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The judge, Ronald Dworkin famously argued, must think of themselves as an author, albeit one with a special responsibility. Their task, he said, is to interpret and then situate themself within the chain novel of the law, a novel which it is their job to continue ‘according to [their] own judgment of how to make the developing story as good as it can be.’ With this image – of judge as author – Dworkin attempted to explain how the judge might answer both to the demands of institutional history – to the previous chapters of the novel constructed by other authors, legislative and judicial – and to the requirements of morality as they bear upon the judicial task, requiring in many cases critical and independent judgement on the question of the future path of the law. This is a picture of the judge with one foot in the past and one firmly in the future.
John Finnis’s recent lecture for the think tank Policy Exchange involves a meticulous and at times scathing attack on this vision of judicial power. At the centre of his argument lies the doctrine of the separation of powers: ‘The court’s judgment’ Finnis suggests ‘identifies and applies the legal commitments the community should be judged to have made to each of the parties now before the court, by the time they came into conflict with each other about the content or applicability of those commitments: past [sic].’ This contrasts with ‘the legislature’s responsibility’, which ‘is to make new or amended public commitments about private rights (and public powers) for the future.’ To be clear, Finnis’s argument is not for the impossible doctrine of judicial formalism – the view that the judge’s role consists only in the application of pre-existing law – for he admits that courts, especially those that are ‘hierarchically supreme and thus not bound to follow the rulings of higher court[s]’, may depart from previous judges’ views or interpretations of the law. They may do so, however, only when these views are ‘out of line with principles, policies and standards acknowledged … in comparable parts of our law – so out of line that [they] ought now to be declared to have been a mistaken view.’ This is the vision of judge as proof-reader, as opposed to author.
Why ought judges to be denied a more creative role within the constitution? Making law, Finnis says, ‘is taking responsibility for the future, a responsibility of persons answerable for the new laws to their subjects.’ Democratic legislatures are, of course, so answerable whereas ‘judicial powers are rightly made immune from any requirement to answer for their judgements.’ As such, he concludes, judicial innovation – particularly as it appears in the domain of human rights – involves the exercise of a certain kind of political power absent its justificatory basis. The rule of law is not the same thing as the rule of the judiciary.
How good is this as an argument against the view of judge as author? It certainly has some force against the view of the judge as final arbiter of a society’s constitutional future as this does deny answerability a role in relation to political choices of the highest order. But does it exclude all forms of creativity on the part of the judiciary? Perhaps not. For whilst the judge does not have a future-oriented accountability for their decisions, they do have a unique perspective on the law. Because adversarial proceedings focus on the particulars of the parties before the court – their circumstances, dispute, and the impact of the law as it stands upon their case – as opposed to abstract questions of policy and legislative choice, the judge is uniquely positioned to effect change, incremental and historically rooted, but nonetheless genuinely creative, which draws upon the insights of this perspective. It is instructive, in this regard, to think about the ways in which the courts have developed controls over the actions of the administration, such as those associated with requirements of fair procedure. The restatement of the right to a hearing in the celebrated case of Ridge v Baldwin, for example, was not spurred by the view that the prior and deeply restrictive law in this area was so out of line with other aspects of then existing administrative law as to be considered a legal ‘mistake,’ but by the view that the law ought to be actively improved so as to allow those whose interests have been compromised by administrative action to be heard.
The justifiability of a measured human rights jurisdiction on the part of the courts is informed by a similar story. Finnis suggests that, given a well functioning legislature, ‘it is not wise to require or permit judges to exercise the … responsibility of … condemning legislation for its not being ‘necessary’, or for its ‘disproportionality’, relative to open-ended rights’. But here too the perspective of the judge does important work. The courts’ institutional position makes them especially well suited to assess the micro-political impact of macro-political choices – impacts that even a well-ordered legislature may not be able to perceive – for example, whether a policy or legislative rule disproportionately affects the most fundamental interests of particular individuals. The aim of such an exercise being not to develop a new political alterative but, as per the division of power envisaged in particular by sections 3 and 4 of The Human Right Act, to make other institutions aware of the costs that their actions impose. Answerability, whilst a fundamental feature of legitimate political decision-making, is not the only way to constitutional respectability and the judge has a different approach.
What of cases where judges do have something approaching the final say in relation to issues of political importance? Here Finnis pulls no punches. Several decisions of the US Supreme Court come under heavy fine. Roe v Wade, he says, was ‘so ill reasoned…, [as to show] no sense of an obligation to be constitutionally sound in adjudication’ whereas Obergefell v Hodges, the recent case declaring the right to same-sex marriage under both the due process and equal protection clauses of the US Constitution is, he suggests, ‘rightly regarded … as so defective in legal argumentation as to be almost unreadable by professionals.’ Finnis puts his complaint this way: the issue, he says, is not with the substance of these decisions, but with the way in which legal change was achieved, via judicial diktat as opposed to democratic legislative choice. ‘Whatever one’s views about the justice or injustice of these reforms,’ he suggests ‘it matters [by what] method … they were introduced.’ A number of decisions of the European Court of Human Rights (ECtHR), both in relation to the protection of foreign nationals from torture and prisoners voting rights, are given similar treatment, as having taken away from politics choices rightly settled by political means.
There is an important point here. It does matter how rights come to be respected, not simply that they are, and there may well be something to regret when law rather than politics is the agent of even the most laudable of political changes. But if the argument is truly one about means then it needs to be made consistently. For whilst Finnis is keen to condemn the ECtHR for its ‘political’ decisions concerning, for example, the rights of prisoners and non-nationals, he has on other occasions spoken with a quite different voice. In a regrettable piece on the Shabina Begum case, he described in positive terms the decision of the Grand Chamber of the ECtHR (on this occasion a ‘great pan-European authority’) in the infamous Refah case. Here the ECtHR upheld the decision of the Turkish Constitutional Court, based on highly contestable evidence, to dissolve and strip of its assets the largest political party in Turkey, Refah Partisi, then in governing coalition, for the reason that it promoted aims contrary to those of the convention. The ECtHR’s judgement, it is to be noted, was also the occasion for a number of unfortunate generalisations about both Islam and Islamic politics.
It is, in one sense, hard to understand how we are to square strong opposition to judicial intervention with regard to franchise in the case of prisoners voting rights with Finnis’s relaxed attitude towards the silencing of the legitimate outcome of the very machinery of politics. It is also hard to understand how we might square his fierce opposition to court action that refused religion a determinative role in relation to the shape of one kind of social institution, as Obergefell did, with support for the militant form of ‘secularism’ that finds expression in the ECtHR’s judgement in Refah. This, of course, is not to deny the point of principle, that there exist important differences between legal and political means of social change. We might, however, pause to consider whether at least some of the anger that Finnis directs at the notion of ‘Judicial Power’ has to do, not so much with the idea of judge as author, but with the kinds of books that the judges are writing.
Thomas Adams a Research Fellow in Law at Corpus Christi College, University of Cambridge.
(Suggested citation: T. Adams, ‘The Politics of ‘Judicial Power’’ U.K. Const. L. Blog (11th Nov 2015) (available at https://ukconstitutionallaw.org/))