By T.R.S. Allan
Constitutional theory and practice are alike afflicted by a constant tension between commitments to majoritarian democracy—the people’s will—and human rights. Professor T.R.S. Allan discusses how the common law constitution of the UK, rooted in respect for a complex moral ideal of the rule of law, shows us the way to resolve this tension.
Our contemporary political practice confronts a paradox that threatens to confuse and derail our ambitions for good governance, properly respectful of the governed. On the one hand, we are tempted to see all the major questions about the public good—including the balance between individual rights and collective interests—as being ultimately matters of political choice. They are finally for elected politicians to decide, as they see fit, issue by issue—responding, as seems appropriate, to the pressure of public opinion. On the other hand, however, we are committed to an overarching ideal of human dignity, manifested most especially in the judicial protection of civil and political rights (of the kind declared in the European Convention on Human Rights). And that grand vision of the rule of law—legality as linked to ideals of freedom and dignity—denies that everything is a matter of political choice in which, when it comes to the crunch, the majority vote is determinative. We want democracy, certainly, but we also want a certain quality of individual freedom, guaranteed against hostile or unpredictable encroachment; and liberal democracy sometimes looks like a contradiction in terms.
In the United Kingdom, we pride ourselves on our adherence to fundamental rights. We acknowledge the European Convention rights while insisting that, for the most part, they merely reflect ordinary common law: they are part of a long and precious historical tradition, involving judicial as well as parliamentary resistance to over-mighty executive Government. But in the next breath we reassure ourselves that Parliamentary sovereignty survives—a ‘sovereignty’ wielded, in practice, largely by Government. Even the most fundamental rights, it is often said, can be overridden by express parliamentary direction; and the Convention rights enjoy domestic legal force only as long as the Human Rights Act 1998 remains on the British statute book—and it can always be repealed by ordinary majority vote in Parliament. There is something of a philosophical muddle here. We cannot both affirm respect for human dignity or individual freedom as basic to legitimate governance and say that a bare political majority may decide as it pleases. At the very least, that majority must accept a responsibility to honour a coherent conception of the rule of law—one that tries to fit particular policies or decisions within a larger scheme of British justice, matching a defensible account of decent governance.
In keeping with the voluntarist tendency of so much contemporary thought is the notion that, insofar as judges are drawn by their work into contentious territory, they are obliged to give up law for political preference. In the absence of positive law—enacted by Parliament or a body having delegated legislative powers—where else could courts turn for guidance? It is commonly alleged that the United Kingdom has no constitution, or that any such constitution must be ‘political’ only—being a matter of fluctuating political opinion, reflecting only the current predilections of statesmen and politicians. There may, it is readily conceded, be settled conventions or understandings between politicians and civil servants; but there is little role for courts, whose intervention in governmental affairs is (and perhaps should remain) marginal. It is strange how this attitude persists in an era of human rights and international courts. Even many of those who applaud the judicial role in defending human rights against abuse or neglect by governmental agencies express unease about legitimacy. They worry that judges may be drawn too deeply into politics, undermining the separation of constitutional powers, which insists on judicial neutrality in matters of lively political controversy. How can judges enforce constitutional rights while retaining political neutrality?
Although these anxieties are not unique to the United Kingdom—even countries with written or codified constitutions have to resolve similar questions about the intersection of law and politics—the ‘unwritten’ British constitution stands as a striking exemplar. There can be no reference to any plain constitutional text, which supposedly answers all the problems, and no reliance on the legal supremacy of a constitutional court, empowered by specific grants of quasi-legislative authority. As I argue in my recent book, The Sovereignty of Law, lawyers and political theorists are alike driven, instead, to focus on legal and moral principle. We construct the British constitution, as we go along, by trying to make good moral and political sense of a flourishing legal tradition. It is a common law tradition, which emphasizes individual freedom and imposes strict constraints on assertions of governmental power. Even when government officials invoke powers formally conferred on them by Act of Parliament, the judges invariably read in a series of implied limitations: officials must act only for legitimate public purposes, taking care to respect the interests of people whose lawful activities pose no real threat to the public good.
Judicial enforcement of the rights enshrined in the European Convention on Human Rights marches hand-in-hand with development of that common law tradition. Most of the Convention rights, such as freedom of speech or religion or association or assembly, find expression in common law doctrine, which has steadily evolved to keep pace with changing social and political attitudes to the limits of legitimate government. Judges are constrained by precedent, in the sense that they must build on principles already embedded or implicit in previous law; but the interpretative process is also intellectually creative. The articulation and application of legal principle in particular cases involves moral appraisal and criticism—a process of moral deliberation that obliges a judge to examine, rather than set aside, his or her own deepest convictions about human dignity, individual freedom, and governmental propriety.
Judicial enforcement of the rights enshrined in the European Convention on Human Rights marches hand-in-hand with development of that common law tradition.
In the absence of a codified constitution, British lawyers and judges must justify their legal conclusions in any particular case by resort to moral or political argument—invoking principles of liberty, equality and democracy that can serve to structure and explain a developing legal tradition. But contrary to a popular misconception, British constitutional law is not fundamentally different from its counterparts elsewhere. Even foundational documents, such as the United States Constitution or the German Basic Law, require interpretation: there is an analogous process of reading the text in the light of legal tradition, illuminated by recourse to fundamental principle. Similar questions about legitimacy arise. How should the balance be struck between the judgements of elected legislators and the qualifications imposed by courts in the name of constitutional principle? An enacted constitutional text can no more foreclose debate over the nature and limits of constitutional rights, or the scope of parliamentary or governmental powers, or the requirements of democracy, than can a common law tradition based on judicial precedent. Judges cannot determine whether a statute or administrative decision infringes a basic right without reflection on the nature and scope of that right—its place within a larger structure of fundamental rights and moral values. Whether a right of free speech prohibits the enactment of hate-speech laws, or a right to liberty precludes the preventative detention of suspected terrorists, are questions of law that are at the same time necessarily questions of political morality and constitutional history.
The British polity illuminates an inherent feature of democratic constitutionalism, common to all examples of the Western tradition. It makes every question of law, however minor or parochial it may seem, finally turn on our understanding of the ideal of the rule of law. Contrary to much contemporary legal theory, the rule of law is not merely a formal or procedural doctrine, regulating the administration of law but having no bearing on the law’s content. It is, instead, a doctrine that demands steadfast adherence to a scheme of constitutional justice—the arrangement of rights and responsibilities that constitute our political framework and provides the most persuasive account of our legal tradition. It entails not merely compliance with due process, or fair administrative and judicial procedures, but also respect for those fundamental rights that we now honour—at least in principle—as inherent attributes of equal citizenship. The rule of law is a moral and political ideal, premised on the equal dignity of persons; and any judgement of law in particular cases involves, if only by implication, an elaboration of that basic ideal.
In the absence of a codified constitution, British lawyers and judges must justify their legal conclusions in any particular case by resort to moral or political argument—invoking principles of liberty, equality and democracy that can serve to structure and explain a developing legal tradition.
May a suspected terrorist be detained, or otherwise have his civil liberties curtailed, on the basis of information which is not disclosed and which he has no opportunity to challenge? Could a court, required to review the legality of his treatment, properly proceed in such circumstances, being unable to hear the suspect’s response? How far can a court depart from ordinary judicial procedures, which allow litigants to challenge adverse evidence, without ceasing to be—in the pertinent constitutional sense—a court of law? Can the correct answer to any of these questions be reduced to a matter of legislative stipulation, so that judges may apply a general rule with little or no concern about what may be very grave consequences in the particular case? Such questions not only make frequent appearance in the higher courts, especially the Supreme Court, but they draw judges inexorably into the realm of moral and political theory—or they must do so if senior judges are to acquit their responsibility for preserving the rule of law. The ‘jurisprudence’ on which they must draw cannot be limited to statute and judicial rulings; it extends, necessarily, to the general principles that, after due reflection, knit the relevant sources of law into a workable scheme of justice, capable of application to the special circumstances of the particular case.
I suggest, in The Sovereignty of Law, that, while accepting the democratic principle of legislative supremacy—acknowledging Parliament as supreme lawmaker—we must abandon notions of parliamentary sovereignty with its connotations of dictatorial power. While there is broad scope for elected representatives to determine much of the detail of our governmental arrangements, including how competing rights should in general be reconciled or how rights should be qualified by countervailing public interests, we must not seek to eradicate judicial discretion—the judicial power finally to determine particular cases in the light of basic principles of the rule of law. We must affirm the entitlement of the majority (or its representatives) to govern, as part of what democracy entails; but our commitment to ideals of human dignity and individual liberty necessarily qualifies that entitlement. Acts of Parliament must be interpreted in the spirit of the rule of law. We resolve the doubts and dilemmas that accompany any application of statute to complex situations—usually unforeseen in their detailed complexity—in the light of a coherent theory of legitimate governance. And that theory, whose elaboration must itself be a collective, democratic effort, must be a moral and political theory that illuminates an existing tradition—showing why our political practice is really justified and worth defending.
My thesis is that our moral and political responsibilities as good citizens include the defence of the rule of law: we are finally each responsible for trying to make the law in practice (not merely on paper) sensitive to the human values that we regard as central to legitimate government. If judicial interpretation involves an effort to integrate Parliament’s law with common law principle, making the law’s application in particular cases consistent with fundamental rights, itW is ultimately because the judges share a collective, democratic responsibility. Courts must draw on general principles whose moral force we all acknowledge and endorse—even if we often disagree over their specific application. Legal analysis, in other words, must reflect a wider moral dialogue throughout the community, exploring the strengths of our tradition while also reflecting on and regretting its historical moral failures. In recent times, for example, our treatment of certain marginal groups (including suspected terrorists) has not always reflected well on our commitment to rule of law principles. If our tradition really is worth defending—if our legal obligations, correctly identified, are also moral obligations—we must be willing to recognize past infringements, or lapses, for what they are.
About the Author
T. R. S. Allanis Professor of Jurisprudence and Public Law at the University of Cambridge, and a Fellow of Pembroke College, Cambridge. His new book, The Sovereignty of Law: Freedom, Constitution, and Common Law was published by Oxford University Press in 2013. He has published many books and papers on legal theory and constitutional law.