Law, freedom and justice

J A G Griffith’s superficially descriptive or empirical stance, apparently resistant to normative constitutional claims, ultimately reflected its explicit jurisprudential basis. His opposition to a Bill of Rights, enforceable by the judiciary, and to anything more than a minimal style of judicial review of administrative action, was rooted in his legal positivism.

I am arguing then for a highly positivist view of the constitution; of recognizing that Ministers and others in high positions of authority are men and women who happen to exercise political power but without any such right to that power which could give them a superior moral position; that laws made by those in authority derive validity from no other fact or principle, and so impose no moral obligation of obedience on others; that so-called individual or human rights are no more and no less than political claims made by individ­uals on those in authority; that a society is endemically in a state of conflict between warring interest groups, having no consensus or unifying principles sufficiently precise to be the basis of a theory of legislation.^[292]

Consistently with this conception of law as the exercise of naked power, Griffith challenged the idea of separation of powers implicit in the rule of law as a constitu­tional ideal.

Legal constitutionalism repudiates that striking but implausible vision of law as political power. For a legal constitutionalist, law is a source of moral authority deriving, in part, from the legitimate exercise of power by elected and accountable representatives; and there is a moral obligation to obey the laws duly made by those with the requisite authority. Within this conception of law, political conflict is soft­ened and contained by broad constitutional commitments to an ideal of human dignity and personal autonomy—sufficiently abstract to accommodate competing visions of the social order but adequate to ground a more compelling vision of a free republic.^[295] From a legal constitutionalist perspective, the separation of powers is no mere arrangement of convenience or even a means of dispersing power as a defence against authoritarianism. It is an implicit requirement of the rule of law itself, as applied to government: ministers and other public authorities may exercise only the power conferred (in the usual case) by statutory grant, subject to judicial review to enforce the relevant jurisdictional limits. The overarching idea is the rec­onciliation of political authority and individual autonomy; the separation of powers between the principal institutions of state is critical to the citizen's independence, ‘owing his existence and preservation to his own rights and powers as a member of the commonwealth, not to the choice of another among the people'.^[296]

If the rule of law were only a means to promote efficiency, as Joseph Raz contends, there would be no reason for government officials to refrain from ad hoc departures from legality whenever that might prove useful to ends in view: coercion might be applied without any legal basis that a court would recognize.

Legal constitutionalism denies the positivist thesis that the rule of law is a prin­ciple designed to limit the dangerous potential of law itself: it is not a negativi value, intended merely ‘to minimize the harm to freedom and dignity which the law may cause in its pursuit of its goals', whatever they may be.^[298] Raz is much closer to the truth in acknowledging that one of our most ‘common images' of the rule of law portrays it as ‘an ideal rooted in the very essence of law', so that in conforming to it ‘the law does nothing more than be faithful to its own nature'.^[299] The idea that force should not be used against the citizen except in response to the breach of a published and prospective rule, or only in accordance with rules that confine and control discretionary governmental powers, conferred in the public interest, must be viewed as intrinsic to the concept of law: the rule of law means, above all, compliance with law in this sense. Our concept of law is, then, the antithesis of arbitrary power, which is power exercised beyond the limits prescribed by general rules, binding on government official as much as private citizen.^[300]

An acknowledgment of the moral nature of law, and its intrinsic connection with liberty as independence, provides the basis for an understanding of democracy as a mode of legitimate governance, reflecting fundamental assumptions about citizens' equal dignity.

The rule of law dictates the submission of public authorities to requirements of rationality and due process, enforceable by independent courts. Such courts must be free of any political interference or personal prejudice; and their decisions must be securely based on accurate perceptions of the relevant facts, established by duly admissible evidence. Although administrative bodies cannot, of course, exhibit a similar detachment from their own policy objectives and assessments of the public interest, they must nonetheless comply with analogous standards of rationality and fairness. An administrator must act impartially: each person's situation must be judged in the light of the proper objectives of the relevant powers, ignoring considerations of personal merit or rank or affiliation irrelevant to those objectives. There must be appropriate procedures to establish the facts in particular cases so that individuals are not subjected to unwarranted interference, unnecessary for the public purposes in view. It is a feature of government according to law, moreover, that any exercise of coercive power is consistent, not merely with the explicit terms of the grant of power, but also with the constraints implicit in the character of the legal order itself as a community of independent moral agents, claiming equal dignity or worth.

Compliance with the rules of natural justice, by both courts and administrative agencies, is as important an aspect of the rule of law as the conformity of enacted rules with the constraints of formal or procedural legality (generality, clarity, publication, prospective effect and so forth). It is not simply that the accurate application of rules and policies to particular cases serves the goal of efficiency or effectiveness. It is primarily a question offairness: discrimination between persons is unfair and arbitrary if not properly related to authorized public purposes. If, moreover, people are thought to have a moral obligation of obedience to duties or requirements imposed in the exercise of legitimate authority, they must be able to a cknowledge such an obligation in the light of their own treatment in all the circumstances. Coercive interference with people's rights and interests must be capable of justification; and no one can be expected to acknowledge the justice of his treatment when it is determined by an official whose impartiality is suspect, or whose procedures are wholly unreliable. There is an implicit appeal to the citizen's duty to accommodate his interests to the wider demands of the common good; and unfairness undermines that appeal, threatening the citizen's self-respect.

Beyond the principles of natural justice or procedural fairness, however, the rule of law—in contradistinction to the rule of state officials—encompasses all the familiar requirements of rationality and legality enforced by judicial review of administrative action. If a public authority acts for improper reasons or on the basis of irrelevant considerations, or overlooks or disregards relevant matters, it exceeds its proper jurisdiction as fully as if it ignores explicit limitations on the scope of the powers conferred. Nor can we accept a formalistic distinction between having regard to relevant factors, on the one hand, and attributing to them an inappropriate weight, on the other.

The concept of Wednesbury unreasonableness sits astride any simple dichotomy of procedure and substance. It provides for a review of administrative process, ensuring that the decision or action impugned can be shown to fall within a range of legitimate possibilities, respectful of both relevant statutory purposes and the gravity of the con­sequences for persons specially affected. In acknowledging, in exp Smith, the serious damage done by government policy to the applicants' rights of privacy and person­hood, the court made the rationality test properly sensitive to the constitutional context. The legality of a policy to exclude homosexuals from the armed forces depended not only on the cogency of the reasons offered in its favour, but also, in part, on the gravity of the consequences for those whose unblemished careers would be abruptly terminated. In accepting that ‘the more substantial the interfer­ence with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable', Bingham LJ acknowledged the dependence of legality on legitimacy: in judging whether the decision was ‘beyond the range of responses open to a reasonable decision-maker', the ‘human rights context' was plainly critical.^[302] Insofar as the rationality test fell short of the robust inquiry into proportionality, which European Convention jurisprudence required, it was surely misapplied, allowing the applicants' rights to be overridden on slender and ultimately unconvincing grounds. The court deferred to the ‘primary decision-maker' to a degree that undermined the rights it purported to accept in principle.^[303]

In defending the idea of a true republic as an ‘empire of laws', Philip Pettit stresses that far from being a constraint on liberty, as is sometimes supposed, law is better understood as constitutive of liberty in securing the conditions of non-domination. The empire-of-laws condition requires, in addition to respect for the precepts of formal legality applicable to legislation, the extension of the rule of law to executive agencies: ‘They should be permitted to act only under the authority of law, and only in a way that accords with the requirements of law.... An empire of law requires fidelity to due process on a wide range of political fronts.'^[304] There is no objection to the exercise of discretion by government officials provided that it is curtailed and confined by requirements of fair procedure and due process. And Pettit rightly distinguishes republicanism from populism. True republicans want to guard against the abuse of majoritarian power: they will endorse such counter-majoritarian meas­ures as the bicameral division of Parliament, the recognition of constitutional limits to legislative supremacy, and the operation of a bill of rights.^[305]

Richard Bellamy, by contrast, is scornful of ‘legalistic conceptions of the rule of law'; for him the rule of law is simply ‘the democratic rule of persons'.^[306] He acknowledges the importance of ideas of impartiality and reciprocity: the ideal of equality before the law means that ‘we want the law to be not only blind and free from partiality but also in the public interest'.^[307] But since there is no ‘privileged evaluative viewpoint' from which to decide whether government action serves the public interest, we must rely on the democratic political process, which ‘allows people to speak for themselves and to contest the proposals of others'.³⁴ Without scope for discretion to depart from general rules, and for special laws that treat different people differently, the law itself may become arbitrary, neglecting genuine aspects of the public good. But Bellamy largely ignores the danger of arbitrariness in the sense of unfair and illegitimate discrimination, dismissing all insistence on law's proper moral form in favour of unfettered political bargaining. The rule of law, correctly conceived, is a precious safeguard against ‘special laws' that victimize

unpopular persons or vulnerable minorities, and against coercive action that does injury to individuals out of all proportion to any public gain.

Bellamy's depreciation of the rule of law—his failure to grasp the moral nature of the concept of law—accompanies a conception of equal democratic citizenship as implausible as it is unattractive. In his broad-brush focus on legislation, Bellamy seems entirely to overlook the problem of administrative discretion and its impli­cations for individual liberty. If a robust republicanism is, in the political sphere, truly the antithesis of tyrannical rule, judicial review of governmental action plays a similar role in public administration. The more heavily an administrative decision bears on the rights or interests of particular persons, whose special circumstances bring them within range of an agency's pursuit of its policy agenda, the greater, in fairness, must be their opportunities to challenge its legality. Recourse to judicial review, at least in the absence of an effective statutory appeal, is the administrative counterpart to rights of opposition and challenge to legislative proposals or government policy. And here the ‘privileged evaluative viewpoint' of the judge is critical, independent of both executive or administrative agency, on the one hand, and complainant, on the other.

Bellamy substitutes for Pettit's ‘idealized political process' a conception of democratic politics in which everything is determined by majoritarian decision.^[308] There is space neither for the exercise of delegated administrative power, nor for the general legal principles that prevent such power degenerating into arbitrary coercion of individuals. His repudiation of legal constitutionalism has striking consequences. In the absence of ‘common recognizable interests', identifiable by a court of law firmly detached from the political process, everyone would be subject to domination by public officials, whose discretionary judgments in particular cases would be immune to challenge.^[309]

Even when the exercise of discretionary power by public authorities is subject to inspection and challenge on the basis of its consequences for the public inter­est, political accountability needs to be supplemented by review for legality at the behest of those directly and specially affected. It is only in the light of the specific consequences for such persons that we can judge not merely the general effective­ness of administrative action, but its fairness and reasonableness in all the circum­stances. It is as great an error to imagine that the political process can alone secure the citizen's independence as it is to suppose that the rule of law can dispense with democratic deliberation and decision.

It may be thought, nonetheless, that Bellamy's objections to judicial review of primary legislation are perfectly consistent with a vigorous regime of review of administrative action: here the judicial role, strictly subservient to Parliament, is merely to enforce the prescribed limits of the statutory powers of officials. As I shall argue more fully below, however, the limits of any administrative jurisdiction, being a matter of statutory interpretation, cannot be discerned without reflection on pertinent questions of liberty and justice. We cannot determine the legality of any governmental decision or action by reading the statute in isolation: the nature and scope of a statutory power are matters of judgement, brought to bear on the circumstances in which the power has been asserted. So much depends on the con­sequences of administrative action for particular persons, whose interests must be accorded appropriate weight in any fair and reasonable exercise of discretion; nor can we neatly segregate questions of fairness and rationality from those of legality or jurisdictional limits. We determine the limits of a statutory power, in part, by reflection on the acceptability of particular outcomes, whether actual or hypothetical. In supervising the legality of administrative action, therefore, the court must con­struct the character of the jurisdiction under review by reference both to legitimate public purposes and independent standards of legality. The court must be as much the guardian of law as the servant of the legislature: it enforces Parliament’s law in the manner appropriate to the law of a parliament, representative of equal and independent citizens united by an inherited tradition of justice.

If, of course, law were best understood as a heap of unrelated rules giving legisla­tive direction on specific matters, with little or nothing by way of interconnected doctrine or principle—law as positive law in the most literal sense—the courts could only be mainly passive instruments of a superior will. Any creative judicial role would be confined to legislating, interstitially, to fill gaps in the legal order. The citizen would then be subjected to the rule of Parliament and the rule of judges and officials, rather than subject to (and protected by) the rule of law. It is part of our concept of law, indeed, that it gives the citizen a role in the rational determination of its content: he is accorded the dignity of an independent moral rea­soner, encouraged to make sense of the law as a whole, and hence of its demands in particular instances. Our common law principles are ultimately the related moral ideas that enable us to find coherence within both legislation and judicial precedent, treated as parts of the same system of law. The law presents itself to its subjects as a ‘unified enterprise of governance that one can make sense of’, enabling them to understand how ‘the regulation of one set of activities relates rationally to the regulation of another’.^[310] The citizen is accorded the status of legal interpreter, extending deliberation and dialogue from the political into the legal domain: ‘In this way, the law pays respect to those who live under it, conceiving them now as bearers of individual reason and intelligence’.^[311]

It follows, however, that we cannot easily draw sharp lines between different species of judicial review, contrasting ‘strong’ and ‘weak’ varieties.^[312] Even if there is no formal power to quash a statute for breach of fundamental rights, there is large and legitimate scope for interpretative sensitivity to such rights; an application of statute that ignored the implications for political morality (as opposed merely to political expediency or efficient administration) would result in law degenerating into official decree and administrative tyranny. While from an American or even Canadian perspective, the Human Rights Act 1998 might initially seem a weak form of review, as regards primary legislation, a focus on section 3 alters the picture.⁴⁰ Insofar as section 3 echoes the interpretative approach of the common law, making the European Convention rights critical to correct construction of relevant statu­tory provisions, it affirms the collaborative nature of parliamentary enactment and judicial application characteristic of governance according to law. The justice (and hence legitimate extent) of a penal measure intended to protect the public from dangerous criminals, for example, can be appraised in the course of its application to an individual offender, whose particular circumstances may reveal the danger of unwarranted severity—a danger averted by a nuanced interpretative approach.⁴¹ We should not choose between unfettered parliamentary sovereignty, on one hand, and judicial supremacy, on the other; rather we should affirm a separation of powers that makes Parliament supreme within the limited, benign constraints imposed by adherence to legality as a basic political value.⁴²

Our concepts of law, liberty and justice are closely intertwined; and their explication is necessary for a proper grasp of the related ideas of democracy and citizenship. Public lawyers can no more choose between contrasting conceptions of the rule of law, as Paul Craig suggests,⁴³ than political constitutionalists can choose legal positivism as a theory of law that suits their repugnance for judicial review or the judicial enforcement of fundamental rights. Their task is rather to work out the implications of the idea of legality in the specific context of governmental action. Craig warns, following Raz, that ‘the adoption of a fully substantive conception of the rule of law has the consequence of robbing the concept of any function which is independent of the theory of justice which imbues such an account of law'.⁴⁴ If the rule of law were the ‘rule of the good law', Raz objects, then ‘to explain its nature is to propound a complete social philosophy'.⁴⁵ Craig is doubtful whether

‘in ways that the statute itself does not envisage’ (Waldron, ‘The Core of the Case Against Judicial Review’, 1354); but it begs the critical interpretative question to suppose that such matters of ‘modifica­tion’ and statutory meaning are independent of our efforts at principled, constitutional construction. Waldron presents the Human Rights Act 1998 (HRA 1998) as an example of weak review, focusing his attention on the declaration of incompatibility (having no effect on validity) under s 4.

⁴⁰ The HRA 1998, s 3 requires a court to interpret a statutory provision consistently with the European Convention rights whenever ‘possible’. The Canadian Charter of Rights, while rendering invalid any statute inconsistent with it, permits express legislative override (under s 33).

⁴¹ R v Offen [2001] 1 WLR 253, approved in R v Drew [2003] UKHL 25, para. 20; Allan, ‘Parliament’s Will and the Justice of the Common Law: The Human Rights Act in Constitutional Perspective’ CLP (2006) 59:27,47-9.

⁴² For an effective critique of Waldron’s objections to judicial review along similar lines, see David Dyzenhaus, ‘The Incoherence of Constitutional Positivism’ in Grant Huscroft (ed.), Expounding the ConsiiiHuon: Essays in Constitutional Theory (Cambridge: Cambridge University Press, 2008), 138, esp. 140-54. The incoherence of ‘constitutional positivism’ arises from its implausible combination of resistance to ‘strong’ judicial review and acceptance of a human rights culture informing both ‘weak’ review (of primary legislation) and review of administrative action (on the basis of moral principles of legality).

⁴³ Paul Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ PL [1997] 467, 487.

⁴⁴ Craig, ‘Formal and Substantive Conceptions’,487. ⁴⁵ Raz, The Authority of Law, 211. there is any ‘middle ground' between purely formal and richly substantive con­ceptions of the rule of law, observing that the principles of judicial review are not ‘self-executing': it is difficult for courts to undertake the necessary tasks of normative evaluation ‘without explicitly or implicitly relying on some background theory of justice'.^[313]

We should not assume, however, that a theory of justice is itself a matter of ungrounded choice, imposed by lawyers or judges as a matter of political will, inde­pendent of legal discipline and tradition. The relevant ‘background theory' may be largely a matter of piecemeal construction, case by case, attempting to give a greater coherence to acknowledged legal practices and standards. While the various requirements of administrative legality are in themselves no doubt compatible with competing conceptions of justice, elaborated as abstract ideals of political morality, their consequences for the validity of official acts or decisions may depend much more on expectations and assumptions embedded in legal practice, specific to a particular jurisdiction. Just as analysis of legislative structure and purpose is required to determine whether or not an agency has acted in breach of its statutory mandate, so recourse to common law principle may be necessary to resolve any doubts about the scope of the relevant powers. In more recent work, Raz has defended a simi­lar view of the rule of law, whose core idea is ‘principled faithful application of the law'.^[314] Democracy is reinforced by requiring legal institutions to be loyal to parliamentary legislation while also setting limits to majoritarianism, justification of judicial decisions being made by reference to ‘the common values and shared practices of the legal culture'. It is the function of the rule of law ‘to facilitate the integration of particular pieces of legislation with the underlying doctrines of the legal system'. A grant of police powers, for example, should be applied ‘in a manner which is both faithful to the legislative purpose and principled in integrating it with traditional doctrines of the liberties of the citizen'.^[315] Not only are those civil and political rights ‘without which no democracy can prosper' presupposed by this account, but further, the rule of law ‘respects those civil rights which are part of the backbone of the legal culture, part of its fundamental traditions'.⁴⁹

What for Raz are merely contingent features of British constitutionalism, however, are better understood as necessary elements of legality, but honed and elaborated in the context of an evolving legal order. They are an attempt to understand and give expression to the requirements of freedom as independence in the spe­cific conditions of the British legal and political order. In addition, therefore, to the procedural elements of the rule of law associated with the form of legislation and the propriety of administrative regulation and decision-making, our concept of law embraces (at least in abstract form) such basic freedoms as those of speech, conscience and association, inherent in any conception of republican liberty, as well as the prohibition of such intrinsic denials of equality as bills of attainder or the infliction of cruel and unusual punishments.^[316] These various elements of the rule of law provide a stable framework within which people can co-operate as equals in the pursuit of justice; and British legal practice should be understood accordingly. Law is linked to justice; but the relevant conception of justice is that presupposed by legal and constitutional practice, giving local and determinate shape to the ideal of legality.^[317]

C.