Ius & Iustitium is happy to present this guest post by Jamie McGowan. Jamie McGowan is a postgraduate researcher in Constitutional Law at the University of Glasgow.
The recent debate about originalism in the US has triggered a lot of conversation about judicial deference. Adrian Vermeule recently clarified that the position of common good constitutionalism is that legislators of every kind ought to consider the common good and natural law when making legislative decisions. He rightly noted, however, that a very different question arises concerning the “institutional allocation” of that legislative power. Given the recent Bostock decision in the US, the question that inevitably enters the conservative legal debate is whether it is wise to allocate so much legislative power in the judiciary. In civil law countries, the judiciary deals mostly in the particularia of individual cases, determining moral right in its context, without establishing legal precedent. In most modern common law countries, however, an incredible amount of binding legislative power is bestowed upon judges, to the extent that the judiciary becomes a sort of supra-legislature. In classical legal theory, where law carries a telos of upholding the common good, the pertinent question is whether this judicial supremacy is friend or foe to the primacy of the common good and, by implication, the natural law.
In modern common law systems, through the force of legal precedent, the judiciary often develops its own moral doctrine. Not only are judicial decisions quasi-legislative, but they also contribute to a corpus of law that defines right—as opposed to a corpus of right that defines law. To give an example that is closer to home for myself in Scotland, one might look at the reign of the UK Human Rights Act. The Human Rights Act 1998 has given the judiciary a soft supremacy over Parliament, allowing the courts to make “declarations of incompatibility” on legislation they deem to be incompatible with the European Convention of Human Rights (ECHR) and the jurisprudence associated with it. Although these declarations are not binding, Parliament always reforms legislation that is declared incompatible. As a result, there is a rising convention that these declarations have a “strike-down” effect, meaning that judges have a soft power over the legislature that is more or less always effective.[1] In Scotland particularly, the courts have the power not only to make declarations of incompatibility, but to strike down Acts of the Scottish Parliament altogether. Such was the case with Christian Institute & Ors v Lord Advocate, where the Supreme Court struck down the Scottish Government’s controversial “Named Person Scheme,” which would have appointed a state guardian to each child.[2] The UK Supreme Court declared that the legislation was incompatible with the ECHR, being the first time that the Supreme Court had used the ECHR as a ground to strike down legislation enacted by the Scottish Parliament. Indeed, for the legal conservative, this victory was convenient (the Named Person Scheme was condemned by the Church and Christian organizations), but given that the ECHR’s jurisprudence can be easily manipulated,[3] I would not be so sure that we can rely on the courts for consistently conservative results.
At a European level, some have argued that the European Court of Human Rights (‘the European Court’) has veered towards a “moral reading of the Convention rights” by incorporating an “evolutive” view of interpretation, as opposed to one that is purely textual. Letsas writes that in Golder v. United Kingdom[4] the European Court rejected the rise of any textualist or intentionalist approaches to legislation.[5] In this case, the European Court held that the Article 6 right to a fair trial inferred that there was also a right of access to courts. Specifically, this case concerned a prisoner to who had been prevented from raising a civil defamation action. Although there were “typically intentionalist” arguments given by Sir Fitzmaurice (e.g. if the ECHR does not directly create a right of access to courts then there is no such right), the court held in favor of the applicant against the government, ruling that the right to fair trial, “secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal.” According to Letsas, this decision paved the way for the “development of doctrines” such as evolutive interpretation, giving a new moral power to judges, shifting the court’s mission to “looking at the substance of the human right at issue and the moral value it serves in a democratic society, rather than engaging in linguistic exercises about the meaning of words or in empirical searches about the intentions of drafters.” Moreover, as Letsas rightly notes, Golder “also rejected a view, common amongst many lawyers and judges, that legal interpretation is an inquiry into the linguistic meaning of words.” In practice, the ECHR is moving away from a scrutiny of law towards a scrutiny of right. For some time now, the European court has also been developing a “European consensus,” where, through general agreement or precedent, the court brings certain moral principles into European Human Rights Law. For example, in Tekeli v. Turkey, the court held that Turkey’s prohibition on women keeping their maiden names was a violation of Article 14 and 8 of the ECHR, basing their argument entirely on the European “consensus” with regards to this issue.[6] The “consensus,” as expected with any secular definition of human rights, has to adapt to “present-day conditions,” to ensure that human rights remain morally progressive:
The existence of a consensus has long played a role in the development and evolution of convention protections […] the Convention being considered a ‘living instrument’ to be interpreted in light of present-day conditions. Consensus has therefore been invoked to justify a dynamic interpretation of the Convention.[7]
However, drawing from a foundational constitutional document like the ECHR and moving with the moral progress of our times is seemingly impossible for the Convention, as Lord Hoffman notes:
The proposition that the Convention is a ‘living instrument’ is the banner under which the Strasbourg Court has assumed power to legislate what they consider to be required by “European public order.” […] To take a common example, the practical application of the concept of a cruel punishment may not be the same today as it was even 50 years ago. But that does not entitle a judicial body to introduce wholly new concepts, such as the protection of the environment, into an international treaty which makes no mention of them simply because it would be more in accordance with the spirit of the times.[8]
Lord Hoffman was concerned that this “European public order” engenders the European Court’s ability to create new moral rights through inference. This is something that is not uncommon in political parlance when we hear of new rights to WiFi or water. Legislating from inference, however, seems to stem from the lethal combination of judicial supremacy and legal precedent. After all, legislating from inference is typical in most common law countries, such as with Roe v. Wade in the US, and its inference of the right to abortion based on a right to privacy.[9] One might even say that the ability of a court to legislate from inference is an attempt to moralize positivism. With natural law theory, a jurist or politician can point to concrete moral authority when discussing matters of human right. But with this positivistic understanding of “rights,” the ability to legislate from inference bestows the moral authority that natural law once had upon the judiciary. In turn, the judiciary becomes an authority to which government looks for moral guidance, making them a supra-political body that uses posited law to create a moral magisterium. As a result, the minutiae of individual legal decisions end up creating moral rights that are applicable to the whole of society.
At a domestic level, the issue in the UK is not just the supremacy of human rights law over Parliament, but that the definitions of moral right given by judges are binding – upon other judges and, in a political way, on Parliament. In this way, each convention-based ruling of a court contributes to a depositum fidei of Human Rights Law, on moral issues from same-sex discrimination[10] to whether a sick child should live or die.[11] Directly compared with the consistent jurisprudence constante attitude of the European court, the UK’s model means that Human Rights are adjudicated upon immediately, without a build-up of case law or a minor consideration for telos. Of the two models, the UK’s Human Rights regime is far more extreme; the Human Rights “consensus” does not arise from series of consistent rulings like in Europe. Instead, the UK “consensus” arises from one single decision. As a result, the moral power of individual judges is something that is far stronger in the UK than in Europe.
Having given the judiciary both a new power to define moral right and the ability to shape political decisions, the marriage of the ECHR and the Human Rights Act has given birth to a new judicial magisterium. As a result, legislative and administrative bodies in the UK look to European and domestic courts for moral authority before making landmark political or moral decisions. This is the problem of judicial dyarchy.
In the Christian sense, dyarchy concerns the difference between power and authority.[12] This is a dynamic that is not unfamiliar to the Christian, for it was Adam who acted with the power to eat from the tree, but without the authority of God. It is the same with human government, where every political body naturally looks to a moral authority to justify its political power. In the classical tradition, that moral authority is the natural law. For the Catholic Integralist specifically, it is ecclesial teaching on morals. In the positivist tradition, however, there is no authority per se to point to. A new judicial dyarchy has been created in Europe to remedy positivism’s lack of moral authority, where a judicial pontificate defines moral good, developing a secular magisterium and giving liberal governments a new metajuridical authority to draw upon.
For the natural law jurist, the idea of a legislating judge may not seem too problematic, provided that the judge is faithful to natural justice and the application of natural or divine right. However, since natural law and the common good are inseparable, the better question is whether the judge has an ability to understand the societal common good. Vermeule recently argued against Helmholz’s attempt to juxtapose the common good and the natural law, as if they were two separate things, comparing their integrity to the hypostatic union of Christ: “it is both fully the one and fully the other.” When commenting on the metaphysics of law, St. Albert the Great wrote “What is good is simply what is right. Utility is merely good by accident;”[13] the substance of the common good is not in fact convenience, but moral right. Utility is merely an afterthought. Determining the common good of society, therefore, is not a question independent of determining the application of right. The common good of society does not exist without moral right; the two are integral to each other. As such, even where a judge might be relatively faithful to natural or divine law in his work, when he is placed in a position of supremacy above government, he cannot truly have competence in determinatio (i.e. the transposition of natural or divine law into human law), because of his remoteness from knowing the common good. His lack of involvement or communication with citizens makes him remote, isolated from the constitutio populi.
There is a danger in allocating legislative power to the judiciary, because judges legislate in the minutiae of legal situations, rather than in a holistic manner which concerns the common good. Saint Thomas summarizes it well:
Those who make laws consider long beforehand what laws to make; whereas judgment on each single case has to be pronounced as soon as it arises: and it is easier for man to see what is right, by taking many instances into consideration, than by considering one solitary fact. […] Lawgivers judge in the abstract and of future events; whereas those who sit in judgment of things present, towards which they are affected by love, hatred, or some kind of cupidity; wherefore their judgment is perverted.[14]
The issue, therefore, does not concern the competence of judges in matters of natural right, but the ability of a judge to understand how natural or divine right is manifested in a way that is conducive to the common good. A truly common good approach to law requires holistic legislation discerned over a period of time and in the abstract, fitting the precept that law ought to be framed for the majority of instances and not for the private good of individuals. Furthermore, following the classical maxim that law is a constitution of the people rather than solely of the ruler, law must have popular agreement, utility, and observance.[15] St. Albert writes that law is created by a government and sanctioned by the people, and not through “whatever lawyers advise or invent.”[16] As Vermeule put it in an earlier post, “public authorities make better judgments of determination, within reasonable boundaries, than do courts.”
The courtroom is also a forum of casus et particularia, as Saint Albert says.[17] Arguably, the courtroom is not the correct forum for moral questions that concern the common good of society because these cases often concern individual particularities. St. Albert makes the point that lawyers tend to make “gross simplifications” when dealing with the moral details of cases.[18] Simplification can be helpful for litigation, when framing a point in a particular manner with a view to courtroom victory. But it is very unhelpful if said simplification becomes a matter of law for all situations. Augustinus Triumphus makes the point that legal practice has a very different modus operandi from the discernment of moral right. He observes that moral rights are “determined by the theologian chiefly through the contemplation of the truth, but by the lawyer chiefly on account of a legal case and the solution of the questions involved therein.”[19] The courtroom is, more often than not, a place of casuistry and technicality. Although many judges may be personally capable of addressing matters of moral right, a pedantic legal environment is not the best forum for moral questions to be solidified in human law.
In the UK judiciary, there is a subtle recognition that there might be a need for judicial deference. The UK Supreme Court is a new creation and, whilst at times its influence has been bold, it is still aware that it should not gain the status of a political judiciary akin to that of the United States. In R (Nicholson) v Ministry of Justice, the Supreme Court held that the UK’s ban on euthanasia was “not compatible with the Convention rights,” ruling that the ban was contrary to the applicant’s right to private life under Article 8(1) of the ECHR.[20] However, while the court thought that the UK’s Law on euthanasia was incompatible with the ECHR, the judges refused to make a declaration of incompatibility. The court held that Parliament was in fact the better “forum” for the determinatio of this moral issue. Lady Hale writes at para 300:
I consider that Parliament is much the preferable forum in which the issue should be decided. Indeed, under our constitutional arrangements, it is the only forum in which a solution can be found which will render our law compatible with the Convention rights. […] [Parliament] may do nothing, either because it does not share our view that the present law is incompatible, or because, as a sovereign Parliament, it considers an incompatible law preferable to any alternative.
While the judges were convinced that a ban on euthanasia was against their conception of “convention rights,” nevertheless they recognized that it is not the duty of the court to rule on contentious moral matters, especially when such a ruling could have a drastic impact upon the common good. In Nicholson therefore, by refusing to issue a declaration of incompatibility, the Supreme Court recognized their remoteness from the common good. This occasion of deference is sadly isolated, but if courts took the route of Nicholson more often, the moral dyarchy of the judiciary would decrease and it would allow Parliament to consider human right more holistically. That way, Parliamentary legislation can be more faithful to natural law and the common good, as opposed to being passed in response to pressure applied by the judiciary as a result of an individual case.
Avoiding judicial supremacy is necessary to sidestep judicial dyarchy, where the moral and political decisions of judges in casus et particularia end up becoming law for the whole of society. As such, the modern common law tendency to elevate the judiciary above legislative and administrative bodies is not in line with the classical view of law, which necessitates a holistic lawgiver. To ensure that government is faithful to natural law and framed for the common good, legislative and administrative bodies ought to draw upon a moral authority that is more expedient than the judiciary’s solviter ambulando[21] approach. Instead, it should search for a moral authority which is robust and permanent, so that government’s power may have grounding in concrete authority. Ideally, judges ought to be understood primarily as dispute resolvers, dealing in non-legislative ways with those omissions and irregularities in the law which, as Aristotle says, “have necessarily to be committed to judges.”[22]
John Griffith rightly pointed out that law cannot become a substitute for politics.[23] Although his view was incredibly positivistic, with recent cases like the Title VII case in the US, debates about the political nature of rights have become more significant. Following what may have been the death of American originalism, many in the conservative legal movement are realizing that we cannot continue to mask political questions in the guise of textual legal questions. Eventually, the faux neutrality which gives the modern judiciary its dyarchical authority will surely be exposed. When this happens, by introducing new constitutional measures of deference and reducing judicial power, we can hope that legislative bodies might more easily discover true authority: Holy Mother Church.
Jamie McGowan
- Aileen Kavanagh, Constitutional Review under the UK Human Rights Act (Cambridge University Press 2009), 281. ↑
- [2016] UKSC 51 ↑
- Aileen McHarg, Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights (1999) 62 Mod. L. Rev. 671. ↑
- [1975] 4451/70. ↑
- George Letsas, ‘Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer’ (2010) 20 EJIL 3, 512. ↑
- [2004] 29865/96 ↑
- A, B and C v Ireland [2010] 25579/05, 234. ↑
- Lord Hoffmann, The Universality of Human Rights, 125 Law Quarterly Review (2009), 428. ↑
- 410 U.S. 113. ↑
- Bull v Hall [2013] UKSC 73. ↑
- Great Ormond Street Hospital v Yates, Gard and Gard [2017] EWHC 1909 (Fam). ↑
- Edmund Waldstein has a very good essay on the subject. See here: https://thejosias.com/2016/03/03/integralism-and-gelasian-dyarchy/ ↑
- St. Albert the Great, De bono, V, II, i. ↑
- STh, I-II, q. 95, a. 1, ad 2. ↑
- St. Albert the Great, De bono, V, II, i. ↑
- Ibid. ↑
- St. Albert the Great, 4 Sent. 27, 16. ↑
- Ibid. ↑
- See Lynn Thorndike, University Records and Life in the Middle Ages (Norton paperback ed.) New York [1975], nr. 63, 161. ↑
- R (on the application of Nicklinson and another) v Ministry of Justice [2014] UKSC 38. ↑
- Solvitur ambulando is the term used in Scotland (and beyond) to describe the tendency of English judges to ‘solve matters as they walk’, as opposed to grounding legal reasoning in a systematic authority (which for Scotland is Roman Law). See: Lord Cooper, ‘The Common and the Civil Law: A Scot’s View’ [1950] 63 HLR 3, 471. ↑
- STh, I-II, q. 95, a. 1, ad 3. ↑
- J. A. G. Griffith, ‘The Political Constitution’ [1979] 49 MLR 1, 16. ↑
