The high court at the crossroads essays in constitutional law

A Common Lawyer Looks at Supreme Court Constitutional Law - Richard Epstein

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  8. Google Scholar. See especially the majority judgments in Re Wakim , above, ref 3. R v Murphy CLR Certain legal philosophers, many constitutional and international lawyers, including Ronald Dworkin, are thoroughly implicated in this treachery. So are all those, judges, legislators, and academic commentators who promote and condone the progressive expansion of vague moral standards into the corpus of the law: such as unconscionability, good faith and open-ended standards such as reasonableness.

    The theory behind the critique of judicial activism provides a basis for the criticism of enlarged judicial discretion in general. More dispassionate scholars may agree with my conclusions but nevertheless deplore the language: surely treason is too strong a word for what is only after all a matter of jurisprudential opinion about how judges should decide cases, a matter of reasonable disagreement between reasonable people. Maybe, but such a tolerant approach underestimates the potential damage both to law and democracy that anything but spasmodic judicial activism can do.

    In using the term treason I am not imputing evil intent to judges or others whose conduct undermines the democratic rule of positive law. This can make the culture of judicial activism dangerously self-confident, arrogant and self-righteous. However, in case the language of treason still seems too strong, it should be emphasised that I am also not suggesting that judicial activism should be deemed a form of judicial misconduct justifying discipline and removal.

    My reticence here is not because judicial activism is not an abuse of office. It usually is.

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    But rather on account of the fragility of constitutional government. We need to be absolutely sure that judges cannot be dismissed for making decisions unpopular with government or the press. We cannot therefore afford to make judicial activism a disciplinary offence leading to dismissal for this would have an unacceptable chilling effect on judicial independence.

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    7. The problem here goes back to the unfortunate fact that we both need governments and have reason to fear the concentration of power that they involve. The tragic paradox of politics is the fact that in order to achieve the preconditions of an orderly and secure society we need to create a potential instrument of oppression.

      While democracy is an attempt to deal with this paradox by making government a revocable trust, a temporary grant of power to be exercised only under a system of law, no system can formally solve the problem of who guards the guardians, in this case the persons whose job it is to say, within the rule of positive law, when that law has been broken. That government be a government of rules, that there be separation of powers between law-makers and law-appliers, and that governments be vulnerable to the votes of the populace and that judges be not vulnerable in this way, are amongst the greatest political achievements of human civilisations, but they cannot do away with the need to entrust someone with making final answers in such matters as the lawfulness of political conduct.

      In this situation allowing parliaments, or the governments that control them, to remove judges for judicial activism is likely to be a greater danger to constitutional democracy than permitting such activism to continue. The need to protect judges in this way enhances rather than diminishes the sinfulness of judicial activism.

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      Given that judges require immunity from external control, judicial activists can rely on the fact that there is no acceptable way of institutionalising an effective counter to such abuse of judicial powder. Because they are protected by the constitutional norms of judicial independence, judges are immune from the formal consequences of their misconduct. Judicial activism is not a risky path for judges. The cost is paid by the community through the damage that is done to our system of government. So, I stick to my strong ethical terminology: judicial activism is, or may be, treason.

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      To explain and defend this position, I outline why we might want to adopt democratic positivism as a theory of how a legal system ought to operate. Why would we wish to adopt a theory that appears to advise not only citizens but judges to put aside their own ideas of substantive justice and replace them with apparently amoral rules that we follow simply because they are the law?

      This looks like the abnegation of responsibility all round. There are two sorts of reasons for supporting the ideal of the rule of positive law. The first, the weaker of the two reasons, is that adopting legal positivism makes for having a formally good legal system, with all the social and economic benefits that flow from it.

      And the second, a much stronger reason, is that legal positivism is necessary for the realisation of a democratic system of government, that is a system of government in which the people as a whole have real power to control how they are governed. Putting the two considerations — order and democracy — together, I have argued, as a matter of normative political theory, that any large and complex society ought to possess a formally good legal system, as I shall define it. With respect to the formally good legal system, we are talking here not about the moral or other content of ordinary laws or even of procedural rules, but about the way in which simply having an orderly and public system of rules produces social benefits such as social coordination, facilitation of cooperation and systematic control of harmful conduct.

      A formally good legal system should consist of a framework of intelligible and applicable rules by means of which we can coordinate our behaviour, enter into workable agreements and know what we cannot do or must do in order to avoid official disapproval and sanctions. These objectives can be achieved, it is argued, only if we have an agreed set of specific rules capable of being understood, followed and applied by people whether or not they agree with their content.

      We will, of course, also want the content of the rules not only to be compatible with the aims of coordination, facilitation and regulation, but actually to produce results that we think optimal with respect to our social and political values. However, whatever these substantive values may be, we require formally good law: rules that are general, clear, specific, applicable, and stable.

      This is the familiar theme that clear, predictable law promotes order and stability in society.

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      Rules enable us to know where we stand and to plan accordingly. The conception of a formally good legal system is also fundamental to a particular sort of justice, formal justice, the justice of treating like cases alike in terms of pre-existent criteria. This sort of justice cannot be achieved unless there is an operative system of general rules impartially applied. Without that we cannot claim to be even attempting as a society to treat like cases are alike in a systematic way.

      Of course, a really good legal system, a system that is good overall, will have laws that are not only general, specific and clear, but actually have content we like because it includes the right generalisations, the right classifications, and the right remedies. If we could only agree what such substantively good laws would be then our political problems would be at an end. This takes us to the second argument for ethical positivism: that a system of good positive law is essential for the realisation of democratic government in a large and complex society.

      There are many reasons for adopting this view. For instance, collectives or their representatives cannot routinely make decisions about particulars, but only about types of persons and situations. Further, choice of rules is not only a manageable focus for political discussion and choice, but is one which functions so as to mitigate the role of naked self-interest in politics by making explicit the choices that have to be made between how different categories of person and behaviour are to be subject to or beneficiaries of state power.

      Finally, only if democracy is centred on the choice of rules, can it begin to approach the ideal of providing real political power to the people as a whole. And if the rules thus created are not followed or are subverted by processes that enlarge judicial discretion at the expense of rule-governed decision-making then democracy is thereby diminished.

      In many ways both reasons for adopting the rule of positive law are hardly controversial. Clearly all tolerably fair and effective societies need a publicly knowable system of followable rules that can be identified in a publicly verifiable way. Even the most activist of judges usually endorse some such background set of political assumptions. This is, however, often followed by a string of caveats and qualifications that threaten to undermine the initial commitment to the democratic rule of law. Majorities get it wrong.

      Minorities suffer in consequence.