Abstract
This paper defends judicial review of legislation under a Charter or Bill of Rights against the charge that this practice is fundamentally at odds with democratic principle. In previous work, I argued that the practice can be democratically justified if judges adjudicate, not on the basis of their own convictions in regard to fundamental issues of political morality, but in terms of the community’s own fundamental moral commitments, as these are expressed or represented in the community’s constitutional morality (CCM). This is a kind of positive morality consisting of the fundamental moral norms and convictions to which the community has actually committed itself and which have, in one way or another, acquired some kind of formal constitutional recognition. But sometimes the norms of a CCM are underdetermined, thus leaving open the distinct possibility that judges will be required to exercise discretionary judgment in creatively developing CCM norms so as to answer the moral question posed by a case. In this paper I argue that such discretionary constructions can be rendered consistent with the demands of democratic principle if, and to the extent that, they are based on a reasonable balance of relevant public reasons.
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Notes
- 1.
Henceforth I will refer to this practice as “charter review.” Charter review comes in a wide variety of forms, but for purposes of this paper, I will assume a form such as one finds in Canada and the United States. In these systems judges are empowered to strike down official government acts, most notably acts of congress or parliament if, in the best judgment of the court, such acts violate rights of political morality to which their charter and bill of rights (respectively) make reference. I have in mind rights to such things as “due process,” “freedom of expression,” “equality,” “equal protection” and “fundamental justice.”
- 2.
John Rawls, Political Liberalism (New York: Columbia University Press, 1996), 36. How one distinguishes reasonable from unreasonable views is, of course, an important, difficult and highly contentious issue. It’s also one that I will leave unexplored in this paper.
- 3.
Ibid., pp. 54–58.
- 4.
In saying that truths of political morality seem epistemically inaccessible to us, I do not mean to deny that many people believe that they know the truth. Neither do I wish to deny that many people have perfectly respectable justifications for their claims, nor that some of those claims are true. What I mean to deny is that there are few, if any, truths of political morality which can be demonstrated or established to the satisfaction of all reasonable persons, regardless of their differing moral perspectives.
- 5.
Ibid., p. 212.
- 6.
Whether reality matches theory in this respect is, of course, highly debatable. For instance, when corporations and other organizations with deep pockets are able freely to contribute to electoral campaigns, political power can become concentrated in ways that seriously threaten the notion that one person—one vote embodies equal political power. Various attempts, in the United States, to correct for this kind of power imbalance, via campaign financing regulations, were recently declared unconstitutional by the US Supreme Court. See Citizens United v FEC 558 U.S. (2010).
- 7.
See in particular A Common Law Theory of judicial review: The Living Tree (Cambridge: Cambridge University Press, 2007).
- 8.
On this see ibid. See also “Constitutional Morality and Bills of Rights” in ed. Grant Huscroft, Expounding the Constitution: Essays in Constitutional Theory (Cambridge: Cambridge University Press, 2008) p. 77, from which the following characterization of CCM is drawn.
- 9.
I have deliberately framed my characterization of CCM in such a way as to remain neutral among rival theories about the nature of law. I am particularly interested in remaining neutral as between inclusive positivism, as defended by, e.g., Hart, Coleman, Kramer and Waluchow, and exclusive positivism as defended by, e.g., Raz, Green, Giudice, Marmor and Gardner. An inclusive positivist is prepared to say that the norms of CCM can actually be part of the law. A defender of the exclusive version, on the other hand, would likely insist on situating those norms outside the law, as norms of positive morality upon which judges may (or must) draw when deciding whether to introduce changes into the law, as when they decide whether to change the law by eliminating one of its hitherto binding legal standards, i.e., by striking it down. (I say “likely insist” because an exclusive positivist might be prepared to subsume the norms of CCM under the category of customs, which have a social source.) In any event, the phrase ‘legal recognition’ is meant to be neutral as between different theories concerning the nature of law. Works that defend inclusive positivism include Hart, The Concept of Law, 2nd edn. (Oxford: Clarendon Press, 1994), especially the Postscript; Coleman, Jules, “Negative and Positive Positivism” The Journal of Legal Studies 11 (1982), p. 139; Waluchow, W.J., Inclusive Legal Positivism (Oxford: Clarendon Press, 1994); Kramer, Matthew, Where Law and Morality Meet (Oxford: Oxford University Press, 2004). Works defending exclusive positivism include Joseph Raz, The Authority of Law (Oxford: Clarendon Press, 1979) and “Authority, Law and Morality” The Monist 68 (1985), 295; Leslie Green, “Legal Positivism” in N. Zalta (ed.) The Stanford Encyclopedia of Philosophy (Spring 2003 edn). URL = http://plato.stanford.edu/archives/spr2003/legal-positivism/; Michael Giudice, “Existence and Justification Conditions of Law” Canadian Journal of Law and Jurisprudence, vol. 16, no. 1 (2003), pp. 23–40 and “Unconstitutionality, Invalidity, and Charter Challenges” Canadian Journal of Law and Jurisprudence, vol. 15, no. 1 (2002), pp. 69–83; Andrei Marmor, Positive Law and Objective Values (Oxford: Clarendon Press, 2001); John Gardner, “Legal Positivism: 5½ Myths” American Journal of Jurisprudence 46 (2001), p. 199. On Coleman’s theory concerning the principles of corrective justice embedded in modern tort law, see his Risks and Wrongs (Cambridge: Cambridge University Press, 1992).
- 10.
An example of the kind of thing I have in mind here is the responsibility of a Prime Minister not to exercise his or her prerogative powers for purely partisan political reasons.
- 11.
On Aquinas’ theory of “determination of common notions,” see his Summa Theologica, I–II, Q. 95, AA. 1–4. See also, John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), pp. 281–290; and Waluchow, The Dimensions of Ethics (Peterborough, Ontario: Broadview Press, 2003), pp. 111–116.
- 12.
Considerable philosophical controversy exists regarding the meaning and import of the terms ‘impartial’ and ‘neutral.’ I hope to remain above this fray by simply assuming a more or less intuitive understanding of these two terms according to which (a) they are more or less equivalent in meaning; and (b) mean something like the following. To be neutral or impartial is to make a decision that is based exclusively on relevant reasons and which displays no bias towards any particular point of view on the relevant matter, or any person or persons holding such a view. A useful analysis along these lines is proposed by Bernard Gert who posits that “A is impartial in respect R with regard to group G if and only if A’s actions in respect R are not influenced at all by which member(s) of G benefit or are harmed by these actions.” See his “Moral Impartiality,” Midwest Studies in Philosophy XX: 102–127. On this reading impartiality (or neutrality) is a property of a set of decisions made by a particular agent, directed toward a particular group. For our purposes, this would be a group sharing a particular view on some question of political morality arising in a charter case. For a survey of the literature concerning the concepts of impartiality (and neutrality), see Troy Jollimore, “Impartiality” at http://plato.stanford.edu/entries/impartiality/#MorImp.
- 13.
That the norms of CCM can be largely discovered via a process of reasoning that can plausibly be described as ‘impartial’ and ‘morally neutral’ is also, of course, a highly contentious claim, It is also one that I cannot explore or defend here. Were I to do so, my argument(s) would be similar to those advanced by Joseph Raz in his discussion of “detached judgments” and by Julie Dixon in her splendid book Evaluation and Legal Theory. See Raz, The Authority of Law (Oxford: Clarendon Press, 1979), pp. 153–157 and Dixon, Evaluation and Legal Theory (Oxford: Hart Publishing, 2001), passim, but especially her discussion of the agnostic observer of the Roman Catholic mass, pp. 68–9. For my own, somewhat under-developed thoughts on the matter, see my Inclusive Legal Positivism (Oxford: Clarendon Press, 1994), pp. 19–30.
- 14.
See, e.g., B. Miller, “Review Essay: A Common Law Theory of Judicial Review” 52 American Journal of Jurisprudence, pp. 297–312; N. Struchiner and F. Shecaira, “Trying to Fix Roots in Quicksand: Some Difficulties With Waluchow’s Conception on the True Community Morality,” Problema Anuario de Filosofía y Teoría del Derecho, no. 3 (2009); Imer. B. Flores, “The Living Tree Constitutionalism: Fixity and Flexibility,” ibid.; Natalie Stoljar, “Waluchow on Moral Opinions and Moral Commitments,” ibid.; and Larry Alexander, “Waluchow’s Living Tree Constitutionalism,” 29 Law & Philosophy 93 (2010).
- 15.
Some commentators have criticized this assertion, suggesting that, notwithstanding various courts’ decisions on entitlements for unmarried same-sex couples and on various forms of discrimination, sex-based or otherwise, the question whether banning gay marriage is consistent with Canada’s CCM remains an open question. In other words, there continues to be reasonable disagreement on which construction of Canada’s constitutional norms of equality is better than which. On this see, Brad Miller, supra note 14.
- 16.
Abortion and same-sex marriage are obvious examples of this possibility.
- 17.
- 18.
It might be thought that there is at least one other option worth considering here: we could return such questions for authoritative settlement by elected legislators. There are many reasons for thinking that this is not, in the end, an attractive option to pursue. See my discussion of “the circumstances of rule making” in A Common Law Theory of Judicial Review: The Living Tree, passim, but especially pp. 203–215 and 259–270. See also Denise Reaume, “Of Pigeonholes and Principles: A Reconsideration of Discrimination Law,” Osgoode Hall L.J. 40 (2002), p. 113. See also, my discussion below (p. 220 ff.) of the uncertain borderlines between hard and easy cases, that is, between cases in which discretion is (or at least seems) necessary and those in which it is not. For the time being, we will assume that there are cases in which it is reasonably clear that discretionary choice is necessary. And our question is: how to reconcile the exercise of discretionary choice with the fundamental requirements of democracy.
- 19.
Henceforth I will use the term “construction,” and mean by it the creative or discretionary development of a moral principle or concept in the manner suggested by Aquinas when he referred to the “determination of common moral notions.”
- 20.
Among the most noteworthy instances is perhaps Bush v Gore, where the United States Supreme Court decided on what appeared to many observers to be purely partisan political grounds. See Bush v. Gore, 531 U.S. 98 (2000). In the view of many, Citizens United v. Federal Election Commission, 558 U.S.(2010) provides yet another example.
- 21.
I have in mind values like predictability, finality of decision, and so on. Another route might be to argue that alternative political practices, e.g. legislative debate, fail miserably to live up to democratic ideals and are therefore, on balance, even worse in this respect than charter review. Those who favour the abandonment (of charter review) option include Grant Huscroft, Jeremy Waldron and Tom Campbell. See, e.g., Huscroft, “The Trouble with Living Tree Interpretation” (2006) 25 U Queensland LJ, pp. 3–23; Waldron, “The Core of the Case Against Judicial Review” The Yale Law Journal, (2006) 1346; and Campbell, “Slaying the Hydra: Living Tree Constitutionalism and the Case for Judicial Review of Legislation”, 3 Problema, 2009, pp.17–30. For purposes of this paper, I will assume that some form of charter review is, on balance, desirable in a constitutional democracy and that our aim is to see how the practice might be justified.
- 22.
John Rawls, Political Liberalism. Supra note 2; Larry Solum, “Public Legal Reason”, Virginia Law Review, Vol. 92, p. 1449 (2006); Ronald Den Otter, Judicial Review in an Age of Moral Pluralism (New York: Cambridge University Press, 2009). I wish to acknowledge, in particular, the degree to which my account accords with and draws upon Den Otter’s. His excellent book came to my attention only after I had conceived and sketched the main arguments of the present paper.
- 23.
Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977), p. 33.
- 24.
I will return to this last point, and its significance for debates on the legitimacy of charter review, in the final section of this paper. See note 46 and surrounding text.
- 25.
Thomas Hobbes, Leviathan, (Richard Tuck, ed., 1991), p. 306; Jean-Jacques Rousseau, “Discourse on Political Economy” in Political Writings (Cress ed. & trrans., 1987), pp. 111–113; Immanuel Kant, “An Answer to the Question: ‘What is Enlightenment?’” in Political Writings (Reiss & Nesbitt trans., 2nd enlarged ed. 1991), pp. 54–55.
- 26.
Political Liberalism, 214.
- 27.
For a Canadian case in which the latter question was recently addressed, see Canada (Prime Minister) v Kadhr 2010, SCC 3, retrievable at http://scc.lexum.umontreal.ca/en/2010/2010scc3/2010scc3.html.
- 28.
Ibid., p. 212.
- 29.
Ibid., p. 213.
- 30.
Ibid., p. 213.
- 31.
Ibid., p. 215.
- 32.
Ibid., p. 216.
- 33.
Ibid. Whether citizens and legislators should be restricted to public reasons when they debate issues within public forums is a highly controversial issue. It is also one on which I hope to remain neutral since my focus here is on charter cases. My claim is only that, in adjudicating cases under CCM, judges can justifiably be limited to public reasons. For attempts to relax Rawls’ ban on non-public reasoning by citizens and legislators see, for example, Jeremy Waldron, “Religious Contributions to Public Deliberation,” 30 San Diego Law Review (1993); Richard Bellamy, Liberalism and Pluralism: Towards Politics of Compromise (New York: Routledge, 1998); Robert P. George & Christopher Wolfe, eds., Natural Law and Public Reason, (Washington, D.C.: Georgetown University Press, 2000).
- 34.
Ibid., p. 224.
- 35.
In this respect, a political conception of justice is similar to a CCM. Indeed, a society’s CCM is perhaps best viewed as identical with, or at least a part of, a society’s public conception of justice.
- 36.
Ibid., pp. 242–243.
- 37.
Ibid., p. 253.
- 38.
In this paper I have, for purposes of analysis, treated public reasons as though they were a type or class of reasons distinct from the reasons constituted by CCM. The former are characterized as a distinct set of reasons upon which judges might draw in rendering the norms of CCM more determinate. In truth, the norms of CCM are probably best viewed as a part of public reason, that part which is distinctly linked to the community’s authoritatively expressed constitutional commitments (e.g., the provisions of its constitutional charter or bill of rights). In short, all the reasons upon which judges legitimately draw in deciding constitutional cases are instances of public reasons. Viewed in this way, the argument of this paper is meant to show that discretionary construction of CCM norms is warranted because and to the extent that judges draw from the same bank of reasons—public reasons—as they do in cases involving the application of CCM. I owe this point to Brian Burge-Hendrix.
- 39.
In my previous defenses of charter review, I argue that one of the primary roles of courts when engaged in that practice is to hold the community to its fundamental moral commitments in instances where democratic procedures, responding to unfounded moral opinions within the community, threaten to lead to their violation. On this see A Common Law Theory of Judicial Review: The Living Tree, passim.
- 40.
Ronald Den Otter, supra note 22, p. 10. Den Otter notes that he has borrowed the idea of reasonable rejectability from T.M. Scanlon’s “Contractualism and Utilitarianism,” in Beyond Utilitarianism, ed. Amartya Sen and Bernard Williams (New York: Cambridge University Press, 1984), p. 110.
- 41.
Ibid., p. 11.
- 42.
Ibid.
- 43.
Ibid.
- 44.
Ibid., drawing on Bruce Ackerman, Social Justice in the Liberal State (New Haven: Yale University Press, 1980), pp. 10–11.
- 45.
For very helpful surveys of the various objections made to theories of public reason, together with valuable efforts to address them, see Den Otter and Solum, supra note 22.
- 46.
In addition to the argument developed here, which focuses primarily on the question of democratic legitimacy, I would draw on the various arguments advanced in A Common Law Theory of Judicial Review: The Living Tree, most notably those deriving from what I call “the circumstances of rule-making.” See note 19 above.
- 47.
I have framed this objection in terms of public reasons but the argument actually applies to any of the norms and reasons upon which a court might draw in exercising charter review, including for our purposes the norms of CCM. It is seldom, if ever, clear whether or not a court is in fact faced with indeterminate CCM norms. Someone might argue that in any such case the court should always defer to the legislature. It should not, in other words, draw on further public reasons to create a discretionary construction upon which the court then relies to declare the relevant legislation unconstitutional. My reasons for thinking that this would not be a good option in the case of further indeterminate public reasons apply equally here.
- 48.
By ‘normative indeterminacy’ I mean the absence of a uniquely right answer to the question “What does this norm actually require in this particular case with these particular facts?” In such a case, it isn’t just uncertain what the right answer it; there is no right answer.
- 49.
I wish to thank a number of individuals for their very helpful comments on earlier versions of this paper. These include: Matt Grellette, Stefan Sciaraffa, Fabio Shecaira, Noel Struchiner, Wayne Sumner, Lorraine Weinrib, Grant Huscroft, Brad Miller, Natalie Stoljar, Brian Burge-Hendrix and Imer Flores. I also wish to acknowledge the helpful comments of all those others who contributed to discussions of the paper when it was presented to the Faculty of Law, University of Toronto; at the “First Annual Graduate Conference in the Philosophy of Law,” McMaster University, May 5–7, 2010; at “Living Tree Constitutionalism: Democracy and the Rule of Law”, April 22, 2010 at The Institute for Legal Research at the National Autonomous University of Mexico (UNAM); and at “Neutrality and Theory of Law”, Girona Spain, May 22, 2010.
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Waluchow, W. (2013). On the Neutrality of Charter Reasoning. In: Ferrer Beltrán, J., Moreso, J., Papayannis, D. (eds) Neutrality and Theory of Law. Law and Philosophy Library, vol 106. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-6067-7_10
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