LIBERAL LEGALISM
The globalization of rights constitutionalism is more than a globalization of institutional form, but for scholarship also a globalization of method. This method is located in ‘an ideal of the autonomy of law’ which ‘highlights law’s adjudicative nature and control functions and therefore its rule orientation and conceptual nature.’[177] This normative methodology rests on a shared set of epistemological assumptions, which we can locate firmly within the dominant paradigm of law in western thought, namely liberal legalism.
As this methodology is generally uncritically accepted, the legal knowledge on which it is based tends to be assumed, rather than explained and justified. However, in the globalizing age, the shortcomings of these assumptions are becoming ever more apparent. Accordingly, to clarify the terms of the paradigmatic debate, it is important first to explore and render explicit the epistemological foundations of rights constitutionalism.Liberal legalism is the dominant paradigm in western legal thought, and informs the popular imagination, as well as the bulk of legal scholarship and practice. In this view, law is formal state law, where the most important actors are lawyers and legislators, and which finds its ‘epitome’ in ‘the court of law and the trial according to law.’[178] It is perhaps most widely regarded as having a normative orientation, which Scott Veitch captures as ‘an ethical attitude to how humans do or ought to relate to each other when it comes to their legal relations in community.’[179] This ethical attitude is informed by the need for legal controversies ‘to be conducted in accordance with predetermined rules of considerable generality and clarity’ (legalism) which seek to promote the moral value of ‘independence, or, rather, independence in interdependence, independence in community’[180] (liberalism).
It is important to see how liberalism entails legalism (although the converse does not apply): if we wish to protect autonomy, it is important to have in place a coherent set of systematically enforceable rules. This account of liberal legalism does not just exist in the mind of legal theorists, but finds practical expression in the globalization of rights constitutionalism. Here, entrenched rights are regarded as necessary to protect individual freedom, while the process of constitutional review provides clear ground rules so that individuals can effectively plan their conduct.[181]The doctrine of the rule of law is fundamental to constituting liberal legalism as a distinct paradigm. If we regard paradigms as providing a community of scholars with ‘model problems and solutions’[182] in a particular field, then the model problem of liberal legalism has been,[183] and continues to be,[184] the search for the criteria of valid law. Paul Craig[185] outlines three different schools of thought on the rule of law: the formal conception, which focuses on whether laws have been passed according to the ‘correct legal manner’;[186] the substantive conception where the key to a valid law is how it fits with ‘the best theory of justice’;[187] and the ‘middle way’ which explains its procedural requirements as a ‘principle of institutional morality’[188] which can, on occasion, justify (some) substantive limits on government action.[189] This analysis might seem to undermine the claim that these different positions come together within a single paradigm. However, underlying this ostensible disagreement is a series of assumptions which, once articulated, shows that this disagreement is internal to a common epistemological framework.
First, what binds together all liberal legalist approaches to the rule of law, and reflecting their roots in the Enlightenment project of modernity, is that the test of a valid law is the extent to which it promotes individual autonomy.[190] For example, the formal version requires the protection of rights to exercise self-governance with respect to the community, so that laws which fail the test of validity would include those restricting the political rights of citizens to participate fully in the political process.[191] More substantive versions envisage
42 The Paradigmatic Debate: Liberal Legalism and Legal Pluralism invalidating laws which unreasonably interfere with the civil rights to enjoyment of the private sphere,[192] or economic rights to the enjoyment of private property.[193] While they might draw the line in different places, what unites these positions is that the question of the appropriate extent of individual autonomy in liberal societies provides the framework for placing limits on the scope of legality.
Secondly, while the rule of law is generally understood as a normative theory, it is important to see that underlying these disparate viewpoints of law is a shared set of descriptive assumptions as to how law promotes individual autonomy in practice. We can approach what this view of law consists of by considering Dicey’s famous exposition on this theme, which remains among ‘the most influential’[194] versions in the academy. For Dicey, the rule of law had three elements: 1) that no punishment can be imposed ‘except for a distinct breach of the law in the ordinary legal manner before the ordinary courts;’ 2) that every person ‘is subject to the ordinary law;’ 3) that rights find their source in ‘judicial decisions determining the rights of private persons... brought before the courts.’[195] While some leading scholars have found the connection between these three elements ambiguous[196] or obscure,[197] Harry Arthurs suggests that two common themes run through each formulation, namely a ‘double emphasis’ on ‘the exclusive legitimacy of [ordinary] law’ and the ‘adjudicative monopoly of the ‘ordinary courts of the land.” ’[198]
Viewing the rule of law in this way thickens the epistemological basis of liberal legalism. First, Dicey’s distinction between the ordinary law of the ordinary courts, and the pronouncements of ‘persons in authority,’[199] shows that the rule of law confers legitimacy on the exercise of some forms of power by converting them into the exercise of law. The latter clearly includes the law handed down by the state’s official courts, but within Dicey’s constitutional framework, where an Act of Parliament constituted the highest legal norm, it must also include statute law as well.[200] This touches on the uneasy relationship between parliamentary sovereignty and the rule of law in Dicey’s account, with the
latter at least being seen as a political precept constraining the former, now upgraded by some modern interpreters as a juridical principle.[201] However, even if the rule of law as the ordinary law of the courts, makes defeasible some statute law,[202] this can be seen as a ‘disagreement about the way in which we identify legal norms,’[203] while agreeing that whatever counts as a valid law has, of necessity, its exclusive provenance in the state.
Thus, the first core feature of liberal legalist epistemology is that law is formal.Secondly, the special legitimacy of state law rests to some extent in its possessing unique attributes which promote individual autonomy in practice. Dicey’s prescription that no person should be ‘lawfully made to suffer in body or goods’ except for a clear breach of the ordinary law, ascribes to the latter the special character of setting clear and consistent rules in contrast with a ‘wide, arbitrary, or discretionary power of constraint.’[204] This is the basis of the rule-based paradigm, ie, ‘the modernist view of law [as] a system of interrelating and non-contradicting rules,’[205] and informs traditional approaches to legal scholarship in terms of exposition, clarification and ordering.[206] Thus, the second core feature of liberal legalist epistemology is that law is coherent. Third, it is crucial to see how the liberal legalist emphasis on protecting individual rights is premised on a view about the effectiveness of law. Arthurs reminds us that Dicey’s argument that the ordinary courts are the best means of securing individual freedom is not just a prescriptive claim, but was also Dicey’s description of the historical record in England, ie, that to have cases decided by the ‘ordinary courts’ will lead to the protection of individuals’ private rights.[207] This generally implicit assumption that law acts in a direct, instrumental manner continues to underpin debates on the rule of law, where the prize, according to Christine Sypnowich, is to devise a formulation which will ‘check... political ventures, and... restrict the means we deploy to further our ends.’[208] Thus, the third core feature of liberal legalist epistemology is that law is an effective means of protecting individual rights.
These assumptions of the exclusive or universal legitimacy, internal coherence, and effectiveness or instrumentality of state law underpin and explain the prevailing form of normative constitutional scholarship. It is simply taken as read that constitutional law is concerned with the interpretation and application of the official law establishing and limiting the organs of the state. Further, if state law is a systematic whole, then the task of the scholar is to establish the meaning of constitutional norms, by developing a systematic and coherent theory of interpretation, which distinguishes constitutional reasoning from contingent political argument. Moreover, if state constitutional law is the instrumental means of social engineering, then the task of the scholar is to engage in normative debate over how justice can best be served. Whether these assumptions are justified in practice will be explored in the following two chapters. For the present, though, we turn to consider the nature of the challenge to the liberal legalist paradigm from its principal rival: legal pluralism.