Thomas More Institute

1. ‘Towards Juristocracy’ – Ran Hirschl’s Thesis

• Hirschl identifies, over the past few decades, the remarkable growth in constitutional review:

“Around the globe, in more than eighty countries and in several supranational entities, constitutional reform has transferred an unprecedented amount of power from representative institutions to judiciaries … a force of social change removed from the constraints of political power.”
(Towards Juristocracy: Origins and Consequences of the New Constitutionalism (Harvard Univ. Press 2004,) p. 1)

• Constitutional review is the system whereby the judiciary can declare legislation passed by Parliament as invalid for the reason that it conflicts with the Constitution: the US is the oldest and paradigm example.

• Are judges not themselves under the Constitution, bound to it?

“We are under a Constitution, but the Constitution is what the judges say it is.”
(US Chief Justice Charles Evans Hughes, 1907, speaking to the Chamber of Commerce, Elmira, New York.)

• Typically, constitutional review is justified on the basis of the need to protect minorities from majoritarian tyranny and to achieve social justice (e.g. Ronald Dworkin).

• Hirschl argues that this general view, which is conventional wisdom, lacks empirical support. In his view, constitutional review is mainly a means of insulating elite preferences from democratic challenge, on the basis of a detailed assessment of four systems: (1) Canada, (2) New Zealand, (3) Israel, (4) South Africa.

• Hirschl argues that the growth in constitutional review must be seen as part of the broader political struggle, constitutional review is really about ‘hegemonic preservation’.

• Specifically, Hirschl argues that the (1) interests of threatened political elites, the (2) preferences of economic elites, and the (3) self-interest of the judiciary in self-empowerment combine and are the driving forces behind the spread and significance of constitutional review.

• Hirschl identifies the following influences as part of the phenomenon of constitutional review:

– Appropriation of the rhetoric of progressive minority protection;

– The transformative effect of this appropriation on political discourse;

– Rights are conceptualised as entailing sphere of privacy against State intrusion, this is so across economic rights, social rights, individual rights, entailing in general a libertarian conception of rights;

– A “well-orchestrated judicial empowerment game” (Hirschl (2004), p. 5) (he does not say this explicitly, but seems to hint at a deliberate process of cross-jurisdiction links and cooperation between judiciaries to complement each others’ drive for an expanding jurisdiction);

– Constitutional review embodied as rights protection is a framework for recasting political controversies as legal questions for judicial resolution;

– In practice, the judiciary shows a preference for a neoliberal understanding of rights, with little contribution by the judiciary to redistributive justice or supporting ‘subsistence’ social and economic rights.

2. Instrumentalising Legal Reasoning

• Complementing Hirschl’s political science analysis, US academic Brian Tamanaha has written an influential recent book critiquing the rise of instrumentalism in legal reasoning, meaning the use of law by the judiciary to advance particular ends or purposes, which undermines the idea of the rule of law as an objective and universal good that is above partisan political agendas (Tamanaha (2006)).

• Adopting this conceptual framework, the following paper seeks to explain how the judicial process can be instrumentalised through particular approaches to legal reasoning:

– (1) A move away from originalist interpretation, especially concerning human rights;

– (2) A refusal to rank or prioritise rights, i.e. no hierarchy of rights;

– (3) The manipulation of levels of generality used to characterise purposes and rights;

– (4) Adopting a vague meta-criterion of interpretation such as ‘coherence’ or ‘best fit’ in contrast to a hierarchy of interpretative techniques;

– (5) A completionist or ‘gapless’ understanding of the legal system.

This paper examines the first four of these and then looks at EU and UK experiences.

 3. A Move Away from Originalist Interpretation

• Originalism relates legal reasoning and interpretation to the understanding of the law-maker: the judiciary should share the same hermeneutic framework as the law-maker.

• The main criticism of originalism is that it means legal reasoning is governed by the ‘dead hand of the past’.

• But:
– All law by the legislature or constituent power is made in the past;
– The idea of predictable rules publicly established in advance of their application is central to the rule of law;
– Originalism is related to democracy: ‘democracy is eviscerated at its point of application if the law is not followed’ (Tamanaha (2004), p. 37).

• The most explicit supporters of anti-originalist interpretation are Ronald Dworkin and Joseph Raz.

• Dworkin suggests that judges should decide rights disputes according to what matches or ‘fits’ best the prevalent political morality in a society, even if this means adding something quite new to the law: Dworkin (2006), p. 123.

• Raz is the most explicit supporter of ‘innovative interpretation’, suggesting it is legitimate for judges to change the law incrementally even if this results in radical change over time:

“There is no objection to regular development of the law within existing frameworks. Such modifications do not undermine continuity. By and large they tend to enhance it. So far I have not distinguished between stability in the law – that is, the absence of change in the law – and stability in the social or economic effects of the law. Since the two often go hand in hand, there was no need to distinguish between them. But they go hand in hand only as long as the underlying social, political, or economic conditions do not change. When they do, the law may have to change if it is to continue to have the same social or economic effects. In such a case innovative interpretations that modify the law prevent it from ossifying and getting progressively less and less adequate to its task and requiring major reform. Of course, the cumulative effect of small-change reform may well amount to a radical change in constitutional law over the years. But stability is consistent with slow change, whatever it cumulative effect. Therefore, entrenching the constitution may be justified in that it secures extensive debate and solid consensus behind radical constitutional change. But it also means that it falls to the courts to take charge of continuous improvements and adjustments within existing structures.”
(Raz (1998), p. 186)

4. No Hierarchy or Ranking of Rights

• Bills of Rights create a problem of indeterminate interpretation: they are both general and comprehensive, presenting the problem of how to prioritise conflicting statements of abstract rights that are meant to apply to a wide range of real-life situations, e.g., deciding how to prioritise right to life relative to the right to privacy. The text generally does not resolve this issue of concrete prioritisation: see Fiss (1982).

• If there is no a priori concept of hierarchy, human rights adjudication becomes ad hoc, since cases generally involve conflicts or clashes of rights.

• An example of hierarchy in positive law is the idea of jus cogens in international law and non-derogable rights under the European Convention of Human Rights.

• Achieving agreement on a proper hierarchy or prioritisation of rights may be difficult given the contested nature of many rights claims: see Beck (2009).

5. Manipulation of Levels of Generality

• At what level of generality should the ECJ (or any court) describe the right previously protected and the right currently claimed?

• The more abstractly one states the already-protected right, the more likely it becomes that the claimed right will fall within its protection

• For instance:

(1) Did the US Supreme Court in Griswold v. Connecticut 381 US 479 (1965) recognise the narrow right to use contraception or the broader right to make a variety of procreative decisions? The Supreme Court adopted the latter approach in its decision legalising abortion in Roe v. Wade 410 US 113 (1973).

(2) Did the seminal decision in the modern law of negligence in Donoghue v Stephenson [1932] AC 562 establish a principle of liability regarding snails in bottles or a principle of liability for failing to exercise due care where it was reasonable to rely on due care and harm was foreseeable? Later caselaw adopted the broad reading.

(3) A constitutional provision concerning marriage: does it relate to a man and a woman or stable intimate relationships, ‘as if man and woman’? The UK House of Lords interpreted a statutory provision in the latter way in Ghaidan v. Mendoza [2004] UKHL 30.

6. A Vague Meta-Criterion of Interpretation:

• As a generalisation, interpretation can be subject to a clear hierarchy of interpretative considerations or to a vague meta-criterion.

• As an example of hierarchy, ordinary or technical meaning may have priority, then looking to original intent (though note latter often reflected in former), then systemic considerations (e.g., lex specialis).

• This structuring through hierarchy can be contrasted with the use of a vague meta-criterion of interpretation, e.g.:

(1) ‘Coherence’ or ‘best fit’ (proposed by Dworkin) with the political morality of a system as a decisive criterion of interpretation:

“very often, however, controversial decisions that seem novel do satisfy the test of fit”: Dworkin (2006), p. 123

A generic appeal to coherence is subjective and begs too many questions: coherent with what?

i. Global or local coherence?, see Leavenbook (1985), p.367;
ii. Tight or loose coherence?, see Alexander & Kress (1998), pp.313-314;
iii. What values count?, see Besson (2008), p.57

(2) ‘Equal respect’, in the specific context of rights adjudication, suggested by Ronald Dworkin in various works. However, a generic appeal to equal respect does not constrain a judge, since any minority claim can be presented as one of a claim for equal respect: are economic libertarians and polygamists entitled to judicially enforceable protection for their conceptions of how to live a life with dignity?: Westen (1982).

(3) ‘Balancing’ has also become a more frequently used conceptual framework for deciding how to prioritise conflicting values rights or interests.

However, the concept of balancing itself does not provide an answer to the question of how to prioritise: Aleinikoff (1987), pp. 958, 972. Balancing always entails a moral choice that the concept of balancing itself does not pre-determine: Möller (2008), p. 460. Thus, Stone Sweet & Mathews have recently argued that concepts of balancing and proportionality constitute a doctrinal underpinning for the expansion of judicial power globally (2008).

7. The European Union as a Case Study in Juristocracy

• The European Court of Justice (ECJ) has originated without explicit textual support many of the central doctrines of the EU constitutional law:

– direct effect;
– supremacy;
– parallel external powers;
– State liability;
– a human rights jurisdiction;
– a criminal competence for the Community (as opposed to Union);
– and a very expansive interpretation of the common market principles.

• The ECJ does so through stating the purposes of EU law at a high level of generality and sidelining the text as an interpretative consideration (meta-teleological argumentation): the ECJ takes greater integration as the purpose of EU law, rather than looking to the ore local purpose of the specific law in question, which is explicit instrumentalisation of legal reasoning through adopting a very general meta-criterion.

• Four cases serve to illustrate this in which the ECJ created fundamental doctrine that lacked explicit textual support in the Treaty texts:

Case 26/62, Van Gend en Loos [1963] ECR 1, at 12-13 – the ECJ created the doctrine of direct effect established in contrast with general international law, with reasoning based on idea of a ‘new legal order’. The doctrine permits nationals of the member States to invoke Community law in their own State’s courts (traditionally in international law, only a State could be a subject or litigant).

Case 6/64, Costa v. ENEL [1964] ECR 585, at 593 – the ECJ declared Community law had supremacy over national law, in reasoning based on effectiveness of Community law and uniform application (later the ECJ confirmed that this supremacy claim also applied over national constitutional law).

Case 22/70, Commission v. Council (ERTA) [1971] ECR 263 – the ECJ declared that Community had same powers external as it had internally and external competence pre-empted Member State competence (parallelism and pre-emption).

Case 8/74, Dassonville [1974] ECR 837, paras. 5-9 – the ECJ declared that “all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade” were within Community competence.

• The Dassonville test is very significant because almost any diversity of any aspect of national laws can be understood or conceptualised as a potential hindrance to the free movement principle.

• Though the Treaty text to be interpreted in Dassonville was ambiguous in referring to ‘measures having an equivalent effect o quantitative restrictions’, the ECJ gave it the widest possible meaning that is hard to square with the idea of a Community of conferred and not unlimited powers (e.g. it could have confined it to measures entailing discrimination, direct or indirect). The principle of conferral is stated in Article 5 of the Treaty on European Union.

• The ECJ itself recognised the potential over-reach of Community competence in relation to the ‘undistorted competition’ principle and stated that if any potential impact on competition was enough to bring a matter within the competence of the Community, its “legislative competence would be practically unlimited”: Case C 376/98, Germany v. Parliament and Council [2000] ECR I-8419, paras. 106-107, so the ECJ set ‘appreciable impact’ as a threshold in that case.

• The same logic ought to apply to the free movement principle, but the ECJ has not followed the approach in Tobacco Advertising here: it is thus very difficult to define the limits of Community competence.

• The ECJ has effectively neutralised the subsidiarity principle (also stated in Article 5 of the TEU) through the application of the Dassonville approach – see, e.g. Case C-103/01, Commission v. Germany, paras. 46-47:

“With regard to the principle of subsidiarity, since the national provisions in question differ significantly from one Member State to another, they may constitute, as is noted in the fifth recital in the preamble to the PPE Directive, a barrier to trade with direct consequences for the creation and operation of the common market. The harmonisation of such divergent provisions may, by reason of its scope and effects, be undertaken only by the Community legislature.”

On this approach, the mere fact of differences in laws between the Member States can justify Community competence, which is the same approach the ECJ itself criticised in Tobacco Advertising.

• The ECJ example fits into the neo-liberal pattern indentified by Hirschl, with the primary exception of its contribution to enhancing equality of pay for women (though equal pay for equal work was explicit in the Treaty, not a product of ECJ creativity).

• A recent set of cases highlights both (1) the creative approach to competence of the ECJ and (2) this neo-liberal tendency: in Case C-341/05, Laval [2007] ECR I-11767, paras. 39-40, and Case C-438/05, Viking [2007] ECR I-10779, paras. 87-88, the ECJ held that the right to strike as subordinate to the free movement principle, even though Article 137(5) European Community Treaty states that the right to strike does not fall within Community social policy (an example of failing to apply lex specialis).

• Hirschl suggest that the ECJ has been able to play such a role because political elites in the Member States want it to and permit it (Hirschl (2004), p. 45).

• Also, the ECJ operates in an ‘unusually permissive environment’: to reverse its Treaty interpretation, unanimity of the Member States is needed: (Stone Sweet & McCowan) (2003), pp. 84-88.

• Further, the ECJ is also careful and strategic in its decisions: when it announces a new doctrine, it often finds for the Member State on the facts, so as to minimise a political backlash while creating new law for future cases (e.g., its first human rights cases and its first judgment on State liability).

• An interesting feature of the Treaty of Lisbon is that the Member States appeared to make explicit a preference for originalist interpretation of the EU Charter of Fundamental Rights: see Article 6 of the Treaty on European Union (post-Lisbon).

8. The UK as a Case Study in Juristocracy

• The strong tradition of parliamentary sovereignty in the UK suggests little potential for ‘juristocracy’. Though more muted, there are definite indications of this trend also in UK experience (‘common law radicalism’, per Adam Tomkins).

• Section 3 of the Human Rights Act 1998 (‘HRA’) states that the UK Courts are to interpret all UK legislation “in so far as possible” to be compatible with the rights set out in the European Convention on Human Rights (ECHR), while s. 4 of the same Act provides declarations of incompatibility between legislation and the ECHR of (with no formal legal effect) where s. 3 cannot be applied (these have no formal legal effect, just declarations).

• The UK courts have been quite expansive in their interpretation of this provision:

– Lord Steyn in R v. A [2001] 3 ALL ER 1 “… the interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings” (para. 44), and,

– Lord Birkenhead put it in Ghaidan v. Mendoza (2004) (above) that “Even if, construed according to the ordinary principles of interpretation, the meaning of the legislation admits of no doubt, section 3 may nonetheless require the legislation to be given a different meaning…” (paras. 29-30).

• The UK courts have not been involved in the kind of ‘polity-building’ or ‘polity-defining’ cases that Hirschl considers one of the most obvious instances of juristocracy (e.g., re Quebec secession in Canada: Hirschl (2004), p. 170 et seq), most HRA cases concern individual rights. A high point of creativity was Ghaidan v. Mendoza (2004), above. There is no reference to same-sex issues in ECHR; evolutive interpretation by European Court of Human Rights had a persuasive impact on UK courts under s. 2 of the HRA sop as to permit the decision in Ghaidan v. Mendoza.

• One of most effective, but it might be argued not questionably ‘activist’, decisions under the HRA was A v. Secretary of State for the Home Department ([2004] UKHL 56 First Belmarsh case) [2005] 2 AC 68, in which a discriminatory statutory scheme providing for indefinite detention of only non-national terrorist suspects by certification of Home Secretary was subject to a declaration of incompatibility, despite the national security sensitivity which traditionally is an area where the courts defer to the judgment of the executive and legislature.

• Although s. 4 HRA declarations have no formal legal effect, they do tend to result in legislative changes: in Hirschl’s terms, they serve to dis-appropriate Parliament of rights rhetoric. For example, between March 2001 and March 2006, of 12 cases where a s. 4 declaration was issued without further appeal, Parliament amended the legislation in 10-11 cases.

• In the recent case of Jackson v. Attorney General [2005] UKHL 56 , obiter statements were made by some Law Lords to the effect that in some circumstances, they would refuse to accept parliamentary sovereignty, especially Lords Steyn and Hope. Lord Steyn suggested that the courts might refuse to accept an Act of Parliament abolishing judicial review as a valid Act and Lord Hope suggested that “The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based” (at 107), rather than parliamentary sovereignty as the defining feature of the UK constitution.

• The government backed down in 2004 from proposal to oust judicial review of asylum and immigration decisions after Lord Woolf MR threatened to refuse to apply it:
< http://news.bbc.co.uk/1/hi/uk_politics/3511536.stm >

• R (Purdy) v. DPP [2009] UKHL 45 is an interesting example of how the judiciary can subtly influence public debate through the rhetorical influence of a rights-framed judicial discourse. Here the House of Lords declared that it was unclear whether assisting the suicide of a person where that suicide occurs outside of England & Wales was a crime and if so what crime it was in this jurisdiction, and the HL thus called on the DPP to clarify his prosecutions policy. This could be interpreted to reflect a simple legality principle that criminal liability should be as clear as possible. More generally, as Lord Hope stated:

“It must be emphasised at the outset that it is no part of our function to change the law in order to decriminalise assisted suicide. If changes are to be made, as to which I express no opinion, this must be a matter for Parliament….the judges have a role to play where clarity and consistency is lacking in an area of such sensitivity” (paras. 26-27).

However, weight was given to (somewhat ambiguous) caselaw of the European Court of Human Rights that suicide by the terminally ill was an aspect of the right to privacy under Article 8 ECHR and that as a restriction on that right, the law was required to be accessible under Strasbourg caselaw. As the exercise of discretion by the DPP gave rise to uncertainty, the House of Lords held that the DPP should issue guidelines clarifying the exercise of prosecutorial discretion in cases involving assisted suicide. However, prosecutorial discretion is part of the common law tradition (unlike many continental jurisdictions), so the question may be asked why this matter was singled out as justifying in effect a special standard of more minimal prosecutorial discretion, which does not apply to any other offences.

9. Conclusions

• Hirschl’s thesis (which he said went against conventional wisdom) has much of explanatory force in the EU especially, but to some extent in the UK.

• Courts are increasingly prominent decision-makers in public policy, even in the UK context of a strong tradition of parliamentary sovereignty.

• Do judges have a legitimate role in ‘appropriating the rhetoric of rights’?

• How alert is the general public to this trend? Is it understood and accepted or happening without serious scrutiny?

• Though not addressed in the presentation, there is very little debate on this in EU law: the legitimacy of the ECJ’s creativity is certainly to a large extent ‘a hegemonic narrative’ within the European legal profession. This can be contrasted with the vigorous and very public US debate on constitutional interpretation by the US Supreme Court.

* I am grateful to the participants at the TMI Law Discussion group meeting on Monday 11th January 20010 for useful discussion.

References/Bibliography:

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