To restore the rule of law in developed nations today is to confront the problem of judicial supremacy. By and large, liberal democracies do not suffer from mob rule or crippling corruption. Western nations have not eradicated violence, as anyone can see who lives in the inner parts of American cities or watches cable news coverage of school shootings. And graft is not unknown among public officials. But in theory at least, and generally in practice, mobsters and politicians are not above the law. Judges are. And the supremacy of judges over the law is not a departure from or failure of contemporary political and legal theory. It is baked into the cake.
The Problem(s) of Judicial Supremacy
This is daunting. The problem of judicial supremacy is many problems stirred into one. Judges assert their supremacy over the legislative branch, re-legislating from scratch where they are not satisfied with the legislature’s considered settlement. But judges, who render judgment in particular cases and controversies between the parties before them, are ill-equipped to change the law generally and prospectively. Nor are they all accountable to the people for their decisions.
Judges today also assert their supremacy over the common law. For centuries, jurists understood the sources of obligation in the common law—natural law, ancient customs, acts of private ordering, and legislation—to bind the deliberations and judgments of courts. Judges did not make the law, they declared the law and specified remedies for wrongs committed in contravention of the law. But since the pragmatic turn begun by Oliver Wendell Holmes, Jr. and carried into legal education by the legal realists in the early twentieth century, scholars and jurists have reconceived common law as judge-made law. The result: law is what judges say it is.
Judges even assert their supremacy over constitutions. Courts could more credibly serve as final authorities on the meaning of constitutions if judges searched for and followed the original meaning of constitutional terms and propositions. Instead, in a growing number of important cases, judges perform amateur philosophy. Their judgments are motivated by the “mystery of life”, by confused notions about the public significance of fundamental civic institutions, and by “charter values” that are not enumerated in charters but appear to emanate from the judges’ own sentiments.
Each of these three parts of the problem has additional complications. Courts assert their supremacy over legislatures by various means and on different grounds. The tiers of judicial scrutiny so familiar to first-year law students are supposed to ensure judicial deference in ordinary cases and more rigorous review of legislative reasoning when important constitutional and legal guarantees are at stake. (Unfortunately, as students quickly learn, the levels of scrutiny deteriorate in practice.) Among those guarantees are constitutional and civil rights, which courts ostensibly guard against popular and legislative encroachment. Yet on this understanding, rights conflict with each other in adjudication, as where some people assert a right to require religious people to subsidize their abortions.
In short, the problem of judicial supremacy is so large and so complex, and has implications for so many different areas of law, that it requires a comprehensive re-thinking of Western jurisprudence. The cake cannot be eaten all at once. It must be divided up and taken bite by bite.
One Big Bite
A recent book by an accomplished group of jurisprudence scholars takes one big bite. Legislated Rights: Securing Human Rights through Legislation (Cambridge University Press) tackles in a comprehensive and methodical manner one aspect of the problem of judicial supremacy: the too-easy association of legislatures with majoritarian preference-aggregation and the correlative identification of courts as guardians of civil rights. Legislatures have served as instruments of tyrannical majorities, the authors concede, but those occasions are defective instances of legislative action. When they work properly, legislatures vindicate and specify human rights. Indeed, the authors boldly argue, the legislature, rather than the judiciary, is best equipped to give legal rights shape and practical significance. See, for example, the American Civil Rights and Voting Rights Acts of the 1960s.
The architecture of the book is unique. It is neither a single-author monograph nor a collection of essays. Six authors each contributed a chapter to a sustained argument for a single thesis, that the “legislature is well placed to secure and promote human rights.” The argument is clearly within the tradition of English analytical legal philosophy, and within that tradition is discernably perfectionist. Yet the authors hail from around the world and draw upon a variety of intellectual resources. Richard Ekins and Paul Yowell teach at Oxford; Grégoire Webber and Hon. Bradley Miller are Canadians; Maris Köpcke lectures at the University of Barcelona; and Francisco Urbina professes law in Chile. They represent both common-law and civilian legal systems, and their book offers challenging lessons for textualists and rights skeptics, civil libertarians, and everyone in between.
Each chapter tackles a premise of the argument, adding to what comes before. After an introductory first chapter summarizing the argument, Webber turns in chapter two to close the gap between rights-as-reasons and rights-as-entitlements. He argues that “what is right is giving to each and all their rights.” He observes, “The relationship of rights to ‘the right’ (justice) is suggested not only by their common Latin root, but also by a conceptual relationship affirmed by different persons in different places and times.” As evidence, he points to, among other sources, the Universal Declaration on Human Rights, some of whose provisions identify abstract subject matters to which everyone has a right, while others identify some action that is prohibited—“a duty not to perform a given act.” From close attention to this difference and careful use of Hohfeldian analysis, Webber draws out an insightful lesson about rights: their open-ended and abstract formulations require specification as particular relations between persons before they can perform meaningful work.
Subsequent chapters make the case that legislatures are best designed to perform that task. Köpcke argues that positive law is required to specify rights adequately. Ekins argues that legislatures are best capable of positing law. Yowell argues that legislation strengthens universal and absolute rights while judicial balancing tests weaken them. And Urbina argues that legislation also assists judges in applying and enforcing rights.
The last chapter is written by Bradley Miller, a former law professor who now serves as a Justice on the Court of Appeal for Ontario. Miller identifies what he calls “pathologies of judicial review.” In particular, “human rights litigation is increasingly a second forum for law-making (or law-unmaking) proposals that have failed a legislative vote, and failed for reasons other than the majority’s contempt or disregard for any group or person.” This practice has costs, including “dramatising the plight of … rights claimants through concrete examples” while excluding from view “the individuals that the challenged legislation aims to benefit.” Judicial review privileges certain political groups and marginalizes others. Judicial review can counteract unlawful majoritarianism. But “one must attend not only to the problems that judicial review is expected to solve, but also to the problems that it is liable to create.”
Not Just for Jurisprudence Scholars
The centerpiece of the argument is Ekins’ rehabilitation of the old, common-law idea that a legislature acts on a shared intention to declare and change the law. As Ekins reformulates the idea, legislatures act for principled reasons. Those reasons include rights. The legislature has intentional agency, Ekins argues. Legislatures do not merely aggregate the preferences of constituents but rather meet to deliberate together about proposals to declare and specify duties and obligations or to alter those obligations in some concrete way. Ekins has developed this idea at book-length elsewhere. (See my review of his excellent book.)
The legislature’s agency points to the broader significance of this book beyond jurisprudence. All persons, especially lawyers and legal scholars, ought to be concerned with the capacities of legislatures to generate and specify rights not only because legislatures are best able to do the job but also because the legislature is “the community personified in the assembly.” The authors quote Locke’s endorsement of legislative supremacy:
it is in their legislative that the members of a commonwealth are united and combined together into one coherent and living body. This is the soul that gives form, life, and unity to the commonwealth; from hence the several members have their mutual influence, sympathy, and connection.
In this light, perhaps we should not be surprised that the recent, well-documented failures of the United States Congress to address, in a reasoned way, defects in federal law coincide with a loss of civic sympathy in the United States. Not only executive officials but also the Supreme Court of the United States and state high courts assert supreme authority to settle important and controversial civic questions—and Congress and state legislatures often capitulate, seemingly happy to avoid the difficult task of deliberating about and reaching reasoned compromises on contentious questions. This capitulation deprives the people of their voice in our political institutions. They can no longer trust their elected legislators to vindicate their rights, and unelected judges and bureaucrats do not take their phone calls.
Viewed the other way around, courts and agencies have greater freedom to act and are able to arrogate more powers to themselves in part because legislatures do not act when they should, or act without civil rights in mind. Whether or not they possess formal legal training, legislators are lawyers; they act according to law. They are obligated to secure those rights and duties which promote the common good of the political community.
Though Legislated Rights is primarily written for legal philosophers, it bears important lessons for all who work to secure human rights in law. It competently challenges conventional views about the supremacy of courts in specifying and vindicating rights. And it achieves its stated goal to “reorient general thinking about the nature of rights, legislatures, and courts.”