Judicial Parliamentary Terrorism

Judicial or Parliamentary Supremacy

Following the House of Lords recent “headline grabbing libertarian” decision to overturn the government’s anti-terrorism detention legislation, and render the entire detention scheme moribund, jurisprudential debate has centred upon the delicate constitutional balance of power between the judiciary and Parliament. Under traditional constitutional theory “the task of lawmaking is the exclusive province of Parliament”, the democratically elected legislature, best placed to be the final arbiters on matters of policy. As a corollary, under this orthodox doctrine of ‘parliamentary sovereignty’, the domestic judiciary were perceived as inhabiting a subordinate role, a role which courts themselves perpetuated, relished and even fortified.

Yet with the dawn of the Human Rights Act (HRA) era, these constitutional judicial shackles, which inhibited dynamic evolution of the judicial role, were, albeit tentatively, cast aside, with courts for the first time empowered with a law-making role. Yet despite the eminence of the HRA, this burgeoning judicial role has proved as contentious as it has ambiguous, with many questioning the desirability of the “judges as lawmakers” premise, as Slapper and Kelly acknowledge :-

“Judges do make law… the interesting question is...why they deny they do so…. For an unelected body to challenge Parliament would be unwise (so) law courts take refuge behind a naïve declaratory theory of law”.

In this passage, the authors posit two distinct theories, first, that judicial law-making is “unwise”, and second, that courts tacitly concede the undesirability of their powers by failing to fully acknowledge their nascent role. It is thus necessary to subject both theories to critical discussion.

The proposition that the judges may challenge legislative supremacy, the notion of ‘judicial supremacy’, is primarily grounded in a substantive rights-based conception of the rule of law, which perceives the law as an ensemble of ideas about liberty, justice and fairness. It proceeds from the premise that, as our unwritten constitution is seemingly premised upon rejecting legal constraints on the legislature, the primary law-making body, the absence of legal limits empowers them to enact laws fundamentally inconsistent with the rule of law. As such, judicial supremacists argue that the judiciary must necessarily be supreme, so it may function as both the ultimate guardian of freedom and democracy, and as a constraint upon arbitrary political power.

As the theory became more deeply entrenched, it evolved beyond its roots in political theory, to assume a legitimacy, as a theory of jurisprudence. Utilising Dworkin’s “constructive interpretation” doctrine as its conceptual predicate, this theory provides that as it is the moral and political justifications for laws, rather than the laws themselves, which are legally fundamental, judges are obliged to give legal effect to those moral imperatives, the most prominent of which is the rule of law, and resolve any inconsistencies between them and the will of Parliament by placing limits on the authority of the latter. As Sir John laws lucidly observes:-

“the doctrine of Parliament’s absolute sovereignty ultimately rests …subject to the rule of law”

By understanding the judicial supremacist argument as a political and jurisprudential theory, grounded in morality, and with support in matters of policy, the argument that it is somehow ‘unwise’ appears fallacious. Nonetheless, prevailing academic and political discourse maintains its rejection of ‘judge made law’, both for its abrogation of orthodox constitutional arrangements, and because it is flawed as a theory of rights adjudication.

More specifically, judicial supremacy is ‘unwise’ because it is grounded in the presumption that there exists a “determinate set of individual rights that are self-evidently morally true”. Yet such a presumption is intrinsically fallacious, because whilst certain abstract legal and political ideals unquestionably exist, their specific application to legal disputes is inherently complex, particularly when fundamental values conflict. Those who advocate judicial supremacy presume that judges are somehow innately capable reaching a morally desirable result: but because there is no self-evident method of determining such a result, this presumption is again undermined. It is a cautionary tale of judicial supremacy that states where the judiciary is supreme are replete with cases in which judges have been guilty of egregious lapses in moral judgement.

Moreover, there also exist certain ‘democratic objections’ to judicial supremacy, both in the recognition that “elected legislators have a far greater democratic mandate than unelected judges to make political choices that determine the content of law”, and

in the observation that whilst democracy is founded upon political equality amongst citizens, judicial supremacy is wholly undemocratic because it cedes ultimate authority to a body unaccountable to the electorate. In this way, judicial supremacy is comparable to legislative supremacy in its capacity for tyranny. Lastly, it should also be noted that judicial law-making is necessarily retrospective, instigated only at the culmination of litigation; a concept anathema to the prospective nature of the rule of law.

The second theory expounded by Slapper and Kelly, that judges have sought to

conceal their new powers by cloaking them within a ‘declaratory theory of law’, is more difficult to substantiate. Under the declaratory theory, judicial pronouncements are perceived as merely attempts to “find”, rather than “make”, the law. Yet the argument that this theory is somehow used as a veil to disguise a more profound judicial role is fallacious in two respects. First, the declaratory theory has been widely discredited in academic and judicial circles for lacking any foundation in law or fact. Second, and most crucially, it is evident that in recent years, and catalysed by Lord Reid’s seminal approval for judicial supremacy, leading judges and academics, including Lord Woolf, and Sir John Laws have openly promoted the judicial law-making role, as Conor Gearty acknowledges:-

“Courts have been invited to exercise new power …they have not smuggled it into the law camouflaged as longstanding principle of interpretation”.

To conclude, however desirable as a political theory, judicial supremacy is both inconsistent with the democratic ideal and flawed as a matter of rights-based adjudication. Whilst it espouses the rule of law, it ultimately undermines it by placing unbridled power in an unelected and unaccountable body, ill-equipped to make political decisions. Although the proposition that judges are masking judicial supremacy is untenable, this only serves to exacerbate the judicial supremacy problem, because it indicates that judges welcome their new authority, and are increasingly pre-disposed to exercise it.

Bibliography

Essential Sources

Allan, T.R.S. “Constitutional Justice: A Liberal Theory of the Rule of Law” (2001)
Barak, Aharon Judicial Discretion” New Haven : Yale University Press, (1989)
Dicey, A, V “Law and the Constitution”, London, Macmillian (1959)
Dworkin, R. " 'Natural Law' Revisited" in Readings in the Philosophy of Law (Arthur and Shaw eds. 3rd ed., 2001
Elkins, Richard “Judicial Supremacy and the Rule of Law” (2003) L.Q.R. 127
Laws, Sir John "The Constitution, Morals and Rights" [1996] P.L. 622
Finnis, J, M “The Fairy Tale’s Moral” (1999) L.Q.R 170
Foster, Steve “Detention Without Trial, Human Rights and the Constitutional Role of the Courts” 2005 JoP 130
Franck, Thomas M., “The Emerging Right to Democratic Governance” (1992) AM. J. INT'L L. 46 at 64
Gearty, Conor “Reconciling Parliamentary Democracy & Human Rights” (2002) LQR 248
Lester, Anthony “English Judges as Law Makers” (1993) PL 269
Lord Reid “The Judge as Law Maker” (1972) J.S.P.T.L 22
Mendelle, Paul “No Detention Please, We’re British” (2005) NLJ 77
Slapper, G and Kelly, D “The English Legal System” London, Cavendish (2004)
Waldron J., "A Rights-Based Critique of Constitutional Rights" (1993) 13 O.J.L.S. 18.
Zimmerman, Reinhard “Judicial Development of the Law Error Iuris, and the Law of Unjustified Enrichment” (1999) L.Q.R 556

Cases

A and ors v Secretary of State for the Home Department [2004] UKHL 56
Chevron Oil Co. v. Huson, 404 U.S. 97, 107 (1971)
Korematsu v United States 323 US 214 (1944).

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