I. Judicial review of executive and legislative action

What role do courts play – what role should the judiciary play – in advancing or upholding the political ideal that we call ‘the rule of law’? It is commonly said that the rule of law assigns a particular responsibility to judges to see to it that the state in all its operations conforms to the law. Certainly the rule of law seems to require something like close judicial supervision of the executive – judicial review of executive action and the limiting of judicial discretion. What about judicial review of legislation? Is this also required by the rule of law? Are societies that make no provision for judicial review of legislation, or that allow the practice only in a weak or limited form, deficient so far as the rule of law is concerned? Are their legislatures to that degree lawless? Should we frown on them, in the name of legality, just as much as we would frown on an executive that escaped judicial supervision?

I am not sure how to answer these questions. Certainly polities that do have strong judicial review of legislation do not envisage or practise for the legislature anything like the degree or extent of legal control that is envisaged for the executive in a rule-of-law state. The usual view about the executive is that it should act only as legally authorized and that any discretion that is vested in executive officials should be framed and guided by legal norms. In the case of the executive, the rule-of-law requirement is not just that there are certain things that the executive and its agencies may not do; anything the executive does, at least so far as domestic administration is concerned, must be authorized and must take place within a constraining framework of public norms.Footnote ¹

I do not know of anyone who believes this about rule-of-law control of the legislature. Mostly judicial review is defended on the basis that there are certain things the legislature may not do – certain rights, based on values like dignity but listed in a line-item way in a bill of rights, that it may not contravene. The constitutional function of the judiciary is to uphold these constraints. Provided these constraints are not violated, the idea is that the legislature may make laws, repeal or amend laws, or fail to make laws as it pleases, entirely at its discretion, and defenders of strong judicial review do not envisage as a matter of principle that that discretion must be constrained or guided by judicially enforced norms.

Now what I have just said is over-generalized and needs to be modified in two respects. First, constitutional constraints sometimes require the legislature to act in certain ways, as well as prohibiting it from acting in certain ways.Footnote ² For instance, Article 26 of the Constitution of South Africa insist that, ‘Everyone has the right to have access to adequate housing’, and it requires that, ‘The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.’ So the rule of law could be violated in this context by a legislative failure to act. Still, once such particular constraints (positive and negative) are given their due, the legislature has uncontrolled discretion to act or not act as it pleases.

The other respect in which my formulation needs to be modified is to take account of the division of labor between legislatures that have plenary authority and those that have only enumerated powers in a federal system. In the United States, the federal legislature does not have plenary legislative authority; it may legislate only on the matters laid down in Article 1, section 8 of the US Constitution. There is no legal requirement that it must address the matters listed in this provision, but it may not address areas of public policy that are not so listed, and it is the job of the federal courts to uphold this restriction. As the tenth Amendment recognizes, however, the enumerated powers of the federal legislature are complemented by the plenary legislative authority of the states. State legislatures are bound by particular constraints laid down in their own constitutions and in the federal constitution. Subject to these constraints, though, they have plenary authority to pass or not pass or amend or repeal any legislation they please without any legal constraint. So far as I know, no one thinks this is a violation of the rule of law. And in unitary states, of course – even unitary states that have strong judicial review – the national legislature almost always has straightforward plenary authority.

This is why I say that the analogy with judicial control of the executive is unhelpful. There is a massive contrast between the kind of rule-of-law control envisaged for the executive and the legal control that is envisaged – even in a system of strong judicial review – for the legislature. There is no default position of plenary discretion for the executive and its agencies as there is for the legislature. Even though there are many calls today in the United Kingdom (say) for what people call the sovereignty of the British parliament to be subjected to the rule of law,Footnote ³ all that is envisaged under this heading is the enforcement of particular limitations on law-making, not an abrogation of parliament’s plenary legislative authority.

II. For and against the rule of law

Still, I do not want to say that it is inappropriate to cite the ideal of the rule of law as a basis for insisting that there must be some legal controls on legislation even if they are only of the modest sort that I have described, and that there must be judicial review to enforce such controls. If someone wants to say that this is what the rule of law requires, I guess we know what they mean.

I am known as an opponent of strong judicial review of legislation,Footnote ⁴ even of the limited sort just described (enforcing specific constraints and the balance of plenary and enumerated powers where appropriate). I have often asked myself: What is the best way to characterize this opposition so far as the ideal of the rule of law is concerned? Does this make me an opponent of the rule of law?

Yes and no; certainly it seems to indicate a qualification upon my devotion to that ideal. But think of it this way: most of those who have faith in the rule of law see it as just one ideal for good government – one among others. As Joseph Raz emphasizes, the rule of law is not the sum of all good things. It is, Raz says, ‘just one of the virtues which a legal system may possess and by which it is to be judged’:Footnote ⁵

Those who believe in a substantive conception of the rule of law may disagree, though even most of them will concede that the rule of law does not embrace all substantive political values. The implication seems to be that an evaluation of a society from the point of view of the rule of law is necessarily incomplete. We also want to evaluate it from the point of view of democracy, social justice, human rights and so on. I would go just one step further than this: it is possible that the rule of law is not just incomplete (relative to these other ideals) as a criterion for political evaluation. It is possible that, in certain circumstances, the rule of law may compete with these other ideals: there may be tradeoffs between them. Some speculate, for example, that there may be tradeoffs between the rule of law and a commitment to social justice.Footnote ⁷ My position on judicial review is similar: to the extent that judicial review of legislation is required by the rule of law, there is the prospect of a tradeoff between the rule of law and democracy. For my objections to judicial review do not really deny that judicial review is required by the rule of law. (I shall record, though, some hesitations about this in the sections that follow.) My objections to judicial review are based mainly on democracy and democratic legitimacy, and so they involve a concession of the kind that Joseph Raz made: ‘A non-democratic legal system … may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies.’Footnote ⁸ But since the rule of law is not a complete basis for social evaluation, I am willing to infer, with Raz, that, ‘This does not mean that [the system which respects this aspect of the rule of law] will be better than those Western democracies.’ And I don’t mean that judicial review of legislation, as a rule-of-law requirement, fatally compromises democracy, only that it seems to involve some degree of tradeoff between the rule of law and the idea that ultimately important decisions in the polity should be made by the people or their elected representatives.

In other regards, however, we may want to question whether judicial review of legislation is in all circumstances, and in all modes of its use, a positive contribution to the rule of law. Quite apart from the issue of democratic legitimacy, the practice of judicial review may actually pose further problems for the rule of law. Let me explain.

Suppose we make the judiciary supreme in our constitutional scheme, by giving judges power to overrule the decisions of all other branches of government. Should we regard this as an achievement of the rule of law, or is it just another version of the rule of men and women – albeit wearing black robes and sitting in a courtroom? Does the rule of law mean the rule of judges? Are judicial decisions at the highest level constrained by law to any greater extent than legislative decisions in a state that lacks strong judicial review? The problem becomes particularly acute once we recognize that judges cannot just enforce the law; often they also have to make the law. So is judge-made law to be regarded as the epitome of the rule of law or as part of the problem that the rule of law is supposed to solve?Footnote ⁹

In the remainder of this article, I want to open up these conundrums and see whether we can arrive at a nuanced set of conclusions about the relation between the rule of law and various forms of judicial power.

III. The rule of law and rule by law

Scholars sometimes distinguish between the rule of law and rule by law.Footnote ¹⁰ ‘Rule by law’ refers to the governance strategy that a ruler (or a ruling institution) adopts in their dealings with their subjects. If the ruler rules by law, they don’t just manage with particular commands and decrees and discretionary decisions. They rule using a framework of general laws, laid down in advance so that they know where they stand and so there is a general and more or less determinate basis, available to everyone in advance, on which they can approach the disputes and controversies that break out in any complex society. Thomas Hobbes explained the importance of rule by law in these terms:

In the rule-of-law literature, the idea of rule by law is often disparaged. It is associated with a certain form of authoritarianism, whereby a strong man uses law as a means of subordinating citizens but refuses to acknowledge any legal constraints on his own actions.Footnote ¹² This is fake rule of law, critics say, because it is not motivated by any real love of legality but ‘no more than what every man, who loves his own power, profit, or greatness, may, and naturally must do, keep those animals from hurting or destroying one another who labour and drudge only for his pleasure and advantage’.Footnote ¹³ That is the only reason why the authoritarian ruler allows their subjects to ‘have an appeal to the law, and judges to decide any controversies, and restrain any violence that may happen betwixt the subjects themselves, one amongst another’.Footnote ¹⁴

But that sells short an important part of the rule-of-law ideal. That ideal, in all its applications, always insists on rule by law at least, and usually this insistence in itself is regarded as a large and indispensable part of the requirement that governments respect those who are subject to them and rule them in a way that is consistent with their freedom and their dignity.Footnote ¹⁵ Moreover, rule by law is, in and of itself, a very demanding ideal, inasmuch as it requires the government in most circumstances to forego all purely discretionary action, and to subject official decisions to covering norms of one sort or another – norms that form the basis of citizen calculability and citizen recourse to challenge governmental action.

What, then, does the rule of law envisage? What does it add to rule by law? It envisages the possibility that the highest power in a society is bound by law and subject to law, and that governmental officials at every level – including the highest level – should exercise their power within a constraining framework of public norms rather than on the basis of their own preferences or ideology.Footnote ¹⁶ This is sometimes associated with a fantasy that law itself should be king or ultimate ruler in a political system.Footnote ¹⁷ Whether or not we can make sense of that personification while still acknowledging that law has to be made by humans is another matter. Realistically, this notion of the rule of law is associated with the idea that some forms of law, such as common law, or customary law, or long-established constitutions, have modes of human origin that are less likely than other forms of law to make nonsense of the slogan ‘The rule of laws not men’.Footnote ¹⁸ Men being ruled by principles whose emergence as man-made law is in some sense immemorial is perhaps more congenial to the idea of law ultimately being in charge than men being ruled by legislation that was made by other men last week. In the latter case, the all-too-human aspect of the law that is supposed to be in charge is all-too-evident. In the former case, it is easier to gloss over: the constraining law is less an artefact of immediate political power.

In any case, this demanding ideal of the rule of law also has to come to terms with the fact that laws are interpreted, applied, and enforced by men as well as being made by men. And even if the law was made or emerged eons ago, its interpretation and application has to take place in real time now. So – from the point of view of this demanding ideal of the rule of law – there are bound to be questions about the status of those who do the interpreting, the applying and the enforcing, and where they fall in this normative contrast between the rule of laws and the rule of men. This is going to be a question about courts and judges, among others.

IV. Hobbes’ challenge

Notoriously, Thomas Hobbes believed that a well-organized society would have at its apex a sovereign law-giver – an uncommanded commander (maybe a monarch, maybe a sovereign parliament) – which would rule by law but would not itself be subject to legal restraint. How could it be subject to legal constraint? As the source of all restraint and legitimate coercion in the society, there would be no one to restrain it but itself. As Hobbes put it in Leviathan:

It sounds like a convincing argument, and its ruthless Hobbesian logic seems to indicate that it is impossible to apply the rule of law to the apex of a society’s sovereign.

We think we know better. We are less accepting now of the hard logic of sovereignty that Hobbes propounded. We tend to think of sovereignty—if we think of it at all—in terms of a social and political process rather than in terms of an institution. If what we are interested in is the process of limiting government, we think it is possible to do this with a constitution and to patrol that limitation with a court or a system of courts.

But Hobbes rejected all forms of this logic of constitutionalism. It is, he said, a mistake to think that you can limit sovereignty with a constitution, because you have to do it with some other political entity – in this case, a court:

It is an infinite regress argument. Either you have a legislative monarch or parliament that is an uncommanded commander, or you have that entity being controlled by a court, which is an uncommanded commander; and if that court is not to be an uncommanded commander, there must be some other entity that controls it, and so on. In an earlier work, De Cive, Hobbes insisted that:

Based on this logic, either you have a final human authority or you do not. If you do, then all talk of being ruled by the law is fatuous, whether or not the final authority wears a wig and sits in a court. There must always be somebody – not some scroll or text but some body – who has the final word.

V. The constitutionalist solution

The attempt to find a way around this absolutist logic is what exercised generations of jurists after Hobbes – in James Harrington’s republicanism, in the liberalism of John Locke, in the Enlightenment constitutionalism of Montesquieu and also the Federalists, all the way through to the Victorian paradoxes of Albert Venn Dicey’s attempt to reconcile parliamentary sovereignty with the rule of law.Footnote ²² That disagreement remains with us today in the United States and other advanced democracies as we swing uneasily between the position that the rule of law positively requires that the Supreme Court have the final say in any constitutional crisis, and the position that judicial supremacy is as offensive to the rule of law as any other form of unreviewable hegemony in a constitutional regime.Footnote ²³

Constitutionalists – particularly in America – have thought it possible to break out of this rigid Hobbesian logic by empowering a court to review legislation without giving the court anything like the full power of a sovereign. The idea is that the court can do nothing except check and restrain the law-makers on various issues; it has no real power of law-making itself. So it is not the super-sovereign that Hobbes describes it as. As Alexander Hamilton said in The Federalist Papers, ‘The judiciary … has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.’Footnote ²⁴ True, it is like an uncommanded commander on the particular issues it addresses, but that is far from being a sovereign with plenary power. The constitutional separation of powers sees to that.

VI. Might a supreme court become a Hobbesian sovereign?

This solution to the Hobbesian problem – if it is a solution – is precarious. We can quickly be plunged back into the Hobbesian regress whenever the court that reviews legislation takes on the power of making laws or other powers associated with sovereignty. A judiciary that thinks of itself as a law-maker is in danger of becoming a Hobbesian sovereign or super-sovereign. By taking on these additional roles, it makes it harder for constitutionalists to deny that this is just the replication of human power at a higher level. The more power that courts take on, the greater the danger there is of ruining the anti-Hobbesian constitutionalist solution to the problem of applying the rule of law to the apex power in a society. For if a supreme court makes the laws to which the legislature is going to be held, then we have – here and now – a human law-maker (a body of judges) that is not itself bound by law in its human law-making. (Or, if it is bound, it must be bound by an entity whose own activity, in turn, raises exactly the same questions.)

This issue of whether judicial power represents the rule of law or represents a sort of judicial super-sovereign that escapes the authority of the rule of law is a perennial problem in rule-of-law studies.Footnote ²⁵ Should we regard strong judicial review as the epitome of the rule of law or as yet another part of the problem that the rule of law is supposed to solve? If we believe in the rule of law not men, does ‘men’ include black-robed judges sitting in a courtroom? Some will say that – short of the fantasy that the laws themselves might rear up and render their own decisions – the most that the rule of law could possibly entail at this level is decisions by judges after due deliberation in a courtroom (including unreviewable decisions by judges sitting in the highest court in the land). This is, as I said, a precarious solution to the problem of the rule of law, and judges must take care that they don’t begin behaving in a way that creates the impression that they are the final unreviewable sovereign power in the constitution.

VII. Ways of avoiding judicial sovereignty

I said before that I am known as an opponent of judicial review of legislation.Footnote ²⁶ But I am willing to make the following concession to those who defend judicial review. It is possible for a polity to embrace judicial review without necessarily giving rise to the Hobbesian problem we have just identified. The power of judicial review can be exercised more or less modestly or in a more or less aggressive or programmatic spirit. Let me identify some practices associated with judicial review that might give rise to Hobbesian apprehensions – practices that it would be advisable for the judiciary to avoid if it does not want to undermine the rule of law by taking on the mantle of judicial sovereignty.

The practice of judicial review is characteristically associated with a bill of rights, mostly listing discrete things that the branches of government must not do. Although these rights are based on deep underlying values like equality and human dignity, it is interesting that they present themselves as a list, rather than as an integrated platform or coherent policy. I think that can help us understand how things can go wrong in judicial review, how things can tilt towards judicial sovereignty.

So long as the courts confine themselves to the particular items on the list – free speech, freedom of religion, due process, privacy, non-discrimination, reproductive rights and so on – and deal with them one by one as they crop up in particular cases, there is no great danger of the judges becoming Hobbesian sovereigns. But there is a danger that judicial review will tilt towards judicial sovereignty if courts begin to present themselves as pursuing a coherent program or policy, rather than just responding to particular abuses identified as such by a bill of rights – one by one, as they crop up. I know this goes against the grain of a great deal of constitutional theory. It is sometimes said that judges should have an overall view of the constitution as a whole, a coherent program of principle, and that they should seek in successive cases to move that program forward on a broad front. The program in question might embody a broad progressive or liberal vision, or perhaps an overall vision of a conservative free market society. I believe that the more judges think of their work in this way, the more they are in danger of asserting themselves and their particular unreviewable power as the ascendant platform from which the overall shape of good governance is to be determined.

I think judges need to be particularly careful about this when the constitution embodies positive social and economic rights as well as civil and political rights, because it may be more difficult to hold social and economic rights apart from a programmatic vision. But it can be done. I don’t want to be heard as disparaging the insertion of social and economic rights in a constitution – these rights are very important. But their presence in the constitution should not be read as empowering the judges to pursue an overall vision of social justice or anything of the sort.

So judicial review should not be understood as an opportunity to implement a broad social program through decisions in successive cases. Equally, the judiciary should not take it upon itself to oppose the vision or overall program or policy of the elected branches. It is the responsibility of the elected branches of government to form and pursue social programs on that scale. The task of the judges is simply to spot and identify particular abuses, not to oppose the program as a whole, which is none of their responsibility. Here I have in mind as an example the stance that the Supreme Court of the United States took against social and economic legislation in what we call the Lochner era. We define it with reference to a particular case, Lochner v New York (1905).Footnote ²⁷ But it was a long period of American constitutional history, from the 1880s to the late 1930s, in which state and federal courts struck down statute after statute – about 170 statutes in all that together constituted a progressive program of economic and social amelioration.Footnote ²⁸ The US courts marked out a stance of broad opposition to the program pursued by the elective branches of government, establishing in effect a ‘stand-off’ – a tussle of power – between those branches and itself. In my view, this way of deploying the power of judicial review also gives rise to the Hobbesian problem, for now it looks like the courts have constituted themselves as a broad veto-bearers, with the ability to say ‘yes’ or ‘no’ to a whole swathe of public policy.

Another way in which the courts can present themselves, in effect, as human sovereigns in their exercise of judicial review is by making it evident that their decisions on important issues faced by the nation depend on the particular politics of the relevant judicial personnel. This point was made well by the US Supreme Court in its reflections on legitimacy and constitutional stare decisis in the great 1992 case of Planned Parenthood v Casey.Footnote ²⁹ Contemplating the possibility that constitutional decisions might last or be overturned simply as a function of one set of judges leaving the court and another set of judges coming into the court, the court said:

The point being made here was about legitimacy – the American people’s ‘understanding of the Court [as] invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals’.Footnote ³¹ It was connected, the Supreme Court said, with ‘the character of a Nation of people who aspire to live according to the rule of law’.Footnote ³² I am taking it in a slightly different direction: a court whose principles change with every alteration in the voting balance of its personnel can hardly deny that its hegemony represents the rule of men rather than the rule of law. Maybe that is impossible to deny anyway. But if it is to be denied, the court must present its members as being bound by law rather than the law being determined by the will or the vote of its members. And too-frequent ‘vacillation’ traceable to changes in the politics of the judiciary will inevitably undermine that presentation.

Of course, there is nothing for it but for judges to vote when there is genuine disagreement among them regarding what the law is.Footnote ³³ But the argument here is that if judges want to avoid the problem of judicial sovereignty as a version of rule by men, then as individuals they may have to strain to suppress the all-too-human tendency to question past decisions when they come onto the Bench or to make their own decisions depend tendentiously on beliefs and conceptions of the law that they know are not shared by their colleagues on the Bench. Only by doing that will they be able to maintain the impression that it is the law that is in charge, not the competing views about the law of particular individual judges.Footnote ³⁴

VIII. Further questions

The suggestions just made may seem like a tired recycling of old concerns about judicial review and judicial activism. However, I am putting them to a different use here: they are presented not as condemnations of certain forms of judicial conduct, but as ways of helping to preserve the integrity of the constitutionalist response to Hobbes’ otherwise implacable logic of sovereignty.

The issues discussed here do not exhaust this topic of the relation between judicial review and the rule of law. If space permitted we should also ask and answer the following questions.

First, do the procedures of judicial decision-making make a difference? By this I mean formal hearings, procedural due process, and the submission to the court of formal arguments and the response of the court to those arguments.Footnote ³⁵ Further, does the institutional and procedural character of judicial decision-making suffice to distinguish it from other forms of political decision-making that we might be tempted to characterize in Hobbesian terms?Footnote ³⁶

A second question arises from the point that neither the judges on a supreme court nor the members of an unlimited legislature are subject to review by any higher entity. Although institutionally unlimited, both may be bound subjectively by the constitution and by the oath they have taken to support it. Is it possible to say, nevertheless, that judges are bound by constitutional provisions in a way that legislators are not?Footnote ³⁷ Can this distinction be based, for example, on the professional ethos, mentality, and esprit de corps of judges? And would that be sufficient to distinguish judicial ascendancy from legislative ascendancy for the purposes of rebutting the Hobbesian challenge?

Third, quite apart from the Hobbesian issue, are there problems of legality so far as judicial decision-making is concerned? I said in section III that rule by law is an important part of the rule of law. But there are aspects of judicial decision-making that are problematic, which are considered as a form of rule by law. For example, judicial decisions are often unpredictable and they vary from judge to judge. To the extent that judges sometimes have to make the law, their law-making is retroactive, at least regarding the parties in the case in which the new law is made. And the law they make, having no canonical form, is often indeterminate until it is clarified in later cases. To the extent that all this is true, we should have serious doubts about whether rule by judges really amounts to the rule of law.Footnote ³⁸

I haven’t been able to address these three clusters of questions. But even raising them in this abbreviated form should be enough to warn us away from any simplistic account of the relation between judicial power and the rule of law.