Every generation of constitutional lawyers has struggled with the issue without being able to provide knock-down arguments that would have settled the controversy. In the UK, the adversaries of the two positions are for better or worse called political and legal constitutionalists, respectively. Since almost all public law textbooks cover this controversy, the debate is familiar to every undergraduate law student in the country. All this suggests that there is hardly a more hopeless enterprise in constitutional theory than to make a new contribution to this debate.
Nonetheless, in my new book, titled Against the New Constitutionalism , I endeavoured to tackle exactly this issue. My book develops a liberal defence of political constitutionalism and argues that in consolidated democracies, the strong form of judicial review cannot be justified.
It is for the readers to judge whether I managed to provide a sufficiently unique combination of arguments and carve out a distinctive place in the political constitutionalist camp. The aim of this post is not to summarise my arguments or convince the reader that political constitutionalism has the upper hand in the controversy.
Rather, I would like to put forward a few theses about the nature, the state and the relevance of the debate. The debate about constitutional review has both an academic and a more popular version and there is a huge discrepancy between the fortunes of the two rival positions at these two levels. The discourse seems to lose its momentum at both levels, albeit for very different reasons. In the academic discourse, many people feel that everything that can be said on the issue has been already said.
The debate seems to have reached an impasse, where people with different intuitions reach different conclusions. By contrast, in the more popular version of the controversy, legal constitutionalism has almost conclusively defeated its opponent. As a result of this, virtually every democracy has introduced some type of constitutional review. I will address the academic and the popular versions of the discourse in turn. Since the topic has generated a voluminous literature, it is not implausible to argue that the prospects of progress in the debate are rather dim.
So can we expect any new insights from further debates? My answer to this question is an emphatic yes. Let me explain the reasons for my optimism. The justification of constitutional review certainly requires the mobilisation of some fundamental political principles and it is indeed true that a lot has been said about those principles.
Political principles alone are incapable of determining whether we should confer the authority to specify abstract human rights provisions on courts or legislatures or we should share that authority between the two institutions. The debate about constitutional review is both about political principles and institutional capacities. To assess the capacities of institutions, we need sophisticated theories about the epistemic performance and motivations of our decision-makers.
Those who are sceptical about the possibility of progress in the debate must hold either that 1 such institutional considerations are irrelevant or that 2 new research cannot result in significant progress in the study of institutional capacities.
However, it seems to me that the first claim is simply wrong and the second one is unsubstantiated. Above I made the rather cautious and safe claim that when we tackle the justifiability of judicial review, institutional analysis matters.
Now I want to make a much stronger and much more controversial claim. In a slightly exaggerated and provocative form the claim says that doctrinal legal scholarship is irrelevant for the purposes of the debate. The role of institutional analysis is to say something about which institutions will produce the best outcomes under certain circumstances. Human rights lawyers engage in a rich discourse about what constitutes the best outcome in rights-related issues.
Should assisted suicide ever be made legal? Under what conditions is affirmative action justified? Should an employer accommodate its employees if they want to wear religious symbols?
I have a huge respect for those scholars who engage with these types of questions. I myself have strongly held views on many of these issues and consider myself a participant in this discourse. However, the problem is that in most complex constitutional issues, like the ones mentioned above, competent constitutional lawyers will disagree.
In a pluralistic society, in such cases, we are unable to provide conclusive arguments as to what constitutes the correct outcome.
Institutional analysis should, therefore, be limited to general epistemic, motivational and procedural considerations. Is the diversity of a decision-making body more important than the ability of individual decision-makers? To what extent is the decision-making of our institutions distorted by self-interest? Which procedure is the most conducive to producing good outcomes?
For instance, what is the right balance between transparency and secrecy in a decision-making environment? These questions are very different from the ones that I mentioned above and are not doctrinal in their nature. Constitutional lawyers whose primary expertise is related to doctrinal issues are, therefore, not the best qualified to answer such general institutional questions.
Although championing contextual analysis generally seems a safe methodological bet, it is far from self-evident that we need such an approach here. If someone believes, for instance, that the lack of democratic legitimacy is, in itself, a decisive argument against judicial review, then she must claim that judicial review is unjustifiable everywhere. If, by contrast, someone believes that the interpretation of human rights is primarily a technical legal exercise, she must hold that judicial review is always justified, provided that human rights themselves are justified.
However, it might be the case that: 1 although the set of relevant arguments is the same everywhere, their strength will differ from jurisdiction to jurisdiction; and 2 the relevant arguments pull in different directions. In that case, one might conclude that constitutional review is justified in certain countries but is unjustified in other ones. I argue in my book that both of the aforementioned conditions are met. Both of the adversaries in the debate have strong arguments, and the strength of at least some of these arguments is not constant but depends on the particular features of the political system in question.
One could argue, for instance, that the political process has malfunctions everywhere in the world, but these malfunctions are clearly not equally severe in each political system. If there are strong arguments on both sides, it does matter how severe these malfunctions are and this factor might be decisive in the overall balance of arguments.
The debate about judicial review usually pitches the legislative body or the elected branches in general against courts or a specialised constitutional court. In that binary framework, an argument against one of the institutions is automatically treated as an argument for the other.
This binary framework fits well with many argumentative strategies that are used routinely in the controversy. If, for instance, the lack of political accountability is a conclusive argument, the issue is settled: in that case, constitutional review cannot be justified. Similarly, if the protection of human rights is understood as a technical legal issue, the superiority of courts will be beyond doubt and the justifiability of constitutional review is difficult to challenge.
However, as Parliament has given power to the public authority the court cannot substitute a decision for own view what is fair and reasonable on the merits Evans. Dicey argued that individual liberty was protected solely by private law and that public law limited parliamentary supremacy. He put forward that Parliament gives the executive power and it is the duty of courts to uphold these powers, even if in practice, individual liberty is infringed.
However, the modern view is that when Parliament confers power there is implied intent that it is exercised legally, rationally and fairly. So if the implementation infringes an individual's fundamental right then a public interest justification must be shown, for example the Human Rights Act makes it unlawful for public body to infringe a Convention right.
By reviewing the acts and decisions of public bodies, to determine whether they have exceeded the powers passed to them by Parliament, the courts are arguably upholding the will of Parliament and its supremacy. TRS Allan argues that JR and parliamentary sovereignty have the same moral foundation and both legitimise the exercise of power. JR can also be criticised as undermining parliamentary supremacy especially the attitude of the courts in interpreting statute ouster clauses and in developing grounds for judicial review.
However, even since the GCHQ case which dealt with regulation of the Civil Service, some areas remain clearly non-justiciable areas for the courts, for example in Gentle the courts would not consider the government's decision to refuse to hold a public inquiry into the lawfulness under international law of the UK's involvement in the Iraq war.
In Jackson v Attorney-General , Lord Steyn noted the doctrine of parliamentary supremacy was a construct of the common law , so in extreme circumstances courts can qualify the principle to prevent Parliament from legislating contrary to the Rule of Law. Lord Hope emphasised this saying: the Rule of Law enforced by the courts is the ultimate controlling factor on which our constitution is based.
Lord Brown stated: judicial review is the exercise of the court's inherent power at common law to determine whether action is lawful or not; in a word to uphold the Rule of Law Vijayatunga. The procedural fairness grounds for JR recognise that open and fair hearings and the absence of bias are necessary for the correct application of the law and these are essential components of the Rule of Law.
The Rule of Law also has substantive content. Essentially, a breach of the Rule of Law, manifested through breach of one of the more particular principles of judicial review, can lead to annulment of the measure. The Separation of Powers doctrine requires each branch of state to be of equal status so that one can check and balance the powers of another. JR is a system which ensures that the executive does no more than the legislature has empowered it to do.
The courts are restricted to a supervisory role in JR because changing an executive decision is beyond their remit. That is why remedies under the Senior Courts Act are limited to quashing a decision, preventing a decision from being made in the future, or forcing the decision-maker to use the powers he has been given.
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