truly wanted was a football stadium?), but we do not seem to face a similar difficulty when we ask ourselves whether our community is committed to freedom of speech. Arguably, this is the sort of commitment that Waluchow claims our representatives should be faithful to, even against our expressed wishes. Now, it is doubtful that, just because my community is committed to freedom of speech, I also become committed to it. It is at least imaginable that I deeply oppose it. I could be a ‘bad man’ who complies with laws protecting freedom of speech only insofar as I am likely to face sanctions unless I do.38 Not that this would necessarily be a problem for Waluchow. If the operation of our political institutions evinces a commitment to freedom of speech, say, because its violations are routinely punished and publicly condemned, then it does not really matter whether individual citizens abhor it. Still, in this case the legitimacy benefits that Waluchow would allegedly reap from adopting the belt-​conveyer imagery all but vanish. There is no doubt that many citizens affirm their community’s commitments and preferences, but that is no reason to think that those who do not are thereby beholden to an inauthentic self. If we embrace the view of legitimacy underpinning the belt-​conveyer imagery whereby legitimacy requires respect for someone’s authentic wishes, we must think that a representative that upheld those commitments and preferences would not be acting legitimately toward the latter group. What is more, the community’s commitments and preferences are typically couched in very abstract language. People disagree about what a commitment to freedom of speech or democracy amounts to. In these cases the representative’s job is not to divine what is authentic—​whatever this may mean—​but what is morally acceptable.39 Similarly, not any old commitments and preferences will do. They have to be the right ones. Waluchow concedes this point when he writes that ‘[a]‌representative cannot be 38  ibid 95.   Oliver W Holmes, ‘The Path of the Law’ [1897] Harv L Rev 457.   This is particularly obvious in Waluchow’s discussion of democracy. He presents two philosophically sophisticated conceptions of democracy and buttresses their appeal by showing how they articulate the moral ideal of equal concern and respect. See Waluchow, Common Law Theory (n 31) 106–09. 37 39

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required to check his other moral duties at the door when he assumes that role. He can no more escape his overall duties as a responsible moral agent in this way than a soldier can escape his overall duties as a moral agent by always following orders’.40 No matter how authentic a community’s commitment to inequality is, a good representative cannot condone it. This is all as it should be. Political legitimacy hangs on much more than just giving people what they (truly) want, and we rely on our elected representatives and other public officials to balance all its various elements. The account of political representation defended in this chapter does not seek to suppress legitimacy’s complexity by squeezing it into a conceptual straitjacket, but lays it in full view. In this lies one of its major strengths.

D. Not the last word but the first In earlier sections I elaborated what I take to be the twin value of government by an elected legislature and argued that the two features of accountability and distance aim to sustain it. I also distinguished my account from an alternative proposing that representatives are there to ensure that citizens remain true to their authentic selves. Now I turn to more practical issues. I shall ask: Can we operationalize the dual political concern for popular support on the one hand and moral innovation on the other? Is it realistic to expect that legislators can balance the pull towards dependent judgment and the opposite pull towards independent judgment? Dworkin thinks that the set-​up of elected legislatures only gives us a positive reason to assign to them what he calls policy or (in more recent work) choice-​sensitive issues, such as whether to build a football stadium or an opera. But he adds that it does not give us any positive reason to assign them choice-​insensitive issues or issues of principle, among which he counts issues concerning the fundamental rights of citizens. Issues of the latter kind, he argues, we do well to assign to institutions that are not elected and decide on principle.41 However, this suggestion does not factor into the division of labour the fact that legislators have strong institutional incentive to exercise independent judgment as well. Besides, it overlooks that very often choice-​sensitive issues have choice-​insensitive aspects, and we want those who draw up comprehensive responses to choice-​sensitive issues to be mindful of those aspects, so as better to incorporate them into their policies.42 In general, we want all state officials, including legislators, to act with a sense of responsibility in matters of constitutional import. By virtue of their deliberative distance from the electorate, legislators can face up to this responsibility, even in the teeth of popular opinion. Drawing on these observations, I propose we say that—​at least relative to courts—​ legislatures have the general initiative in the project of governing. On any given issue, whether choice-​sensitive or choice-​insensitive, legislatures must get there first, at least in the normal case. Through the various measures they enact, they give shape to a certain vision of the just and well-​ordered polity. Of course this vision will often be fragmented, since the way it unfolds depends heavily on the relative urgency and priority  ibid 94.   Dworkin uses the criterion of choice-​sensitivity in Dworkin, Sovereign Virtue (n 3)  203–​08. He had employed the principle-​ policy distinction in Ronald Dworkin, Taking Rights Seriously (Duckworth 1978) 91. 42  Compare Lawrence Sager, ‘The Domain of Constitutional Justice’ in Larry Alexander (ed), Constitutionalism:  Philosophical Foundations (CUP 1998) 240:  ‘Some principles of political justice are wrapped in complex choices of strategy and responsibility that are properly the responsibility of popular institutions.’ 40 41

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of particular issues and on other political circumstances. Hence, it is quite unlikely that the content of all legislative measures can neatly fall under a single scheme of the just and well-​ordered polity. This will be partly because of the exigencies of the day and partly also because on certain issues it is permissible to change one’s mind. But this is no cause for concern. Legal systems, as has been often pointed out, are ongoing enterprises. Different times pose different challenges, and political institutions must be flexible enough to adapt to changing circumstances. In this constant flux citizens must have input. And elected legislatures are the institutions that are best suited to give them an appropriate voice. The fact that the legislature has the initiative does not necessarily mean that it has the last word or that its decisions must prevail, come what may. Still, its power is very significant. First of all, the body that has the initiative gets to set the agenda according to its own sense of priority and political calculation. It can thus direct and frame political developments. Second, in the majority of cases the policy initiated by the legislature will be the one that carries the day. As James Bradley Thayer put it, the constitutions not merely intrust to the legislatures a preliminary determination of the question, but they contemplate that this determination may be the final one; for they secure no revision of it. It is only as litigation may spring up, and as the course of it may happen to raise the point of constitutionality, that any question for the courts can regularly emerge. It may be, then, that the mere legislative decision will accomplish results throughout the country of the profoundest importance before any judicial question can arise or be decided.43

At any rate, a legislative decision provides a point of focus for any subsequent debate. Political decision-​making is a painstaking process, especially in a democracy, so inertia inevitably favours a scheme already adopted. It makes it the starting point for any amendments and counter-​proposals. Notice that these arguments apply to choice-​ sensitive as well as choice-​insensitive issues, given the way the latter are, as mentioned above, often nested in choice-​sensitive schemes and, conversely, given the choice-​ sensitive and other strategic implications of a judgment on a choice-​insensitive issue. A good example of this is human rights legislation. Such legislation does more than just enact into law abstract moral precepts; rather it attempts to embed human rights protection in a certain area of social life with its pre-​existing regulatory framework, patterns of vested interests, and settled expectations and so on. This is a delicate and challenging exercise, so the striking of a compromise that achieves the goal reasonably well and commands sufficient support constitutes a political achievement that is difficult to replicate. Scrapping the compromise and going back to the drawing board would be a highly unappealing prospect.

V.  Judicial Independence and Varieties of Supervision A. Legislatures in the real world I have argued that we have good reason to be governed by state officials who are, on the one hand, accountable to the electorate and can thus fuse the views and interests of ordinary citizens in the policies they enact and, on the other, can deliberate independently about what ought to be done. This is why in a democracy we give the political

43   James B Thayer, ‘The Origin and Scope of the American Doctrine of Constitutional Law’ [1893] Harv L Rev 129, 135–​36 [hereafter Thayer, ‘Origin and Scope’].

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initiative to periodically elected legislators. With this choice, however, comes a risk. It is the familiar risk we run whenever we submit to the judgment of another, but with a twist. In the case of legislators, the risk is the result of the two forces that shape their role.44 Striking the right balance between popular support and moral innovation is not an easy task, and there is no guarantee that our legislators, however conscientious, will live up to it. They may fail by slavishly following the morally repugnant views of a majority of their constituents, in order to secure their re-​election. As we have seen, our political practices create a deliberative distance between legislators and voters, precisely to enable the former to filter, shape, and perhaps also correct the views of the latter. Alternatively, they may exercise leadership and independent judgment but, like the Pied Piper, lead the people to injustice. It may be countered that our focus on what could go wrong with elected legislatures misunderstands the nature of the inquiry. We ought to allocate power, the argument goes, in a general way and on the basis of a conception of what state institutions are like when they are in reasonably good shape under realistic assumptions.45 This should be our yardstick here as well. Hence, the fact that on occasion legislatures make mistakes cannot be decisive, as long as they perform reasonably well in favourable but realistic conditions. But this paints too simplistic a picture of institutional design. We should expect that all state institutions will have a fair share of both advantages and disadvantages. We design them with certain main preoccupations in mind and on the basis of predictions of how things are likely to evolve. We cannot make them perfect, though. They serve us well just in case they respond adequately to the primary tasks we have assigned to them. On the other hand, this does not necessarily mean that we have to put up with the risks they expose us to. Of course, we could minimize them if we did away with the institution that creates them. But because government by an elected legislature carries such immense value for us for the reasons already mentioned, this is a route we are not prepared to take. Rather than abolish or seriously alter the legislature, we seek to mitigate them through a system of checks and balances. This is what modern democracies typically do. Often the system of periodical election will suffice to ensure that legislators do not misuse their power, in the sense that it supplies them with a powerful enough incentive to use it wisely and in the interests of the citizenry. But often this will not be an adequate safeguard. After all, the risks elected legislatures pose partly stem from their representativeness. Could we instead rely on courts to provide the necessary check on legislative power, especially in fundamental rights cases? It is common to defend such judicial supervision on the basis that judicial decision-​ making is principled and argumentative. Arguably, this puts judges in a better position to determine correctly the content of fundamental rights, which are essentially moral questions, not dependent on considerations of utility maximization and efficiency.46 This line of argument has been criticized for failing to take seriously the 44   I am not considering here the very serious risk that some legislators have evil and corrupt agendas which they plan to further during their term in office. All grants of power carry this risk. As far as legislators are concerned, the task of weeding out the bad seeds among candidates is primarily entrusted to voters. This, of course, is an imperfect mechanism. Some states have complemented it with special mechanisms at the pre-​or post-​election stage, which are administered by electoral commissions or the legislature itself. 45   See for instance Waldron, ‘Core of the Case’ (n 11) 1359ff. 46  Dworkin, Freedom’s Law (n 3) Introduction. On courts see generally Lon Fuller’s classic article ‘The Forms and Limits of Adjudication’ [1978] Harv L Rev 353. See also Owen M Fiss, ‘Foreword: Forms of Justice’ [1979] Harv L Rev 1, as well as Neil Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy (The University of Chicago Press 1994) ch 5 [hereafter Komesar, Imperfect Alternatives].

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various constraints on judicial reasoning. After all, judicial reasoning is a form of legal reasoning and is therefore sensitive to the gravitational force of past political decisions.47 According to this criticism, it may well be that judges reason morally and that they are good at it; however, that cannot be an argument for assigning them the protection of fundamental rights, since in their reasoning they ought to give weight to a host of—​moral—​considerations about precedent and statutory authority that are extraneous to the determination of the abstract meaning of such rights. In other words, even if judicial reasoning is principled, it is not oriented solely towards rights principles. Although I believe that it is sometimes morally permissible and even desirable to establish a system of constitutional review for the protection of fundamental rights, I agree that the view just outlined, which stresses the similarities between judicial reasoning and abstract moral reasoning, perceives courts in isolation. It thus overlooks the relationship between the two institutions. But it is in that broader context that the legitimacy of constitutional review can properly be assessed. We do not look to either the legislature or courts to uphold constitutional values. Instead, we place our trust in their cooperation, which we design so as to accommodate our multifarious evaluative commitments, to democracy and to fundamental rights. This insight guides the ensuing analysis. I am not going to argue that courts are uniquely suited to guarantee our fundamental rights or that legislatures are a standing threat to them. Systems of constitutional review, I shall argue, are legitimate when they combine the merits of both these institutions.48

B. The duty to respect the legislature Admittedly, although assessing the constitutionality of a statute is of immense importance, in the context of the relationship between courts and the legislature it is rather extraordinary. The courts’ primary role is to assist in the implementation of policies laid down by the legislature. For this reason, their stance vis-​à-​vis the legislature is first and foremost receptive; their judgments are constrained by what the legislature has said and done. Somewhat paradoxically, it is with this receptive function that my case for constitutional review will start. I shall argue that there is an element of supervision built into that very function, which can vary in scope and intensity. Having the initiative in the design of state policy, legislatures hold a prominent place in the legal systems with which we are familiar. Being centralized institutions, however, legislatures typically lack the machinery to give effect to statutes in particular circumstances. This is a task that falls upon other state organs, one of which is the judiciary. Courts make sure that disputes arising in a legal system are resolved by appeal to the vision of the just and well-​ordered polity that underlies legislation. With their decisions they sustain that vision over time and make it more precise. But the assistance they offer is not entirely passive. On the contrary, it has to be understood in dynamic terms. Thus, judges actively participate in the shaping of the vision of the just and well-​ordered polity governing the life of their political community, when they integrate the disparate and often conflicting decisions of the legislature in a more or less coherent whole.49 They also assume an active role with the lapse of time, as they   Waldron, ‘Judges as Moral Reasoners’ (n 16) 11–​15.   See relatedly Neil Komesar’s attack on what he dubs ‘single institutionalism’. Komesar, Imperfect Alternatives (n 46) 6. 49   Joseph Raz, Ethics in the Public Domain (Clarendon Press 1994) 376. 47 48

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adapt legislative measures to fit changing social needs. Besides, novel circumstances sometimes discredit legislative decisions, in the sense that they undercut their status as expressions of popular will or as embodying superior expertise. Since judges assist in implementing the law over time, it can reasonably be supposed that they are better suited to appreciate new circumstances and incrementally update the vision of the just and well-​ordered polity.50 The receptive aspect of the judicial function, thus construed, is intertwined with an element of supervision. Recall our general discussion of separation of powers in Chapter 2. The joint project of governing in which courts and the legislature take part is structured by values. This means that institutional cooperation is something that needs to be earned. Only if it lives up to these values, does a contribution to this project by the legislature merit the respect of other participants. The same values also determine what respecting this contribution amounts to and how other participants such as courts should assist in giving it effect. In other words, the mere fact that the legislature has made a decision is not enough. In addition, that decision must be supported by the relevant principles of political and especially institutional morality. It would be too quick to infer from this that, whenever courts are faced with a legislative decision, they should go through all the relevant moral principles to ascertain whether it is a genuine contribution to the joint project. Judicial epistemology is sensitive to a whole host of additional considerations. Importantly, it takes into account that courts have limitations, which tell against assigning them certain powers. Accordingly, even though the courts’ duty to respect the legislature depends on a moral judgment, it is an open question whether this judgment should be made by the courts themselves on a case-​by-​case basis. Legal tests that courts apply to legislative decisions may reflect that judgment obliquely. There is a wide variety of such tests but for present purposes it will suffice to mention a few salient options. 1)  On one end of the spectrum we can imagine a minimally intrusive test, which takes something like the following form: A decision commands respect just in case it has been voted by the appropriate legislative majority. This means that courts may not assess the content of that decision, despite the fact that it, too, is a determinant of its authority. In recent years Adrian Vermeule has put forward this position, which he calls institutional formalism.51 According to institutional formalism, courts should refrain from making all but the most rudimentary moral judgments. Institutional formalism is based on a presumption of sorts: Since the legislative process is set up in a way that, as a general matter, fosters the right kind of attitude towards public issues on the part of legislators, judges do well to treat the decisions that are produced through this process as embodying the value they were meant to; it would be counter-​productive for judges to inquire further whether individual decisions actually do so. What reasons do we have for accepting this presumption? Deliberating about whether a legislative decision satisfies the evaluative standard it is supposed to often involves significant costs: It takes up time and taxes courts’ bandwidth. In light of this, it may be that judicial resources are best expended elsewhere. After all, courts are there to perform other tasks as well such as adjudicating disputes. Also, inasmuch as a legislative decision implicates fundamental rights, scrutinizing it requires moral reasoning, 50   Of course they are not the only state organs charged with this task. Legislatures and administrative agencies each have their own resources to adapt the law to current needs. 51   Adrian Vermeule, Judging under Uncertainty (Harvard University Press 2006).

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which some or all courts in a particular jurisdiction may not be trained in. Finally, judges suffer from well-​known informational deficits and consequently lack (and do not have the capacity to obtain at a reasonable cost) the background knowledge against which they can evaluate various aspects of state policy. As a result, we may want to adopt a formalist judicial test that relieves them from the aforementioned epistemic and deliberative burdens. Needless to say, a legal test similar to the formalist one is favoured by constitutional review sceptics who affirm parliamentary sovereignty on democratic grounds. They also think courts have a duty to respect and give effect to a decision just because it comes from the legislature. Notice, however, the difference between the case for institutionalist formalism and the standard democratic story about legislative authority. For the formalist, no moral necessity dictates that courts not second-​ guess the merits of a democratic decision. Rather, formalism is warranted only if we look at or predict judicial performance over a range of cases and conclude that courts are less likely to do a good job at reasoning morally than legislatures. As Vermeule puts it, ‘formalism . . . can be justified only on empirical grounds, indeed consequentialist grounds:  the argument for decisional formalism must be that it will produce better consequences for the legal system than will alternative decisionmaking strategies’.52 Sure enough, the formalist strategy allows the possibility that a particular legislative mistake will go unnoticed and unchallenged. Nevertheless, it insists that this is a price worth paying for a system that on the whole delivers the right results. To some extent Vermeule’s consequentialism chimes with the approach advanced in this book, whose thrust is that we should allocate government power between courts and the legislature such that they can jointly claim our allegiance. But Vermeule is mistaken to think that outcomes are only tested on empirical grounds. The joint project of governing works well also if it conforms to intrinsic values of political morality, something which cannot be measured empirically. Indeed, as we have seen, representative legislatures instantiate an intrinsic value, insofar as they vindicate a vision of citizens as free and worthy of respect. We should expect, then, that any judicial test will honour that value too, independently of any further good outcomes it may yield. For the same reason I do not share Vermeule’s belief that we can evaluate alternative judicial tests—​and systems of interaction between courts and the legislature more generally—​‘by bracketing high-​level disagreements about competing value theories’.53 Clearly, once we have settled that formalism is the correct judicial test, courts will be able to apply it without having to resolve such disagreements. In this sense, it is by and large true that formalism ‘cuts the links between high-​level premises—​such as jurisprudential commitments, claims about the nature of language, and accounts of democracy or constitutionalism—​and the operational, ground-​level rules that judges are to follow’.54 But the choice facing theorists and constitutional designers is a value-​ laden one. It engages their often conflicting ideas about democracy and permissible trade-​offs between it and other principles of political morality. It is certainly possible that the debate over the merits of formalism or indeed any other judicial test will produce an overlapping consensus among different value theories, but, contrary to what Vermeule claims, this will be the outcome of substantive moral argument; it will not pre-​empt it. 53  ibid 5.  ibid 7.   ibid 66–​67. I shall qualify this statement somewhat in Chapter 7.

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2)  A slightly more intrusive judicial test would focus on the quality of the actual deliberation that led to a legislative decision. As we have seen, the value of government by elected legislatures does not consist in the fact that everyone’s views count equally; they do not. Rather, it consists in the fact that the views of those that count most, namely the legislators, are formed subject to certain kinds of consideration. So, for instance, it has been argued by a number of liberal thinkers that rights provisions such as the right to free speech and privacy dictate that legislators not enact the moralistic preferences of their constituents.55 On this view, it is the legislator’s constitutional duty to dismiss those preferences from the vision of a just and well-​ordered polity that informs her vote. If, however, she takes them into account, she fails her role. Accordingly, the decision she has voted for is in this respect one that does not instantiate the value it was meant to. Judicial tests of the sort we are considering now aim to weed out such failures.56 Judges will refuse to assist in the implementation of decisions that are thus tainted. Of course, legislative decisions seldom announce the reasons on which they are based, especially when these reasons are dubious, and, even where there is evidence that one or more legislators did have a particular intention, generalizing that intention to the entire group is notoriously difficult. Typically, then, this test does not consist solely or primarily in establishing a historical fact. More often than not, judges applying it have to engage in moral reasoning. They have to consider, for instance, whether a decision that disproportionately impacts a minority is sufficiently tailored to serve an innocuous justification.57 In this sense this test occupies an intermediate position on the spectrum of intrusiveness. While it requires that legislatures live up to a moral standard that is judicially policed, it does not involve judges assessing whether the legislators have correctly weighed the considerations they should have taken into account. 3)  It is this extra step that a third, more intrusive type of test enjoins judges to take. We want legislators to make the best decisions regarding our collective life. We subject them to electoral pressure because we think that the best decisions must also be attuned in the right way to the views and interests of ordinary citizens. But we know that legislators can and do make mistakes. Importantly, they may overestimate the pull of public opinion and thus get the balance between popular support and justice wrong or go astray in their exercise of independent judgment. The   Ronald Dworkin, A Matter of Principle (Harvard University Press 1986) 351–​72.  For a comprehensive overview of the types of judicial test that focus on the quality of legislative deliberation, with reference to the jurisprudence of US courts see Richard Fallon, ‘Foreword: Implementing the Constitution’ (2001) 111 Harv L Rev 56, 70–​73, 90–​102. Such tests are also common in the law of judicial review of administrative action, which has as one of its headings whether the administrative body has taken into account relevant considerations. The reach of this heading is illustrated in the recent debate about whether public bodies ought to incorporate the proportionality test in their deliberative process, whenever their decision impacts fundamental rights. See R (SB) v Headteacher and Governors of Denbigh High School [2005] All ER 396. For discussion see Thomas Poole, ‘The Reformation of English Administrative Law’ [2009] 68 CLJ 142–​68. Under pressure from the European Court of Human Rights there has been a trend towards recognizing similar constraints on legislative decision-​making. Thus, in a famous case where it found a violation of the right to vote the Court noted that ‘there is no evidence that Parliament has ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote’ (Hirst v United Kingdom (No 2), Application No 74025/​01, decision of 6 October 2005, para 79). 57   For criticism see Kai Möller, ‘Two Conceptions of Positive Liberty: Towards an Autonomy-​Based Theory of Constitutional Rights’ [2009] OJLS 757. 55 56

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third test gives judges the power to second-​guess the correctness of the legislature’s judgment. Constitutional review of legislation for its compatibility with fundamental rights norms typically falls in this category.58 Under practices of constitutional review judges who want to know whether they owe respect to a particular legislative decision must ascertain whether it adequately takes into consideration fundamental rights. Here judicial epistemology comes closer to the moral ontology of the joint project of governing, as it makes explicit and direct reference to criteria of political legitimacy. Hence, practices of constitutional review of this sort must be premised on a different assessment of judicial performance from the pessimistic one that fuels Vermeule’s formalism. We do not need to think that judges are philosophers. But if we are to trust them to decide what the right to privacy or speech entitles us to, they must at least be competent in reasoning morally, and they must be able to do so without neglecting their other duties. The last two tests reflect an interesting ambiguity in the concept of governing well. Sometimes, when we say we want to be governed well we mean that we want to be governed by people who are public-​spirited and conscientious and will consistently make a bona fide effort to decide according to our best interests. But sometimes, governing well just means governing in accordance with the precepts of good governance, making the right decisions. TM Scanlon captures these two meanings nicely when he draws a distinction between ‘the permissibility of an action and a special kind of agent assessment, in which what is being assessed is . . . the quality of the particular piece of decision making that led to the action in question’.59 Scanlon notes that the agent assessment requires the prior identification of the considerations upon which the permissibility of an action depends. An agent fares well in that assessment if he has taken those considerations into account. This proximity explains why the two tests are not always clearly distinguished or easily distinguishable and often merge into one another. Still, in their ideal form they are motivated by distinct moral concerns. There is a choice here. So the question arises: Are we ever justified to move from the less intrusive to the more intrusive type of judicial supervision? This question is especially pressing in the last type of test: Can we sensibly maintain that judges respect legislative initiative when in fact they second-​guess the outcome of legislative-​decision-​ making? Doesn’t constitutional review actually hand over to non-​elected judges the power to impose upon the people their own moral judgments? Saying that intrusive judicial supervision is a possible manifestation of the relationship between courts and the legislature does not answer these questions. We need to explain why it is a morally attractive alternative or at least specify the circumstances under which it can be justified. The case for the moral appeal of constitutional review that I am going to put forward has two prongs. First, I shall argue that, even as courts ascend the ladder of intrusiveness, they do not cancel the legislature’s valuable contribution to the joint project of governing. Second, not only should we not fear constitutional review, but we have reason to positively seek it. Separation of powers dictates that we put in place monitoring mechanisms to counteract abuses of legislative power, and the judiciary, by virtue of its independence, is well-​suited for this task.

  As we have seen, some of its aspects could also be incorporated into the second type of test.  TM Scanlon, Moral Dimensions:  Permissibility, Meaning, Blame (Harvard University Press 2008) 27–​28. 58 59

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C. Constitutional review and initiative Our goal is to fit intensive forms of constitutional review (enjoining courts to do more than ascertain that proper law-​making procedures have been followed) within the broader partnership between courts and the legislature. In this relationship elected legislatures are supposed to play a valuable role, and constitutional review cannot overshadow or obstruct their distinctive contribution. I  shall argue that this is avoided because the role of the judge remains subsidiary to that of the legislature, even when he scrutinizes its decisions against demanding principles of constitutional morality. To unpack the concept of subsidiarity I shall start from Lawrence Sager’s apt comparison between constitutional judges and quality-​control inspectors in an automobile plant. He writes: [T]‌he quality-​control inspector has only the job of assuring that the cars which leave her plant are well-​built. Her role is focused and singular and comes on top of the efforts of the people who actually put the cars together. Constitutional judges are like that. Their mission is singular—​to identify the fundamentals of political justice that are prominent and enduring in their constitutional regime and to measure legislation or other governmental acts by those standards. And their mission is redundant—​they enter the process only after legislators have themselves considered the constitutional ramifications of proposals before them.60

Like Sager I wish to associate subsidiarity with the characteristics of singularity and redundancy. How do these two characteristics limit constitutional review? Start with redundancy. Generally speaking, constitutional review is prompted by claims of unconstitutionality directed against legislative decisions or, more commonly, individual statutory provisions. Thus, it is typically reactive; it is triggered by legislative action. In an obvious sense, then, it is compatible with legislative initiative. Exercising its initiative, the legislature will first enact a policy, and the court will assess the constitutional merits of that particular policy. We would still have a policy without constitutional review just as we would still have a car without quality-​control inspection. Importantly, the legislature takes a first stab on constitutional matters as well. Recall our discussion of principles and policies in Chapter  3. There we argued that it is a mistake to think of legislatures as only acting on considerations of policy. The account of democratic representation offered in this chapter corroborates this conclusion. The vision of the just and well-​ordered polity that we want our elected representatives to elaborate surely includes articulations of the fundamental principles of political morality enshrined in the constitution. Hence, when judges interpret the constitution, they do not work on a blank canvas. Rather their interpretations unfold against the background of the constitutional judgments that the legislature has made in the course of developing its policies. Dworkin, we argued, fails to appreciate that it is at least conceivable that courts have a duty to defer to this kind of judgment. We must not repeat his mistake. In the words of Thayer: Now it is the legislature to whom this power is given—​this power, not merely of enacting laws, but of putting an interpretation on the constitution . . . It is plain that where a power so momentous as this primary authority to interpret is given, the actual determinations of the body to whom it is entrusted are entitled to a corresponding respect.61

Can judges both control and respect the legislature’s constitutional judgment? We shall take on this challenge in the next two chapters. For the time being, it suffices 60 61

  Lawrence Sager, ‘Constitutional Justice’ [2002] Journal of Legislation and Public Policy 11, 15.   Thayer, ‘Origin and Scope’ (n 43) 136.

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to observe that this form of redundancy also circumscribes constitutional review: The principles of judicial ‘quality control’ are supposed to have already guided the work of the legislators. Turning to singularity, we can see that it circumscribes constitutional review even further. It does so in two ways: (1) by restricting the available remedy for a constitutional violation and (2) by restricting the headings under which a statute may be reviewed. 1)  Judges reviewing the constitutionality of a legislative decision have a short menu of remedies to choose from. At most they have the power to strike down or uphold it.62 But they do not also have the authority to rewrite it, except perhaps in exceptional circumstances.63 The difference is nicely illustrated by the debate about the appropriateness of using statutory interpretation to remedy rights incompatibility under s 3 of the Human Rights Act. Section 3 dictates that courts should strive as far as possible to interpret primary legislation compatibly with human rights norms. Although it is understood that they are not bound by the words of the statute, courts must still refrain from using their power under s 3 when a rights-​consistent interpretation would go against the thrust of the legislation or when protection of the right at issue has broad social ramifications that courts are ill-​equipped to address. By restricting available remedies, practices of constitutional review vindicate the following division of labour: In a representative democracy it is generally up to the legislature to design public policy by combining the need for popular support and moral innovation. In order to discharge this responsibility, the legislature has wide latitude to choose the most suitable strategies and remedies. Moreover, it is up to the legislature to reconsider and modify its decision, once it has been pointed out that in its original form it was not the product of the appropriate deliberative process or suffers from an important moral defect. Again, legislative initiative is preserved. 2)  Constitutional review is subsidiary also in the sense that it is focused. It allows judicial intervention only in cases where a piece of primary legislation is tainted by a particularly serious or clear-​cut moral error. Characteristically, it empowers courts to scrutinize legislation only against a limited set of substantive norms that embody moral precepts of special urgency, namely fundamental rights. We could envisage a system where the courts’ reviewing power is not limited in this way, but rather extends to, say, unwise or inefficient legislative decisions. Although, strictly speaking, this kind of 62   Sometimes, of course, courts do not even have that power. For example, under s 4 of the HRA 1998, UK courts may only make a declaration of incompatibility, when they find that a piece of primary legislation contravenes a right enshrined in the European Convention on Human Rights. The purpose of such declarations is to exert pressure on the political branches to legislate as to bring the law in line with fundamental rights norms. In other jurisdictions, courts have a variety of techniques at their disposal. Thus, according to the Constitution of South Africa, courts may either invalidate a piece of legislation or ‘make . . . an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect’ (s 172(1) c ii). For a thorough overview of the differences between ‘weak’ and ‘strong’ constitutional review see Stephen Gardbaum, ‘The New Commonwealth Model of Constitutionalism’ (2001) 49 American Journal of Comparative Law 707. 63  See Ghaidan v Godin-​Mendoza [2004] UKHL 30, and for discussion Aileen Kavanagh, ‘Choosing Between Section 3 and 4 Human Rights Act: Judicial Reasoning after Ghaidan v Mendoza’ in Helen Fenwick, Gavin Phillipson, and Roger Masterman (eds), Judicial Reasoning Under the Human Rights Act 1998 (CUP 2007) 114; Richard Ekins and Mr Justice Sales, ‘Rights-​Consistent Interpretation and the Human Rights Act 1998’ [2011] LQR 217.

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arrangement would not negate legislative initiative, as it would still allow the legislature to have a go at an issue before the court intervenes, it runs the risk of cancelling it out in practice; it would signal a shift of the centre of political power towards the courts and at any rate it would create a significant moral hazard: Legislators would be less inclined to take their initiative seriously, knowing that their decisions will in any event be double-​checked by the courts.64 In addition, insofar as other legislative failures do not carry the same opprobrium as rights violations, there seems to be less reason to have them challenged by courts.65 Some constitutional theorists doubt that there is much to be gained in terms of subsidiarity by restricting constitutional review to rights violations. They argue that contemporary bills of rights give individuals a ‘right to everything’.66 Nowhere, of course, is such a right explicitly recognized, but presumably the broad guarantees of privacy67 or the free development of one’s personality68 that we find in many bills amount to the same thing. To be sure, individuals armed with this right cannot veto any policy that thwarts their conception of the good life; the right to everything is only prima facie and can yield to a policy that pursues a legitimate public aim in a proportionate way. However, they can challenge it in court. The reviewing court will have to assess whether the policy is indeed supported by a legitimate aim and respects proportionality. In turn, to assess the policy’s proportionality, it will have to ascertain that the policy does advance that aim, that it is necessary for it and that the advancement of the aim is worth the setback to the individual right. This is a far cry from the focused inquiry we have been describing until now. Arguably, under the guise of protecting our rights the court ends up passing judgment on a wide range of policy issues. To check this risk, we may decide to adopt a revisionist stance toward this aspect of constitutional adjudication.69 We may think that political morality furnishes a more limited set of rights, and that practices of constitutional review should be narrowly tailored to protect them.70 Or we may think that rights protection should not involve any proportionality assessment.71 But even if we are wary of such radical departures from existing practice, we do not need to abandon our belief in the subsidiarity of constitutional review.72 For, when the court is scrutinizing the connection between policies and legitimate aims, it is only for the purpose of evaluating their impact on fundamental rights. The court will not ask if the aim should be advanced in the first place or whether it should yield to other policy priorities, for instance. The legislature has already settled these questions, as is its constitutional duty in the joint project of governing. 64   In fact, Mark Tushnet has used this kind of moral hazard as a basis for his argument against constitutional review even in fundamental rights cases. See Mark Tushnet, Taking the Constitution Away from the Courts (Princeton University Press 1999) 57–​70. 65   We shall revisit this point in Chapter 8. 66   Kai Möller, The Global Model of Constitutional Rights (OUP 2012) 85 [hereafter Möller, The Global Model]. 67   E.g. Art 8 of the European Convention on Human Rights. 68   E.g. Art 2 of the Basic Law for the Federal Republic of Germany. 69   See for instance George Letsas, A Theory of Interpretation of the European Convention on Human Rights (OUP 2007) 126. Letsas laments what he calls ‘rights inflation’. I have argued against the ‘right to everything’ in Dimitrios Kyritsis, ‘Whatever Works: Proportionality as a Constitutional Doctrine’ [2014] OJLS 395, 405–​09. 70   For an argument that the right to everything is underpinned by a persuasive moral theory see Möller, The Global Model (n 66) 57ff. 71   Stavros Tsakyrakis, ‘Proportionality: An Assault on Human Rights’ [2010] ICON 468. 72   For an approach that combines a commitment to proportionality and to a subsidiary role for constitutional review see Mattias Klatt, ‘Positive Rights: Who Decides?’ [2015] ICON 354.

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D. Independence in a system of checks and balances So far, I have claimed, starting from the courts’ duty to respect the legislature, that some form of constitutional review is reconcilable with legislative initiative. But do we have any positive reason to want the establishment of a system of judicial review, especially given the precious capacities of courts? As we have seen, the fact that the legislature’s powers are limited does not entail that it is courts that should police those limits.73 In fact, the mere existence of limits on the power of the legislature leaves it an open question whether we should impose any external check on the legislature in the first place.74 In this section I shall defend the claim that courts have a comparative advantage over other state institutions that makes them particularly good candidates for the assignment of supervisory powers over the legislature. The analysis will highlight as ground for this assignment a pervasive feature of the make-​up of courts, namely their independence. This time, the supervisory element of the courts’ role will be addressed more explicitly. To repeat, even if sound, this claim falls far short of a full-​throttled justification of judicial review. Lacking an argument to the effect that constitutional review is necessary for legitimacy, all we can do is assess whether constitutional review works in this or that jurisdiction. But judicial independence will play a decisive role in this assessment. Recall our discussion of checks and balances in Chapter 2. There we highlighted the importance of institutional autonomy which James Madison summarized in the Federalist Papers by saying that ‘each department should have a will of its own’.75 Supervision, Madison says, loses its edge in constitutional systems that make it politically impossible for the supervising body to ever find against the primary decision-​maker. If the decision-​making body can illicitly influence the supervising body, if, that is, it has the capacity to impose its will on the supervising body by means of political pressure, the supervisory function will be compromised. Imagine a constitution that assigns the supervision of the executive to a committee made up of lower civil servants. Such an arrangement would most certainly make a mockery of the notion of supervision. How can we avoid this result when it comes to monitoring the legislature? There may be other ways, but, as I shall now argue, judicial independence can also deliver the requisite distance between the legislature and its supervisor. The argument from judicial independence rests on some familiar procedural characteristics of the court system. The ones commonly cited in the literature are security of office and fiscal independence.76 Such safeguards aim to insulate individual judges from various kinds of illicit pressure by the political branches. Though never absolute (and structurally so),77 this insulation seems to work most of the time, creating an institutional environment where a judge can be confident that she will not be sanctioned on account of her rulings and does not need to ingratiate herself with the powers that

73   For instance, Waldron contemplates the possibility that the tasks routinely assigned to a constitutional court be granted to an Upper House of Representatives in his ‘Eisgruber’s House of Lords’ [2002] USFL Rev 89. 74 75   See Chapter 3, section II.   The Federalist no 51 (James Madison) (n 21) 264–​65. 76   See generally The Federalist No 78 (Alexander Hamilton) (n 21)  397. For the UK see Roger Masterman, The Separation of Powers in the Contemporary Constitution (CUP 2011) ch 8. 77   History is not only rife with examples where the political branches moved decisively to curb judicial independence. Most importantly it teaches us that the judicial system is dependent on political officials for its set-​up and efficient running. See Robert Stevens, ‘Independence of the Judiciary: The

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be for purposes of career progression.78 Notice that in the present context judicial independence is not treated as an intrinsic value, which gives courts a special moral warrant to decide issues of fundamental right. But it is instrumentally valuable. Thanks to their independence judges are less vulnerable to pressure by the political branches. This means that it is rather difficult for the political branches to reduce judges to mere instruments for the implementation of their plans. Judges can resist furthering these plans without fear of the sort of arm-​twisting that is available to the political branches against other categories of state officials. In this sense judicial independence delivers the requisite distance from the legislature, and thus makes courts pro tanto better at reviewing it. Conversely, judges have a duty and are expected to decide free from certain biases. Thus, judges, whether appointed or elected, are by and large relieved from pressure by the electorate. Since they are not accountable to the people, they need not heed popular opinion in the same way that legislators ought to be sensitive to it to be re-​ elected, at least not in the normal case.79 Equally, they are barred from invoking their party affiliation as a ground for their decision. The degree to which they adhere to this requirement is monitored by the reasons they give in support of their decisions. Indeed, reason-​giving is a salient and oft-​quoted aspect of the judicial function.80 Note though that whereas many theorists have, on the basis of this feature, suggested that courts are best placed to decide certain questions, like fundamental rights, this is not the purpose for which I invoke it. I am not saying that it gives judges sharper moral insight. I focus on the instrumental value of reason-​giving as a control mechanism that consolidates judicial independence (no doubt, reason-​giving also has intrinsic value). This, be it stressed, is far from a conclusive argument in favour of constitutional review. It merely indicates that the judiciary enjoys a comparative advantage in institutional design. It may be that this advantage is overshadowed by other disadvantages (maybe supervision in a specific context requires expert knowledge that the average judge lacks) or that because of special circumstances in a particular political community the judiciary is in fact subject to irresistible political pressure. I do not wish to deny any of these possibilities in the abstract. What is more important for my purposes is to suggest what shape the argument for or against the institution of constitutional review must take in each case. It is thus important to identify not only the defects and Case of England’ [1999] S Cal L Rev 597. For the United States see John Ferejohn, ‘Independent Judges, Dependent Judiciary: Explaining Judicial Independence’ [1999] S Cal L Rev 353. 78   Importantly, judges are also supposed to be impartial vis-​à-​vis the parties in a dispute before them and a number of procedural rules aim to safeguard this impartiality. Not surprisingly then the court is also considered as the proper forum for private dispute-​settlement. 79   I have deliberately downplayed the case where the judge is elected, first, because of the countervailing effect of life-​tenure and second, because of the judges’ own self-​perception, which is very different from that of legislators and does not seem to vary significantly depending on whether the judge is elected or not. See Waldron, Law and Disagreement (n 2) 120 fn 6. This view is to be contrasted with Christopher Eisgruber’s claim that the appointment procedure of the Supreme Court Justices guarantees that their decisions will reflect the political convictions broadly shared in the American society or by important segments thereof; Christopher Eisgruber, Constitutional Self-​Government (Harvard University Press 2001) 64–​66. 80   See among others Fuller, ‘Forms and Limits of Adjudication’ (n 46)  365–​72; Michael Perry, ‘Noninterpretive Review in Human Rights Cases:  A  Functional Justification’ [1981] NYU L Rev 278; Harry Wellington, ‘The Nature of Judicial Review’ [1982] Yale L J 486. Indeed, it is because the judge’s role is much more articulate than that of any other state official that theorists tend to think only the former role is constrained, whereas, for example, the role of legislators is unconstrained. But the absence of a duty to give reasons or to articulate them as a judge would is not the same as the absence of a duty to have reasons.

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risks but also the institution that is best equipped to ameliorate these defects or deter the risks. It may turn out that none of the existing state organs, as we know them at a certain point in time, can actually do a satisfactory job at countering a certain risk. In this case, we may conclude that it is more productive to accept that risk and live with it than try to fight it by instituting a system of supervision.81 The question about the legitimacy of constitutional review falls in the same pattern. To assess whether a system of constitutional review is justified and what must be its proper scope in a certain legal system, we have to pinpoint both the possible malfunctions in the workings of the legislature in that legal system and the courts’ capacity to rectify the consequences of those malfunctions. Of course, as I stressed above, the fact that the judiciary is immune from political pressure by the legislature is an advantage but it will not always be decisive. Other, weightier considerations may tip the balance against the legitimacy of constitutional supervision, like the resources of the legislature to check itself or the existence of other checks-​and-​balances mechanisms. Additionally, despite its many beneficial effects, constitutional review comes at a cost both for the aggrieved party and for the institution being supervised.82 Our assessment of the moral merit of constitutional review must be sensitive to such costs, and there is no reason in the abstract to think that the argument in favour of judicial review always or typically wins out. In summary, we could say that judicial independence comes close to a necessary condition for the moral legitimacy of constitutional review, but it is far from being a sufficient one.83 Constitutional review sceptics want to load the dice in this comparative exercise by putting the whole institution of constitutional review at a moral disadvantage, arguing that it runs afoul of the right to participation. By contrast, I have argued that we can engage in the case-​by-​case assessment of the legitimacy of constitutional review and sometimes decide to establish such a system of supervision without regret or guilt. Undoubtedly, we must care for participation, but once we assign representative institutions the initiative, there is nothing wrong with distributing the rest of government power, including supervisory functions, to non-​elected organs according to a reasonable scheme of division of labour. Conversely, this line of argument may seem disappointing to those who prefer to see courts as the repository of constitutional principle or the pinnacle of public reason or claim that constitutional review gives effect to a right to a hearing whose value is independent of its other effects, positive or negative. Nevertheless, we ought not to underestimate the conclusion we have reached so far. If by virtue of its independence the judiciary reliably and effectively performs a checks-​and-​balances function, it makes a valuable contribution to the project of governing. Therefore, it deserves the respect and assistance of 81  The importance of this comparative exercise has been pointed out in Komesar, Imperfect Alternatives (n 46) chs 7 and 8, and Neil Komesar, ‘Taking Institutions Seriously: Introduction to a Strategy for Constitutional Analysis’ [1984] U Chi L Rev 366; Wojciech Sadurski in ‘Constitutional Review and the Protection of Constitutional Rights’ [2002] OJLS 275–​99. Be it noted that the comparative institutional analysis sketched in the text must be sensitive to local peculiarities, as political scientists and constitutional engineers are well aware, when they are not overwhelmed by missionary zeal. This zeal and its consequences are criticized in Bruce Ackerman, ‘The New Separation of Powers’ [2000] Harv L Rev 633. 82   See for instance Tushnet’s ‘moral hazard’ argument mentioned earlier, and also Thomas Scanlon’s claim that apart from ‘the delay of decisions and the costs of mounting the procedures themselves’ that it involves, judicial review may seriously affect ‘valued aspects’ of the institution under supervision. These side-​effects ought to be balanced against the need to check the exercise of power by that institution. TM Scanlon, The Difficulty of Tolerance (Harvard University Press 2003) 42. 83   I am indebted to Arudra Burra for invaluable discussion of this point.

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its fellow-​participants in that project, including the legislators, who would do well to leave judges to do their job.

E. Independence and finality At this point it may be argued that judicial independence is a double-​edged sword. If courts are unrestrained, they are as potent to impede worthwhile plans with which they disagree as to frustrate evil plans that are not entitled to any respect. At least, when legislators go wrong, they have to face public outrage in the next elections. By contrast, judges, so the argument goes, can ignore popular sentiment without serious backlash. No doubt, there is some truth in this fear, especially as it applies to higher courts, since the decisions of lower courts are in the normal case subject to internal constraints like appeal. But the decisions of higher courts are practically beyond reach, more so when they are presented as interpretations of the constitution that is superior to statutory law and thus can only be changed by formal constitutional amendment. Nonetheless, the worry under consideration focuses excessively on the fact that courts are insulated from external influence and overlooks the element of self-​control inherent in the duty of courts to deliver reasoned judgments, the other side of independence. The existence of such a duty does not guarantee that judicial decisions will always be correct (nothing can guarantee that in the real world), but it does help imbue in judges the proper sense of institutional responsibility. For, whatever the decision they reach, they know that their reasoning can be put under scrutiny. Of course, the existence of the duty to give reasons does not detract from the finality of a mistaken decision by the higher court. As Tsvi Kahana aptly notes ‘the correct understanding of judicial finality is neither that courts are final because they are infallible, nor that they are infallible because they are final, but, instead, that they are final even though they are fallible’.84 However, it would be wrong to assume that the problem of finality applies only to Supreme Court decisions. Finality is a pervasive aspect of institutional design. That is because for every contribution to the joint institutional effort, at any level, the question can be raised how we can check the exercise of public power and in every case there will be a countervailing consideration to settle on a decision and move on. No institutional design can accommodate both types of consideration to the full (since we are fallible, there is always room for yet another check). Of necessity then, legal systems strive to harmonize them as far as possible. In other words, we have to regard the finality of certain judicial decisions for what it is, namely an institutional choice that aims to balance the requirements of checks and balances on the one hand and division of labour on the other. It may have its defects but so will any alternative. It cannot be ruled out a priori. On the other hand, neither is it our only option. US-​style constitutional review is not a default. Constitutional design can—​and should—​attempt to fine-​tune finality. The recent constitutional experiments—​in the UK and elsewhere—​combining the courts’ reviewing power and legislative supremacy are good examples of such efforts. But what all alternatives have in common is a commitment to judicial independence. This we cannot do away with. Without it, there is little reason to entrust courts—​and in the last instance the higher courts—​rather than some other state institution the task of supervising the legislature.

  Tsvi Kahana, ‘Understanding the Notwithstanding Mechanism’ [2002] UTLJ 221, 243.

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VI.  Strong and Weak Constitutional Review So far I have sought to rebut constitutional review scepticism by arguing that a practice of constitutional review of primary legislation can be morally appealing as a checks-​ and-​balances mechanism, provided that it is undertaken by an independent and subsidiary judiciary. With sceptics thus kept at bay, I  turn to the bone of contention among constitutional review enthusiasts, the choice between strong and weak constitutional review. For proponents of weak constitutional review US-​style judicial finality is not just any alternative. Nor are its defects of the same character as the defects of other institutional options; US-​style review is saddled by a severe moral handicap. By contrast, these scholars contend, weak review marks a paradigm shift, transcending the counter-​majoritarian difficulty that plagues strong review and finally reconciling democracy and fundamental rights protection.85 Now, there is no denying the institutional ingenuity that has gone into the weak model of constitutional review and its most characteristic mechanisms such as the declaration of incompatibility or the legislative override. But the preceding analysis shows that the choice between the two systems is not as stark as it is sometimes made out to be. Once we reject the claim of constitutional dialogue theorists that weak review depends on an entirely novel legitimating basis,86 we see that the merits and demerits of the two systems are more evenly balanced. Accordingly, the two systems will have to be judged in a more fine-​grained and jurisdiction-​specific way. To begin with, as democracy does not require that legislatures have the final word, it is not fatal for the legitimacy of strong review that it gives it to courts. Assuming legislative initiative sufficiently circumscribes judicial supervision, what matters more is that the courts’ power to strike down a statute in the name of the constitution has the requisite chastising and abuse-​correcting effect. Conversely, proponents of weak review cannot claim that democracy hands them victory by default; they must show that the checks and incentives of their preferred system are sufficient to achieve the same result.87 Moreover, even if we did assume that there is a loss in democracy whenever a legislative initiative is struck down by an unelected judge, this would still not entail that weak review is superior. We must not forget that remedies are only one axis along which the strength of systems of constitutional review can be gauged. If we judge that the power to invalidate a statute makes a system of constitutional review too strong, we can put additional restrictions on its scope or adjust the intensity of the judicial test setting the threshold of constitutionality.88 Likewise, if a system of weak review instructs judges to replace legislative judgment with their own on a broader range of matters than strong review, it may leave democracy none the better. In short, weak and strong constitutional review are morally available to constitutional designers, at least in principle. With a little fine-​tuning both can do reasonably well at reconciling the imperatives of democracy, on the one hand, and checks and   Stephen Gardbaum, The New Commonwealth Model of Constitutionalism (CUP 2013) ch 3.   See Chapter 5.   This may well be true, either in specific jurisdictions or more generally. The fact that Parliament has so far heeded all declarations of incompatibility in the UK and the rare invocation of the override in Canada speaks to the effectiveness of these mechanisms. My point here is that this is something that must be demonstrated empirically, not a priori. 88   Whatever adjustments we make, we must not overly sacrifice effective supervision of the legislature in the name of a trivial gain in democracy. 85

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balances, on the other. Hence, once a constitutional order has opted for one of these systems, it can justifiably claim our allegiance.89 Remember, legitimacy is satisfied with less than the ideal.

VII. Conclusion There are some tasks that we perform best, when we perform them together. The task of governing is definitely one of them. The relationship between courts and the legislature illustrates this simple truth. We want to be governed by those bodies jointly. As I have tried to show, this is because a number of important principles of political morality and institutional design bear on and shape their relationship. I have argued that these principles give the legislature an active role in this project. By virtue of their responsiveness to the electorate, legislatures ought to be assigned the initiative for shaping the vision of the just and well-​ordered polity that is to govern the life of a political community. That is because citizens are more likely to identify themselves with decisions coming from a representative organ. And also because legislators are better placed to strike the right balance between reform and stability, when such balance is required. As a general matter, legislative decisions are by and large more likely to secure the support of the population. In this sense, they are owed a great deal of respect in the project of governing. In turn, political morality assigns courts the task of assisting in the implementation of legislative initiatives and at the same time singles them out for the critical task of supervising the legislature. Once we acknowledge that by subjecting ourselves to a representative legislature we also expose ourselves to serious risks, the question naturally arises by what institutional means we can best check their power. Due to their independence, courts are in a position to resist political pressure by the legislature and effectively check its decisions. Thus, with the help of separation of powers we can dissolve the tension between democracy and constitutional review. The reason is twofold: (a) democracy does not require that representative legislatures always have the final word; and (b) legitimacy requires more than democracy. Now, I have emphasized that my proposal offers no more than a modest recommendation; it does not render constitutional review morally mandatory. Also, it does not uniquely identify a model of constitutional review as appropriate for all times and places. We can accommodate the aforementioned imperatives of political morality in a variety of workable schemes by calibrating the scope and intensity of constitutional review as well as its remedies. In so doing, our aim is to ensure that the judicial role remains subsidiary to that of the legislature. This, too, is an important part of the moral story for the legitimacy of constitutional review. Of course, it is one thing to prescribe limits and quite another to devise systems of separation of powers that operationalize them. This task is beset by difficulty. Part of it comes from dealing with the uncertainty and complexity of the real world. But part of the difficulty is philosophical. At the philosophical level, the idea that there should be limits on the power of courts to scrutinize legislation can be challenged on the grounds that such limitations are either incoherent or repugnant to fundamental rights. The next two chapters are devoted to addressing this twin challenge.

89   The claim that constitutional choice is relevant to political legitimacy is also advanced by Cormac MacAmhlaigh, ‘Putting Political Constitutionalism in its Place’ (2016) ICON 198.

7 Two Modes of Judicial Deference I. Introduction Practices of constitutional review grant significant power to the judiciary. In the last chapter I argued that this does not make them eo ipso illegitimate. Under certain conditions, they can still serve the valuable function of erecting an effective check against the legislature. In exercising this function, though, courts can and should remain subsidiary to the legislature. How, more precisely, are we to understand this subsidiarity? Put differently, how is it possible for a court to respect and supervise legislative initiative at the same time? Answers to these questions sometimes make reference to the concept of judicial deference.1 Not everyone would agree with this choice. Lord Hoffmann, for example, famously claimed that deference carries with it ‘undertones of servility, or perhaps gracious concession’,2 which render the concept of deference inapt for characterizing the attitude between coordinate branches as are Parliament and the judiciary. To set such worries aside we may stipulate that, when we speak of deference, we just mean the measure of respect courts owe the decisions of other state institutions, such as the legislature or the executive, as part of their official duty in the constitutional order. Thus defined, deference is not very different from the idea of ‘according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice’ embraced by the House of Lords in a more recent case.3 While stipulations can help erase linguistic overtones, they do not suffice to dispel the significant moral concerns raised by the idea of judicial deference, and there are plenty of those. Despite them I  take the view that the idea of judicial deference is an indispensable component of any theory of constitutional review, and that it can actually consolidate the legitimacy of the courts’ supervisory function and boost their confidence in carrying it out. Deference enables us to reconcile constitutional review and legislative initiative. It is, however, a vague idea that needs to be sharpened to play its role. It is also a controversial idea, so our accounts of it must be suited to meet the challenges levelled by its critics. This chapter aims to render the concept of judicial deference fit for purpose. More specifically, it elaborates two modes of deference, the epistemic and the robust. Both of them have been employed in the legal systems we are familiar with. However, the distinction between them as well as the different way in which they impinge on judicial decision-​making are often missed. So are the potential combinations between them. My aim is to bring these elements of the concept of deference into sharp relief. The enhanced conceptual understanding that I hope will result from this exercise does not by itself justify deference, either in general or on specific occasions. But it undercuts 1  Jeff King prefers the term ‘judicial restraint’. Jeff King, ‘Institutional Approaches to Judicial Restraint’ [2008] OJLS 409. 2   R (Pro-​Life Alliance) v BBC [2004] 1 AC 185, 240. 3   Huang v Secretary of State for the Home Department [2007] UKHL 11, 16.

Where Our Protection Lies. First Edition. Dimitrios Kyritsis. © Dimitrios Kyritsis 2017. Published 2017 by Oxford University Press.

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the force of some of the attacks it has sustained by showing that their target is often indiscriminate or a straw-​man. One word of caution is in point here. On the view I shall defend, deference is sensitive to the morally relevant features of factual situations and varies according to the credentials of different decision-​makers. Here I can do no more than indicate how such factors will play a role in the resolution of concrete cases. But I cannot provide a full-​ scale account. For the main part, I shall be concerned to bring out the general structure of judicial deference and show why, thus conceived, deference is not at odds with but actually vindicates our strongly held views about the constitutional role of courts. If my argument succeeds in this, it opens the way for more applied accounts to flesh out this general structure and customize it to fit particular institutional settings.4

II.  The Terms of Reference for Deference As the quotation from Lord Hoffman’s speech in Pro-​Life Alliance demonstrates, the term ‘deference’ means different things to different people and is cluttered with associations and connotations of various sorts. Whereas for someone like Lord Hoffmann deference implies attitudes of servility, others see it as involving little more than the distinction between judgments of fact and judgments of law. In view of this disparity, the danger of talking at cross-​purposes is acute. So, before I embark on a defence of deference, let me say a few words about what it is I shall be defending. I should begin by making clear that, although my interest is with the deference courts owe the legislature, much of the literature on judicial deference focuses on the relationship between the judiciary and the executive. Needless to say, there are significant differences between the two inquiries, both in law and in political philosophy, and I do not wish to downplay them. However, I do not believe these differences render the claims, arguments, and insights of the administrative law debate irrelevant for present purposes. Judicial deference, whether towards the executive or the legislature, shares the same conceptual core. It describes the relationship between two institutions, where the acts and decisions of one have a bearing on the official duty of the other under a scheme of institutional division of labour. I shall therefore draw on administrative law theory, insofar as it is useful and interesting to do so. What is then the conceptual core of deference? According to Philip Soper, when I defer to someone ‘I am acting in some sense contrary to the way I would normally act if I simply considered the balance of reasons . . . that bear on the action’.5 This is a useful starting point for our inquiry as it furnishes a common mark or indicator of deference. True, deference changes my normative predicament such that it may now be inappropriate to consider and act on ‘the balance of reasons that bear on the action’. Still, this formulation invites as many questions as it answers. Importantly, it glosses over a number of different possibilities that we need to disentangle. As a preliminary matter, it is important to distinguish two questions that theories of judicial deference are charged to ask. First is the ‘why’ question: Why must courts defer to this or that state institution? Answering this question requires specifying what I call triggers of deference. Triggers are characteristics possessed by an institutional arrangement that give rise to a duty to defer. Triggers commonly identified in the literature 4   This task is taken forward in considerable detail in King, ‘Institutional Approaches to Judicial Restraint’ (n 1). 5   Philip Soper, The Ethics of Deference: Learning from Law’s Morals (CUP 2002) 22.

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are expertise, ability to produce comprehensive solutions to complex social problems, and so forth. In the previous chapter I argued for another trigger that applies characteristically to legislatures of the sort we are familiar with in modern legal systems: their pedigree that instantiates the value of democratic representation. Second, theories of deference must ask the ‘how’ question: How does a court discharge its duty to defer? How does it give the decision of another state institution appropriate weight? Answers to this kind of question identify modes of deference.6 Modes of deference describe the way in which a decision by one government body makes a difference to the reasoning of another body that defers to it. Although, as we shall see, modes and triggers are often closely associated, they are independent of one another. The same trigger can produce more than one mode of deference. In fact, their independence gives us a further reason to draw analogies across different public law contexts. It is not only that some of the triggers can be found in both administrative and constitutional law. It is also that the same modes may be employed to discharge the duty of deference towards the legislature and the executive regardless of what triggers that duty in each case. In this chapter, although I shall have some things to say about triggers of deference, I shall for the most part be talking about modes of deference and about the benefits that accrue from studying them. I shall juxtapose two modes of deference that are not always kept distinct in discussions of deference, whether favourable or unfavourable. I shall refer to them as epistemic and robust deference. In great part, my analysis of these two modes of deference will turn on the distinction between considerations of content and institutional design introduced in previous chapters. Remember that the former furnish standards against which we can assess the content of a decision or policy, whereas the latter pertain to the characteristics of the body charged with governing and its relationship with other bodies that have the same responsibility.

A. Epistemic deference 1) Absolute On the epistemic model, deference affects the deliberative process of judges. More specifically, it affects the way judges deliberate about considerations of content. Epistemic deference refers to a range of ‘simplifying strategies that people adopt well before on-​ the-​spot decisions must be made’.7 So, the point of epistemic deference is to simplify our on-​the-​spot decision-​making. This does not necessarily mean that we will simplify decision-​making simpliciter. It may be, for instance, that making up one’s mind about whether to adopt a strategy for on-​the-​spot decisions requires a lot of thinking. It is only after the strategy has been adopted and is adhered to that one will enjoy the benefits of simplification. There are various reasons for adopting simplifying strategies. A  typical reason is that the other person knows better than me. I do not question my doctor when she prescribes pills for indigestion, because she is an expert in the matter. But apart from superior expertise, there are other reasons for deference in the epistemic sense. For example, it may be that I am hard-​pressed for time or I simply trust that the other person has my best interests at heart. Or perhaps evaluating the soundness of the 6   The distinction between triggers and modes of deference resembles Soper’s distinction between ‘the form and substance’ of deference. ibid 20–​29. 7   Cass Sunstein and Edna Ullman-​Margalit, ‘Second-​Order Decisions’ (1999) 110 Ethics 5, 6.

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instructions I received involves costs that I am unwilling to incur. Institutional design often incorporates similar considerations. Thus, it concentrates expertise in one body and directs other bodies to defer to its judgments. It also sometimes divides the epistemic labour among different institutional actors so as to make their workload more manageable and then structures their cooperation such that they must now rely on each other for the tasks that the other has been allocated. Epistemic deference comes in many forms, but here I  shall focus on the distinction between absolute and non-​absolute or partial epistemic deference. In its absolute form, epistemic deference has a judgment-​blocking effect. Thus, when I show someone absolute epistemic deference, I  follow her instruction without second-​guessing its soundness. The judgment to defer to her replaces my own judgment on a certain issue.8 Famously, a similar mechanism is at work in Joseph Raz’s conception of practical authority. Raz claims that when we accept someone’s practical authority over us we are committed to taking her directives as pre-​empting our own acting on the reasons the authority was supposed to adjudicate on (first-​order reasons). If we are prepared to independently act on those reasons, we defeat the point of having an authority. As Raz aptly puts it, we are guilty of counting the first-​order reasons twice. Following Raz, I shall say that the mark of absolute epistemic deference is its pre-​emptive effect. Thanks to it absolute epistemic deference makes an important difference to the practical reasoning of those who defer. They can now follow a more or less simple instruction, without considering ‘the balance of reasons that bear on an action’ in light of their own assessment of the relevant facts, thereby drastically simplifying on-​the-​spot decision-​making. In another sense, of course, epistemic deference does not make a difference. It does not change the standard by which we measure what is the right thing to do in the case at hand. So, no matter how much I trust my doctor, the pills she gives me are either good for me or bad. The fact that I have reason epistemically to defer to her judgment cannot make the wrong pills right. Regarding what issues would it be appropriate to adopt a stance of epistemic deference? Rather straightforwardly, epistemic deference sometimes covers non-​moral issues. Julian Rivers, for instance, has argued that courts can defer in the sense of granting some institution other than the court ‘authority to determine what is the case for certain purposes . . . It has the authority to make what the courts can accept is a sound judgment of fact’.9 More controversially, epistemic deference can cover moral issues as well. In fact, when we epistemically defer in law, we are more likely to do so with regard to moral issues or factual issues that bear on the correct answer to moral ones. It may be objected, however, that moral and non-​moral issues cannot be treated in the same way as far as epistemic deference is concerned. There is arguably an asymmetry in our attitudes towards moral and non-​moral deference.10 It is one thing to seek a doctor’s advice regarding my indigestion and it is quite another to ask a sage what I morally ought to do. It is suggested that this asymmetry reflects a deep-​seated philosophical 8   See generally Joseph Raz, The Morality of Freedom (Clarendon Press 1986) 38–​69. My description of both absolute and partial epistemic deference owes a lot to Raz’s theory of authority, but it is not part of my claim that Raz’s theory entails it or that whoever accepts epistemic deference is eo ipso a hard-​nosed Razian. 9   Julian Rivers, ‘Proportionality and Variable Intensity of Review’ [2006] CLJ 174, 192. Rivers seems to think that deference can only be allowed in this sort of case but does not extend to moral judgments. I discuss this view in the main text. 10   For discussion see Julia Driver, ‘Autonomy and the Asymmetry Problem for Moral Expertise’ [2006] Phil Studies 619; Sarah McGrath, ‘The Puzzle of Pure Moral Deference’ [2009] Phil Perspectives 321.

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worry about the notion of moral expertise. If moral expertise is problematic, though, that undermines one of the crucial triggers of epistemic deference with regard to moral issues. And if this trigger is spurious, then it is unlikely that any of the other reasons we might have for adopting a simplifying strategy in deliberating about moral issues will do the trick. Intuitive though the asymmetry may be, I think the worry is exaggerated. Set aside for present purposes those who subscribe to a subjectivist understanding of morality that makes each individual sovereign over questions of (their personal) moral truth, or to a non-​cognitivist understanding, whereby moral statements are not truth-​apt. Both the subjectivist and the non-​cognitivist maintain the notion of a moral expert is incoherent. Focus instead on objectivists about morality who believe that there are objective moral facts that individuals can be mistaken about. For them it is surely possible that someone else can have better access to them as doctors do to objective facts about indigestion. Needless to say, it is one thing to maintain that moral deference is conceptually possible (at least on a plausible meta-​ethical view). It is quite another to claim that it is morally appealing as well. To show the latter, one must overcome a number of obstacles. First, some theorists have suggested that deferring to moral experts is a violation of personal autonomy. But when it comes to moral truth, typically what matters more is not that I do what I want but that I do what is dictated by right reason. Besides, deference is not contrary to reason. My reason for deferring is the superior moral knowledge of the expert or her relative ability to deliberate about a certain moral issue. Other theorists argue that what makes moral deference problematic is that when I defer to the moral judgment of an expert that torture is wrong I do not grasp the moral wrongness of torture as I do when I come to that judgment after independent reflection. It may well be that the latter avenue of arriving at moral truth is superior because it manifests and trains certain important moral virtues. Still, if it is rational to believe that torture is wrong because the expert says it is wrong, then that belief should be fairly stable and can serve a number of practical purposes. For instance, it should be capable of motivating me not to torture. In some contexts this could be the decisive factor. This is probably the case in politics. Though political decision-​making should also have educational value, what it primarily aims at is getting it right. The coercive element in this context has raised the stakes. To some extent, the aforementioned arguments in favour of the notion of moral expertise carry over to other triggers of epistemic deference. It is as compatible with personal autonomy, say, to want to save time as it is to follow someone else’s moral expertise. And presumably the educational benefits of moral reasoning sometimes yield to practical considerations concerning the costs of deliberation as they do to considerations of moral expertise. But the analogy is far from perfect. Someone who follows someone else’s directive on the belief that that person is a moral expert can still be said to act out of a proper sense of moral responsibility, because his goal is to do the right thing. The same cannot be said of someone who approaches moral questions with a desire to save time (all else being equal). The stakes on the other side of the scales are so high that it would be morally obtuse to give that desire decisive weight. Of course, all else is not always equal. For example, in a national emergency time is often a morally relevant factor, and I would be flouting my moral responsibility if I failed to take it into account. Anyone familiar with administrative law will not find it difficult to point to mechanisms of absolute epistemic deference. A  striking example is ouster clauses. Their function is to insulate certain categories of political decision or aspects thereof or

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the decisions of a certain state actor from judicial second-​guessing. In the famous Anisminic case the House of Lords had to interpret one such clause, s 4(4) of the Foreign Compensation Act 1950, which read: ‘The determination by the commission of any application made to them under this Act shall not be questioned in any court of law.’11 The purpose of this clause is none other than to pre-​empt courts from assessing the correctness of the commission’s determinations. It achieves this purpose by blocking challenges against the determinations of the commission from being raised in a court of law. The result is that, insofar as they are bound by the ouster clause, courts are enjoined to take those determinations at face value.

2) Partial So far, I have focused on the absolute version of epistemic deference, where judgment by the court on a given issue is completely pre-​empted. I  now wish to show how epistemic deference can also be non-​absolute. This non-​absolute version has found a powerful proponent in Aileen Kavanagh. She writes that judicial deference tends to be partial, rather than absolute. It is not a matter of ceding questions about legality to the elected branches . . . It is just that in carrying out that scrutinising role, courts may be required to give some weight to the justification of the primary decision put forward by the elected branches.12

Kavanagh finds a template for partial deference in Stephen Perry’s conception of second-​order reasons. Like Raz, Perry used the term to mean those reasons that regulate recourse to first-​order reasons.13 But he takes issue with Raz’s view that a practical authority operates by issuing exclusionary reasons, which altogether pre-​empt recourse by authority subjects to the (first-​order) reasons the authority was meant to adjudicate on. This pre-​emptive effect is for him but one manifestation of authoritative guidance. Nevertheless, it is not essential to it. Frequently, rather than replace judgment altogether an authoritative directive will adjust the weight that authority subjects must assign some first-​order reasons (or reweight them in Perry’s terminology). Suppose that the authority directs that terrorist suspects may be detained for a certain period of time. On the partial model, courts must now assign the reason to allow such detention more weight than they would have done absent the authoritative intervention. Courts may still consider countervailing first-​order reasons but, as the authority has put its thumb on the scales, these reasons must be weightier than normal if they are to override the reason to allow the detention. Once again, it must be emphasized that the authority does not and cannot adjust the actual strength of the relevant first-​order reasons. Either reasons of national security outweigh the right to liberty of the detained terrorist suspects or they do not. The adjustment solely affects the way the person who defers deliberates about first-​order reasons. Kavanagh emphasizes that this mechanism will be particularly apt in cases ‘where the courts exercise self-​restraint precisely because they do not know (or are uncertain about) whether [a human right has been violated], or do not know whether a judicial intervention would be for the good’.14 In such cases, judges are well-​advised to   Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 207.   Aileen Kavanagh, ‘Defending Deference in Public Law and Constitutional Theory’ [2010] LQR 222, 224 [hereafter Kavanagh, ‘Defending Deference’]. 13  Stephen Perry, ‘Second-​Order Reasons, Uncertainty and Legal Theory’ (1989) 62 S Cal L Rev 913. 14   Kavanagh, ‘Defending Deference’ (n 12) 224. 11 12

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proceed with caution. By deliberatively ‘stacking the deck’ in favour of the decision to which they defer they ensure that they will not overturn or invalidate the decision too readily. Uncertainty or lack of knowledge about the correct outcome or about the consequences of a ruling, as we have seen, can also trigger absolute epistemic deference. Courts will nevertheless sometimes opt for partial epistemic deference because these epistemic shortcomings will not impair them across the board or because they judge that despite these shortcomings it is important to retain an element of supervision over the political branches.15 Still, they do so at a cost. Insofar as it does not relieve judges of all the hard moral and factual questions, partial epistemic deference fares less well than its absolute cousin at simplifying on-​the-​spot decision-​making. That is not to say that partial epistemic deference lacks any simplifying effect whatsoever. Consider the following example. Rather than take a decision at face value, the court may follow a rule, whereby it will only scrutinize decisions coming from a certain institution for clear errors. In his seminal article on constitutional adjudication, James Bradley Thayer had argued that American constitutional review of primary legislation assumed this structure.16 He wrote that a court can only disregard [a legislative Act] when those who have the right to make laws have not merely made a mistake, but have made a very clear one,—​so clear that it is not open to rational question. That is the standard of duty to which the courts bring legislative Acts; that is the test which they apply,—​not merely their own judgment as to constitutionality, but their conclusion as to what judgment is permissible to another department which the constitution has charged with the duty of making it.17

This, too, is a case of epistemic deference. First and foremost, the clear error rule channels the deliberative process of the court. It operates in much the same way as a presumption.18 The judge will only look to see if the decision is clearly wrong. She will not look to see if it is wrong but in a less than clear way, which it may well be. But deference in this case is less than absolute. Courts are not enjoined completely to keep their hands off the issues raised by the decision. Quite the opposite, the rule itself instructs them to determine whether these issues have been dealt with in a clearly erroneous way.19 15  ibid 235. Cf Aileen Kavanagh, ‘Deference or Defiance? The Limits of the Judicial Role in Constitutional Adjudication’ in Grant Huscroft (ed), Expounding the Constitution:  Essays in Constitutional Theory (CUP 2008) 184 [hereafter Kavanagh, ‘Deference or Defiance’]. Kavanagh singles out superior expertise, competence, and democratic legitimacy as the main triggers of deference. We shall see that the connection of each of these triggers with epistemic deference is slightly different. My aim here is solely to set out Kavanagh’s illuminating schema for understanding the epistemic mode of deference rather than to evaluate her overall account of deference. 16   James Thayer, ‘The Origin and Scope of the American Doctrine of Constitutional Law’ (1893) 7 Harv L Rev 129 [hereafter Thayer, ‘Origin and Scope’]. 17  ibid 144. 18  Edna Ullman-​Margalit, ‘On Presumption’ [1983] Journal of Philosophy 143. According to Ullman-​Margalit, a presumption rule ‘instructs its subjects to hold a certain proposition as true so as to have a foothold (as it were) for action. Put somewhat differently, the instruction is this: given p, make q a premise in the rest of the pertinent piece of your practical reasoning’ (ibid 146). Such presumptions are, of course, familiar from the law of evidence, which typically makes use of rules of the form: If p is established, then the court will proceed as if q were also true for various legal purposes. Recall, this is the kind of rule that Rivers identifies with rules of deference in general. See text accompanying n 9. 19   Is the rule at play in this type of situation a rebuttable or non-​rebuttable presumption? In a sense, it is non-​rebuttable. If, in order to rebut the presumption, the court had to go further than spotting clear mistakes, it would be defeating the point of the presumption. As Ullman-​Margalit points out, ‘there is still the question of the length to which one is to go in active search of such counterindication, how far away from the region of the immediately at hand and into the regions of the reasonably

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3) Epistemic deference and jurisdiction However simple it may sound on paper, it is not always easy to implement mechanisms of epistemic deference, as they suffer from a notorious instability. When a judge defers in the epistemic sense, it is over a certain range of issues or with regard to certain aspects of an issue. So, before deferring she must be satisfied that the decision emanates from a body that merits deference and concerns an issue that deference applies to. In other words, she must assess that the body has stayed intra vires. It is only after it has passed the test of jurisdiction that it can appropriately affect judicial decision-​making. In the terminology that I introduced in the beginning of this chapter the judge must ascertain the existence of the relevant trigger of deference. This means that, even in its absolute form, epistemic deference necessarily involves some degree of independent judgment on the part of the person who defers.20 More than that, it seems to require that the judge consider the first-​order reasons, the reasons that the primary decision-​ maker was charged to take into account. Authoritative decisions do not announce the issues they deal with or the reasons they weigh up. Hence, in order to apply the test of jurisdiction, the judge must assess the content of an authoritative decision with a view to establishing that it adjudicates the right kind of issue. At first blush, this defeats the point of epistemic deference because it forces judges to deliberate about the issues that were for the primary decision-​maker to decide. Once again administrative law amply demonstrates this instability. Public bodies typically exercise limited powers conferred on them by statute, and hence acting within the four corners of the statutory delegation is a crucial heading of lawfulness for administrative action. The now largely defunct doctrine of jurisdictional error sought to implement this insight. It distinguished judgments on issues that fall within the ambit of statutory delegation and judgments that an issue does or does not fall within the ambit of statutory delegation. Judgments of the former sort, judgments within jurisdiction, could only be assessed for their Wednesbury reasonableness, a very high threshold. By contrast, judgments of the latter sort, judgments about jurisdiction, could be reviewed for their correctness and not mere reasonableness. In the terminology used here, judgments within jurisdiction were owed (partial) epistemic deference by courts, subject to the reasonableness proviso. As long as they were Wednesbury-​ compliant, courts were bound to accept them without inquiring into their merits. However, as far as judgments about jurisdiction were concerned, the court and the primary decision-​maker stood on a level playing field. The court would accept them only if it was satisfied according to its own lights that they were sound. However, as the fate of the doctrine of jurisdictional error in the UK and elsewhere demonstrates, drawing the line between judgments about jurisdiction and judgments within jurisdiction is fraught with difficulty.21 It seems just as easy to say that, when the administrative authority misjudged the bearing of the first-​order reasons that it was accessible or potentially obtainable’ (Ullman-​Margalit, ‘On Presumption’ (n 18) 151). But consider the following formulation of the same rule: ‘If the legislature has passed a statute, treat it as constitutional unless it is clearly mistaken’. In this case, the presumption is rebuttable though strong (since only a clear error can rebut it). 20  I  use this idea to criticize Raz’s theory of legal authority in Dimitrios Kyritsis, Shared Authority: Courts and Legislatures in Legal Theory (Hart Publishing 2015) ch 2. 21   See Matthew Lewans, Administrative Law and Judicial Deference (Hart Publishing 2016) 58–​65. In light of this, the expansion of the courts’ reviewing powers to all errors of law in Pearlman v Keepers and Governors of Harrow School [1979] QB 56 and R (Page) v Lord President of the Privy Council [1993] AC 682 (HL), though controversial, appears at least to have removed some of the ambiguity. But it does so in a way that exposes the inherent malleability of epistemic deference.

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within its power to act on, it did not really act on those reasons at all and hence strayed beyond its proper sphere. According to this suggestion, to act on a reason is (roughly) to act on the correct view of its content and strength. In this way, a determination that would be protected by epistemic deference is recast as a jurisdictional one and therefore becomes exposed to judicial scrutiny. The instability stings partial as much as absolute deference. Even ouster clauses cannot avoid it. The House of Lords in Anisminic found that a court could not decide whether an administrative decision enjoyed the protection of the ouster clause without first ascertaining, as a preliminary matter, that the decision was within the power of the primary decision-​maker. As Lord Wilberforce stated in his speech: The question, what is the tribunal’s proper area, is one which it has always been permissible to ask and to answer, and it must follow the examination of its extent is not precluded by a clause conferring conclusiveness, finality, or unquestionability upon its decisions. These clauses in their nature can only relate to decisions given within the field of operation entrusted to the tribunal. They may, according to the width and emphasis of their formulation, help to ascertain the extent of that field, to narrow it or to enlarge it, but unless one is to deny the statutory origin of the tribunal and of its powers, they cannot preclude examination of that extent.22

Still, just because it is difficult to draw a line does not mean that the line does not exist in principle. Moreover, there are ways to shield epistemic deference from this instability to a significant extent. For instance, you can incorporate an element of deference into the test of jurisdiction itself such that the judge must accept the public body’s own determination of its jurisdiction (provided that it is not unreasonable).23 Similar remedies could be devised to prop up epistemic deference to the legislature.

B. Robust deference Whether it pre-​empts or merely reweights, epistemic deference has as a mark its deliberative impact; those who defer in the epistemic sense ought to employ various deliberative shortcuts that constrain their deliberation. I  stressed, nonetheless, that the deliberative impact of epistemic deference does not have any bearing on the standard against which the decision is to be appraised.24 Therein lies the difference between epistemic and robust deference. Robust deference, I  shall now argue, is not a mechanism that affects the deliberative process of courts. Rather, it pertains to the standard that makes a political decision lawful.

22   Anisminic Ltd v Foreign Compensation Commission (n 11) 207. It would be tempting to suppose that deference towards the legislature does not suffer from similar problems. That is because national legislatures tend to have plenary jurisdiction to deal with any issue that pertains to the common good. But this thought must compete with another equally natural thought, namely that constitutional rules such as those guaranteeing basic rights are tantamount to limits on the legislature’s jurisdiction. Taking this thought one step further, one might say that when the legislature violates those rights it assumes a power that it had never been given. It therefore acts ultra vires, and its decision does not merit any deference on the part of the courts. We encountered this idea in Chapter 3. As in the administrative law context, this understanding of the relationship between courts and the legislature seems to undermine epistemic deference. How can a court epistemically defer to the legislative determination and at the same time evaluate it against legal principles? 23   This is the crux of the Chevron doctrine that governs judicial review of administrative action in the US. See among others Cass Sunstein, ‘Law and Administration after Chevron’ (1990) 90 Colum L Rev 2071. 24   Not by those who epistemically defer to it, since their appraisal will be shaped by the relevant norm of epistemic deference, but by someone who is not bound by this norm.

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To illustrate this, I shall start with a simple example. You and I are painting a house together. We want to paint it as best we can, but we are also hard pressed for time. So we decide that you will paint the living room and I will paint the bedroom. As it happens, you are much better at house-​painting than me. Still, you have good reason to refrain from intervening in my painting. Your doing so may improve the look of the bedroom, but it will result in us not finishing on time—​someone has to do the living room. Or perhaps it will strain our relationship or ruin the fun. In this situation the very fact that we are working as a team generates reasons for you and me that are independent of the quality of the painting job; they have more to do with our duties towards one another as partners in a joint endeavour. Notice the difference with epistemic deference. Nothing is stopping you from evaluating my painting job and deeming it sub-​standard. The point of our joint endeavour is not to impose on you any kind of deliberative abstinence. Rather, it is to structure our cooperation. Something analogous can be said about the place of courts in the constitutional order. As noted in previous chapters, the scope of constitutional review is not only determined by considerations pertaining to the content of the decision under review. Take for instance constitutional review for compatibility with fundamental rights norms. Unless courts assess the content of a decision, they cannot determine whether it adequately respects any fundamental right implicated by it. But content is not the sole determinant of judicial duty. Courts cannot just ask themselves what would be the optimal decision from the point of view of fundamental rights protection. They must also take into account that they are partners in a project that they share with the other branches of government.25 This project is structured in a way that implements important constitutional principles like democracy and furthers aims like efficiency, and expediency. By virtue of the fact that judges participate in a project that is underlain by such considerations, they are bound to respect the contributions of their fellow-​participants in the joint institutional effort. Sometimes this means giving effect to decisions that are sub-​optimal from the point of view of content. That happens when their defects of content are outweighed by countervailing considerations of institutional design. This is the mark of robust deference. In this sense the fact that courts are partners in a joint project with the political branches has normative force that is independent of the content of the decisions they are called upon to review. Judges must now reflect what are their powers and duties under the project, given that it has the institutional characteristics it does. To put it in a formula: On the robust model, a judge ought to defer to a decision by another government body only if that decision is supported by the proper combination of considerations of content and institutional design. And, as suggested above, their interplay may sometimes yield the result that courts are bound to follow decisions that they regard to be erroneous or at least sub-​optimal in certain respects. Here the difference with epistemic deference is clearest. One mode changes what is the right thing to do, while the other does not. Notice also that the change does not come about by any form of double-​weighting. The judge does not need to think the decision of the legislature weightier than it actually is. All that she need do is balance the reasons of content implicated by that decision and any reasons of institutional design concerning her relative position in the joint project of governing. What will then call the shots is the relative weight of these different reasons. More generally, robust deference does not characteristically operate 25   David Dyzenhaus has labelled it the ‘rule-​of-​law’ project. See David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (CUP 2006).

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by affecting the judge’s deliberation at all. It changes the moral state of play whether or not judges explicitly deliberate about it. As a matter of fact, as I shall show in the next section, robust and epistemic deference can be combined thus placing the judge who defers robustly under an additional duty not to reason about the balance between considerations of content and institutional design. Kavanagh contends that when judges refrain from ‘[declaring] legislation to be incompatible with a bill of rights, merely on the basis that they disagree with it or because they might have come up with a different solution if they had had the power to make the primary decision’,26 they are practising what she labels minimal deference. She calls it minimal to distinguish it from substantial deference which judges exercise when they give the decision of the legislature added weight in their deliberation. To avoid confusion, it is important to note that there is nothing minimal about robust deference. Kavanagh suggests that minimal deference requires that ‘the legislature’s or executive’s decisions are treated with respect in the sense that they should be taken seriously as a bona fide attempt to solve whatever social problem they set out to tackle’.27 A judge who affords these decisions minimal deference ‘cannot make light of, or be sceptical about attempts by the legislature to solve a social problem in legislation’.28 However, allowing a decision to stand that you think is morally sub-​optimal cannot be grounded solely in such an attitude. We can treat other people’s views with the utmost respect and still reject them. If judges have a duty to give effect to a legislative decision that they disagree with, it must be because morality so dictates. Just like substantial deference, deference of this sort ‘has to be earned by the elected branches’.29 Robust deference, I have said, is a function of the relative weights of considerations of content and institutional design. I now wish to draw out two implications of this proposition. The first has to do with the nature of constitutionality. Note that considerations of content and institutional design have varying strength, and judgments of robust deference must be sensitive to such variations.30 The higher the credentials of the legislature and the less urgent the need to scrutinize its decisions, the stronger the reasons to defer. Conversely, serious shortcomings in content will proportionately weaken the case for deference.31 It may be countered that such a gradated conception of robust deference is not apt to describe constitutional adjudication, because it seems to entail a sliding scale of constitutionality. Presumably, it supposes that there

27 28   Kavanagh, ‘Deference or Defiance’ (n 15) 191.  ibid.  ibid.  ibid 192. 30   I am assuming here that comparisons between the two types of consideration are possible and legitimate. In Chapter 1 I argued against Waldron’s view that trade-​offs between content and institutional design constitute a ‘category mistake’. Chapter 1, section III.A. We will revisit this view in section III.B below. 31   This gradated view of deference is echoed in the judgment of Laws LJ in International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728. The case concerned an administrative decision that interfered with human rights. Laws LJ lists a number of parameters that determine the degree of deference to that decision such as its provenance from Parliament or the executive (ibid 765), ‘the actual or potential expertise of the democratic power or the courts’ (ibid 767), the distribution of constitutional responsibility between courts (ibid 766). Laws LJ also accepts that judgments of deference balance considerations of content and institutional design. This can be seen in the fact that in the same list he adds the nature of the right that has been interfered with (ibid 766) as well as in his famous ‘sliding scale of review’ metaphor in R (Mahmood) v Secretary of State for the Home Department [2001] WLR 840, whereby ‘the graver the impact of the decision in question upon the individual affected by it, the more substantial the justification that will be required’ (ibid 849). So for him, depending on the absolute or relative character of the legal guarantee of the right and on the impact of an executive measure on the claimant, judges will be under a more or less strict duty of robust deference. 26 29

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are constitutional errors that are less serious and are thus compensated for by institutional design and others that are beyond redemption, as it were. This picture, though, vitiates what Mark Tushnet calls the ‘binary vision of the Constitution’.32 This vision commits us to thinking of constitutional issues as black or white rather than as a matter of degree. According to it, either some act or policy is constitutionally permitted or it isn’t. Unconstitutionality does not shade into constitutionality. Tushnet presents the binary vision as a salient feature of constitutional practice, one that a successful constitutional theory must fit. Does the idea of robust deference fail this hurdle? Is the failure fatal? To begin with, it is important to observe that it is not necessarily a knockdown argument against a constitutional theory that it fails to take a feature of constitutional practice at face value. A constitutional theory can be said adequately to fit constitutional doctrine just in case it shows how some of its aspects are meant to operationalize principles of political morality. However, constitutional doctrine need not make direct reference to these principles. The binary vision of the Constitution may be explained in a similar manner. We do not need to embrace a bizarre ‘ontology’ of the Constitution in order to vindicate it. We can instead say that it is useful—​epistemically or from the perspective of the institutional division of labour—​that legal practitioners employ the bright lines of the binary vision to circumscribe the domain of constitutional permissibility. Quite apart from that, Tushnet’s critique would only sting the account defended here if we interpreted considerations of content to mean the same as constitutional considerations. But this interpretation would gravely distort what I  am proposing. I have stressed that content and institutional design are types of moral consideration that jointly determine what the constitution means. After all, the constitutions with which we are most familiar value institutional design as much as content. They guarantee freedom of speech but also enshrine democracy. On this view, when we assert that a decision is sub-​optimal regarding its content, we are not thereby saying that it is constitutionally sub-​optimal. Unless we bring into the equation considerations of institutional design we cannot confidently appraise its constitutional permissibility. Considerations of institutional design may tip the balance or they may not. It is the balance between the two types of consideration that decides constitutionality. Consequently, even if it is accepted that judgments of content and institutional design admit of degrees, what is constitutionally permitted may still be binary.33 I now turn to another implication of the view that deference is a function of the proper balance between institutional design and content. It is not only that the same consideration of institutional design may or may not be overridden by a countervailing consideration of content, depending on the circumstances. It is also that it makes a different moral impact on the official duty of different state actors. For example, arguably the democratic pedigree of the legislature must be given more weight by unelected judges than by an elected president, given that the latter also has democratic 32  Mark Tushnet, Weak Courts, Strong Rights:  Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton University Press 2008) 39. Tushnet advances this criticism against Thayer’s clear error rule. As he notes, Thayer acknowledges that a court applying this rule may on occasion judge that Congress has misinterpreted the Constitution and at the same time that it would be inappropriate to strike down that mistaken interpretation. 33   What I have said so far leaves open the possibility that the interplay between content and institutional design does not yield yes-​or-​no results to questions of constitutionality, hence introducing an element of indeterminacy into our constitutional judgments. But indeterminacy is not the same as gradation.

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credentials. The more sophisticated our institutional analysis and the more it encompasses a plurality of participants in the joint project of governing, the more frequently we will conclude that what is constitutionally permissible for one may be impermissible for another given the considerations of institutional design that define the role of each. It follows from this line of thought that the constitution does not have a unitary content that issues the same requirements across the joint project of governing. That is not to negate its binary nature, I should add. Judgments of constitutionality may still be of the either–​or rather than the more–​less type, even though they are relative to different state actors.

C. Combinations of deference As is clear, epistemic and robust deference impact on judicial reasoning in very different ways. Epistemic deference affects the way we deliberate about the content of a decision; robust deference adds new considerations that determine judicial duty alongside considerations of content. For this reason, they are independent of each other. Robust deference does not entail epistemic deference and vice versa. As a result, defects that sting one mode do not necessarily apply to the other. But the two modes of deference are not incompatible either. On the contrary, they may be combined to create what we could call composite deference. To illustrate the need for such deference consider the following scenario: Suppose that as a matter of fact judges are inclined to disregard or amend decisions that institutional design directs them to give effect to and act on their own independent assessment of the relevant considerations of content. On the view advocated here this would be a violation of their institutional duty. One way to ensure that this does not happen in the long run or over a range of cases is by means of a rule of epistemic deference which will direct the judge to abstain from scrutinizing the decision or certain aspects of it or to subject it to some form of light-​touch scrutiny only. The result will be that the judge does not even consider certain errors of the decision that engage her understanding of the balance of considerations of content. She will thus give the decision legal force despite those errors, as she is under a duty to do by virtue of the relevant rule of robust deference. Put differently, epistemic deference insulates the decision from judicial scrutiny of some sort, whereas robust deference has given the decision, thus insulated, legal force. In such a case, it may be said that the epistemic rule has the following instrumental value: It is meant to help the judge implement the standard of lawfulness, as this has been shaped by the relevant rule of robust deference. The judge is more likely to reach the right decision (namely, she will actually give effect to those decisions that are supported by the interplay of considerations of institutional design and content) by exercising epistemic deference than by trying to determine the interplay of considerations of institutional design and content by herself. Thus, when the rule functions well, it promotes the considerations of institutional design that structure the relationship between the court and the political branches and allows only those mistakes from the point of view of content, which are outweighed by the relevant considerations of institutional design. A good example of composite deference is Thayer’s clear error rule. Thayer might be construed as saying that in the long run the moral cost of errors of constitutional judgment made by the legislature that are not manifest is less than the cost of the interference that a more intense form of constitutional review would impose on the functioning of democratic government. Accordingly, he writes: This rule recognises that, having regard to the great, complex, ever-​unfolding exigencies of government, much which will seem unconstitutional to one man, or body of men, may reasonably

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not seem so to another; that the constitution often admits of different interpretations; that there is often a range of choice and judgment; that in such cases the constitution does not impose upon the legislature any one specific opinion, but leaves open this range of choice; and that whatever choice is rational is constitutional.34

Further, he might be construed as saying that the clear error rule better tracks this constitutional imperative. This is, of course, a controversial view, but it stands and falls on its account of the value of the institutional arrangement that is thus established. In other words, it stands and falls on (a) the outcome of the interplay of the considerations of institutional design and content at stake and (b) on the effectiveness of the clear error rule in tracking that outcome.35 I do not claim that the distinction between epistemic and robust deference is exhaustive. I suspect there are other ways that decisions of the political branches make a difference to courts. For instance, a political decision may have persuasive force. Or, even more weakly, the court may draw on a decision by another body for inspiration. In Chapter 5 we examined how some constitutional dialogue theories overemphasize such modes of impact. Nor was my aim in proposing the distinction to suggest that epistemic deference is the bad mode and robust deference the good one. So far, I have not given any arguments in favour of or against either mode. In fact, it seems to me that there are circumstances under which epistemic deference will be entirely appropriate. Thus, soldiers charging on a hill have strong reason epistemically to defer to their commanding officer. Epistemic deference becomes even more palatable when we bear in mind that it comes in less than absolute forms. Rather, my hope was that once the true nature of the two modes of deference and the possibility of combining them are appreciated we will have a general template for how judges can respect legislative initiative.

D. Deference and justification Far from being a sign of servility, deference as I  have portrayed it is the judge’s response to the range of reasons with which he may be faced. When he defers epistemically, I have claimed, these reasons enjoin him to exclude, partially or wholly, certain considerations from his deliberation or to adjust the weight he assigns them. When he defers robustly, these reasons may enjoin him to do something that would be morally sub-​optimal, were it not for the fact that a competent authority has dictated it. Some authors have sought to capture the discrepancy between what is morally right given the authority’s intervention and what would be right absent that intervention by invoking the protean concept of reasonableness. Thus, in advocating a restrained role for the constitutional judiciary Thayer notes that ‘much which will seem unconstitutional to one man, or body of men, may reasonably not seem so to   Thayer, ‘Origin and Scope’ (n 16) 144.   Ullman-​Margalit makes a similar point about presumptions:  ‘Presumption rules operate in situations where actions have to be decided upon in the light of insufficient information and often under external pressures and constraints. Errors (i.e., proceeding on q when not-​q is in fact the case and vice versa) are bound to occur. There is no question of avoiding errors; at best there is the question of reducing their number. But a different sort of question is whether one type of error is to be preferred, on grounds of moral values or social goals, over the other(s). Evaluative considerations may exist which justify a systematic and generic bias in favour of erroneously proceeding on Q rather than erroneously proceeding on not-​Q, given that P and given lack of sufficient reasons in the circumstances to believe either q or not-​q to be the case.’ (Ullman-​Margalit, ‘On Presumption’ (n 18) 159.) 34

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another’.36 In light of this, he thinks, judges should be wary to replace the reasonable interpretation of constitutional requirements contained in a legislative decision for their own. In this section I want to assess whether reasonableness can help explain the mechanics of deference. To do so, I  shall look at the conception of deference proposed by David Dyzenhaus. Dyzenhaus juxtaposes deference as respect and deference as submission.37 This distinction has been further elaborated by Murray Hunt.38 At its heart lies the concept of reasonableness. But, as I shall show, its reliance on reasonableness is more of a liability than an asset. The theory of deference had better avoid it. Deference as submission in Dyzenhaus’ scheme seems to have the same pre-​ emptive or judgment-​replacing effect as absolute epistemic deference, in the sense I have defined it. Submissively to defer to someone’s dictate, we might say, just means to take it at face value without reviewing its content. Hunt argues that it is this notion of deference that is at play when governments carve out extensive areas of policy-​ making like national security or external relations and make them immune from judicial oversight. He writes that ‘deference as submission occurs when the court treats a decision or an aspect of it as non-​justiciable, and refuses to enter on a review of it’.39 Equally, deference as respect echoes key features of robust deference. For one thing, it is accorded a certain decision by virtue of ‘considerations which inform received ideas about the respective functions of the judicial and the political branches’.40 The latter include considerations of relative expertise, institutional competence and democratic pedigree and accountability. Dyzenhaus divides such considerations into ‘formal’ and ‘substantive’.41 An example of a formal reason for deference is the fact that the legislature has conferred primary decision-​making power to the administrative agency. As substantive reasons for deference, on the other hand, he cites the fact that ‘the tribunal is closest to the problems out of which the issue arises, can deal with them relatively quickly and cheaply, and may have in addition developed a considerable expertise’.42 When such reasons are present, says Dyzenhaus in a language strongly reminiscent of the terminology employed here, the tribunal’s decision that interprets a statute and draws implications about our legal rights and duties under that statute ‘makes a difference to the structure of the interpretative context’.43 Importantly, however, Dyzenhaus and Hunt insist that such reasons of deference do not warrant the courts’ abstention from any judgment on the content of the administrative decision. True, courts have to ‘take [the administrative decision] seriously’.44 But that is only ‘because what they are primarily concerned to do is to find the reasons that best justify any decision, whether legislative, administrative or judicial’.45 In other words, the courts’ task is to scrutinize the decision in order to assess the quality of the reasons supporting it. Crucially, in this effort they should be guided by the   Thayer, ‘Origin and Scope’ (n 16) 144.  David Dyzenhaus, ‘The Politics of Deference:  Judicial Review and Democracy’ in Michael Taggart (ed), The Province of Administrative Law (Hart Publishing 1997) 279 [hereafter Dyzenhaus, ‘Politics of Deference’]. 38  Murray Hunt, ‘Sovereignty’s Blight:  Why Contemporary Law Needs the Concept of Due Deference’ in Nicholas Bamforth (ed), Public Law in a Multi-​Layered Constitution (OUP 2003) 337 [hereafter Hunt, ‘Sovereignty’s Blight’]. 39 40   ibid 346–​47.  ibid 353. 41   Dyzenhaus, ‘Politics of Deference’ (n 37) 303–​04. Note that when Dyzenhaus talks of substantive reasons for deference he does not mean the same as what has been termed here ‘considerations of content’. Translated in our scheme, Dyzenhaus’ substantive reasons for deference belong to considerations of institutional design. 42 43 44 45  ibid 304.  ibid 303.  ibid.  ibid. 36 37

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full-​blown moral value of equality.46 To discharge this task, then, and, in particular, to assess whether the decision respects equality, they cannot but look at the content of the decision. Hence, we see here an interplay of considerations of content and institutional design similar to the one that lies at the heart of the notion of substantive deference. Dyzenhaus and Hunt do not mean that courts must be convinced that they would have come to the same conclusion as the primary decision-​maker. All the same, they must find that conclusion ‘reasonable’ in the sense that ‘the reasons do in fact or in principle support the conclusion reached. That is, even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them’.47 A decision that allocates a benefit on the basis of an arbitrary distinction between citizens is unreasonable and may be impugned in court. But a decision that is animated by a certain political theory (say, that we cannot be compelled to support those who are badly off through sheer luck) may be mistaken but is supported by reason and deserves deference. To sum up, Dyzenhaus and Hunt’s deference as respect, like robust deference, acknowledges that courts may take into account considerations of content while at the same time opening up the logical space between a lawful primary decision and the one that the judge would have reached in its absence. It thus contrasts with deference as submission, which—​on a par with absolute epistemic deference—​blocks judicial assessment of a decision’s merits. Deference as respect is primarily motivated by the concept of justification. Dyzenhaus writes: ‘The question for the court is not then what decision it might have reached had the tribunal not pronounced, but whether the reasons offered by the tribunal justify its decision.’48 Underlying this requirement is the assumption that what justifies all public power is the ability of its incumbents to offer adequate reasons for the decisions which affect those subject to them. The difference between mere legal subjects and citizens is the democratic right of the latter to require an accounting for acts of public power.49

Arguably, as Hunt has suggested, deference as submission is inimical to justification, because it ‘tends to pre-​empt the articulation of the real reasons for deferring to an assessment of a primary decision-​maker’.50 Conversely, deference as respect requires ‘rational explanations for why a particular decision has been taken’.51 Is Dyzenhaus and Hunt’s understanding of deference superior to the one advanced in this chapter? For one thing, the two understandings serve different purposes. One is descriptive, the other is critical. I did not claim that epistemic deference is necessarily a bad thing, while deference as submission probably is. Neither did I  claim that robust deference is always a good thing, contrary to deference as respect. In this sense, it is difficult to compare them. More to the point, I doubt that the apparatus of 47   ibid 305–​07.  ibid 304.   ibid. Dyzenhaus is even prepared to accept that a decision properly supported by considerations of institutional design must be accorded a presumption of correctness, ‘even if its reasons are in some respects defective’ (ibid). 49 50  ibid 305.   Hunt, ‘Sovereignty’s Blight’ (n 38) 347. 51   ibid 351. Notice the resonance with the understanding of constitutional review in terms of a procedural right to a hearing we examined in Chapter 3. Holders of that right can demand a hearing when an interest of theirs has been set back. Presumably, a state that offers reasons for its actions or whose actions can be supported by reasons (properly articulated and supplemented by a court, if need be) discharges its corresponding duty, thereby earning the right-​holder’s deference, because it expects her respect, not her submission. 46 48

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reasonableness and justification can do the work they are meant to. To begin with, it is a mistake to suppose that justification has no place in deference as submission. This is not only because the deliberation-​blocking effect of deference may be less than absolute. Even absolute epistemic deference has a certain ‘rational explanation’. I argued earlier that there are reasons such as expertise for adopting an epistemically deferential stance towards another agent. These reasons may apply in some settings and not in others. Perhaps they have less force in constitutional law. But where they do apply, they provide all the justification for epistemic deference that is needed; they are nothing less than the ‘real reasons for deferring to an assessment of a primary decision-​maker’. When a soldier asks why he should unquestioningly charge to the hill, if so ordered by his commanding officer, it is not inappropriate to cite all the important reasons counting in favour of a significant degree of epistemic deference in the heat of battle. Of course, these reasons have little to do with whether the commander’s offensive plan is a good one or not. In this sense, they are not the reasons ‘for why a particular decision has been taken’. But if it is sometimes a rational strategy to simplify deliberation, say, about how to fight a battle, then it cannot be a sign of disrespect to require someone to act on it. Moreover, I  am sceptical about the usefulness of the concept of justification for cashing out the mode of deference even in cases where Dyzenhaus and Hunt deem it appropriate. First, the contrast they draw between something being the correct course of action and being (merely) supported by reason is elusive. Only real reasons can justify courses of action. If a judge rejects the reason invoked by the primary decision-​ maker, say, because she believes that we should alleviate the consequences of bad luck in others, she cannot maintain that a libertarian tax regime is supported by reason. Perhaps, as some philosophers claim, if you are one of these people who think that it is morally wrong to tax lawfully accumulated wealth in order to help the worse off, then you are rationally required to support a libertarian tax regime.52 Philosophers who propound the notion of a rational requirement insist that it is not the same as a reason. Arguably, though, it might help judges adopt the perspective of primary decision-​ makers without accepting the truth of their belief system. But this cannot be what Dyzenhaus and Hunt mean when they say that judges must seek ‘rational explanations for why a particular decision has been taken’. Judicial oversight would be toothless if judges had to accept at face value the beliefs of primary decision-​makers and only monitored the internal consistency between their beliefs and actions. Perhaps, then, the adequacy of the reasons offered in support of a policy must be judged objectively. To this effect, judges must reach an independent judgment about whether there are (genuine) reasons justifying it. But this option also poses difficulties because it does not seem to be deferential at all. How can judges independently assess the justifiability of a policy and still stop short of enforcing their own moral views to their full extent? Note the difference between the option we are now considering and robust deference. Robust deference does not rely on the concept of justification. It renders it unnecessary to distinguish correct and reasonable decisions and avoids the pitfalls that beset any such attempt. A judge that defers robustly does not need to change his mind about the defects of the decision under review. He does not need to excuse those defects as being reasonable. Although knowing the reasons advanced by the primary decision-​maker may assist him in understanding the purpose of the decision, what calls the shots are not necessarily those reasons but the interplay of   John Broome, ‘Normative Requirements’ [1999] Ratio 398.

52

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considerations of content and institutional design underlying the decision. He defers to it because and insofar as that interplay gives him a moral duty to uphold it despite those defects. That is not to dismiss the notion of reasonableness altogether. It may well have a role to play in constitutional doctrine. It conveys a sense that the gap dividing two opposing camps in political discourse is narrow. However, judgments of reasonableness seem to me to summarize a moral argument than to make one. When we say that some decision is reasonable, we just mean that it is supported by the proper combination of reasons of content and institutional design, such that courts now have a duty to enforce it despite its content-​related shortcomings. But calling it reasonable does not add anything new to the picture. Put differently, reasonableness denotes not a distinct ontological category but the range of decisions, even sub-​optimal, that merit deference on the strength of countervailing considerations of institutional design.53 Of course, institutional design can hardly compensate egregious moral failures. Such failures are unlikely to be deemed reasonable. Again, though, we cannot know that they are unreasonable unless we go through the relevant moral calculations. Likewise, I  do not wish to denigrate the importance of justification. Practices of offering and testing justifications for the exercise of state coercion contribute to a vibrant public culture. Courts have a crucial role to play in sustaining these practices. This should count against making extensive use of epistemic deference. All else being equal, it is valuable for courts to hear arguments for and against topical issues of public policy. However, justification is complex. It must take into account the fact that structures of authoritative guidance can change what is morally correct, creating a duty to act on someone else’s say-​so, occasionally disregarding its defects or without questioning it. Deference expresses that moral complexity.

III.  Deference and its Discontents A. Barking up the wrong tree So far I have endeavoured to map out the distinction between the two types of deference. Recall, my aim in drawing the distinction is conceptual, not critical. My claim has not been that we should favour one mode of deference over the other. This is not

53   This, it seems to me, is the best way to understand Lord Hope’s controversial dictum in Kebilene that ‘[i]‌n some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention’ (R (Kebilene) v Director of Public Prosecutions [2000] 2 AC 326 at 380). Lord Hope is not urging for a ‘justiciability’ doctrine, making certain areas of decision-​making ‘immune from any interference by the court’ (Hunt, ‘Sovereignty’s Blight’ (n 38) 345). He is saying that within a range of error the considered opinion of the elected body must stand, morally speaking. That this is closer to what he has in mind becomes evident when we consider the factors that he lists as relevant to the identification of that ‘protected’ area of judgment. He writes that ‘[i]t will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection’ (R (Kebilene) v Director of Public Prosecutions 380). For Lord Hope, then, the degree of deference also depends on what is at stake on the side of content. Considerations of institutional design will win out, when the stakes are low. But things are different when what is on the balance is, say, a right ‘of high constitutional importance’.

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to say, however, that the foregoing analysis lacks a critical edge. In fact, as I shall argue in this section, it can help defend deference against its critics. To show this, I shall focus on some recent work by Trevor Allan. Allan argues that it does not make sense to speak of judicial deference as something ‘distinct from the scope of discretion, if any, conferred by the relevant constitutional right on its correct interpretation’.54 He does not dispute that sometimes the very right in question will underdetermine the morally sound course of action.55 When this happens, he readily concedes, separation of powers requires that courts respect the government’s determination. What he objects to is, to use the terminology employed in this book, the suggestion that considerations of institutional design may enlarge the scope of discretion in the sense of providing a reason for courts to implement a decision of another state institution, even when they consider it sub-​optimal in some respect. He writes: A doctrine of deference is pernicious if, forsaking the separation of powers, correctly conceived, it permits the abdication of judicial responsibility in favour of reliance on the good faith or good sense or special expertise of public officials, whose judgments about the implications of rights in specific cases may well be wrong.56

The following passage is perhaps even more revealing: Correctly understood, therefore, the ‘discretionary area of judgment’ is determined by the proper scope and meaning of the legal right in question. Its extent will reflect the balance of public and private interests, attuned to the facts of the particular case; and the court will respect a governmental purpose in judging the extent to which the individual must endure its adverse consequences for his own position. The court will also respect the governmental assessment of the merits of the particular case, in the sense that it will examine the arguments presented in the government’s favour. But there is no apparent reason for any further element of judicial reticence.57

The preceding passages suggest that Allan is criticizing the notion of robust deference, as defined above. He rejects the subject-​changing interplay of content and institutional design that we have identified above as its mark. Nevertheless, some of his arguments tell a different story. For example, they target the claim that there can be a general theory that answers questions of deference in advance of specific cases. In this vein he writes: There is then no means of defining the scope of judicial powers, or prescribing the limits of official discretion, as regards the details of any particular case, without examination of the specific legal issues arising in all the circumstances. Insofar as talk of ‘deference’ promises to short-​circuit such analysis, suggesting a direct linkage between deep-​level constitutional theory and the resolution of particular rights-​claims, it generates only confusion and misunderstanding.58

What does Allan mean by a general theory of deference? And what is so objectionable about it? General doctrines of deference, Allan seems to be saying, invoke considerations of institutional design such as the expertise of administrative agencies as a ground for the unassailability of a decision in a particular case. But the mere fact that an administrative agency has expertise does not preclude the possibility of misjudgment 54   TRS Allan, ‘Common Law Reason and the Limits of Judicial Deference’ in David Dyzenhaus (ed), The Unity of Public Law (Hart Publishing 2004) 289, 290 [hereafter Allan, ‘Common Law Reason’]. 55  ibid 291. 56   TRS Allan, ‘Human Rights and Judicial Review: A Critique of Due Deference’ [2006] 65 CLJ 671, 675 [hereafter Allan, ‘Critique of Due Deference]. 57   Allan, ‘Common Law Reason’ (n 54) 291. 58   Allan, ‘Critique of Due Deference’ (n 56) 676.

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on specific occasions. Hence deference on grounds of expertise cannot provide ‘a substitute for judgment more closely attuned to the particular facts of the particular case’.59 In itself, then, it is no justification for a decision that, say, unduly interferes with a fundamental right. Judicial deference on the basis of such reasons is tantamount to ‘surrender of judgment’.60 But if Allan wants to take issue with judicial attitudes of ‘[b]‌lind, uncritical obedience’61 towards executive decisions, then his criticism does not sting the very idea of judicial deference but only epistemic deference and particularly its absolute version. Clearly, absolute epistemic deference involves an element of ‘surrender of judgment’, insofar as it insulates certain political decisions from review of their content. When we defer absolutely, we make a judgment about, say, the expertise of a decision-​maker along a range of cases and on the basis of that general judgment we refrain from questioning her decision on the case at hand. In doing so, we may well be guilty of ‘short-​circuiting’ moral analysis of the specific situation. But there is nothing necessarily uncritical about robust deference. Robust deference requires a balancing exercise where both content and institutional design are taken into account. Considerations like expertise and democracy are but components in this balancing exercise; they do not displace judgment on the merits. Nor is robust deference insensitive to the facts of particular cases. Quite the contrary, one cannot assess the relative weight of considerations of content, unless one examines the actual or possible adverse consequences of a political decision on, say, fundamental rights. In this sense, then, doctrines of robust deference are not ‘general’. Besides, as we have seen above, robust and epistemic deference are not only conceptually distinct. They are also separable in practice. Although they may be combined, you can have one without the other. So, even if Allan is right that a system of constitutional review against human rights standards is incompatible with epistemic deference, this does not entail that it is incompatible with robust deference. Still, Allan seems to object to robust deference as well. To this end, he casts doubt on the notion of a normative interplay between considerations of institutional design and content. Speaking of principles of deference he remarks: [I]‌t is not clear that there is any genuine normative work for them to do. Their prescriptive work presupposes them capable of affecting a judge’s conclusions about the legitimacy of challenging the views of the ‘democratic powers’ in particular instances; but the presupposition is surely false. For those conclusions . . . will (or should) be determined by the substance of the issues arising, rather than any set of principles operating independently.62

In what sense is there no ‘normative work’ for principles of deference to do? Clearly, such principles do not affect the balance of content-​based reasons. Democracy and expertise cannot alter the fact that, say, detention without trial is immoral, if indeed it is immoral; you cannot legislate the moral permissibility of detention without trial. As Allan rightly notes, these considerations are ‘plainly external to the intrinsic quality of the decision under review: however laudable as elements of a just and efficient decision-​making process, appropriate to generating good decisions in the majority of cases, none can guarantee the integrity of rights in the particular case’.63 Nevertheless, proponents of robust deference do not claim otherwise. When a judge robustly defers   Allan, ‘Common Law Reasoning’ (n 54) 292. 61   Allan, ‘Critique of Due Deference’ (n 56) 694.  ibid 683. 62   ibid 674. Here Allan makes reference to the principles discussed by Laws LJ in Roth. See above (n 31). 63   Allan, ‘Critique of Due Deference’ (n 56) 688. 59 60

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to a decision that he finds sub-​optimal in its content, it is not because the decision has made him change his mind about the issue at hand; rather, it is because deference is dictated by the position he occupies in an institutional setting structured by certain constitutional principles that in the circumstances of the particular case override his content-​related objections. To repeat, robust deference has changed the subject.

B. The varying shades of indeterminacy Perhaps the reason why principles of deference are not ‘capable of affecting the judge’s conclusions’ is because such principles are incommensurable to considerations of content. Allan seems to think so. Deference, he writes, requires a court to set off against its own appraisal of the arguments for and against an infringement of rights a wider range of competing considerations, relating to characteristics of the decision-​maker or its procedures rather than the intrinsic quality of its decision. Yet these external considerations are not commensurable with the reasons that determine the justice of the robust outcome. They operate on different scales of assessment.64

Hence, he claims, even if we did grant that considerations of institutional design ought to be accorded special weight in judicial review, the question would remain:  ‘How could any such a special weight be measured, or weighed in the balance against the indications of illegality?’65 The idea of robust deference stands and falls on it being possible normatively to relate institutional design and content. It is central to this idea that a judge can compare considerations of content and institutional consideration and thus judge that he has reason to go along with a sub-​optimal decision from the point of view of content on the strength of countervailing considerations of institutional design. Not all incommensurability is a threat to this idea. We must distinguish weak and strong incommensurability. Two evaluative considerations are strongly incommensurable if it is not possible to say of any gain in one consideration that it is preferable or equal to any loss in the other consideration and vice versa. They are weakly indeterminate if there are only some pairs of gains and losses in those two considerations about which there is no fact of the matter that one is preferable or equal to the other. Robust deference would be in trouble if institutional design and content were strongly incommensurable. Then our judge would never be able to reach determinate conclusions about the relative importance of those competing considerations in specific cases. It would never be possible, for instance, to rule that, on the one hand, prisoners have a right to vote according to the best understanding of that right but the judge cannot enforce this right because the democratic legislature has decided otherwise. Fortunately, considerations of institutional design and content are not strongly incommensurable. To be convinced of this, we need only consider whether we would reasonably accept trading a significant blow to institutional design for only a minor  ibid 688.   ibid 679. I take it that by ‘indications of illegality’ Allan has in mind something like ‘content-​ related concerns’. I highlight this point to avert the misunderstanding that deference makes up for illegality. The opposite is true: Deference tracks lawfulness. Put differently, a decision by the political branches that merits deference is eo ipso lawful. In this respect, too, my account of deference differs from Kavanagh’s for whom ‘the question of whether judges should defer to the elected branches is not about the legal powers judges possess. Rather, it concerns the appropriateness of judges not exercising those powers, or at least being restrained in exercising them’ (Kavanagh, ‘Deference or Defiance?’ (n 15) 185). 64

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gain in content. Suppose that we have to decide what kind of safety standards to impose on automobile manufacturers.66 Suppose further that among airbags, detachable, and non-​detachable belts, airbags are slightly superior. However, the competent authority imposes non-​detachable belts as standard equipment instead. Would we countenance the court overturning that decision? If, as I suspect, we would not, it is because there is at least a range of pairs of costs and gains in content and institutional design, comparison between which yields determinate results, sometimes easily so.67 The existence of this range is a reflection of the simple truth that in a political community it is sometimes morally mandatory to accept certain sub-​optimal settlements that have been reached in the institutionally appropriate manner. How far this range stretches we cannot say in the abstract. Importantly, our answer to this question depends on our ability to make finer moral discriminations and accommodations and translate them into legal doctrine. Even with the best of intentions, there may be left some indeterminacy around the edges. This, though, will be of the weak kind. Of course, weak indeterminacy raises some interesting issues of its own, which we will discuss in the following section. But it does not threaten the very possibility of balancing content and institutional design. More broadly, it is not clear why the interplay between content and institutional design should be susceptible to strong incommensurability any more than other types of moral judgment. Nobody so much as winces at the prospect of having judges decide whether government strikes a fair balance between considerations as disparate as the right to family life and immigration policy, something they routinely do in the UK under the Human Rights Act. In this sense Allan’s pessimism is surely misplaced. Though the complexity of moral—​and ethical—​value is often cited as a source of indeterminacy,68 it should not be taken to undermine our (typically complex) ethical discourse root and branch. The onus is on the critic to show that there is something particularly problematic about this or that type of complexity. As already mentioned, the commensurability of content and institutional design argued for in the preceding section does not guarantee that combinations of these two dimensions will always yield determinate outcomes. It may be that for some combinations of content and institutional design it is neither true nor false that one is superior to the other and it is neither true nor false that they are equal.69 Does this weak indeterminacy, as I have called it, affect the account of constitutional review we have been constructing? Does it cancel the idea of robust deference in practice, even though it is compatible with it in principle? In answering these questions, we must not forget that the moral issue facing the reviewing court is different from the moral issue that was adjudicated by the decision 66   Motor Vehicle Manufacturers Association v State Farm Mutual Insurance Company 103 S Ct (1983) 2856. This is a case of judicial review of administrative action. Indeed, the example concerns an issue that in the legal systems with which we are familiar would likely not be settled by the legislature. But recall, the mode of deference should be similar, no matter whether it is owed to a legislature or administrative agency. 67   This argument replicates Ruth Chang’s notable/​nominal strategy for dealing with incommensurability. See Ruth Chang (ed), Incommensurability, Incomparability and Practical Reason (Harvard University Press 1997) 1–​34. I  have employed this strategy in Dimitrios Kyritsis, ‘What is Good About Legal Conventionalism’ (2008) Legal Theory 135, 156, using a more colourful example. Allan is sceptical about its bearing on the deference debate. TRS Allan, ‘Judicial Deference and Judicial Review: Legal Doctrine and Legal Theory’ [2011] LQR 96, 108–​09. I address his arguments below. 68   See for instance Raz, The Morality of Freedom (n 8) 332–​35. 69   This is a standard definition of indeterminacy. Chang has argued for a fourth relationship that might obtain between the two combinations, namely that they are on a par. She calls this relationship rough equality. See Ruth Chang, ‘The Possibility of Parity’ (2002) 112 Ethics 659.

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under review, namely the choice of safety standard. With this in mind, let’s spell out the options facing both the judge and the constitutional designer. Go back to the example of automobile safety equipment. Once again, imagine that the competent authority decides to prescribe detachable seat-​belts as standard equipment, ex hypothesi the sub-​optimal solution. But this time let’s suppose that it is indeterminate whether it is preferable that the court let the decision stand or quash it. It is not possible to compare the gain in road safety from the adoption of the optimal solution and the loss in institutional design from the frustration of the competent authority’s decision. Thus, there is no right answer that would govern the judge as in a case admitting of a determinate outcome. How are we to deal with this type of situation? Take, first, the obvious option: It is the judge that chooses between these incommensurable alternatives. Some people might fear that this option grants judges too much power. I think this fear is overblown. To begin with, we ought to put the problem into perspective. Many comparisons do not admit of a determinate outcome because the alternatives being compared are roughly equal. With this in mind, the fact that they cannot be compared in a determinate way appears much less threatening. It is generally permissible for a judge (and any moral agent) to choose between two morally equal alternatives. Why should it become objectionable when the alternatives are roughly equal? Let’s then set rough equality aside. Perhaps there are some pairs of incommensurable alternatives that are not even roughly equal. Between them, the critic would insist, we can say that judges should not be given the power to choose. But arguably this is precisely the kind of choice that the doctrine of robust deference foists upon them. It expects them to calibrate their judicial duty to the moral balance of institutional design and content even where there is no such determinate balance. Thus, what robust deference gives with one hand, it takes with the other. It purports to operationalize the subsidiarity of the judiciary but in practice turns judges into mini-​sovereigns, at least in cases of weak indeterminacy. There is something deeply unsatisfactory about the framing of this challenge. If we have reasons of political morality not to entrust certain political issues to judges, these reasons will need to be factored into our calculation of robust deference. And if these reasons are as powerful as the objection supposes, then surely they will tip the balance in favour of deference. Hence the comparison of the alternatives will turn out to be determinate after all. We sometimes tend to assume that the considerations of institutional design that determine robust deference have only to do with qualities and features of the authority to whom deference is owed. But this is to take too narrow a view. As has been noted in our general discussion of deference, its scope is also determined by the features of the authority contemplating whether to defer and of its relationship with other authorities. Our example is a case in point. It is something about the relative position of judges in the legal order that made us uncomfortable about giving him a certain power. Surely, then, this discomfort should figure in the interplay between content and institutional design. I should be clear that I am not making the strong claim that, when all these considerations are taken into account, questions of deference will necessarily admit of a determinate answer. All I am saying is that the critic cannot have it both ways. Either the issue is truly indeterminate and the judge finds himself in a zone of unbridled choice or there are overriding reasons for him not to make that choice. But if it is the former, then our moral objections to that choice cannot be as acute. The scenario adumbrated in the preceding paragraphs may sound overly technical and abstract. Nevertheless, institutional design deals with it all the time. To this effect, it establishes schemes of division of labour that channel legal issues to the organ we deem appropriate. Such schemes should be fairly familiar to public lawyers. For

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instance, they may restrict the judicial role to ensuring that the primary decision-​maker has chosen one of the three aforementioned types of equipment and not a fourth that is patently inferior. Or that the primary decision-​maker has honoured certain standards in its deliberative process (e.g. it has taken into account all relevant considerations and no irrelevant considerations, it has given affected individuals a fair hearing etc). Institutional design can also anticipate a further worry associated with legal indeterminacy. Some theorists may be uncomfortable not only with judges choosing between incomparable alternatives, but also with them having to decide the prior issue whether or not a question admits of an indeterminate answer. Possibly, they would argue, the outer boundaries of determinacy can be detected by someone possessed of philosophical training and equipped with unlimited time. But our judges are not philosophers, and time is for them an extremely scarce resource. So regardless of whether the interplay between institutional design and content yields determinate results, judges may not be able to find them, and consequently they are liable to push a perfectly determinate issue into the zone of indeterminacy (or vice versa). Institutional design addresses this worry by tailoring to some extent institutional roles to the epistemic capacities of different actors. Often it makes use of default or prophylactic rules that aim to help actors steer well clear of treacherous territory. Think of Thayer’s clear mistake rule. By restricting its attention to weeding out patently erroneous legislative decisions, a court following this rule is not overburdened with complex moral judgments. Of course, since Thayer’s time US courts have ventured much further than the clear mistake rule would allow them. But this probably suggests that we should not be too quick to dismiss the judges’ ability to think through difficult moral questions. So far we have claimed that the possibility of weak indeterminacy does not pose a serious challenge to the notion of robust deference as an integral component of our account of constitutional review. But our line of reasoning may now give rise to a different objection, this time from the other side. More specifically, it may seem that constitutional review actually works better on the assumption that there exist pockets of weak indeterminacy in interpretation. And it becomes problematic if it turns out that all moral questions admit of a uniquely correct answer. Perhaps, the pockets of indeterminacy give judges the necessary slack to diverge from the course of action that they prefer in favour of the one adopted by the competent authority. But once a judge reaches the uniquely correct answer to a moral question, surely he cannot turn a blind eye to the mistake made by the primary decision-​maker. Let’s illustrate this with our original example. Suppose that it is the case that, of all the alternatives, airbags provide the better solution all-​ around. And now suppose that the competent authority has opted for non-​detachable belts instead. Is there room here for deference on the part of the reviewing court towards the primary decision-​maker?70 Can the court sensibly hold both that airbags are superior to non-​detachable belts and that the decision under review deserves the court’s respect? As I have said time and again the alleged paradox is a red herring. What the judge has to decide is not solely whether airbags or non-​detachable seatbelts are superior as safety standards. Rather, he needs to tackle the question: What is in my power to do on this issue given the fact that I participate in a joint institutional project?71 The 70   Margaret Allars has challenged Dworkin’s one-​right-​answer thesis on precisely these grounds in Margaret Allars, ‘On Deference to Tribunals, With Deference to Dworkin’ (1994) 20 Queen’s Law Journal 163. The argument of this section is meant as a response to similar concerns. 71   A point also made by Dworkin himself:

Consider the difference between the aesthetic question raised by the pure form of the question [whether Picasso or Beethoven was the greater artist], and the different question that

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difference lies in the kind of moral principle that governs the two questions. The first question solely engages considerations of content, whereas the latter engages considerations of both content and institutional design. The latter question could also have a uniquely correct answer: The balance of content and institutional design could dictate that the decision under review must stand by virtue of the considerations of institutional design counting in its favour. In this case, morality speaks with one voice. The paradox disappears.

C. What’s in a right So far I have argued against Allan’s claim that deference is incoherent. In more recent work, however, it appears as though Allan does not really have a problem with the interplay between considerations of institutional design and content or, indeed, with deference itself. He accepts that ‘reasons for deference are incorporated into a judicial decision—​made internal to deliberation—​by acknowledgment of legislative or administrative discretion’. 72 What he opposes is the suggestion that ‘first-​level analysis could exist—​even as a theoretical aspiration—​as a separate, free-​standing inquiry, aloof from all the questions of institutional competence and constitutional legitimacy that otherwise arise’.73 Allan bases this claim on the thought that the rights that it is the courts’ job to protect are trumps against the pursuit of the common good. But it is the political branches that have the primary responsibility to determine how efficiently to pursue the common good and which aspects of it must be prioritized. In short theirs is the task of designing and implementing public policy. The judge’s contribution is subsidiary. He is there to ensure that the political branches do not ride roughshod over individual rights but is not supposed to second-​guess their policy choices. Clearly, this is an imperative for deference and is underpinned by considerations of ‘institutional competence and constitutional legitimacy’. However, these considerations are internal to questions of individual right. The subsidiarity described in the previous paragraph is reminiscent of the division of labour between courts and the legislature in terms of principle and policy that we examined and dismissed in Chapter 3. But Allan could be understood as taking that distinction one step further. Perhaps, when he says that considerations of deference are internal to questions of individual right, he is making the much stronger claim that such questions do not make sense except bound up with the policy decisions of the political branches. Let me be clear what view I am imputing to Allan. Everyone agrees that, by the time a question of individual right has reached the court, it is indeed bound up with policy. Courts have a receptive function, so they typically lack the authority to deal with such a question except on the basis of a legal challenge to a government decision. Allan doubts the very possibility of analysing the question of individual right in a way that prescinds from that decision and the considerations

would be raised if Congress had instructed that a great statue be raised depicting one or the other, whichever was the greater artist. This kind of ‘delegation’ does not preserve the issue that is delegated unchanged; the delegation changes the question because it adds a context of purpose and a demand for action. Ronald Dworkin, ‘Objectivity and Truth: You’d Better Believe it’ [1996] Philos Public Aff 87, 137–38 [emphasis added]. 72   TRS Allan, ‘Judicial Deference and Judicial Review: Legal Doctrine and Legal Theory’ [2011] LQR 96, 109. 73   ibid 109–​10.

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of deference that support it. This is a type of free-​standing analysis that for him we cannot even aspire to. In the terminology of the book the claim is that it is impossible to identify the independent contribution of considerations of content, even analytically. This view can be criticized on a number of fronts. To begin with, although many rights do come wrapped up in policy, not all do. Take, for instance, the right to marry a person of a different race or to read the books of one’s choice. But even when we turn our attention to rights that do typically implicate policy, the view is unpersuasive. One need only recall Dworkin’s distinction between background and institutional rights.74 Background rights are those that we have as a matter of ideal justice, whereas our institutional rights are those that we have under a certain institutional arrangement. Allan would be right to assert that the majority of our institutional rights, understood as our judicially enforceable rights, are dependent on the policy decisions of the political branches. Things are different with background rights. When we criticize the shortcomings of our actual institutional arrangements, as surely we must, we do so by reference to our background rights. We put forward views about what would be the optimal mixture of policy and principle. We point to the disparity between that optimal mixture and our institutional rights that, as things stand, may properly be enforced in court. It may well be that despite this disparity our political community is a legitimate one. Still, we can demand that it better track our background rights. Such a demand would be unintelligible if questions of right could only be raised against the backdrop of an actual policy decision of the political branches. Of course, it would be inappropriate for judges to raise such questions. But the reason for that is because it is not their job under the separation of powers to do so. That being said, I agree with Allan that in the context of particular legal disputes it is difficult to disentangle the various considerations of content and institutional design. Most of the time these considerations remain submerged beneath legal doctrines such as the Wednesbury test or the clear-​error rule whose purpose it is to summarize their interplay and make more manageable their application to particular cases. This should hardly be surprising. The conception of deference I have presented is about its deep structure, not its surface characteristics.75

IV. Conclusion If robust deference governs judicial duty under systems of constitutional review, as has been submitted, this surely entails more work for courts rather than less. For, robust deference bestows on courts the power to make delicate judgment calls regarding the proper combination of institutional design and content in different circumstances, the assignment of weight to different types of consideration and the resolution of individual cases. General accounts of deference are no substitute for those judgment calls. But general accounts can clear the way of misconceived arguments that distract judges from rising up to their role. And, perhaps more importantly, they can demonstrate   Ronald Dworkin, Taking Rights Seriously (Duckworth 1978) 93.   I hasten to add that Allan and I may still disagree about the appropriate degree of deference. Allan is adamant that, once the political branches have settled on a policy, it is the courts’ absolute privilege to judge whether that policy has adequately respected the individual rights that it implicates. Only if they are satisfied that it has, will they let it stand. What they may not do is abide by a morally suboptimal decision, as far as individual rights are concerned, just because that decision has been made by the competent authority. 74

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that, even if the role of judges under systems of constitutional review has expanded, it can be exercised in a manner that affirms rather than negates the contributions of the other branches of government. However, scepticism about deference does not come only from those who fear judicial activism. It also comes from those who look to courts to guarantee fundamental rights against political majorities. They will protest that deference is too capacious and can blunt judicial oversight. Addressing their scepticism is the topic of the following chapter. There we shall examine how deference can be made compatible with the important role of courts in fundamental rights protection.

8 Moral and Constitutional Rights I. Introduction The last chapter articulated a conception of the deep structure of deference. When you scratch beneath the surface, deference sometimes makes an epistemic difference. It may require that judges refrain from considering a certain issue that has been decided upon by an authority. Or it may require that they give the authority’s decision extra weight in their deliberation. Sometimes, though, deference does not only affect judicial deliberation; it actually changes what is the right thing to do; it may require giving effect to the authority’s decision, although it is sub-​optimal as far as its content is concerned on the strength of countervailing considerations of institutional design (robust deference). These two modes of deference can also be combined (composite deference). My primary aim was to give deference more precise content and show that, thus understood, it is not erratic and ad hoc but sensitive to reasons of political morality and amenable to rational application. As a result, the analysis remained abstract and conceptual. Although I discussed some well-​known examples of deference from judicial practice, I did so in order to illustrate how it is supposed to work in general. What I did not try to do is argue that judges are justified in showing the deference that they sometimes do. Chapter 6 did some of that work through the reconciliation it proposed between legislative initiative and judicial supervision. It showed that in order to uphold the value of being governed by a representative legislature, courts must show a measure of deference to legislative decisions. This deference, it was maintained, goes hand in hand with the important checks and balances role that judges can perform thanks to their independence. But our inquiry needs to be sharper than that. The point of focus throughout this book has not been judicial supervision in general but the legitimacy of constitutional review of primary legislation for its compatibility with fundamental rights. Hence, the moral case for it cannot be complete unless we bring the conception of separation of powers between courts and the legislature we have been constructing to bear on the peculiarities of this practice. More specifically, we will have to address an objection that for many theorists goes to the heart of judicial deference. Deference is anathema, they argue, not because it is haphazard and volatile, but because it is incompatible with respect for fundamental rights. Fundamental rights embody constitutional principles of particular weight and urgency. Compromising them is a price that a legitimate state should never have to pay, and constitutional review is there to ensure that this does not happen. Insofar as deference carries the risk that decisions that infringe or at least dis-​serve fundamental rights will stand, it should have no place in practices of constitutional review. To neutralize this line of argument I shall bring the relationship between deference and fundamental rights into sharper relief. I shall begin by distinguishing moral and constitutional rights. Drawing on TM Scanlon’s well known and controversial theory of rights I shall claim that constitutional rights are clusters of principles of political morality, not all of which correspond to deontological constraints about what under no conditions we may do to the right holder. Often they are animated by important Where Our Protection Lies. First Edition. Dimitrios Kyritsis. © Dimitrios Kyritsis 2017. Published 2017 by Oxford University Press.

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public goals whose urgency and priority should be left to be determined by the elected branches of government, regardless of whether we think that they have made a mistake. Importantly, some of these principles also reflect the importance of sharing fundamental rights protection amongst different participants in the joint project of governing. I thus conclude that there is nothing in the logic of constitutional rights that precludes judicial deference.

II.  What Are Constitutional Rights There For? A. Rights absolutism It might seem paradoxical that a book advocating the legitimacy of constitutional review would be as preoccupied with deference. It could be objected that this focus distracts us from the main purpose of contemporary practices of constitutional review and the gist of their moral justification, namely the protection of fundamental rights. This is the objection that we need to turn our attention to. And who better to articulate it than Ronald Dworkin? After all, Dworkin is widely portrayed as a champion of judicial activism. Moreover, one of his enduring contributions to constitutional theory is his view that many—​though not all—​of the rights enshrined in constitutional documents stand for moral principles. He calls this view ‘the moral reading’ of the constitution.1 According to it, the task of constitutional interpretation is to identify the general principles behind our constitutional rights and apply them to particular cases. Now, it is important that these be genuine principles, not patchworks with no internal coherence.2 Obviously, the rights that individuals have as a matter of political morality (or moral rights, as I shall refer to them from now on) are eminently qualified to play this role. For instance, it is rather compelling to think of the First Amendment to the US Constitution that states that ‘Congress shall make no law . . . abridging the freedom of speech, or of the press’ as protecting the moral right to free expression. Dworkin finds evidence to support his view in the abstract and sweeping language in which these rights are typically couched.3 He juxtaposes the moral reading to the originalist style of constitutional interpretation whereby constitutional rights protect only a laundry list of concrete applications of the relevant moral principle that the Founding Fathers believed or expected would follow from it. By contrast, Dworkin claims that the Founding Fathers are best understood as having given future generations an open-​ ended mandate to figure out for themselves how best to honour their commitment to those rights. This is why they spoke of freedom of speech rather than prohibit those practices which they thought flout freedom of speech. To further support the moral reading, Dworkin claims that the Founding Fathers’ choice—​to incorporate the commitment to moral rights in the constitution—​conforms to the logic of democracy. Dworkin’s understanding of this idea is idiosyncratic. He espouses what he calls the constitutional conception of democracy. The hallmark of the constitutional conception is that democracy ought not to be equated with majoritarianism. Rather, it is the form of government committed to the following aim: ‘that collective decisions be made by political institutions whose structure, composition, and practices treat all members of the community, as individuals, with equal concern and 1  Ronald Dworkin, Freedom’s Law (Oxford University Press 1999) introduction [hereafter Dworkin, Freedom’s Law]. 2 3  ibid 9.   ibid 8–​9.

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respect’.4 Equal concern and respect are analysed into more specific rights enjoyed by individuals, including rights that protect their moral independence, that is, their ability to choose for themselves what conception of the good life they will pursue, what religion to embrace, which books to read, and how to conduct themselves in their private life. So, wrapped up in the notion of equal concern and respect we find the very same rights that the moral reading reads into the constitution. The constitutional conception turns these rights into conditions of democratic governance. A regime that does not adequately respect them is not democratic. To appreciate how the moral reading bears on our discussion, we must combine it with Dworkin’s well-​known understanding of rights. As we saw in Chapter 3 Dworkin takes rights to be possessed by individuals and operate as deontological constraints on5 or trumps over6 the pursuit of collective welfare. That is, the fact that a policy advances collective welfare does not—​at least under normal circumstances—​cure the setback that it causes to one of our rights. Put differently, setbacks to our rights are not supposed to be aggregated with other benefits that may accrue from a policy as they would be in the model of unrestrained utilitarian maximization. You do not respect a deontological constraint by balancing it against other values. You must simply refrain from violating it, except perhaps in an emergency.7 Three things seem to follow from this. First, in order to apply the rights provisions of the constitution judges must engage in abstract moral theorizing regarding the content of the corresponding moral right. Presumably, this militates against epistemic deference in rights cases. Second, judges must only be guided by the moral right in question (at least in the normal case). If they were to balance the requirements of the right against other requirements, such as the ones that robust deference makes relevant to judicial duty, they would be doing precisely what deontological constraints do not allow them to do. Finally, on Dworkin’s view failure to give the right its due would strip a political decision of its legitimacy. This is so regardless of whether the decision is backed by a majority of citizens. The fact that it satisfies a popular majority means perhaps that the decision advances collective welfare. However, legitimacy depends on what rights we have as a matter of political morality, not on what people think we do, and these rights trump collective welfare. When seen in this light, it makes perfect sense to enshrine our moral rights in the constitution. By doing so we place them beyond the reach of majoritarian preferences.

B. Situating  rights Moralized constitutional theory shares many of Dworkin’s insights. It, too, aims to give the constitution a moral reading, because only on such a reading can the constitution demand our allegiance. It is also comfortable with the proposition that the rights we have as a matter of political morality are determinants of our constitutional rights. But I want to suggest, contrary to Dworkin, that there exists an important gap between constitutional rights and their counterparts in ideal moral theory. Consequently, I shall argue, constitutional rights adjudication is in principle compatible with deference,  ibid 17.   On such constraints see for instance Thomas Nagel, The View from Nowhere (OUP 1989) 175ff.   Ronald Dworkin, Taking Rights Seriously (Duckworth 1978) ch 6 [hereafter Dworkin, Taking Rights Seriously]. 7   Nagel claims that such constraints ‘cannot be explained by the hypothesis that the violation of a deontological constraint has high negative impersonal value. Deontological reasons have their full force against your doing something—​not just against its happening’. (See Nagel, The View from Nowhere (n 5) 177.) 4 5 6

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both epistemic and robust. In order to substantiate these claims I shall develop a conception of constitutional rights that is inspired by the theory of rights that TM Scanlon has propounded since his early work8 and applied to the right to freedom of expression in a series of influential papers.9 This conception departs from Dworkin’s in at least two respects. It is based on a different theory of political legitimacy and ascribes to constitutional rights guarantees a different function. Scanlon says that ‘a central concern of most rights is the promotion and maintenance of an acceptable distribution of control over important factors in our lives’.10 How do we decide what is an acceptable distribution? For Scanlon the case for the assignment of a right has the following components: i) An empirical claim about how individuals would behave or how institutions would work in the absence of this particular assignment of rights (claim-​rights, liberties etc). ii) A claim that this result would be unacceptable. This claim will be based on a valuation of consequences . . . taking into account also considerations of fairness and equality. iii) A further empirical claim about how the envisaged assignment of rights will produce a different outcome.11

Let me flag up two elements from this theory that are of particular interest for our purposes. First, for Scanlon, the ‘acceptable distribution of control’ is one that is likely as a matter of fact to avert certain states of affairs which are deemed undesirable along a number of dimensions including the dimension of fairness and equality. Fairness, equality, and the other dimensions of evaluation are to be understood as goals that rights must help achieve. Second, whether rights succeed in doing so depends in no small part on the social environment within which they will operate, as this environment is going to influence what will happen if individuals give away or retain an element of control over their lives. Thus, on this view ‘a fairly complex set of institutional arrangements and assumptions about how these arrangements operate stands, so to speak, between the formula through which the right is identified and the goals to which it is addressed’.12 Scanlon’s theory is of course highly contentious, and I am not going to defend it as a general account of rights. But the two elements highlighted in the preceding paragraph seem to me to capture important features of constitutional rights. A first feature is their function. Although constitutional rights perform many different functions, including expressive and exhortatory, an important reason—​perhaps the primary reason—​for having them is that a just and well-​ordered society is one that respects our fundamental moral rights, and we believe that by enshrining some of them in the constitution we help enhance that respect. How is this achieved? It goes without saying that the mere fact that a right has been elevated to constitutional status does not guarantee that it will be respected. Rather, the thought is that constitutionalization is part of an institutional response that is geared towards protecting those rights. This response involves institutional actors such as courts and legislatures making decisions about what rights we have, adjudicating disputes and disagreements, and designing policies and strategies to ensure that they will not be violated. 8   TM Scanlon, ‘Rights, Goals, and Fairness’ in TM Scanlon, The Difficulty of Tolerance: Essays in Political Philosophy (CUP 2003) 26 [hereafter Scanlon, ‘Rights, Goals, and Fairness’]. 9   TM Scanlon, ‘Freedom of Expression and Categories of Expression’ in Scanlon, The Difficulty of Tolerance (n 8)  84; TM Scanlon, ‘Content Regulation Reconsidered’ in Scanlon, The Difficulty of Tolerance (n 8) 151. These two articles modify the more deontological-​leaning approach taken in TM Scanlon, ‘A Theory of Freedom of Expression’ in Scanlon, The Difficulty of Tolerance (n 8) 6. 10 11 12   Scanlon, ‘Rights, Goals, and Fairness’ (n 8) 37.  ibid 35.  ibid.

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The second feature of constitutional rights that echoes Scanlon’s account is their justification. Similarly to moral rights on that account, constitutionalization has to be justified by appeal to the social and institutional reality within which a constitutional right will be embedded. This involves being attentive to the peculiar features of that setting and the factors that influence it. For this reason, I  shall call the alternative conception of rights defended here ‘situated’. Note that in situating rights within their social environment we do not have to regard such features and factors in a positive way. As Scanlon remarks, ‘[c]‌oncern with rights does not involve accepting these background conditions as desirable or as morally unimpeachable; it only involves seeing them as relatively fixed features of the environment with which we must deal’.13 But neither should we fall into the opposite trap of thinking that adhering to these background conditions always involves a moral loss. As I shall now try to show, there may be good moral reasons for doing so. Moreover, paying attention to the institutional environment in which constitutional rights are situated will augment the range of goals that they are meant to help achieve and significantly qualify their point.

C. Constitutional rights and political legitimacy Why should we prefer a situated conception of constitutional rights to the more absolutist one propounded by Dworkin? More specifically, why should we fold into our conception of constitutional rights elements other than the deontological constraints so intimately associated with the idea of rights as trumps? The answer to these questions takes us back to the organizing theme of the entire book, political legitimacy. On a number of occasions, I have repeated the familiar mantra that political legitimacy is not as morally demanding as ideal justice; political arrangements can be morally legitimate without being fully just. Likewise, it could be argued, we should allow for the possibility that decisions that fail to recognize or enforce a moral right still pass the threshold of legitimacy. This is correct as far as it goes. But it leaves unexplained why legitimacy warrants ‘discounts’ on justice to begin with. Lacking such an explanation we have nothing to say to those who counter that we should scrap legitimacy and pursue ideal justice instead. Why settle for second-​best? In response I wish to argue that it makes sense to stop at legitimacy, even if this means resting content with a set of constitutional rights that is inferior when judged against the set mandated by ideal justice. Let’s start by reminding ourselves that legitimacy is the response to a distinct moral problem, namely the justification of state coercion in the ‘circumstances of politics’.14 I have argued that this problem necessitates an institutional arrangement that systematically and reliably tracks justice—​otherwise the appeal of defection for those subject to the coercive force of the state increases. To do so, such an institutional arrangement must strive to address population-​wide as well as individual problems of justice. So it must be able to cope with the size and complexity of the society it governs. In addition, it must follow procedures that fairly distribute political power among all its members. It must also successfully coordinate the action of a vast number of officials who perform a broad range of public tasks in a way that earns the citizens’ trust. Needless to say, there is no certainty that public officials under this kind of arrangement will always get it right or be motivated to do the right thing. Still, we have reason to streamline and limit challenges to their decisions, not only in the name of efficiency but also in the name of fairness, especially given the fact of moral 13 14

 ibid 37.   Jeremy Waldron, Law and Disagreement (OUP 1999) 159–​61. See Chapter 1 section III.A.

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disagreement. For, when the system works reasonably well, producing a political settlement that commands general respect in the midst of such disagreement represents a moral achievement not to be underestimated. ‘The Constitution’, writes Sager, ‘aims not at a hopelessly artificial state of perfection’,15 and adds: ‘If legitimacy is taken seriously and literally, it has to be understood to comprise rather weak conditions, lest the vast bulk of governments past and present be pronounced illegitimate’.16 This is an admonition we must always bear in mind. Of course, we can and should expect political societies to sustain and improve upon that initial achievement. A political society can be more or less legitimate. Furthermore, there are certain failures that even that achievement cannot make up for; they are beyond the pale, so to speak. For instance, legitimacy sets a particularly high benchmark in the liberal democracies we are familiar with and consequently cannot excuse some moral errors, even if they were made bona fide. For example, we are fairly comfortable with the thought that some unjust tax laws are legitimate, whereas we cannot countenance a law permitting torture. In the previous chapter this sort of trade-​off was captured by the idea of balancing considerations of content and institutional design. I asserted that the interplay between content and institutional design defines the official duty of different participants in the joint institutional project of governing. Here I seek to connect this interplay with the duty of citizens to submit to a legitimate government. The underlying rationale is the same. By acting in accordance with the requirements of separation of powers that structure the joint project of governing, officials can make a better claim to the citizens’ allegiance, because separation of powers helps legitimate the exercise of state power. In turn, citizens do not have a ground for complaint when an official defers to the sub-​optimal decision of another participant in the project of governing, provided its defect is made up by the relevant considerations of institutional design. They should be willing to accept discounts on perfect justice as the price for a constitutional order that functions reasonably well for everyone. This account of legitimacy also transforms our understanding of constitutional rights. Undoubtedly, insofar as many—​though perhaps not all—​constitutional rights are meant to protect fundamental moral rights or give effect to fundamental moral principles, they offer something that is pertinent to political legitimacy. But it does not follow from this that a constitutional right should guarantee—​or that constitutional judges should enforce—​the full scope of the corresponding moral right or principle. This is because that right or principle is not the sole determinant of the content of the corresponding constitutional right. Since legitimacy is also sensitive to institutional design and the workability of the overall political order (by which I mean its ability to sustain reasonably just terms of social cooperation for everyone), considerations of this sort may compete with the requirements of the right in the specification of the official duty of this or that institutional actor.17 Consequently, legitimacy relaxes the grip of 15  Lawrence Sager, Justice in Plainclothes:  A  Theory of American Constitutional Practice (Yale University Press 2004) 147 [hereafter Sager, Justice in Plainclothes]. 16  ibid 146. 17   Interestingly, Dworkin seems to agree, at least in passing. According to him it is not sufficient that a conception of a right is morally appealing for that conception to be read into the constitution. In addition, that conception must be ‘consistent in principle with the structural design of the Constitution as a whole’ (Dworkin, Freedom’s Law (n 1) 10). Although Dworkin does not elaborate what this condition amounts to in much detail, he does seem prepared to take into account considerations of institutional design of the sort that I have been advocating. Judges, he writes, ‘must regard themselves as partners with other officials, past and present, who together elaborate a coherent constitutional morality and they must take care to see that what they contribute fits the rest’ (ibid). See relatedly Chapter 6. See also Christopher Eisgruber, ‘Should Constitutional Judges Be Philosophers?’ in Scott Hershovitz (ed), Exploring Law’s Empire (OUP 2006) ch 1.

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the deontological constraints imposed by the corresponding moral right or principle. To adjudicate claims of right we ought to consider more than just these constraints. The result is that, even if we are certain that a deontological constraint would apply in a specific situation, we may not be authorized to give it effect. Sager has spoken, quite aptly, of the ‘moral shortfall’ of constitutional justice.18 Crucially, the shortfall is measured by the standards of the moral right or principle that underpins a constitutional right. However, it is made up for by the gain in legitimacy. There is one school of constitutional thought that will not be in the least impressed by this implication of legitimacy. Proponents of proportionality claim that most constitutional rights can legitimately be limited if the benefit in the public interest from doing so outweighs the cost to the right. The proportionality camp is internally divided on the question whether and to what extent consideration of consequences should be restricted in the proportionality analysis.19 However, it stands united behind the proposition that constitutional rights adjudication involves such consideration as a matter of course.20 I am deeply sceptical about the understanding of constitutional rights underpinning this school of thought.21 I  am particularly sceptical about its consequentialist undertones.22 I  would argue that the proportionality test can and does make better sense without such consequentialist baggage. But I shall not make this argument here. Rather, I hope to offer a conception of constitutional rights that is neutral between proponents of proportionality and those rights theorists, like Dworkin, who insist that it is in the nature of fundamental rights that they cannot be routinely balanced against the public interest. It is the latter group of theorists that are more likely to resist my proposal. These theorists do not contest that constitutional rights adjudication must take into account empirical realities; any good deontologist will do that. Rather, what they object to is trading off deontological constraints against other non-​deontological benefits, and it might seem to them that the situated conception of constitutional rights advocated here is prone to eliminating the distinctive moral character of deontological constraints.

18  Sager, Justice in Plainclothes (n 15) 6. Sager uses this term to describe two phenomena. On the one hand there is the moral shortfall of constitutional justice as compared to political justice, which is due to the fact that we should only give constitutional recognition and protection to a requirement of political justice if it is ‘sufficiently urgent, concrete, and focused to function as an immediate, more or less nonnegotiable demand of constitutional conscience’ (ibid 150). On the other hand, there is the moral shortfall of the adjudicated constitution as compared to the whole of constitutional justice. This is because, as we shall see in more detail below, Sager maintains that courts ought to stop short of enforcing the full scope of constitutional requirements. In both cases, the moral shortfall is underpinned by a story of political legitimacy, with slightly different considerations of legitimacy driving each (in one considerations pertaining to the function of constitutions and in the other considerations pertaining to the role of courts). I am applying this idea to the more specific problem of the relationship between constitutional and moral rights. I am leaving out of my inquiry any moral rights that belong to political justice but cannot be included in the constitution. I am arguing that even those rights that do make it into the constitution are not guaranteed in an unadulterated form. 19   Contrast the rather restrictive approach in Mattias Kumm, ‘Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement’ in George Pavlakos (ed), Law, Rights and Discourse: On the Legal Philosophy of Robert Alexy (Hart Publishing 2007) 131, and the more undifferentiated approach to be found in David Beatty, The Ultimate Rule of Law (OUP 2005). 20   By this I mean that it is not merely exceptional in Dworkin’s sense. 21   I  have expressed my misgivings in Dimitrios Kyritsis, ‘Whatever Works:  Proportionality as a Constitutional Doctrine’ [2014] OJLS 395. 22  For criticism see Stavros Tsakyrakis, ‘Proportionality:  An Assault on Human Rights’ [2009] ICON 468.

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Such alarmism is unwarranted. The trade-​offs between rights and institutional design that I  have been advocating need not be grounded in some consequentialist moral principle. (Of course, they are probably also compatible with consequentialism.) We submit to a legitimate government not necessarily because we are under a duty to sacrifice individual welfare to the common good or to promote certain valuable states of affairs, impartially conceived. One could as well argue that we owe it to each other to do our share in a regime that is effective and reasonably just for everyone, and this includes being willing not to press one’s moral rights to their full extent. In fact, this duty could be given a deontological flavour. It might be said that my fellow-​citizens now have a right that I submit to a regime, despite its failure fully to protect my moral rights. Our participation in the same political society has changed the subject, morally speaking.23 This proposal allows for the possibility that some increases in efficiency are illegitimate. A hard-​nosed deontologist would insist, for instance, that legitimacy additionally requires that the costs of a reasonably just and effective regime—​including the risk that it may get it wrong—​be equally distributed among citizens and that special care is being taken to protect an inviolable minimum of core liberties for everyone.24 A thorough-​going consequentialist would be more willing to accept losses along the dimension of equality and liberty if we thereby increase aggregate compliance with justice. In the context of this book I cannot adjudicate between these two views. It suffices to stress that there are plausibly some costs that even a deontologist accepts may legitimately be borne in the name of sustaining a legitimate regime for all. In this respect she shares some common ground with the consequentialist. This common ground is also the springboard for my proposal. It could be countered that I  am downplaying the moral significance of constitutional rights guarantees. The right to freedom of speech is not of the same moral gravity as other imperatives of good government. This thought is captured by Dworkin’s contention that respect for certain moral rights rises to a condition of legitimacy. An act of government that violates, say, freedom of speech, is ipso facto illegitimate. Hence, insofar as constitutional rights enshrine moral rights, they should be regarded as laying down conditions of legitimacy. The institutional sanction (e.g. invalidation, rights-​ consistent interpretation) is merely a reflection of this moral fact. So the gap I  am trying to open between perfect justice and legitimacy may exist in principle, but it closes when it comes to the fundamental moral rights and principles that constitutional rights guarantees stand for.

23   Jonathan Quong and Rebecca Stone make the same point with regard to rules that aim to address non-​compliance. They claim that [a]‌lthough these rules may not perfectly reflect the rights people have under conditions of full compliance . . . they may nonetheless be justified from a deontological standpoint. And if they are so justified, then agents who comply with them are entitled to demand that others do likewise. And so the rules, though they are non-​ideal rules, alter the content of agents’ rights against one another. Jonathan Quong and Rebecca Stone, ‘Rules and Rights’ in David Sobel, Peter Vallentyne, and Steven Wall (eds), Oxford Studies in Political Philosophy vol 1 (OUP 2015) 222, 223. It could be said that legitimacy is partly a response to the risk of non-​compliance—​indeed non-​compliance on a massive scale–​and therefore the same deontological force should attach to its demands. Crucially, Quong and Stone distinguish their position from what they call ‘rights consequentialism’, namely the view that it is permissible to act on rules that infringe on moral rights if this results in an overall decrease of rights infringements. ibid 229ff. 24  ibid 231.

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This response is based on an equivocation between moral rights and constitutional rights. When a judge invalidates or declines to apply a statute, it is on the grounds that it flouts a constitutional right. It is this right that she ought to uphold. It would beg the question to claim that the constitutional right is the same as the moral right. I have said above that the former is determined by more than just the fundamental moral right that underpins it, say, the moral right in being able to speak our minds; it is also determined by considerations of institutional design. The legal judgment that a form of expression is protected under the constitutional guarantee of freedom of speech is one informed by both types of consideration. In turn, the invalidation of a statute that is found to violate freedom of speech is appropriate insofar as it constitutes a legitimate response under the extant scheme of separation of powers. I have been stressing the important moral forces that accommodate political reality within the constitution. It is important, however, not to go to the other extreme of supposing that the content of our moral rights is exhausted by what the constitution allows us to vindicate by legal means. There is more to political morality than legitimacy. We should not forget that the ‘moral shortfall’ of constitutional justice is a shortfall. Rather, prescinding from considerations of institutional design and pivoting only on considerations of content, we can and should imagine a more perfect polity. This vision should form the basis of our critique of current constitutional practices and the end-​point of our political aspirations.

III.  Constitutional Rights Operationalized In the previous section I argued that political legitimacy permits a ‘moral shortfall’ in the constitutional protection of moral rights. This shortfall does not merely mean that citizens should sometimes submit to an erroneous or at any rate sub-​optimal judicial decision that fails fully to uphold their moral rights. Rather, more ambitiously, it means that the scope and content of constitutional rights guarantees—​and in particular its judicially enforceable component—​must be determined in light of the more general aims of the political order. And since the political orders we are familiar with are also guided by separation of powers, constitutional rights must also depend on considerations specifying the content of this moral principle. The dependence of constitutional rights on such considerations can be seen very vividly in the constitutional doctrine of different jurisdictions. Here I shall limit myself to providing a general framework for this dependence, anticipating the kinds of things that we should expect to find in our more specific doctrinal inquiries. Scanlon argues that assignments of rights are a function of ‘a fairly complex set of institutional arrangements and assumptions about how these arrangements operate’.25 When we turn to constitutional rights, these institutional arrangements comprise a plurality of institutions that play a role in protecting fundamental rights. Here separation of powers helps identify the partners in the joint institutional project of governing and recommends a division of labour among them. Sometimes it does so on the basis that a particular division of labour delivers a more effective and sustainable protection of everyone’s fundamental moral interests. In Chapter 6 I gave my own take on the relationship between the democratic legislature and courts. Democratic representation, I claimed, instantiates an important value that is partly independent of the ability of 25

 Scanlon, Difficulty of Tolerance (n 8) 35.

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the legislature to get it right. Assuming I am correct, realizing this value also forms part of the goals that constitutional rights must be designed to serve or at least not to excessively hinder. At the same time, of course, we are interested in how our institutional arrangements operate as an empirical matter. Given the moral failures we can predict even a well-​constituted legislature will commit, I have said that we have good reason to set up a system of judicial supervision of legislation. Let’s now map this understanding of institutional cooperation on our concept of constitutional rights. If the joint project of governing, structured in accordance with a scheme of separation of powers, delivers or enhances legitimacy, constitutional rights should assign duties, powers, disabilities, and so forth among partners in the joint project so as to give effect to that scheme. For instance, Sager has proposed that some constitutional rights are judicially under-​enforced, in the sense that it is not for judges to enforce their full scope; beyond their judicially enforceable component it is the political branches, say the legislature, that are charged with giving them effect.26 So-​called social or socio-​economic rights can illustrate this point.27 Determining the content of these rights involves ‘staggering issues of strategy, priority and timing’, which the political branches are better equipped to appreciate and incorporate in their decision-​making.28 When faced with legislative decisions that purport to implement judicially under-​ enforced rights guarantees, courts are placed under a disability to cancel their legal effect and a liability to have their official duty changed by them. In other words, they must robustly defer to the legislature. This adds a layer of complexity to the relevant constitutional rights. It is not the case that they become truncated. As Sager reminds us, they ‘should be understood to be legally valid to their full conceptual limits’.29 By that he means at a minimum that they may impose more onerous duties on state officials other than courts. We can still fault those officials if they fail to discharge those duties. However, a state that puts in place a system of judicial under-​enforcement refrains from making available the sort of individualized remedy for its vindication that constitutional review would otherwise afford such as invalidation of the impugned measure. Thus, it restricts what citizens can demand from a court in the name of the relevant guarantee.30 This may come as a disappointment to those that associate rights protection with judicial enforcement. We encountered a number of incarnations of their view in Chapter  3. For some, we saw, judicial enforceability attaches to judgments of legal principle as opposed to policy, and claims of individual right are matters of principle par excellence. For others judicial enforceability is an expression of a procedural right to be heard. I claimed that they are all vulnerable to devastating criticisms. Here I have sought to go beyond such criticisms and erect a starkly contrasting conception of constitutional rights. Constitutional rights, I have claimed, are institutional creatures. They should be tailored to fit the institutional environment of the legal order that recognizes them. Effective protection of people’s fundamental moral rights is an important aim of the entire legal order, not only courts. Hence, on this conception  Sager, Justice in Plainclothes (n 15) 84ff.   Jeff King, Judging Social Rights (CUP 2012); Virginia Mantouvalou, ‘In Support of Legalisation’ in Conor Gearty and Virginia Mantouvalou (eds), Debating Social Rights (Hart Publishing 2011) 85, 107ff. 28 29  Sager, Justice in Plainclothes (n 15) 140.  ibid 88. 30   Conversely, to the extent that courts are permitted to scrutinize legislation for its conformity with some constitutional rights guarantees (or some aspects thereof ), these rights will include a different distribution of powers, disabilities, and liabilities among the principal institutional actors, and a corresponding augmentation of citizens’ judicially enforceable claim-​rights. 26

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judicial enforcement—​and the procedural right to demand it—​is treated as merely one strategy for achieving this aim, just as judicial supervision is one strategy for checking the legislature. This does not mean that our rights are left unprotected. Where courts cannot tread, other institutions may have to step in. There is one more implication of this view that we must confront. In political life we have no guarantee that the legislature will always live up to its constitutional responsibility. In turn, if a court robustly defers to it, it is likely that some legislative mistakes will pass under the judicial radar, because the court will not be able to reverse decisions that it judges to be morally sub-​optimal. If there is no appetite on the part of the legislature itself to correct them, these mistakes will define what citizens are entitled to in terms of the relevant constitutional right. This is a significant moral cost. Nonetheless, as I have been at pains to show, there are weighty moral (not necessarily consequentialist) considerations that can compensate it. You may insist, pace Sager, that this happens on account of ‘the institutional limitations of the judiciary, not . . . the best understanding of the Constitution itself ’.31 But if we start with the assumption that institutional considerations are part and parcel of the notion of constitutional rights—​inasmuch as they constitute parameters of achieving the goals these rights are meant to serve—​it becomes less clear why we should single out a ‘constitutional meaning’32 uncontaminated by such considerations. In fact, doing so could also be misleading. Remember, these considerations do not apply solely to the judiciary. The legislature is as much part of the institutional arrangement charged with protecting constitutional rights as the judiciary. It is therefore subject to its own limitations. Thus, if we ignore these limitations in specifying its constitutional responsibility, we risk flouting separation of powers. Conversely, if we define constitutional rights to closely reflect what the legislature ought to do in protecting them, we are likely to end up with a partial conception of them. By adopting the conception of constitutional rights proposed here we can see that not only robust but also epistemic deference may figure in constitutional rights adjudication. Each participant in the joint project of governing has shortcomings and limited epistemic and other capacities, with courts being no exception. These characteristics will rightly inform institutional design, as they furnish bases for the allocation of government power. Sometimes, they will recommend that the legislature be assigned the primary responsibility regarding a certain issue and that the courts robustly defer to its decisions, provided these decisions are supported by the proper balance of considerations of institutional design and content. But sometimes these characteristics will ground a further conclusion, namely that it would be wasteful or even risky to leave it to courts to figure out on a case-​by-​case basis how far their reviewing powers extend and how far they ought to defer;33 hence, that it would be advisable for them to adopt epistemic rules like presumptions that are designed to simplify ad hoc deliberation and  Sager, Justice in Plainclothes (n 15) 91.   Richard Fallon, ‘Foreword:  Implementing the Constitution’ (1997) 111 Harv L Rev 54, 57 [hereafter Fallon, ‘Implementing the Constitution’]. 33  This kind of consideration shapes constitutional rights even within the domain of judicial enforcement. Thus, Richard Fallon contends that the role of courts is to implement the constitution and that in doing so they ought to fashion doctrines to assist them (ibid). See also Mitchell Berman, ‘Constitutional Decision Rules’ [2004] Virginia L Rev 1. These doctrines are judged by how effective they are in putting the constitution into practice, not by how accurately they reflect what Fallon calls ‘constitutional meaning’. In fact, they sometimes trade accuracy for efficiency. Given the decentralized nature of the court system in many jurisdictions there is a need not only to find the right answer in one court but to ensure its consistent application by others. This favours the fashioning of doctrines that are easier to administer. 31 32

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maximize compliance with constitutional norms in the long run. Such rules need not always mandate deference, but very often they will. That is, they may prescribe that courts err on the side of caution by taking legislative determinations on particular issues at face value, say because with regard to these issues judicial error is more likely and will be more disruptive than legislative error.34 Like its robust counterpart, such epistemic deference has an impact on what falls within the scope of the relevant constitutional right and what can be judicially demanded in its name. If the court does not question a policy, it cannot find out if there is something wrong with it. This makes it all the more important that we distinguish constitutional and moral rights. Constitutional rulings should not always set the bar for what we can strive for. In our political struggles we should be institutionally savvy too. We should know in which institutional forum to raise a demand of right. It may be that this or that demand properly engages the legislature’s constitutional responsibility rather than the courts’. Of course, when courts are bound by a duty of epistemic deference, we are deprived of their discursive input. But this is not necessarily a reason to reject epistemic deference altogether. By adopting an abstinent stance, courts can also goad the legislature to live up to its responsibility. Constitutional guarantees are there not only to limit the legislature but also to orient its deliberation. Courts that always second-​guess legislative interpretations of the constitution or even pre-​empt them through broad constructions of constitutional principle could end up stunting the legislators’ sense of constitutional responsibility, a risk that Thayer was particularly alive to.35 Judicial rules of the sort discussed above may reduce the need for moral judgment by courts but do not eliminate it. This is not only because someone, perhaps a higher court, must come up with the doctrine in the first place. It is also because, when something as important as our fundamental rights is at stake, coordination cannot be an absolute priority. The system must have sufficient flexibility to take cognizance of intolerable injustices in individual cases. It should be noted that this flexibility in the application of the rule—​and the resulting instability—​does not cancel its value. Many legislative decisions do not risk causing intolerable injustice and can readily be encompassed within the rule. In all these run-​of-​the-​mill cases the rule helps courts economize on their epistemic and other resources, in order to devote them to their other responsibilities. A situated conception of constitutional rights should in principle be sympathetic to this holistic approach to judicial duty.

IV.  Disagreement. Again Political judgment is (also) moral judgment. This is nowhere more obvious than in cases implicating our constitutional rights. When we interpret constitutional rights, we (also) reason morally. We seek to articulate the best understanding of complex moral principles. In doing so, inevitably we disagree. Moral disagreement is intractable and also—​very frequently—​reasonable. As Mark Tushnet has put it, I have worked through the relevant materials fully, and I believe that this constitutional provision should be interpreted to mean thus-​and-​so, from which it follows that the statute we are dealing 34   We have encountered a similar line of thinking in Vermeule’s defence of institutional formalism. Chapter 6, s V.B.1. 35   James Bradley Thayer, ‘The Origin and Scope of the American Doctrine of Constitutional Law’ [1893] Harv L Rev 129.

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with is unconstitutional. But, I know that you have done just as much work with the materials as I have, and you disagree with me about what the provision should mean. You are wrong, but I see this as a disagreement about something over which reasonable people can indeed disagree.36

Since on the scheme of separation of powers advocated here the protection and promotion of constitutional principles does not belong exclusively to one state institution, moral disagreement is bound to be replicated at the institutional level. Different bodies, discharging in good faith their constitutional responsibilities, will come to different conclusions about the meaning of those principles. Under systems of constitutional review such disagreement will also find its way into courtrooms. The legislature might think that a bill is consistent with freedom of speech, whereas the reviewing court might take the opposite view. What is the court to do in this situation? We have argued above that institutional considerations such as the need for coordination or expertise may have a bearing on the content of constitutional rights. When a judge interprets such rights, he must be aware that he contributes to a joint project that includes inputs from its other participants. Sometimes this means that the judge must assign normative weight to inputs that are morally sub-​optimal. But should the mere fact that the legislature disagrees with him affect his moral calculation? Should he be reluctant to apply his own considered moral judgment just because it is controversial? One answer would be to say that Parliament is the appropriate forum, where these disagreements should be fought out and resolved, and courts should defer to the resolution of the elected representatives of the people. Lord Hope captured this idea nicely in the case of Pretty, which concerned the lawfulness of the criminal prohibition of assisted suicide of the terminally ill. He wrote:  ‘In the present uncertain climate of public opinion, where there is no consensus in favour of assisted suicide and there are powerful religious and ethical arguments to the contrary, any change in the law which would make assisted suicide generally acceptable is best seen as a matter for Parliament’.37 Elaborating on the same theme, Lord Bingham warned that [t]‌he [Appellate Committee of the House of Lords] is not a legislative body. Nor is it entitled or fitted to act as a moral or ethical arbiter. It is important to emphasise the nature and limits of the committee’s role, since the wider issues raised by this appeal are the subject of profound and fully justified concern to very many people. The questions whether the terminally ill, or others, should be free to seek assistance in taking their own lives, and if so in what circumstances and subject to what safeguards, are of great social, ethical and religious significance and are questions on which widely differing beliefs and views are held, often strongly.38

The court’s task, according to Lord Bingham, is not to take sides in these controversies by lending its support to one of the conflicting views, but ‘to ascertain and apply the law of the land as it is now understood to be’.39 Such a view could be said to be underpinned by a theory like Waldron’s. For him, as we have seen, disagreement is central to political legitimacy. It gives a certain shape to what a legitimate state policy can be. Because we disagree reasonably about our rights, we ought to justify political decisions concerning their meaning and relative strength by reference to the procedure that produced them rather than their substance. In particular, we ought to abide by procedures that give everyone’s view equal decisional weight. This applies to officials as much as ordinary citizens. Since judges cannot claim for their decision-​making egalitarian 36   Mark Tushnet, Weak Courts, Strong Rights:  Judicial Review and Social Welfare in Comparative Constitutional Law (Princeton University Press 2009) 23. 37   R (Pretty) v Director of Public Prosecutions [2001] UKHL 61, para 96 (per Lord Hope). 38 39   ibid para 2 (per Lord Bingham).  ibid.

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credentials, they must defer to decisions that have been reached by democratic means. Waldron, recall, does not restrict this claim to cases that involve issues of strategy and resource-​allocation or about which judges are uncertain. Even a judge who has absolute confidence in his moral judgment cannot impose his view on his fellow-​citizens, since that would mean that he is giving his own view vastly unequal decisional weight. In previous chapters I  argued that Waldron exaggerates the moral importance of disagreement in our political practices. Even assuming I  am right in thinking that reasonable disagreement does not completely pre-​empt judicial recourse to constitutional substance, though, we must still decide whether it should hold any weight at all. Should we side with Dworkin and maintain that constitutional interpretation is a protestant matter, to be guided solely by one’s moral conscience?40 Richard Fallon thinks otherwise. To be sure, Fallon does not harbour a thorough going scepticism about constitutional review or, indeed, about the courts’ ability to reason their way to moral certainty. Although he claims there is reason to want to economize on judicial recourse to political morality, he acknowledges that this may be both necessary and desirable. Nonetheless, he thinks disagreement poses an additional limit to such recourse. According to him, ‘the Court, in specifying the meaning of constitutional principles, must be accountable at least in part to manifestations of reasonable moral and political commitments displayed by the citizenry’.41 Now, there is no doubt that even in systems of strong constitutional review courts may be bound to defer to ‘moral and political commitments displayed by the citizenry’ because the interplay between considerations of content and institutional design so dictates. These commitments, we have said, are ‘reasonable’ in the sense that, even if they suffer from shortcomings along the dimension of content, these shortcomings are compensated by considerations of institutional design. To this extent, then, Fallon does not seem to be saying anything different from what we have been arguing all along. However, he does not stop there. Even a court with the authority of the US Supreme Court, he says, ‘has good reason to doubt its capacity to lead moral opinion effectively if it were to push too far ahead of prevailing sentiment with respect to many controverted issues’.42 In doubting the courts’ suitability to initiate and effect society-​wide moral change, Fallon echoes a sentiment that found its characteristic expression in Alexander Bickel’s vision of the constitution. Bickel instructs judges to employ the so-​called passive virtues in order to postpone confronting constitutional questions until public opinion is ready to accept a novel understanding of a constitutional principle with serious societal implications.43 Note that neither Bickel nor Fallon recommends that constitutional review be abolished. Both of them are comfortable with giving courts the power to strike down legislation that they find unconstitutional, and they would be loath to see this power neutralized by making courts always yield to a contrary legislative will. In this respect they differ from Waldron and hence are not vulnerable to the same criticisms. Presumably, though, they take some instances of disagreement to be special,   Dworkin insists that constitutional judgment should be constrained by precedent, of course. 42   Fallon, ‘Implementing the Constitution’ (n 32) 145.  ibid 148. 43   Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (2nd edn, Yale University Press 1986) ch 4. Of course, unlike Fallon, Bickel does not state that it is the courts’ duty to defer whenever popular opinion stands resolutely opposed to their interpretation of constitutional principle. On the contrary, by employing the passive virtues they ensure that they will not lend constitutional permissibility to a policy that offends constitutional principle, as they understand it, just so as to avoid a confrontation with a majority in society. I set this important difference aside because my interest here is with the more basic question whether prevailing opinion, especially if it is reflected in a legislative decision, gives courts reason to step back from controversial moral issues at all. 40 41

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inasmuch as they reflect a prevailing moral sentiment among the population at large. In these instances, the argument goes, courts should balk at taking on the nation in the name of constitutional principle. It might be thought that political legitimacy supports Fallon and Bickel’s view. A legitimate state must be based on sufficiently broad support to be capable of inspiring trust. A state with policies that are at odds with popular feeling is likely to lose that support.44 Judicial activism accentuates this risk. It is bad enough if courts catch the body politic off guard by initiating reform in an area of law where it has not spoken (at least for a long time). It is even worse, one might say, if they push through reform in the face of explicit opposition to it as expressed in a (recent) legislative decision, which is what typically happens under systems of constitutional review. After all, legislative decisions are authoritative partly because they are made with an eye to the need for popular support. Furthermore, if the legitimacy of practices of constitutional review is measured (also) by their effectiveness, then it seems that institutional design must be sensitive to this kind of concern. Just like any other state institution, courts should arguably be wary of squandering their political capital on a highly conflictual battle, if it is likely that this will reduce their authority across the board.45 And yet, there is something deeply unsettling about this picture of judicial duty. Sager thinks this is because it undermines the principled nature of adjudication. He writes: Deliberation compromised by a thick overlay of political caution is in danger of losing much of its value as deliberation. It is hard to conceive of an open and articulate regime in which judges routinely and self-​consciously share their decisional responsibilities on an all-​things-​considered basis with as diffuse a force as the judges’ sense of the breadth and intensity of contrary public opinion.46

Of course, as a general matter deference need be neither diffuse nor unprincipled. Judgments of deference can be wholly above board, based on considerations of institutional design that legitimately check a judge’s pursuit of constitutional ideals. Perhaps, then, it is not deference in general that is objectionable but the standard that supposedly governs judicial deference in these cases, namely the breadth and intensity of contrary public opinion. Admittedly, it rings rather vague and unwieldy. How do you gauge public opinion? How many people must oppose a course of action for the duty of deference to be triggered? Can higher intensity make up for lack of breadth? Nevertheless, we should not exaggerate our difficulty in answering these questions. After all, it is not true that public opinion should never form the basis of political judgment. It is precisely the responsibility of elected officials to heed the views and interests of their constituents and calculate the popular support for any given policy. In fact, their task is even more complex than this, because it does not consist in slavishly following public opinion but in combining the need for popular support with moral innovation. If we do not think that this is a radically indeterminate task for legislators, then it is not clear why it should be for judges. Perhaps the problem lies elsewhere. Arguably, political caution counsels secrecy and disingenuousness, which are inimical to principled deliberation and the articulation 44   Similar considerations are invoked to constrain the power of courts in systems of constitutional review by Aileen Kavanagh, ‘Deference or Defiance? The Limits of the Judicial Role in Constitutional Adjudication’ in Grant Huscroft (ed), Expounding the Constitution:  Essays in Constitutional Theory (CUP 2008) 184, 203–​07. 45   Conrado Hübner Mendes, Constitutional Courts and Deliberative Democracy (OUP 2013) ch 8. 46  Sager, Justice in Plainclothes (n 15) 212–​13.

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of a reasoned judgment. It is worth recalling at this point that Bickel’s judges do not declare that they are dodging an unpopular constitutional issue; they use the passive virtues to hide their tracks. However, it is unlikely that many people will nowadays be shocked to find out that ‘ascertaining and applying the law of the land as it is now understood to be’ is not as innocuous as Lord Bingham made out, at least in the context of rights adjudication. At any rate, we could easily imagine a system where judges wore political caution on their sleeves. I suspect that our discomfort with judges budging to popular opinion would not disappear. It seems to me that the flaw in Fallon and Bickel’s call for judicial restraint runs deeper than the aforementioned critiques suppose. It has to do with the fact that, if judges are expected to act out of a sense of political expediency and temper their power of oversight to fit the public mood, they undermine their independence, the moral basis for the assignment of that power. Courts act autonomously not only when they are not under hierarchical control by the body they supervise but also when they are not subject to the same pressures as that body. This advantage would be lost if they had to take the pulse of public opinion in order to avert popular backlash to their rulings; it would force them to think like legislators. It might be argued that public opinion is not just any pressure; it is the right sort of pressure. Nobody thinks judicial independence is compromised because it is subject to the demands of reason. It is the same with public opinion. Judges must heed it not because we want them to act subserviently but because we want them to act legitimately, and acting in step with public opinion is a requirement of legitimacy. However, this would be far too quick. As I showed in Chapter 6, all that representative democracy requires is that a body systematically and regularly subject to electoral pressure must have the initiative in designing public policy. If all this is in place, it does not require—​additionally—​that all decisions be made by the people or conform to their views. It does not even require that the people have the final say. Hence, it cannot lend support to the idea that the people should have veto power over constitutional rulings, as Fallon and Bickel suggest. Maybe, though, it is not democracy that underpins the imperative to defer to popular sentiment, but stability, which, as mentioned above, is also a dimension of legitimacy and requires that the political order maintain a level of popular support. Now, I  do not want to deny the disruptive potential of unpopular constitutional rulings. However, it would be a mistake to think that, just because stability is important for legitimacy, it should apply uniformly to all state officials. We ought to bear in mind that legitimacy is the standard to which we hold the joint project of governing as a whole. It may be enough, therefore, that a particular consideration is accommodated in one corner of the project rather than across the board. This is why the project of governing comprises a plurality of state institutions, each with its own characteristics and remit. Accordingly, if democratically accountable institutions engage the citizenry in political decision-​making in a meaningful and effective way and thus mobilize sufficient popular support in the political order, other participants in the joint project can afford to shut out public opinion. In turn, citizens educated in the value of legitimacy and separation of powers will know that their frustration at a constitutional ruling they deeply oppose is a price worth paying for being governed by institutions that are structured so as better to claim their allegiance. Add to this that, even though judgments about the extent of popular support may in general be determinate and pertinent to the question of legitimacy, courts are not well equipped to make them. Recall the principle of purposive interrelation introduced in Chapter 2. We are justified in assigning a task to a body that has the capacities to carry it out reasonably well. Lacking the

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incentive and informational channels to maintain a sense of the public mood, courts are rather bad candidates for promoting the stability of the political order. There may of course be instances where they must act outside their normal role and consider the political repercussions of their rulings—​say, because the stakes are inordinately high—​ but these are bound to be exceptional. We should not let such exceptions erode our sense of their regular official responsibility.

V. Conclusion Do constitutional rights guarantees commit states to judicial supremacy? In this chapter I argued that it is a mistake to think of such guarantees as mirroring the demands of perfect justice. Threaded into them are other considerations pertaining to the institutional arrangement charged with their protection. These considerations structure institutional cooperation so that it can make a stronger claim to legitimacy. Importantly, they allow deviations from perfect justice for the sake of achieving a reasonably just and effective political order overall. I concluded that, although courts must uphold constitutional rights, they must do so within the confines of their role, mindful of the fact that they share this task with other state officials. Sometimes this requires that they not interfere with their partners’ efforts. Judicial deference inevitably forms an important component of their role, since it partly operationalizes the separation of powers between courts and the political branches. The concept of constitutional rights must be kept flexible enough to reflect the dynamic balance between state institutions and their different contributions to rights protection. There is no reason to think that different constitutional rights will have the same structure and urgency. Arguably, a state that must eliminate the lingering effects of a sectarian past has more pressing reason to constitutionalize a right to freedom of religion. This partly explains why bills of rights do not follow the same template but exhibit a certain degree of variation. Likewise, there is no reason to think that the same constitutional right will have identical content across different jurisdictions. In a state with a poorly resourced judiciary a higher degree of deference is likely to be warranted in rights cases; even if the political branches are not particularly good at making decisions about rights, courts in that state may be unable to improve things. We can bemoan this state of affairs as much as we want, but ultimately constitutions are morally assessed by their real-​world contribution. An effective constitution is one that does not systematically pit the political order against the people, because otherwise it risks instability. However, this does not mean that, when implementing rights guarantees, judges should act as politicians, anticipating popular reaction to their rulings. Constitutions issue different instructions to different constitutional actors. So, a good constitution achieves political stability primarily through the acts of the political branches such as the democratic legislature. By contrast, judges should not hesitate to clash with the legislature—​and public opinion—​when their official duty so commands.

9 Dynamic Separation of Powers I. Introduction The issues that have been explored in this book, issues surrounding the power of judges to monitor the legislature in the name of fundamental rights, are of the highest moral importance. It is no surprise that they have attracted the attention of political philosophers. But I have claimed a further role for political philosophy in the study of constitutional review. I have said that under the auspices of moralized constitutional theory (MCT) political philosophy acquires doctrinal relevance. It can help determine the correct answer to difficult and contentious doctrinal questions of constitutional law. These questions hang on moral judgments about how constitutional law contributes to the legitimacy of the political order. In the last two chapters I sought to articulate a conceptual framework for facilitating the interaction between the law and moral theorizing by showing how political philosophy also animates central concepts of constitutional doctrine such as constitutional rights and judicial deference. Admittedly, though, I did not take a stand on the many disagreements that divide constitutional lawyers today, say, about whether weak or strong constitutional review is preferable or about the extent to which deference is permissible in rights adjudication. Arguably, then, I have exposed myself to a renewed attack by those who doubt my preferred conception of separation of powers addresses the concerns of constitutional lawyers due to its heavily moralized slant. According to these critics, the division of competences among state bodies—​including courts and the legislature under systems of constitutional review—​is also—​and primarily—​an operation of law. However, actual constitutional law persistently defies the prescriptions of theory. Hence, the more moralized our understanding of separation of powers the less relevant it will be to doctrinal questions. Lawyers can receive but scant guidance from the latter. Quite the opposite, if they are guided by it, they run the risk of being led astray; it is the law, not theory, that will tell us whether courts should practise weak or strong review around here or defer to the legislature on matters of socio-​economic rights. In addressing this objection, I shall revisit the relationship between MCT and political history. This will give me the opportunity to further develop the understanding of separation of powers put forward in Chapter 2. Many lawyers view moral truths as fixed and immutable—​in fact, this might be one of the reasons they maintain morality should have a very limited place in constitutional theory and practice. By contrast, I shall say that MCT recommends a dynamic separation of powers, where the roles of the participants in the joint project of governing change in response to novel circumstances. Once again, this claim is pitched at a very abstract level. Still, it has substantive bite. Sceptics object to constitutional review not only because it grants courts the power to pronounce on contentious questions of political morality but also because it seems to give them leeway to determine the scope of their own power, at least to a great extent. If it is true that separation of powers is dynamic, as I shall maintain, the aforementioned feature of constitutional review appears much less threatening than the sceptics suppose; in fact, there are good reasons of political morality why judges may—​and occasionally must—​play a role in updating the ground-​rules of the joint Where Our Protection Lies. First Edition. Dimitrios Kyritsis. © Dimitrios Kyritsis 2017. Published 2017 by Oxford University Press.

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project of governing. The argument I shall be making echoes to some extent Ronald Dworkin’s take on the legal mantra that ‘law works itself pure’.1 Like Dworkin, I shall claim that adjudication can alter practices of constitutional review ‘through a series of steps, none of which would be revolutionary, each of which would build on and take its place within the structure already in place’.2 With this claim I shall conclude the substantive part of the book. The chapter will end with a summary of the entire argument.

II.  Justification and Description In a thoughtful review article of Stephen Gardbaum’s The New Commonwealth Model of Constitutionalism Jeff King argues that much contemporary constitutional theory suffers from a conflation of descriptive and justificatory enterprises.3 He warns constitutional theorists against ‘[wanting] to have things both ways, by claiming simultaneously to describe and justify a practice, implying that it only needs tinkering at the margins to fully respect the ideal it implicitly subscribes to’.4 Such ‘equivocation about description’5 is liable to mislead. If your aim is to prescribe changes to legal doctrine, says King, it is preferable to do so openly and explicitly rather than argue that these changes constitute aberrations from the way a legal order ‘is supposed to work’.6 There is nothing defective, legally speaking, about a rule that deviates from the ideal to which the legal order is allegedly committed. If it does, so much the worse for the ideal. Conversely, the equivocation waters down our prescriptions, too, because it tethers them to the imperfections of the actual. So when we describe the state of the law, we must ensure not to airbrush or downplay how the law departs from the ideal. When we prescribe, we ought to fix our attention solely on normative considerations. Perhaps the account of constitutional review advocated here falls prey to the same equivocation. It portrays separation of powers as an attractive ideal to which political societies must aspire. But if it has any bite, then surely some of them must fail it, in the sense that they establish an otherwise legally valid constitutional order that flouts its requirements; in this case the account cannot describe the law in those political societies. In turn, if separation of powers is so thin that all constitutional orders (even horribly defective ones) can be said to comply with it, then the ideal loses its appeal. A similar charge has been levelled by John Manning against theories embracing what he calls a ‘freestanding principle of separation of powers’.7 Sure enough, such a principle may furnish a benchmark against which we can evaluate existing institutional arrangements. Maybe, for instance, a legal system is more legitimate when it adheres to separation of powers. However, the principle is of no use for determining the content of the existing institutional arrangement in this or that jurisdiction. For the latter, we need to look at the power-​allocating decisions of the drafters of the constitution. Although in making these decisions the drafters may have been inspired by or considered separation of powers, there is no guarantee that they followed through with its 2   Ronald Dworkin, Law’s Empire (Hart Publishing 1998) ch 11.  ibid 409.   Jeff King, ‘Rights and the Rule of Law in Third Way Constitutionalism’ [2015] Constitutional Commentary 101. 4   ibid 111. King accuses Stephen Gardbaum of such a conflation. My interest is not with his critique of Gardbaum’s theory, but rather with its more general methodological implications. 5  ibid 111. 6   Stephen Gardbaum, The New Commonwealth Model of Constitutionalism (CUP 2013) 229. 7  John Manning, ‘Separation of Powers as Ordinary Interpretation’ [2010–​ 11] Harv L Rev 1939, 1944. 1 3

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requirements. In fact, given the various political imperatives that they would have had to juggle, it is highly unlikely that their decisions reflect any one coherent conception of how political power ought to be distributed and checked. But if that is the case, it would distort those decisions to interpret them in light of an abstract moral conception they probably did not mean to put in place, at least wholesale: Viewed in isolation from the constitutionmakers’ many discrete choices, the concept of separation of powers can tell us little, if anything, about where, how or to what degree the various powers were, in fact separated (or blended) in the Philadelphia Convention’s countless compromises.8

Manning focuses on the US Constitution, but his point can be generalized in two directions. First, it applies across jurisdictions. In fact, an extreme version of Manning’s point has arguably been advanced by Sir Ivor Jennings with regard to the UK Constitution.9 Jennings famously contended that separation of powers was not applicable in the UK of his time. Surely, one might argue, if what calls the shots is the actual institutional arrangement political history has produced, nothing guarantees that separation of powers will not be wholly discarded, say, through the establishment of a system of absolute parliamentary sovereignty. Second, it can apply to systems that do not possess a formal constitution. Even in such systems allocation of government power has been established in a more or less stable manner, say, through a series of Acts of Parliament of constitutional import. Arguably, it is even less likely that these various sources, which may be years apart, will jointly produce an institutional arrangement that complies with the moral idea of separation of powers or indeed is anything more than a patchwork full of tensions and gaps. Now, it is no secret that the conception of separation of powers defended in this book has been worked out abstracting from any actual constitutional choices. I did not pretend to do more than present the general features of schemes of separation of powers. Even so, my account may still be thought as freestanding in Manning’s sense and thus vulnerable to his objection: Though it can be relevant to our critique of the extant allocation of government power in this or that political order, it is of little use when trying to describe it.

III.  Constitutional Design by the Courts A. The office of the founding father There is a general reason to be sceptical about King and Manning’s charge. As I argued in Chapter  1, when it comes to answering the hard legal questions that are at the heart of the relationship between constitutional courts and a democratic legislature, we should not expect that what the constitution requires can be determined in a value-​free manner. Whether or not you are a legal positivist, you cannot but recognize that historical facts by themselves are insufficient to determine the answer to such questions. If that is so, then there is a foothold for the ideal of separation of powers to have doctrinal relevance; it becomes one of the moral principles that determine the legal answer to hard constitutional questions. That is not to deny that contingent political choices alter the constitutional allocation of power between them. However, separation of powers itself bestows this effect 8 9

 ibid 1945.   Ivor Jennings, The Law and the Constitution (5th edn, University of London Press 1961).

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on such choices. They have the significance they do partly because they were made by bodies to which separation of powers assigns the responsibility of shaping the constitutional order. Put differently, it is partly because a political choice is underpinned by separation of powers (and other relevant principles of political morality) that it can alter the constitutional allocation of power. Take a constitutional text enacted by a properly constituted constitutional assembly and the same text favoured by a constitutional scholar. What makes the former binding on a political society is the moral authority of the decision-​maker. Separation of powers awards constitutional authority in exactly the same way that it assigns authority at the sub-​constitutional level. To see this, consider first that the founders of a democratic polity typically possess certain credentials. They are commonly drawn from those who led a people through war to independence or the overthrow of a repressive regime, those who are widely recognized as constitutional experts and those who can credibly claim to represent big segments of society. And, in turn, amendments to the scheme of allocation of government power are typically made through procedures that enjoy a strong democratic mandate. That is no accident. Possession of such features gives us moral reason to submit to the relevant decisions. This proposition is unlikely to be met with doubt. How else can we cash out the import of principles of political morality such as democracy other than in terms of a reason to adhere to a regime that complies with them? But the converse is also true: Absent such reasons the social fact that someone has made a decision about how our polity should be governed would not make a practical difference to the powers and duties of other state institutions. Now, this proposition might be more controversial. However, it will seem less so if we consider the goal towards which the project of governing is geared, namely to preserve the enduring legitimacy of the legal order. The joint institutional effort cannot have binding force on its participants, unless it is in line with this goal. Legitimacy demands that the assignment of tasks in that effort be based on a morally appealing scheme of division of labour and checks and balances. The same goes for the constitutional allocation of power. In order for the drafters and those who continue their job by updating the constitution to play the crucial role that they claim for themselves, separation of powers must tell in their favour. Their authority must flow from a division of labour of a higher order, as it were. The special credentials that we expect from them reflect that division of labour. I do not mean to sound overly sanguine about constitutional politics. The authority to enact a constitution is also—​and crucially—​a matter of the ability to marshal public support for the regime you design and to secure the cooperation of powerful institutional and political players.10 This ability must also be factored into the division of labour. It sometimes makes sense to settle for a constitution that has less than pristine pedigree if this is the only realistic chance of having a constitution in the first place (provided one is needed). All I am arguing is that we must have some reason to accept this or that constitutional settlement that refers to the goal of political legitimacy. Otherwise, what difference does it make that some people signed a piece of paper? The account of the preceding paragraphs connects constitutional doctrine and legitimacy, thereby bolstering the moral appeal of constitutional rules. It is precisely in this sense that it becomes both doctrinally relevant and justificatory. And so we return to King’s warning: We should either describe or prescribe, but doing both is a muddle. To this the answer is that it cannot be a muddle because an element of prescription is 10

  Leslie Green, ‘The Duty to Govern’ [2007] Legal Theory 165.

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essential to determining the content of the law, at least in the hard constitutional issues that we are concerned with here. It is made essential by the centrality of legitimacy as the guiding star of constitutional law. It follows from this that there are bound to be regimes that are condemned by the relevant principles of political morality and hence cannot claim legitimacy. About those regimes MCT insists that they may be effective but are not governed by law. This verdict would apply to Nazi Germany or apartheid South Africa, but it is most likely not true of the liberal democracies with which we are most familiar and which provide the main focus of this book. Still, prescription alone will not do. On the conception of separation of powers advanced here the extant allocation of government power is not solely a matter of abstract moral theorizing. Constitutional enactments are the product of political circumstance. As such they do not necessarily follow the precepts of ideal political theory. We do not determine how power is allocated simply by reflecting on how things ought to be. Rather, as Manning is right to insist, we also defer to the history of a given political community. It is a question of political history which of the many possible institutional arrangements the founders of the constitution settled on. As is how this institutional arrangement has been modified over time. A noteworthy consequence of the fact that the joint project of governing is sensitive to political history is it allows some—​perhaps considerable—​slack in the precise content of the constitutional allocation of power. In this sense, too, the conception put forward here sides with Manning. It provides that the role of different participants in the project of governing will depend on the—​often suboptimal—​choices of the founders of the constitution. Because of their authority even their mistakes will sometimes bind us, at least to some extent. Moreover, inasmuch as MCT allows that a constitutional rule can be morally binding even if sub-​optimal (within certain limits) provided that it has been enacted by the right body—​such that considerations of institutional design make up for its moral deficit—​it cannot be too prescriptive about which constitutional orders are legitimate. It recommends that, rather than work top down, we ought to start from the ground up. We survey the political history of a certain jurisdiction and with principles of political morality as our yardstick we try to identify what is the legal import of that history. This elasticity is manifested in our assessment of strong and weak constitutional review in previous chapters. We found that, since there is no knockdown argument in the abstract in favour of either system, the choice of the founders will fill the gap and make one or the other the legitimate system in a particular jurisdiction. However, Manning is wrong to draw the conclusion that the principle of separation of powers is thereby rendered irrelevant to the determination of the constitutional allocation of power. In interpreting the choices of the founders we are guided not just by their intentions, such that they were, fraught with compromises and tainted by their biases and blunders. Rather, we are also guided by the overarching goal that the joint project is meant to serve, which also governs and shapes the impact of the founders’ contribution. If a constitutional choice would seriously undermine this goal, it cannot hold sway over officials with a responsibility to exercise public power legitimately.11 Whether this is so will be measured by reference to none other than the checks-​and-​ balances and division-​of-​labour considerations undergirding the principle of separation of powers. Our guide in making this assessment will be the idea of purposive interrelation. There are some configurations of procedure and substantive task that are 11

  We will explore some implications of this in section III.C below.

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morally permissible and others that are ruled out by the principle of purposive interrelation; this principle identifies cases where it is either morally objectionable to assign a certain governmental power to a state body that follows a certain decision-​making process or it is practically impossible for that body adequately to exercise this power given its composition, decision-​making process, or its position vis-​à-​vis its fellow-​ participants in the project of governing. Again, this kind of exercise was on display in our discussion of strong and weak constitutional review. In order to conclude that they were morally eligible arrangements we first had to evaluate them in light of the principle of separation of powers.

B. A familiar objection The picture emerging from the preceding analysis is one where the founders of the constitution are treated as participants in the joint project of governing. The mere fact that they could be long dead and the founding moment locked in the distant past does not entail that they are extraneous to the joint project. After all, the legislative decisions that courts of today have a duty to enforce can be very old as well. This line of argument may give rise to the following objection: When the constitution was drafted, the founders were the sole institution of the legal order, since all other institutions derive their authority from the constitution they created. So it seems that they enjoy not just temporal but logical priority. You need a creator to have a creation. If so, the former cannot be involved in a joint project with the latter. We should not let this all too familiar formalism distract us. Its artificiality is obvious when we turn our attention from the singular decision of the Founding Fathers to other decisions of constitutional moment. Particularly in legal systems without a formal constitution such decisions are hard to distinguish formally from other run-​of-​the-​mill political acts of the body that makes them. Even when a special amendment procedure set out in the constitution is being followed, this takes place more or less alongside the normal functioning of the legal order, sometimes by the ordinary legislative body. Here contemporaneity is undisputed. Of course, from a doctrinal point of view contemporaneity does not shake the logical priority of, say, a constitutional amendment that creates a devolved legislative body over the decisions of that new body. Still, it is hard to deny that the body that authorized the devolution participates in the same project as the devolved body that it has created. The act of the former is subservient to the aim of decentralizing the exercise of public power, which is also the aim that the devolved body will serve once the new scheme of power allocation is in place. We have here all the elements of a joint project: a plurality of bodies, each performing a different role, each responsive to the other’s actions, all of them united in the pursuit of a common aim. Insisting on the logical priority of the creator over the creation misses the point. Things are not that dissimilar in the case of the first constitution. To begin with, at an empirical level formalism conceals the reality that even the constitutions representing a major break with the past were not created in a political vacuum but frequently relied to a great extent on existing institutions. More crucially, though, even if it were accepted that the contribution of the founders is logically prior to the existence of all other state institutions of a political order, this does not alter the fact that the office of the former—​just as much as that of the latter—​is conceptually subordinate to the joint project of governing as a whole. In order to get going, a project of this magnitude must be designed, at least in its broad parameters, with some key offices defined and some important powers distributed. This is the task—​or the institutional role—​that under the joint project is assigned to the founders of the constitution. If it weren’t for the fact

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that they participate in the joint project of governing, we would have little reason to pay attention to their creation.

C. Constitution in motion To constitutional lawyers well-​versed in the constant interaction between law and politics the preceding analysis may sound rather sanitized. In addition, it may seem overly static. It arguably gives the false impression that, once a morally legitimate constitutional order has been created, it determines the duties of institutional actors in a definitive manner—​at least until the next constitutional amendment. However, the political orders with which we are familiar are much more dynamic than that. So it is not enough to take a snapshot of the extant separation of powers. In addition, we must take a closer look at the means by which changes to institutional roles are effected. Importantly, we ought not to be oblivious to the possibility that institutional actors might enjoy powers to bring about these changes beyond formal procedures. So in this section I wish to add flesh to the skeletal explanation offered in the last two sections. By so doing I also seek to highlight the dynamic character of separation of powers. Constitutional arrangements, I shall maintain, are constantly evolving, and separation of powers holds the key to their evolution. Mechanisms of constitutional review are no different in this respect. They, too, undergo changes, and separation of powers can help us determine which of these changes are legitimate. I wrote above that I  shall argue for the dynamic character of separation of powers. But I  am going to start from the opposite end, by examining its resilience or ‘obduracy’.12 We have strong moral reasons not to want to change the constitution. As a general matter, any profound change that would result in a significant transfer of power will naturally be resisted by the group that stands to lose from it. Of course, this does not suffice to make change wrong. But we should not forget that legitimacy is an achievement that is attained in the midst of disagreement and conflict, which is partly why it is so precious. Change may upset a hard-​won political equilibrium. The extant scheme of separation of powers is one of the primary vehicles for sustaining that equilibrium. We may be more inclined to accept this proposition when it comes to the allocation of power between the political branches, say between the Upper and Lower House of the national legislature or between the legislative and the executive branches or between the federal and state levels of government, and less so with respect to the relationship between the legislature and the judiciary. After all, it is in the composition of political institutions that the different factions of society are primarily reflected and it is by vying to control them that they primarily seek to advance their cause. However, it would be a mistake to think that, just because judges are functionally independent and hence supposedly above the partisan fray, a transfer of power to them and away from the legislature cannot destabilize the political balance of power that underpins a legitimate regime. Sometimes this is because in a certain jurisdiction or at a certain period of time the judicial class is closely aligned—​ideologically and even strategically—​with one faction in a major political struggle. For instance, it is often argued that this sort of ideological identification with the interests of one class partly animated the hostility of the British judiciary towards the welfare state in the early twentieth century,13 or the very robust reading of the right to contractual freedom   Lawrence Sager, Justice in Plainclothes (Yale University Press 2006) 164.   For a richly textured historical analysis of the evolution of British administrative law jurisprudence see Matthew Lewans, Administrative Law and Judicial Deference (Hart Publishing, 2016) ch 2. 12 13

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enforced by US courts during the Lochner era.14 Even if we took such sympathies to be a morally neutral given, they would still give the political faction that did not share the judges’ leanings reason to oppose empowering them to scrutinize primary legislation, since that would increase the chances that the political agenda of that faction would be thwarted. The same goes—​though to a lesser degree—​for cases where the judiciary does not present this kind of more or less unified front. All else being equal, adding a veto player hinders change and thus advantages the status quo and those who benefit from it. In light of these well-​known facts of political life there is normative pressure not only to stick to an arrangement that works reasonably well but also to make its modification difficult. However, the amount of pressure varies. First, not all modifications risk opening deep rifts in the body politic. In fact, only a few do. Which ones these are depends on the history and circumstances of political societies. But as a general matter reasonably just and well-​ordered political societies are likely to inspire sufficient confidence in a sufficient number of people so as not to make them wary of any alteration in their scheme of government, including those that transfer power away from them. Second, the need for settlement often competes with the need for an efficient system of government. Schemes of separation of powers are based on assumptions about the composition and capacities of various institutions and about the tasks they are likely to face. Nonetheless, as societies evolve, throwing up novel issues and challenges, efficiency sometimes dictates that powers be re-​allocated. In this sense, a policy of absolute priority to the original settlement could become a stranglehold on government. Third, the original constitution, no less than any other piece of legislation, is answerable to moral norms. History is rife with constitutional provisions that were either misconceived from the beginning or proved faulty in their implementation but were allowed to stand on the strength of the moral authority of the founders that enacted them or of the political settlement that they achieved. After all, even a bad constitution is sometimes better than no constitution at all. Still, under these circumstances constitutional obduracy lies in tension with the demands of ideal justice. The latter gives us reason to improve the constitution, even if it has adequately served us so far. Of course, as already mentioned, in the reasonably just legal orders with which we are most familiar the march to a more perfect polity moves in incremental steps. If stretched too hard, the obdurate constitution could break. But that is no reason we should not stretch it at all. Who are ‘we’ though? Who has the responsibility to update the constitution when this is morally warranted? That a new constitutional settlement is needed does not give anyone blanket authorization to seek to bring it about. Mindful of the changing times and of their limited foresight, the founders themselves sometimes delegate aspects of the constitutional arrangement to future generations by laying down a formal procedure for its amendment. But is this the only means by which future generations may steer the constitution in a new direction? Once again, institutional morality provides the answer. Just as the original settlement was a matter of a higher-​order separation of powers, so is constitutional change mid-​sea, at the margins, or in the shadow of formal amendment. Needless to say, we would be hard pressed to find the criteria for such change in any legal text. But we can draw some inspiration from political history. For instance, constitutional scholars such as Bruce Ackerman and Larry Kramer have examined the role in constitutional processes of a politically mobilized citizenry, whose struggle for 14

 ibid ch 4.

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institutional reform has been channelled through a series of pivotal political and legal contests.15 It would take us too far afield to evaluate their theories. Suffice it to say that their work helps us appreciate that constitutional assemblies may be the most prominent forums where constitutional settlements are forged but they need not be thought of as the only ones; it is at least plausible to think that constitutional change can also come about through less formal routes. More importantly for present purposes, theories of popular constitutionalism also bring into sharp relief the fact that, though not always clearly articulated and all too often enmeshed in judgments of political strategy and expediency, considerations of separation of powers play a crucial part in the unfolding of such informal processes, too. Considerations of this sort count in favour of constitutional change assuming particular institutional forms and not others. It is no accident that Ackerman and Kramer stress the importance of popular participation in these processes; arguably it endows informal constitutional amendments with moral capital. Thus, Ackerman and Kramer’s claims may be controversial, but they have a recognizable shape. They seek to provide accounts of how constitutional change, when formal amendment is unavailable, can nevertheless be morally legitimate. Judges, of course, do not have the kind of credentials which figure so prominently in the aforementioned accounts. Still, they are bound to encounter unanticipated constitutional issues that expose the shortcomings and lacunas of existing constitutional settlements, especially in the context of constitutional adjudication. Would they be ever justified in initiating constitutional change and rectifying those defects? Sometimes it is inevitable that they will do just that. When deciding a hard case, they are often called upon to take a view on a matter that the founding fathers did not explicitly resolve. Other times they have little else to fall back on except the elliptical and abstract language of the constitutional text.16 So under the guise of constitutional interpretation—​ and provided that nothing in the terms of a constitution or a political settlement stands in the way—​they may find themselves having to specify or supplement the existing scheme of allocation of government power in the course of resolving the dispute before them. For instance, they may have to decide whether this or that type of legislative decision is due a certain amount of deference or whether this or that type of remedy should be available in a category of constitutional cases. In such cases judges will also need to form a judgment about the impact that their decision is likely to have on the rights and duties of other state institutions. Not all judicial decisions have the necessary normative force to produce permanent shifts in the allocation of government power. But some do, and they attract a special constitutional responsibility. Judges making these decisions will have to stand above the particulars of the dispute and consider the implications of the different institutional arrangements that are morally open to them. In other words, they must think and decide as constitutional designers. This task typically involves recourse to principles of political morality including separation of powers. The option that they go for must buttress the legitimacy of the joint project of governing by improving its ability reliably and systematically to track the requirements of justice. Marbury v Madison, the decision of the US Supreme Court that heralded the era of constitutional review, is a case in point.17 As the US Constitution did not explicitly 15   Bruce Ackerman, We The People vol 2: Transformations (Harvard University Press 1991); Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (OUP 2004). 16   Ronald Dworkin, Freedom’s Law (OUP 1999) 1–​34. 17   See among others Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (2nd edn, Yale University Press 1986) ch 1.

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mention constitutional review, it is far from given that such a power was constitutionally authorized or indeed permissible.18 For present purposes we need not settle the thorny interpretive question whether Marbury concerns a gap in the constitutional order that needed to be filled in or a controversial issue of constitutional law that needed to be clarified. However this may be, there is no doubt that by asserting the power to review the constitutionality of primary legislation the Supreme Court conceived of the relationship between the judiciary and the legislature in a particular way. There is no doubt, too, that this assertion was fuelled by a particular conception of separation of powers—​albeit one not readily discernible in the formalistic language of Chief Justice Marshall—​about the legislature’s inability to shield itself from the pernicious effects of factionalism and about the comparative superiority of courts to be guided by—​rather than subvert—​the law of the constitution. Moreover, Marbury offers a helpful reminder that judicial creativity on matters of constitutional allocation of power need not be insignificant or interstitial. Quite the contrary, it can have momentous effects. Hence, judges must not venture into constitutional experimentation without an appreciation of their shortcomings in foresight and information, especially in polycentric issues,19 and of the remedial limitations of constitutional rulings. That appreciation should temper their zeal. But it should not stop them in every case. This is so for a number of reasons. For one thing, courts will often be the institutions first seized of a separation-​of-​ powers issue in the context of litigation, and it may be that under the circumstances they ought to provide relief, thus incidentally answering the constitutional issue as well.20 Furthermore, they will sometimes have to step forward because other institutions are deadlocked. In fact, the more cumbersome the formal amendment procedure, the more separation-​of-​powers issues will be channelled into informal processes such as adjudication. Finally, case-​law exhibits a degree of flexibility and tentativeness that facilitate trial and error, which might be crucial in matters of constitutional allocation of power. The so-​called ‘Commonwealth model of constitutionalism’ provides a further eloquent illustration of the inevitable creativity that inheres in some areas of adjudication. As many commentators have remarked, the mere existence of the legislative override or the absence of a formal power to strike down primary legislation does not settle many pressing questions of constitutional responsibility, which are then ‘delegated’ to courts to resolve through case-​law. For instance, it was not clear, when the Human Rights Act (HRA) was enacted, what would be the relationship between the judicial power of interpreting primary legislation in a rights-​consistent manner and that of issuing declarations of incompatibility. It was the judiciary that prioritized the former power due to its remedial advantages and rendered the latter a ‘last resort’. In this case, too, it took into account considerations of institutional design as much as content. Considerations of institutional design (partly) underpinned the UK courts’ distinction between cases where an adequate individual remedy could be interpretively fashioned by the courts and those where it would require comprehensive legislative action calculating all social implications. It was also partly by virtue of considerations of institutional design that they distinguished between cases where a rights-​consistent interpretation would go 18   That is not to deny that such a power had been anticipated by the Founding Fathers. See Charles Beard, The Supreme Court and the Constitution (Ulan Press 2012). 19   Lon Fuller, ‘The Forms and Limits of Adjudication’ (1978) 92 Harv L Rev 353. 20   Given their limitations they may then opt for a narrow or modest ruling. See Cass Sunstein, Legal Reasoning and Political Conflict (OUP 1996).

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against the thrust of the impugned legislation and those where it would not. In so doing, they sought to come up with an institutional solution that respects the input of representative institutions and the demand for effective rights protection under the auspices of a system of weak constitutional review. At this point, a Dworkinian could object that the resolution of issues such as the above is not a matter of judicial creativity or discretion but the best interpretation of existing law. It may be controversial what the HRA, properly understood, requires, but the role of courts is to discover the law as they find it, not adjust or supplement it as a lawmaker would. I shall avoid being drawn into this jurisprudential quagmire by noting that, whichever explanation you favour, you cannot but acknowledge that the fact that a judicial pronouncement lifts an ambiguity in the constitutional allocation of power makes a significant practical difference, one which is relevant to legitimacy. A degree of certainty is obviously essential to a legitimate political order—​at least in matters of constitutional moment—​and this is often achieved by what Waldron has called ‘institutional settlement’. This settlement might arise in the political branches, but, as I have tried to show, there could be circumstances that a judicial settlement would serve us just as well. A further reason not to be bogged down in jurisprudential niceties is that even those who think that the correct answer in such hard constitutional cases is determined by pre-​existing law, properly interpreted, must accept that the best interpretation is a function of moral considerations, including considerations of institutional design. Thus, it depends on the nature of the issue at stake, the way in which judicial capacity bears on it and the relative pull of democracy. These are the same considerations that a good constitutional designer ought also to be sensitive to. In light of these similarities it seems of little relevance how we classify the judicial role in this type of case. Now, you might say that one of the considerations of institutional design that limits the judge’s options but not the constitutional designer’s is the principle of constitutionalism. Constitutions are there to constrain, so they cannot be malleable. Judges of today cannot manipulate them to suit their current, even noble, purposes. This objection can be pushed back on a number of fronts. First, it does not apply to cases where the constitution itself is indeterminate or has gaps. If someone must fill those gaps or resolve the indeterminacies, then it is far from obvious that constitutionalism disqualifies judges for this task. Second, we should not make the mistake of assuming that what constrains judges are the intentions of the founders or the texts they enacted, and that the meaning of those intentions and texts is ‘fixed in history independent of our opinions about proper legal or constitutional practice’.21 As I claimed in previous sections, founding the constitution is just another role in the joint project of governing. Likewise, the constitution itself is just another contribution to it (albeit a particularly momentous one). This means that its significance must be cashed out in the same way as other contributions, that is, in terms of the values that give it its binding force.22 It is these values that determine how the text of the constitution and the intentions of those who drafted it are relevant in determining the content of the contribution, if at all. So a judge who in a hard case appeals to those values is not thereby manipulating the constitution; he is seeking to discover how it affects his official duty under the auspices of the institutional project in which he takes part.  Dworkin, Law’s Empire (n 1) 39.   I make the same point with regard to statutory interpretation in Dimitrios Kyritsis, ‘Intending to Legislate’ [2015] MLR 164. (Reviewing Richard Ekins, The Nature of Legislative Intent (OUP 2012).) 21 22

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Just as the legal meaning of the constitution, its effect on the rights and duties of officials and citizens alike, is not reducible to texts and intentions, so it is not locked in a specific moment in time. It is wrong to suppose that the lapse of time will leave unaltered the bearing of principles of political morality on that meaning. Of course, the reasons for the constitution’s obduracy will likely also count in favour of its retaining its original meaning, but, as already stressed, these are not the only reasons in play. Other reasons may point in a different direction and on occasion tip the balance, causing a shift in the official duty of participants in the project of governing. Thus, far from being an affront to constitutionalism, a novel judicial interpretation might actually be powered by constitutional fidelity, taking stock of that shift. Clearly, whether this is so will also depend on how good courts are as agents of constitutional change, but it does not seem too far-​fetched to insist that sometimes they are good enough. To recap, history has a role to play in allocating government power among the principal state institutions. But not just history. History alone cannot tell us who has authority to make this kind of foundational determination, nor can it specify its content. For that we need to combine it with political morality. Political morality, though, does not only look backwards, to the way past decisions have shaped a political order. It looks ahead as well, to the challenges our political order faces now and in the future. These challenges sometimes expose the deficiencies in the extant separation of powers. They bring out the need to update it so that it can sustain its claim to legitimacy over time. This is why I have argued that political morality assigns constitutional authorship more liberally than we tend to think, beholden as we are to the sacrosanct status of an original constitution. Sometimes, it assigns constitutional authorship to actors and procedures beyond those specified in the amendment provisions of the original constitution. In fact, it is possible (though perhaps not as frequent) that political morality will make agents of constitutional change out of our judges. In carrying out this exceptional task, the latter must be alert to the principle of separation of powers. This will not only recommend certain improvements to the joint project of governing and not others, but it will also impose limits on the extent to which judges may take it upon themselves to make those improvements. The dreams of law’s future may be ‘latent in the present law’,23 as Dworkin remarks, but judges must pursue them with caution. They must be acutely aware that their constitutional creativity is far from boundless. Since they participate in a joint institutional effort, they ought to ensure that, when they stride forward, their fellow-​participants are following. It is undoubtedly useful—​for analytical purposes and for the sake of better appreciating the moral stakes—​to distinguish such improvements from the institutional arrangement that we are seeking to improve upon. In this sense, King is clearly right to insist that description of that institutional arrangement should not be confused with prescriptions for its improvement. However, the values that judges will have to invoke in determining the content of the extant scheme of separation of powers will also keep alive in their mind the ideal towards which it should be aspiring. It should not surprise us if those same values also animate the judges’ efforts to update that scheme—​ provided it is in their power to do so—​and thereby sustain the process by which ‘law can develop in the direction of justice’.24

23

 Dworkin, Law’s Empire (n 1) 409.

 ibid.

24

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IV.  A Summary of the Argument In this book I  have argued that the litmus test for the desirability of constitutional review is political legitimacy. I have insisted, though, that the route from legitimacy to constitutional review goes through separation of powers. Constitutional review is legitimate insofar as it is part of a scheme of separation of powers structuring institutional cooperation such that it reliably and systematically produces reasonably just results. I have claimed that, while separation of powers affords significant room for variation, it still has a prescriptive core. It recommends that state institutions are assigned government tasks they are fit to perform by virtue of their composition, capacities, and decision-​making process and that they check each other’s performance to avert abuse of power and correct mistakes. Along the way I have argued against the accounts advanced by both constitutional review enthusiasts and sceptics. Both camps seek to offer moral shortcuts to their preferred verdict concerning the legitimacy of constitutional review. The enthusiasts place emphasis on the moral importance of fundamental rights. When a legislature violates one of these rights, they argue, it has not simply made a mistake. It has done something that it was never given the power to do. However, no inexorable logic dictates that, because a state institution possesses a limited power, there must be some other institution to police those limits. More generally, the mere fact that fundamental rights are essential for legitimacy tells us nothing about who should protect them. Alternatively, enthusiasts claim that courts have a special warrant to decide rights questions. Some say that this is because the content of fundamental rights is independent of popular preferences, and courts are well suited to determine it precisely because they are not subject to majoritarian pressures. Others say constitutional review is an expression of a putative right to a justification or hearing that is triggered whenever we think that one of our other rights, say to freedom of speech or religion, has been violated. Against the former line of argument I maintained that courts share the task of determining the content of fundamental rights with the legislature; this places important limits on judicial power, which the enthusiasts cannot account for. Against the latter, I argued that, even if it is true that there is a right to a justification, it does not follow that public justifications for rights violations must be given in retail fashion. Serious problems also beset the accounts of constitutional review sceptics. While enthusiasts focus on the substance of government policy, sceptics typically play up the importance of procedure. They say that an essential ingredient of legitimacy is political equality. Political equality requires that political decisions be made following procedures that give every citizen’s view equal weight. But constitutional review gives a small group of unelected officials the power to overrule the decisions of democratically accountable legislators. It is thus at odds with political equality. Constitutional review sceptics do not necessarily deny the benefits that may come from a system of constitutional review in terms of rights protection. But they insist that, inasmuch as these benefits negate political equality, they have a bitter taste; they are tainted by illegitimacy. However, it is contradictory to accept representative democracy of the kind we are familiar with in modern legal systems and excoriate constitutional review as an affront to political equality. For, a significant imbalance of power lies also at the heart of representative democracy, namely between elected legislators and the citizens they represent. The former have the power to bind their constituents to a course of action that the latter disapprove of. In addition, they cannot be revoked and are not subject to imperative mandates issued by their constituents. Although they may be voted out of office in the

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next election, this does nothing to discredit or cancel their legislative record. Needless to say, it makes an immense moral difference that legislators are periodically elected and judges typically are not. The existence of a democratically accountable legislature means that the joint project of governing includes a strong democratic input, though one mediated by the independent judgment of elected legislators. Electoral pressure may not eliminate that independent judgment, but it gives legislators a powerful incentive to strike the right balance between moral innovation and popular support. It also means that popular participation is not pointless. Citizens coming together and acting in a concerted fashion can have a measurable political impact. In light of this, it is appropriate that legislatures have the initiative in the formation of public policy. This understanding of the value of democratic legislatures relaxes the constraint democracy imposes on legitimate constitutional orders. We do not need to think that all law must be, as Richard Bellamy has put it, ‘people’s law’. Rather, if democratic rule is instantiated in one corner of the joint project, it may not be necessary that it be present across the board. In fact, it may be preferable if different participants in the joint project have different credentials just as it is a good thing for the Upper and Lower Houses of the legislative body to answer to different constituencies. The understanding of democratic representation outlined above has another important implication. Legislators cannot be thought of as the people in miniature; they are public officials who act on our behalf by exercising their independent judgment. Hence, we have the same reason in principle to check their power that we do for any other public official. Constitutional review is a candidate for fulfilling this role. There are other candidates. For instance, we could imagine a strong executive that has an institutional arsenal with which to resist legislative infractions. Even though constitutional review is in this sense not necessary for legitimacy, there is still something that recommends courts for the task of checking the legislature. By virtue of their independence judges can stand up to the legislature and thus exercise meaningful supervision over primary legislation. Note that this rationale for constitutional review does not rest on dubious assertions about the presumed superiority of judicial judgment in cases involving fundamental rights and does not claim that judges should have a monopoly in this type of case. But nor does it treat judicial supervision as an iteration in a dialogic process. Political orders are not there to discover moral truth. First and foremost, they go well when they do not wrong us. Accordingly, constitutional review is not judged primarily by its discursive value, its ability to offer a different perspective on rights questions, and enhance public—​and more specifically legislative—​deliberation. It is judged by its ability to thwart infringements of our fundamental rights. Even if I am right that constitutional review is in principle legitimate, this does not mean that judges can be indifferent to the value of democracy. The way for them to do their share for democracy is by showing due respect to the democratic input in the joint project. This observation goes a long way towards explaining why even in the strongest cases constitutional review is a limited power. It is limited because the role of courts in the joint project of governing is limited. Its limits reflect the fact that the project is shared amongst courts and other state institutions. Consequently, a judge cannot ask herself: What does justice require in the case before me? Rather she must ask: What is within my power to do given that I participate in the joint project? Famously, James Thayer’s answer was that courts should only intervene in cases where the legislature has made a clear mistake. But it is doubtful that this recipe was correct at Thayer’s time. In any event it is not a recipe for all time and for all legal systems. There are other options. In evaluating these options it is crucial to remember

A Summary of the Argument

213

that it is not necessarily a bad thing to have judges make moral judgments in our name. The very nature of fundamental rights as, first and foremost, moral entities gives us a powerful reason to allow them to do so. Contrary to popular perception, however, it does not necessarily follow from judges’ engaging in moral reasoning that they are activist. When assessing the constitutionality of primary legislation, judges do not solely act on moral considerations about the content of rights. Separation of powers dictates that they balance such considerations against considerations of institutional design regarding their place in the joint project of governing and their relationship with their fellow-​participants. As a result, when they are adjudicating constitutional rights, judges are often under a duty to defer to the legislature. Sometimes separation of powers allocates a particular area of rights protection to the legislature and directs courts to accept legislative determinations at face value, on the grounds that a more robust judicial supervision would disrupt the overall constitutional order in ways which would diminish its legitimacy. Other times separation of powers recommends that courts uphold a legislative decision, which they know affords fundamental rights sub-​optimal protection, on the strength of countervailing considerations of institutional design. In such cases we might say that considerations of the latter type, say the legislature’s democratic pedigree, tip the balance. In all these various ways constitutional rights may fall short of the rights we have as a matter of ideal political morality. For some, this shortfall is morally unacceptable because it is impermissible to trade off our fundamental rights against institutional design. But this is a mistake. Ultimately, the shortfall is a reflection of the fact that legitimacy demands less than the ideal; it tolerates discounts on justice for the sake of having a polity that does a reasonably good job of protecting everyone. Moreover, it is not necessarily true that courts must form their own judgment regarding every rights issue that arises. There is no doubt that, whether glorified or vilified, courts have dominated our thinking about rights. However, we must plot their contribution in a bigger constellation of state bodies charged with upholding and promoting them. These bodies hang together in a system of institutional cooperation structured by the value of separation of powers. Therein lies our protection.

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Index Ackerman, B  206–​207 Allan, TRS  15, 170–​178 anti-​positivism  18–​21, 55–​56 authority  8–​10, 14–​15, 19, 40–​41, 61, 123–​125, 130–​131, 156, 158 and dialogue  108–​109 and disagreement  11–​13, 83–​85, 97 of representatives  86–​87, 127–​130 Barber, N  7, 15, 41, 42, 127 Bellamy, R  54–​55, 87–​89, 94–​97 Bickel, A  101, 110, 194–​196 Bratman, M 35 checks-​and-​balances  55–​56, 78, 111, 115 and constitutional review  137–​138, 146–​149 and separation of powers  44, 47–​54 coercion  8, 32, 130, 185 comparative constitutional law  27 Craig, P  15, 78 deference  45–​47, 73–​77 modes and triggers  154–​155 epistemic  155–​159, 165–​166, 166–​170 robust  161–​165, 165–​166, 166–​170 and dialogue  116–​118 and indeterminacy  173–​177 and jurisdiction  160–​161 to constituents  95–​96 dialogue and last word  109–​114 and legitimacy  114–​116 disagreement  8, 10, 11–​13, 16, 21, 47, 83–​85, 88, 97–​98, 104, 111, 141, 185–​186, 192–​195 division of labour  29, 40–​47, 48, 50–​51, 53–​54, 67, 73, 88, 115, 117, 126, 144, 156, 164, 175–​176, 177, 202 doctrine  7, 14, 18–​19, 22–​27, 164, 171, 178, 189–​192, 202–​203 Dyzenhaus, D  19, 167–​170 Dworkin, R  21, 33, 123–​125, 135, 141, 176–​77, 178, 186, 210 moral reading  182–​183 principles and policies  66–​80 Endicott, T 46 equality  167–​168, 182–​183 and dialogue  104–​105, 107–​108 and majority vote  49–​51, 85–​89, 123–​125, 193–​194 and representation  93, 96 Fallon, R  141, 191 disagreement  194–​197 and political legitimacy  8, 11–​13, 14, 32 founding fathers  6, 16, 24, 49, 115, 207–​208, 209–​210 Fuller, L  1, 137, 147, 208

Gardbaum, S  102–​103, 102, 112, 114, 144, 150, 200 Green, L  9, 24 Greenberg, M 9 Harel, A  44–​45, 62–​66 history  16, 22–​27, 206, 209–​210, incommensurability  11, 173–​175 institutional design and content  77–​80, 125–​126, 173–​175, 189–​192 and deference  155, 156, 162–​165, 166–​170, 171–​177 and justice  24–​26, 137 and legitimacy  10–​13, 23, 41, 106, 115, 186–​189 and separation of powers  44, 48, 53–​54, 78, 147 institutional settlement  8, 29, 45–​46, 108–​109 interpretation  16, 20, 21, 38, 61, 102–​103, 106, 112–​113, 143, 144, 166–​167, 207, 208, 209, 210 jurisdiction  46–​47, 61–​62, 160–​161 Kahana, T  109–​114, 115, 149 Kavanagh, A  112, 113, 144, 158–​159, 163, 173, 195 King, J  60, 153, 190, 200–​201, 202–​203 Kumm, M  63, 187 Legitimacy  2–​3, 5, 7–​13, 17–​18, 23, 26, 28, 35, 40–​41, 43–​44, 45, 47–​48, 61, 64, 66, 81, 91, 93–​94, 104–​105, 114–​116, 133–​135, 148, 150–​151, 182–​183, 202–​204, 205–​210 and consent  9, 11–​12 and deontology  187–​188 and disagreement  9, 13, 32, 83–​85, 88–​89, 97–​98, 193–​197 and justice  8, 32, 123–​125, 185–​186, 189, 213 and law  13–​15, 18–​22, 55–​56 and stability  9–​10, 29–​30, 196–​197 outcome and process  12, 88 Letsas, G  19, 145 Madison, J  37, 48–​54, 132, 146 Manin, B  5–​6, 81, 90–​91, 127, 129 Manning, J  200–​201 Mansbridge, J  94–​95 Montesquieu, (Baron de)  37 moral relativism  15, 30 parochialism  19, 22–​23, 26 Perry, S 158 Pitkin, H  90, 91, 92, 94, 127, 128 polyphonic legal systems  34–​36, 40, 45, 50–​51, 52–​53

222 positivism, legal  18–​21, 25, 55–​56, 70–​71 proportionality  63, 141, 145, 187 proceduralism 123 Rawls, J  10, 21–​22, 31, 131 Raz, J  12, 19–​20, 40–​41, 108–​109, 156, 158 rights absolutism  182–​183 and deference  177–​178 as principles  66–​68 background and institutional  70, 71, 178 moral and constitutional  183–​192 right to a hearing  62–​66 representative democracy  13, 31, 54–​55, 72, 86–​87, 89–​97, 127–​135, 136–​137, 143 Sager, L  14, 60, 143, 195, 205 judicial under-​enforcement  190–​191 legitimacy  186–​188 Scanlon, TM  42, 78, 142, 148, 184–​185 Schmitt, C  90, 126, 130 separation of powers  3, 4–​6, 33–​34, 35–​36, 43–​45, 79–​80, 105, 139, 171, 186, 199, 201–​204, 207–​209, 211 and articulated government  44, 82–​83 and checks and balances  47–​54, 111, 115–​116, 142, 147–​149

Index and democracy  54–​55, 88–​89, 151, 196–​197 and division of labour  40–​42, 189–​192, 210 free-​standing  200–​201 obduracy of  205–​206 pure  36–​39 Thayer, JB  1, 136, 165–​166, 167, 192 Tushnet, M  53, 103, 105, 106, 112, 145, 164–​165, 192–​193 utopia  23, 31–​32 Vermeule, A  139–​140, 192 Vile, MJC  36–​37, 41, 48, 50 Waldron, J  45–​46, 96, 108–​109, 123, 128, 130, 137, 138, 147 disagreement  97–​98, 193–​194 legitimacy  8, 11–​13 majority vote  83–​89, 93–​94 separation of powers  34, 40, 44, 54, 82–​83 Waluchow, W  20, 62, 132–​136 weak and strong constitutional review  150–​151 Williams, B  8, 23, 63