Many of the public lawyers who visit this blog will have been fed on a very strict diet during their public law studies. For some, just about every meal will have consisted of Dicey’s theory of Parliamentary sovereignty and the ultra vires theory of judicial review (with the odd acidic mouthful of some heretical challenges to those theories); for others (the lucky ones) those same base ingredients might occasionally have been seasoned with a sprinkling of Jennings, Wade and even Blackstone. Public law – much like land law or contract law – was served up as a body of reasonably clear and well-ordered rules to be ‘read and inwardly digested’. (There ends the over-stretched gastronomic metaphor).
No doubt I exaggerate, but the public law scholarship in universities and journals today certainly seems to have moved a long way from the rather arid scholarship of yesteryear. The dominant themes are now human rights, democracy, dialogue, deference, pluralism, constitutionalism, republicanism and so on. Dicey et al have of course not been forgotten, but their work must now seen against this backdrop. To put this point differently, Dicey’s theory is no longer the unquestionable orthodoxy in the public law discourse; it is just one (contentious) theory among many about how we should understand the British constitution.
I want to use this short paper to say something about the significance of the shift in public law (by which I mean constitutional and administrative law) thinking just described. My title gives the game away. My argument is that the public lawyer – whether judge, lawyer, academic or student – must now be be a fully signed-up legal and political (and perhaps even moral) theorist. It is no longer an option – in fact it really never was an option – to say “oh, I don’t do theory” or “I only do doctrinal public law”. Whether we like it or not, every view we hold about public law presupposes a theory about the nature or point of law and political authority. The modern public law discourse demands that we spell out our different theoretical commitments.
Let me first explain my argument in a fairly abstract and general way. I’ll then work through a few prominent areas of public law in order to illustrate my point.
Public lawyers are interested in questions about the relationship between the state and the individual (and the relationship between different branches of the state). As lawyers, our focus tends to be on courts. We ask whether courts do or should give effect, say, to the intentions of Parliament and/or common law principles and/or constitutional rights/principles and/or general principles or morality, efficiency, diplomacy or whatever. Very often we disagree deeply about the answer to this type of question. Two theorists might offer radically different interpretations of the same judgment/statute or set of judgments/statutes. Indeed, this is standard fare of judges and practising lawyers.
On the surface, these types of disagreements are nothing more than the lawyer’s bag of tricks: a range of strategies for securing the desired result in a legal dispute; worse still, they are seen as abstract, conceptual disagreements about what judges really do. But dig a bit deeper and one finds a complete philosophy of law and the state buried beneath these different positions. Let’s take a short example. A theorist who contends that judges should give effect to constitutional rights/principles might be committed (whether explicitly or implicitly) to a variety of different legal and political theories. They might hold, the extreme natural law view that law is identical to the principles of ideal justice, and that the state may only exercise power in accordance with those principles; or they may hold a more mainstream natural law theory that positive law should aspire to, and be evaluated against, certain fundamental goods/principles, and that the state exists to further such goods/principles; or they may support a ‘soft’ version of legal positivism that moral content may be incorporated into positive law, and that the state exists to promote co-ordination and certainty; or they may support a ‘hard’ version of legal positivism that judges may have a legal duty to apply moral principles, and that the state functions to provide authoritative guidance to individuals.
Whichever theory one adopts – and however one understands that theory – there is no escaping the fact that some such theory must underpin our views on public law (and every other area of law for that matter). In that case, a full defence of our public law views must involve a defence of our preferred theoretical position against other theoretical positions. At this point, the public lawyer might have to confront an additional layer of philosophical complexity. As soon as we start talking about one theory being better than another, or a public lawyer preferring one theory to another, there is bound to be a loud chorus of disapproval from the moral subjectivists among us (“there is no right answer to questions about law and the constitution; it’s all about personal opinion” or “what gives you the right to say that your constitutional theory is better than mine?”) Suffice it so say for present purposes that the subjectivists may be correct (if being ‘correct‘ is permitted!), but their view is not ‘correct’ by default. Subjectivists, like objectivists, have to offer a positive defence of their theoretical view of truth – along with a positive defence of their substantive views about public law.
I do hope that I haven’t managed to put anyone off public law with the above. My aim, it should be emphasised, is not to convert law degrees into philosophy degrees, or law journals into philosophy journals. It is the more modest aim to get judges, lawyers, academics and students thinking more directly about the theorists and theories that shape their views about public law. If nothing else, a more philosophically enriched public law world is a more interesting world. If I have managed to carry any of you with me to this far, then it may help to offer a few illustrations of the (inextricable) links between public law, legal theory and political theory.
Parliamentary sovereignty (PS)
Is Parliament sovereign? It obviously isn’t enough to answer “yes, because Dicey said so”. What types of theories count in favour of, and against the sovereignty doctrine? Some public lawyers seem to derive PS from the work of John Austin and Hans Kelsen: there must be an ultimate source of law at the apex of the legal system. Other public lawyers argue that PS is the Hartian ‘rule of recognition’ in the UK: it is the standard that most officials accept. Others might argue that Parliament is the Hobbesean Leviathan. Others argue that PS is false because Austin, Kelsen and Hart were all wrong. They were wrong a) because the powers of Parliament must be justified by a range of legal rights and principles; or b) because Parliament is just one of a plurality of different – and equally authoritative – sources of law.
Is Parliament sovereign? It depends…
The Rule of Law (RoL)
What does the RoL mean? Is the RoL a formal or substantive principle? It isn’t sufficient to opt for a the latter conception on the (spurious) basis that substantive theorists champion human rights where formal theorists sanction lawful tyranny. The overwhelming majority of RoL theorists of all persuasions believe that individuals have certain moral rights. The RoL debate is about a) whether some or all of those rights are legal rights; and b) whether or when judges are under a duty to give effect to those legal/moral rights. That takes us into jurisprudential debates about the function of law (and the role of judges). If it is argued that the point of law is to enable co-ordination, certainty, predictability and protected expectations, then it follows that laws needs to be readily identifiable, accessible, clear and so forth (as formal theorists maintain). If, on the other hand, one argues that the point of law is, say, to create the conditions of equal treatment, then it follows that law needs to be infused with principles of fairness and justice (as substantive theorists maintain). Public lawyers need to nail their colours to one or other mast, and explain why they have done so (or they might just deny that there are two masts!).
What does the RoL mean? Is the RoL a formal or substantive principle? It depends…
Do judges defer to the opinion of officials (on the grounds, say, of institutional expertise or democratic legitimacy) in public law adjudication? Most theorists would agree that there must be a division of labour between different branches of government. The deference debate concerns whether that division of labour is governed by law or by an autonomous extra-legal doctrine of deference. In other words, when a judge gives special weight to the view of a minister or other official, is the judge giving effect to a legal duty, or is the judge disregarding the law in favour of a competing value (say, of institutional comity?) These questions take us once again into jurisprudential debates about the point of law and the role of judges. If it is argued that there are correct answers to most or all questions of law, and that judges are ordinarily under duty to give effect to the law, then the idea of deference is nothing more than the set of legal principles that determine the powers of institutions (a legal principle of the separation of powers if you like). If, on the other hand, it is thought that it is a contingent matter whether judges have a duty to give effect to the law (as opposed to some other value), then there may well be space for an autonomous , extra-legal, doctrine of judicial deference.
Do judges defer to the opinion of officials (on the grounds of, say, institutional expertise or democratic legitimacy) in public law adjudication? It depends…
Some Closing Thoughts
I shall not try to extend, repeat or summarise my argument above. Instead, I’ll just recommend a couple of articles that make my argument far better than I have made it myself. First, the famous article by Lon Fuller (Fuller, Lon L. (1949) “The Case of the Speluncean Explorers” 62:4 Harvard Law Review, pp. 616-45). For those of you who are unfamiliar with this article, it offers a very engaging and witty account of how different judges conceive of law and adjudication differently. More, recently, I would recommend Paul Craig’s excellent article ‘Public law, political theory and legal theory’  PL 211-39 at 217-222. Craig suggests that theoretical arguments have sometimes been eclipsed by descriptive arguments in the past. He suggests that public law should emphatically be about the former type of argument.
Finally, I recommend that you all read the complete works of Kant, Dworkin, Raz, Hart, Fuller, Finnis and all the other greats before you open another public law judgment!!!
Stuart Lakin is a Lecturer in Law at the University of Reading