Are legislatures good at morality? Or better at it than the courts?

Abstract

In “Judges as Moral Reasoners,” Jeremy Waldron seeks to narrow the scope of his wide-ranging critique of judicial review to one issue: the claim that judicial review is justified because judges are good at morality, or “JGM” for short. More precisely, he argues against the claim that judges are better at morality than legislatures, which, in his view, is an important strand in any justification of the place of judges as the final authority when it comes to the great questions of constitutional law—the interpretation of the moral standards entrenched in bills of rights.

Waldron's understanding of this claim is appropriately complex. First, judicial reasoning is not understood in a compartmentalized, positivistic way, according to which legal reasoning and moral reasoning are two different tasks in which judges—in what we may describe as bill-of-rights legal orders—have to engage. Rather, following Ronald Dworkin, Waldron takes judicial reasoning to be inextricably both moral and legal. Second, again following Dworkin, he recognizes that one should see that there are moral reasons to support the fact that JGM has to give pride of place to positive legal materials, with the result that judicial moral reasoning is not the unalloyed moral reasoning in which academic philosophers engage but, rather, reasoning about the best moral interpretation of the law. Third, and consequently, he emphasizes that JGM is a special case of moral reasoning, different from the way in which citizens, beholden only to their own consciences, reason because judges reason in the name of society as a whole. So the issue boils down for Waldron to a choice between JGM and the claim that, when it comes to reasoning on the important moral questions raised by bills of rights in the name of society as a whole, legislatures are better at moral reasoning than judges. I will call the latter claim “LBM.”

Waldron argues for LBM on the basis that such questions are “not issues of interpretation in a narrow legalistic sense.” Rather, they are “watershed issues” better suited for resolution in the context of legislative debate; while such debate is constrained by the need for a decision in the name of the whole society and thus is oriented according to society's own commitments (including those expressed in the positive law), it is less constrained than judicial reasoning. Legislatures can address issues “freshly and directly, undistracted by legalisms.” Moreover, their decisions are made by many individuals, thus making it more likely that all points of view are aired, and are made by people who have the legitimacy of being elected in order to make precisely these sorts of decisions. In my view, Waldron's argument takes him a further step away from his neo-Benthamite version of political positivism.

Traditionally, political positivism is hostile to judicial review for reasons to do with ensuring that law is made by the legislature, since it is in the legislature that collective judgments about the common good are most appropriately made. Positivists from this tradition wish to avoid installing any resource in the legal order that would allow judges to claim they are interpreting the law when, in fact (or so such positivists argue), judges are substituting their own judgment about the good for the legislature’s. As Jeremy Bentham—political positivism's founder—showed, positivism's opposition to bills of rights can be consistently maintained only if one supposes that the decision to entrench a bill of rights is a mistake even when it is taken by democratically elected representatives who have the overwhelming support of their electorate. When Bentham said that rights talk is nonsense upon stilts, he did not mean only that such talk is politically dangerous because it gives to judges the opportunity to grab or usurp legislative power. He also meant that to adopt a bill of rights, which judges have final authority to interpret, is a grave political mistake, no matter how much popular support that measure had and continues to enjoy. Thus, political positivists do not traditionally argue, as Waldron does in this article, for an enhanced role for legislatures in constitutional interpretation, because they are altogether opposed to constitutional interpretation, by which I mean interpretation of allegedly fundamental principles of legal order, whether these are contained in an entrenched bill of rights or some other written instrument or are said to be unwritten but inherent in the commitment of the legal order to the rule of law. In sum, political positivism does not engage with questions about who is to interpret such principles, since the very idea of such principles, written or unwritten, is anathema to it.

As I have argued in more detail elsewhere,1 Waldron's position is not, strictly speaking, a political positivist one. Rather, it amounts to constitutional positivism, a position that not only does not object to the idea of rights but even allows that there are good reasons for legal orders to adopt bills of rights. Constitutional positivists remain positivist only because of the role they wish to give to the legislature in constitutional interpretation. In this regard, they find themselves in a dilemma. Their allegiance to the supreme place of the legislature within their tradition inclines them to make the legislature the exclusive interpreter of the bill of rights. This explains why, at several points in his article, Waldron poses the issues in an either/or form. Either judges or the legislature are better at moral reasoning, from which it follows that the legislature should have a monopoly on constitutional interpretation. At other times, he indicates that all is well so long as legislatures have the final say, which means that judges may have a legitimate though subordinate role.

It is for this reason that Waldron is prepared to countenance the legitimacy of “weak judicial review” of the sort instituted in the United Kingdom. Under this arrangement, judges may not invalidate a statute they think fails to comply with that country's statutory commitment to human rights; however, they can issue a declaration of incompatibility, which puts the ball back, so to speak, in the government's and the legislature's court. As Waldron sees it, the virtue of such an institution is that it provides an “alert mechanism” of sorts, bringing to our attention the possibility that the solution arrived at by the legislature is, perhaps, “incompatible with the commitments we have already laid down as a community.” It seems, then, that his objection is only to strong judicial review, that is, to bill-of-rights legal orders, where judges have the final say.

However, the distinction between weak and strong judicial review depends not on constitutional form, by which I mean the formal structure prescribed by some written text, but on the human rights culture of the society and, thus, on how seriously the public takes what judges say. If, in the United Kingdom, a political culture exists such that the government finds it expedient always to amend legislation that judges have declared incompatible with human rights, such a declaration is no less powerful a form of review than a formal authorization for judges to invalidate statutes. Perhaps even more troubling for Waldron's position is that legal orders in which there is weak judicial review usually put judges under an interpretative obligation to try to render statutes compliant with rights even when the statutes seem not to comply, as in section 3 of the United Kingdom's Human Rights Act (1998). Indeed, it would be very odd to have in place an independent judiciary, with a general authority to interpret the law, and a statutory bill of rights that commits all the institutions of state to governing in accordance with such rights, and for judges to suppose that they were not under such an obligation, even if it were not formally stated. When judges attribute a meaning to a statute in accordance with this obligation, the legislature has the option of responding with a statute that makes explicit the intention the judges declined to attribute to the statute; if the legislature does not do so, because of the political culture of the society, again we seem to have strong judicial review in fact, if not in form.

One can make exactly the same point about the common law and judicial review. Consider the situation of a judge in a common law legal order, one where there is no written constitution, who has to interpret a statute that allows for the indefinite detention of individuals alleged to be security risks. Suppose the judge finds that the unwritten or common law constitution requires that, in such a situation, he read into the detention scheme the right of the alleged security risk to a hearing at which he can effectively contest the allegation before he is deprived of his liberty. If the legislature does not respond to this judgment, given the human rights culture of the society, we have, in effect, strong judicial review.

The government might persuade the legislature to respond with a statute that makes it explicit that such individuals are not entitled to a hearing to determine whether they have been lawfully detained. In that case, while the judge might decide he has no choice but to let the individual rot in his legal black hole, a space created by law in which the writ of the rule of law does not run, he may still in his judgment make the informal equivalent of a formal declaration of incompatibility under the Human Rights Act by declaring, emphatically, that the legislature has violated the rule of law. Of course, his declaration might fall on deaf ears. But suppose the informal declaration of incompatibility chimes with a general public respect for legality. In such a context, the government might feel no less pressure than it does in other constitutional orders to respond positively to a strong judicial statement that a statute contravenes the requirements of the rule of law. Again, that society, in Waldron's terms, with respect to judicial judgments of constitutionality—judgments regarding the requirements of the common law constitution—would have strong judicial review, despite the fact that judges not only lacked formal authority to avoid applying an unconstitutional statute but did not even claim an informal one.

The point I want to draw from these examples is that strong judicial review, which is Waldron's target, is at one end of a continuum of legal orders in which human rights are considered among the fundamental or constitutional legal commitments of a society. At the other end are legal orders in which the only constitution is a common law one. However, all share a political culture committed to the legal protection of fundamental rights and an independent judiciary with general authority to interpret the law. In all, it is recognized by anyone attentive to the judicial reasoning on constitutional matters that such reasoning inextricably combines legal and moral reasoning. And to a political positivist, while the bill-of-rights end of the continuum is the most blatant example of how one can stray from a political ideal in which the legislature is supreme, the continuum as a whole must be rejected because, at any point on it, judges will have the opportunity to place moral constraints on the legislature.

The distance Waldron has traveled from political positivism is graphically illustrated by the fact that all he now seems to reject is one end of the continuum. But, as I have just suggested, any point on the continuum makes his question about the choice between JGM and LBM not seem all that fruitful. Indeed, if there is to be a choice, it should be between J-and-only-JGM or L-and-only-LGM, the either/or choice suggesting that since only one institution is good at morality, it should have exclusive possession of the moral field. If, as appears to be the case, Waldron inclines to the claim LBM rather than L-and-only-LGM, he also must concede that judges should have a role in deciding constitutional matters. His only quibble is about how best to design the institutional relationship between judges and the legislature. It is a quibble because the political culture in which rights are considered to have a fundamental or constitutional place in the makeup of a society is far more important than the institutional form that culture takes. Moreover, any sensitive account of that relationship, one that is as attentive as Waldron rightly suggests we should be to the different ways in which institutions reason in the name of the whole society, will not regard any particular institution as the sole exemplar of such reasoning. Rather, it will make a case for how the relationship between the institutions may be best designed so as to allow them to participate in a common project of together ensuring that legislation does live up to a certain ideal of society, one which, when it reasons as a whole, proves equal to its commitment to respect the fundamental rights of each of its members.2

The idea of a common project highlights the selectivity of aspects of Waldron's article. That parliaments, on occasion, engage admirably in moral debate is to be welcomed. But just as advocates of strong judicial review might romanticize the judiciary, so constitutional positivists are prone to romanticize their favored institution, one whose reputation among the people often seems rather low these days, if only because of the popular perception that legislatures act as rubber stamps for powerful governments. Far from being reason-debating forums, they often fail even to be reason-demanding forums.3 Consider, for example, that when the United Kingdom renewed the Anti-Terrorism Act, an act whose amendment in 2001 was driven through Parliament by a government uninterested in debate, this was done by ministerial order, discussed before an almost empty chamber.

More important is that often a significant factor in provoking the kind of moral debate Waldron extols is a judicial decision that calls into question whether a statute is compatible with constitutional commitments. By no means am I suggesting that judges are the only agents of promoting such debate. Parliamentary committees that are given the role of requiring Parliament to engage in such debate might be even more effective, if they are given, as well, the right kind of institutional teeth, especially if they operate in a political culture in which politicians are willing to take the committees seriously. But even if it is true that such committees might be more effective than judges, the issue is not one of either/or. If judges are an essential element in sustaining the culture, the point is to work out how best these institutions should interact.

Moreover, judges have a role in this kind of prompting that other institutions may not be able to mimic, in part, because judges are mostly in the business of applying general rules to particulars.4 In so doing, their task is to ensure that the decisions and actions of other officials are faithful to law, including constitutional commitments, and so one would expect their reasoning to be driven by legal reasons, not by the all-things-considered kind of moral reasoning in which legislators might, on occasion, engage. It would be instructive, in this regard, to compare the reasoning that appears in Hansard, when legislators do take the time to engage in moral debate, with, say, the reasoning in the reports of a conscientious legislative committee, such as the United Kingdom's Joint Committee on Human Rights, and with the reasoning of the judges of the House of Lords in a human rights decision. While each forum will consider the same range of issues, the way in which those issues are formulated and discussed is quite different. The Joint Committee lists concerns about the human rights implications of government actions and proposed legislation, relying on a wide range of material: judicial decisions, international legal documents, comparative material, its discussions with government ministers, reports of other legislative committees. These concerns provide a resource for legislative and public debate as well as for judicial deliberation, should legislation be challenged. In contrast, legislative debates are, for the most part, concerned with the justifications in policy and morality of proposed legislation. Legislators do not engage in legal argument, even though there are often many lawyers among them, and even when they are reacting to a judicial decision that a statute is incompatible with constitutional commitments. Rather, they make claims and assertions about the compliance of their proposed measures with constitutional commitments.

In all three of these forums, the various components of moral, legal, and policy-based reasoning will figure, but which element dominates will depend on the attributes of the forum. I suspect that all the components are necessary if the legal order is to satisfy a requirement I take to be the ultimate commitment of any legal order. I mean, here, the commitment that all public decisions be fully justified, where part of the requirement is that the decisions are shown to be at least consistent with constitutional commitments, including the commitments to rights, and, preferably, are seen as advancing the project of a progressive realization of such commitments.

Perhaps the real work of legal theory, then, is not to be done by comparing different models of good moral reasoning to see which institution of legal order best mimics one favored model. Rather, it will be done by attending to the difficult questions regarding the design of legal order, including the appropriate institutional relationships of comity, deference, as well as deciding which institution will act as a final authority. One might think that such work is of particular importance to all democratic legal theorists, given the phenomenon in Western democracies of an accelerating increase in executive power, one which, of course, comes at the expense of control by legislatures of the great political questions of the day.