Jump to ContentJump to Main Navigation
The Sovereignty of LawFreedom, Constitution and Common Law$

T.R.S. Allan

Print publication date: 2013

Print ISBN-13: 9780199685066

Published to Oxford Scholarship Online: September 2013

DOI: 10.1093/acprof:oso/9780199685066.001.0001

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: null; date: 30 March 2017

(p.333) Appendix Public Law and Political Theory

(p.333) Appendix Public Law and Political Theory

Source:
The Sovereignty of Law
Publisher:
Oxford University Press

I

My discussion in Chapter 1 of contrasting interpretations of Dicey’s work raises more complex issues than could be conveniently considered there, so I add an appendix to explore them further. I also examine here certain aspects of Ronald Dworkin’s theory of interpretation (on which I draw) in greater detail than the context of earlier discussion conveniently permits. Rival approaches to constitutional law reflect different conceptions of the relationship between public law, on the one hand, and legal and political theory, on the other; competing approaches embody contrasting conceptions of law. These are undeniably deep and rather daunting waters, but the additional plunge may be thought worthwhile in view of the interest and importance of the subject matter.

In a provocative challenge to recent academic emphasis on the theoretical dimension of public law, Peter Cane has suggested that debate over the relationship between law and theory ‘has diverted attention away from legal values and on to styles of legal and theoretical scholarship’.1 In Cane’s view, the contribution of political theory to our understanding of public law is limited by the abstract nature of political values and disagreement about their practical implications. It is better to focus on the values immanent within the law itself; and so the common law must take centre stage: the courts’ role is to maintain the integrity of society’s legal culture ‘by interpreting and applying legislation, and by making and applying the common law, in ways that respect and preserve traditional legal values’. The immanent or ‘background’ values of the law are to be found in the complex interaction between legislative and judicial activity:

Because courts are required to promote consistency and coherence not only in common-law rule-making but also in the interpretation and application of legislation, judge-made law provides a framework of values into which legislation is introduced and within which the forward-looking outcome-oriented values of legislation have to be accommodated.2

Cane distinguishes immanent or background values from ‘foreground’ values provided by political theories such as pluralism, liberalism, or republicanism, which are external to the law: such moral or political values have priority in practical reasoning (reasoning about what one ought to do) and so provide a basis for criticizing the law. Law is an authoritative institution that enables us to overcome the problems associated with the abstractness of political values and unresolvable disagreement:

Legislation and judicial rule-making concretize political (and moral) values by applying them to particular social problems and issues. Adjudication concretizes values even more by applying legislative and common-law rules to individual cases….Legitimate laws provide people with authority-based reasons for action that are independent of the normative content of the laws.3

(p.334) Cane’s distinction between immanent and critical values helpfully captures our sense that public law has a certain degree of autonomy from abstract political theory.4 We expect the higher judiciary to seek consistency and coherence of legal principle—preserving the integrity of our legal culture—without direct resort to abstract political theory of a kind that would be deeply contentious, taking a judge well beyond his role as interpreter of existing law. Lawyers’ invocation of general theory must be carefully tailored to the needs of a flourishing legal order; legal practice has a special, local character, reflecting the history that has nurtured its traditions and the expectations those traditions have generated.

It is important, however, not to exaggerate either the division between immanent and critical values or the autonomy of public law from political theory. Immanent values of the sort Cane describes—his list includes such general notions as representation, accountability, and judicial deference—are themselves highly abstract, acquiring their concrete meaning not only from their explicit treatment in case law (or other official sources of law) but also from the way they are understood by critics and commentators as well as ordinary citizens and public officials. We need theory as a means of understanding the relationship between different values, indicating how potential conflicts and inconsistencies should be resolved.5 Paul Craig, in his response to Cane, even challenges the distinction between immanent and critical values: the real identifying criterion ‘is surely that the list captures the values that public lawyers think are or should be important in a regime of public law’.6 As Craig observes, the relevant values invite recourse to political theory as a way of refining their interpretation. In particular, such central concepts as sovereignty, the separation of powers, and the rule of law are susceptible of competing interpretations; and contrasting conceptions of government or political authority can illuminate their place within the general constitutional scheme. Whether we have in mind abstract legal values or a specific political theory, public lawyers will have to work out the implications for particular legal issues:

There may be issues where the background theory, or abstract legal values, fail to provide concrete guidance, even when one has reasoned through the implications. There may be other issues where guidance is forthcoming.7

There remains, however, a certain distance between theory and practice in Craig’s account: contrasting theories give competing reasons for different solutions to public law questions. A utilitarian cost-benefit analysis, for example, will generate a different balance of factors relevant to the content of procedural fairness than a rights-based approach.8 Since the present content of law—the nature and scope of existing rights and duties—can hardly vary according to the chosen political theories of each judge or lawyer, however, Craig’s approach is essentially external. The competing visions of law are, in effect, alternative suggestions for change or reform. Alternatively, the law is conceived, in the fashion of legal positivism, as an archipelago—an array of discrete islands, posited by authoritative legal institutions, surrounded by an empty sea, where the lawyer or judge must supplement the law by a form of quasi-legislation (whether by trying to guess what the legislature would do, if seized of the question, or by inserting rules that wise legislators would think appropriate).

(p.335) These conclusions are confirmed by Craig’s discussion of the relationship between public law, legal theory, and political theory.9 He argues that ‘the centrality of political theory for public law is compatible with the principal contending legal theories’, that is with either legal positivism or anti-positivist interpretivism of the kind associated with Ronald Dworkin.10 A legal positivist who accepts the ‘sources thesis’—that the law is settled when legally recognized sources provide an (empirically identifiable) answer—can have regard to moral or political values when, in the absence of any such answer, a solution to a particular question must be sought outside the law.11 An adherent of Dworkin’s theory of adjudication, by contrast, can invoke such values in the course of interpretation: the judge’s personal convictions about justice play a role in distinguishing between competing solutions, when each solution satisfies the initial requirement of ‘fit’. While judgements of fit provide a ‘rough threshold requirement that an interpretation of some part of the law must meet if it is to be eligible at all’, standards of justification will determine the choice between eligible interpretations. A judge must ask himself which view ‘shows the community’s structure of institutions and decisions—its public standards as a whole—in a better light from the standpoint of political morality’.12

Craig observes that political theory is central to an understanding of public law whether one adopts a positivist or Dworkinian (interpretative) account of law: ‘Which particular legal theory any public lawyer subscribes to is, of course, an entirely different matter.’13 It is a different matter, however, only if we treat an exploration of the relationship between political theory and public law as a scholarly enterprise quite distinct from the deliberations of legal interpreter, focused on the specific content of English law. From an internal perspective, characteristic of lawyer or judge, legal and political theory are closely intertwined. Not only is the judicial role in defence of the rule of law ultimately defined by political theory, which must account for the moral value of legality, but our understanding of the concepts of law and legality will in turn suggest the nature and limits of proper recourse to broader dimensions of political theory in the course of adjudication. Legal positivism licenses a freedom of judicial choice that an interpretative approach denies. Since a positivist judge may legislate in the gaps between legal rules, she may draw on political theory, in exercise of her quasi-legislative discretion, in a manner that her interpretivist counterpart would think illegitimate. Her recourse to political argument or conceptions of the public interest is not mediated by constraints of legality, which on her positivist understanding do not apply.

(p.336) Admittedly, in expounding his interpretative approach Dworkin emphasizes the role of the interpreter’s own moral convictions: he can determine the law, reflecting the best construction of legal practice from the perspective of political morality, only by reference to his own moral and political judgement. But making a moral judgement about the best reading of relevant statutes or precedent is quite different from proceeding to legislate in the gaps between plain legal rules. The interpretative approach imposes constraints of consistency and coherence that a legal positivist judge may largely ignore. It sets any doubtful legal issue in the context of a larger corpus of doctrine that a positivist could treat as irrelevant to the gap she has to fill—irrelevant, at least, as a matter of political principle, if not on more limited strategic grounds (such as avoiding obvious inconsistencies that might generate confusion).

Dworkin sometimes invokes the notion of ‘choice’ in describing the interpreter’s deliberations; but that seems infelicitous, blunting the gist of his message. The Dworkinian judge seeks the right answer to any question of law, and even if that answer is controversial, the controversy does not (or should not) betoken a clash of wills or preferences.14 Legal argument is a specialized form of moral argument, on the interpretative view. Moral argument over the propriety of an action or decision assumes that morality gives an objectively right answer, obtained through careful argument, attentive to all relevant moral considerations as they bear on the facts in question. Political theory may help us to identify such considerations, elucidating features of our practice that otherwise escape our grasp; it is as much a reflection on such practice as an external resource, detached from the experience of government and administration. In interpreting our own tradition we seek to understand what, in any given circumstances, it truly requires—unless, of course, we repudiate the tradition entirely as unworthy of our allegiance. If I am not a sceptic, doubtful about either the sense or the efficacy of the interpretative endeavour, my legal judgement will draw on moral and political theory to illuminate and clarify existing commitments—those entailed by loyal adherence to our legal tradition.15

We might, then, treat Cane’s plea for an emphasis on immanent values rather than general theory as, in part, a recognition of the distinctive and qualified role of political theory within an interpretation of public law. From an external perspective, at least, legal practice exhibits a marked autonomy, somewhat detached from an interpreter’s more abstract accounts of democracy or justice or human flourishing. Cane observes that law and politics ‘can be thought of as distinct normative systems that are open to influence from each other’; just as the law may absorb political values, so ‘the political realm may be cognitively open to legal values’.16 When a political theory is specifically addressed to the circumstances of British political history—as, for example, John Locke’s Treatises of Government were offered as an interpretation and defence of the English Revolution of 1689—it may assist in illuminating features of legal theory and practice.17 I suggest (in Chapter 3) that Locke should be viewed in the perspective of a larger republican tradition, emphasizing the link between law and liberty. The work of such theorists as Immanuel Kant and Friedrich Hayek may also cast light on the general character of British government as a liberal democracy, underpinned (p.337) by the value of respect for the autonomy and dignity of the individual citizen.18 General political theory must, however, serve more as a source of inspiration than political preference: it must help us clarify a vision of the legal order that consists in a practice dependent on the attitudes and assumptions of lawyers, politicians, and public officials.19 Theory is helpful chiefly in illuminating ideas and values that we already recognize and honour—if only in inchoate form—as implicit within existing legal doctrine and practice, capable (we trust) of generating wide recognition and assent.

From Paul Craig’s external perspective—his treatment of political theory as an external resource on which lawyers may draw, according to their preferences—it is ‘open to public lawyers …to choose between the contending views of the rule of law’ that he delineates.20 Yet the different views embody contrasting conceptions of the nature of law itself, raising philosophical questions directly relevant to an internal viewpoint, focused on constitutional principle and legal doctrine.21 Because legal positivists treat law largely as a matter of empirical fact—it consists in the rules laid down by authorized lawmakers, whatever their content may be—the rule of law is viewed as an independent political ideal, imposing certain formal or procedural constraints to which the law ought to conform. According to Joseph Raz, the rule of law is a ‘negative value’: it is intended to minimize the danger of arbitrary power created by the law itself.22 If we identify the rule of law as the ‘rule of good law’, the ideal collapses into a general social philosophy and the term is deprived of any useful function.23 The law should consist of general, clear, and published rules, fairly applied by an independent judiciary; but its content is an independent matter of political morality. As Craig emphasizes, echoing Raz, the rule of law is (on this account) only one virtue of a legal system, which may have to be sacrificed to other desirable ends: ‘We may feel that the rule of law virtues of having clear, general norms must be sacrificed if the best or only way to achieve a desired goal is to have more discretionary, open-textured legal provisions.’24

By contrast, according to Craig, on Ronald Dworkin’s interpretative theory of law, in which questions of justice are relevant to the content of law, ‘there is no place for a separate concept of the rule of law as such at all’.25 Since Dworkin’s theory, as Craig understands it, ‘directs us to consider what is the best theory of justice as part of the decision as to what rights people presently have’, the need to preserve a distinction between the law and political philosophy is removed. Accordingly, Craig invites us to choose between a largely formal or procedural account of the rule of law, on the one hand, and a specific theory of substantive justice, on the other. A substantive conception of the rule of law of the kind advanced by Sir John Laws, inspired by Kantian liberalism, is questionable because ‘that phrase ceases to have a function independent of the rights-based theory of law and adjudication’; such a (p.338) conception is a theory of justice earning unwarranted prestige from (an empty) association with the ‘rule of law’.26

From a non-positivist, interpretative viewpoint, however, the rule of law is a political ideal that informs our grasp of the concept of law itself. The precise nature and dimensions of that ideal may be contested, but it serves to connect our concept of law with such related moral values as liberty and justice. Government according to law is itself a moral ideal: law is not merely an instrument of power in the hands of officials, awaiting the safeguards of an independent doctrine of the ‘rule of law’.27 The various precepts of formal legality, associated mainly with the proper form of legislation, are requirements of a larger political ideal; and that ideal imposes other, more substantive, safeguards that amount to a theory of constitutionalism, underlying and informing the practice of British liberal democracy. Sir John Laws’s understanding of the rule of law entails, we may reasonably suppose, adherence to the requirements of English law, interpreted in the light of the governing ideals of freedom, certainty, and fairness that he identifies.28

Dworkin defines the ‘rights conception’ of the rule of law, by contrast with the positivist ‘rule book conception’, as an ‘ideal of rule by an accurate public conception of individual rights’; and he states that it ‘does not distinguish, as the rule book conception does, between the rule of law and substantive justice’.29 But we must understand Dworkin to refer not to any theory of rights or justice that someone might think an ideal candidate for legislation on a fresh slate, but rather to the theory of justice that makes most sense of the legal tradition in which an interpreter works.30 Dworkin’s ideal of integrity—his more fully elaborated theory of law—entails the search for coherence within an existing tradition, accommodating the diverse demands of such values as justice, political fairness (as regards the distribution of political power), and due process. Integrity insists that the state should ‘act on a single, coherent set of principles even when its citizens are divided about what the right principles of justice and fairness really are’.31 It is that unity of vision, distinct from universalist notions of justice, that ‘explains why judges must conceive the body of law they administer as a whole rather than as a set of discrete decisions that they are free to make or amend one by one, with nothing but a strategic interest in the rest’.32

(p.339) Joseph Raz articulates a similar vision when he observes, in subsequent work, that ‘in insisting on the integration of legislation and other current measures with legal tradition enshrined in doctrine, the rule of law respects those civil rights which are part of the backbone of the legal culture, part of its fundamental traditions’.33 Such an account chimes with a conception of the rule of law as constitutional doctrine, underpinning liberal democracy:

On the one hand it requires legal institutions to be loyal to legislation emerging from a democratic legislature, thus enhancing its power. But the rule of law also sets limits to majoritarian democracy, represented in the legislature. It requires principled, as well as faithful, adjudication.34

Legislation conferring public powers should ‘be applied in a manner which is both faithful to the legislative purpose and principled in integrating it with traditional doctrines of the liberty of the citizen’.35 What from Craig’s detached descriptive viewpoint is an apparently unstable ‘middle way’ between formal and substantive conceptions of the rule of law is merely the outline of an interpretative approach—the idea of legality as constitutional justice, as participants would understand it.36 From an internal, interpretative perspective, the dichotomy of form and substance largely disappears: principles of natural justice and basic presumptions of ‘legislative intent’, limiting the scope for vague or retrospective statutes, are rooted in a broader philosophy of individual freedom.37

Adopting a descriptive, analytic stance, we can distinguish between various techniques or approaches that courts might adopt in seeking to integrate legislation with general common law principle. Craig distinguishes a number of such techniques, the majority falling short of outright invalidation of statutes that contravene fundamental rights.38 Because the courts have not generally acknowledged any such power of invalidation, we can (it is supposed) affirm the absolute sovereignty of Parliament while recognizing the various practical constraints on its exercise. For example, the Human Rights Act 1998 instructs the courts to read legislation compatibly with European Convention rights whenever possible; but it will not always be possible and validity is unaffected. In the case of European Community law the courts invoke a ‘priority rule’ that preserves merely ‘the formal veneer of legal sovereignty’.39 Parliament can override Community law only by making its intentions ‘unequivocally clear’.

From an internal, interpretative stance, however, these analytic distinctions are less clearly marked.40 Questions of sound interpretation depend on a broad range of factors that call for judgement that is highly sensitive to the specific context. Compatibility with either common law rights or Convention rights may, for example, depend as much on the importance of the right, as it applies to the case in view, as on the specific language of the legislative provision. What is ‘possible’ as a matter of interpretation depends, in part, on what aims or intentions it is reasonable to attribute to a ‘Parliament’, conceived as a body (p.340) responsible for securing the common good within the constraints of justice. Whether such an approach is consistent with an affirmation of unqualified sovereignty, to which the rule of law must finally bow, is extremely doubtful, as I argue in the chapters above.41 From an interpretative standpoint, focused on the demands of legality as a fundamental value, it is not even clear that such an affirmation is really intelligible.

II

I have defended an account of legal and constitutional interpretation that unites legal analysis and moral judgement. The law on any matter, however mundane or even trivial the issue, is always determined by recourse to underlying theory: it is the product of deliberative engagement with the moral or political considerations that inform and underpin our overarching interpretation of English public law. There are no facts of the matter that any viable interpretation or analysis must simply accept, as non-negotiable elements of a legal practice that every competent lawyer understands and endorses. The pertinent facts—whether regularities of institutional practice or lawyers’ opinions about what the practice requires—obtain their significance, if any, from the theory that (in the interpreter’s view) makes best sense of the practice. We need the theory, placing legal practice in a moral context that supplies criteria of justification, in order to identify which features of that practice are central and important and which marginal and dispensable. Just as an Act of Parliament has the meaning that the best theory of that statute indicates—the meaning that follows most persuasively from our moral commitments both to democracy (and legislative supremacy) and legality (or the rule of law)—so the law as a whole has the content and implications that the best interpretation of our practice or tradition dictates. There is no escape from this deep moral and political engagement, and assertions about the content of constitutional law that seek to avoid it are simply confused and misguided.42

I believe my account of constitutional interpretation is broadly consistent with Ronald Dworkin’s influential account, on which I have gratefully drawn—though subject to the reservations and qualifications I explore in Chapter 4. Just as my account of statutory interpretation invokes Lon Fuller’s insistence on the interaction of fact and value—enacted text and attributed intent or purpose—so my portrayal of legal interpretation in general echoes Dworkin’s insistence on a similar interplay of fact and value, uniting historical inheritance and moral judgement about its strengths and weaknesses. While standard summaries of Dworkin’s approach typically emphasize his important distinction between interpretative criteria—between requirements of fit and those of justification—they often fail to notice how, in practice, these criteria operate in harness, each highly sensitive to the demands of the other. Matters of fit are as responsive to the interpreter’s moral or political judgement (in the case of any social practice) as are more substantive considerations of justice or human well-being. Neither is constrained by any facts of the matter that must be accommodated before they are interpreted.43

(p.341) In the course of his discussion of literary interpretation, expounding an analogy between legal judgement and the writing, by several authors seriatim, of a ‘chain novel’, Dworkin cautions that the contrast between artistic freedom and textual constraint should not be misunderstood:

It is not a contrast between those aspects of interpretation that are dependent on and those that are independent of the interpreter’s aesthetic convictions. And it is not a contrast between those aspects that may be and those that cannot be controversial.44

In law as in literature there is a complex interplay between the different requirements of fit and justification: the explanatory power of an interpretation, as regards its direct relevance to the subject matter, is part of the case for its overall plausibility and appeal. There is a ‘delicate balance among political convictions of different sorts’, such convictions being ‘sufficiently related yet disjoint to allow an overall judgement that trades off an interpretation’s success on one type of standard against its failure on another’.45 A wider departure from the literal text of a dubious statute would be justified, we may infer, the greater the threat to important principles of (common law) justice: a looser reading of the text, less complimentary to the draftsman’s apparent powers of expression or foresight, is redeemed by the urgency or scale of the challenge to constitutional principle.

Admittedly, Dworkin sometimes treats the requirement of fit as a preliminary or threshold test, ruling out immediately a range of interpretations that might otherwise have seemed attractive. There is sometimes the suggestion that the second criterion of justification must adjudicate between several potential interpretations that each satisfy the requirement of fit, as if constraints of fit could operate independently:

Convictions about fit will provide a rough threshold requirement that an interpretation of some part of the law must meet if it is to be eligible at all. Any plausible working theory would disqualify an interpretation of our own law that denied legislative competence or supremacy outright or that claimed a general principle of private law requiring the rich to share their wealth with the poor.46

Any such ‘rough threshold requirement’, however, must be provisional only: it may turn out (even if it is rather unlikely) that further argument would show how quite radical or surprising conclusions do follow from what, when fully explained, is a persuasive interpretation of legal practice taken as a whole. Even acknowledged paradigms—features of legal practice so well established as to be largely taken for granted by all competent lawyers—are vulnerable to challenge by reference to other aspects of a shared tradition, reinterpreted to bring it closer to ideals of justice latent within, or consistent with, significant elements of current practice. Established paradigms, though necessary for interpretative debate to flourish, need not be mere matters of convention; they may instead display ‘agreement in conviction’, points of convergence within a lively debate over legal and political principle. There need only be a sufficient level of agreement in conviction to ‘allow debate over fundamental practices like legislation and precedent’ to proceed within the ordinary course of legal argument in particular cases, ‘contesting discrete paradigms one by one, like the reconstruction of Neurath’s boat one plank at a time at sea’.47 The precise nature and limits (p.342) of legislative supremacy, however firmly rooted the general doctrine, will be open to interpretative debate.

The distinction between fit and justification, then, is primarily an explanatory device to illuminate the manner in which an interpretation is the product of a tussle between competing considerations—an accommodation that reflects the balance of argument, all things considered:

So the distinction between the two dimensions is less crucial or profound than it might seem. It is a useful analytical device that helps us give structure to any interpreter’s working theory or style.48

What is plainly crucial is that certain, more formal criteria should constrain the application of other, more substantive criteria. It is only the existence of interpretative criteria relating to textual form or the general shape of a practice, independent of criteria for determining artistic or literary success or (in the case of law) the requirements of political morality, that enable us to distinguish interpretation from invention.49 But the precise nature of that interplay of contrasting convictions depends on the interpreter’s own intellectual makeup; he is guilty of invention only if there is no such deliberative process at all: ‘Whether any interpreter’s convictions actually check one another, as they must if he is genuinely interpreting at all, depends on the complexity and structure of his pertinent opinions as a whole.’50

It is clear that there is very broad scope for interpretative disagreement. Two lawyers whose conceptions of adequate fit or appropriate justification differ markedly will defend very different accounts of any particular area of law. Their disagreements in what Dworkin calls ‘pivotal’ cases, testing the power or scope of fundamental principles, will reflect their divergent theoretical standpoints; these disagreements may be profound even if the two lawyers also reach similar conclusions about the law in many other instances, when their different theories point in the same direction. If, then, certain features of constitutional law are ‘settled’ and agreed, they are so only in virtue of that overlap of theory or conviction: they become unsettled and contentious as soon as a plausible and coherent argument is directed against them, especially if such an argument is deployed in a dissenting judgment in a superior court. The dependence of legal judgement on moral and political conviction is greater than lawyers usually acknowledge, perhaps because their pertinent moral convictions are generally understood and examined as elements of their professional commitment to the rule of law—ways of understanding and practising law that give meaning and force to that shared and fundamental commitment.

I have attempted, in Chapter 4, to give an account of legal interpretation that reveals its close dependence on personal moral conviction, doubting aspects of Dworkin’s own account that appear, in certain circumstances, to displace such conviction with capitulation to received opinion or majority sentiment. I have argued that, in the context of legislation that threatens fundamental rights or common law principles, Dworkin’s ‘protestantism’ is somewhat too weak—weaker than his own theory of interpretation requires, when consistently applied. If no competent interpretation of the British constitution could deny legislative supremacy, that must be so because there is agreement in conviction that some version of that doctrine is demanded by democratic principle. Parliamentary sovereignty is the product of moral and political theory; its nature and limits depend on the correct articulation of that theory, a matter likely to provoke debate and controversy in cases where an enactment, while formally valid, threatens the values served by adherence to the rule of law. There is nothing to prevent any conscientious judge or lawyer denying the power (p.343) of a statute to wreak serious constitutional damage. His duty is always to defend (so far as possible) a reading that secures a proper balance between legislative purpose and legal principle, preserving both the legitimacy of state coercion and his own integrity and self-respect in maintaining his loyalty to the legal and constitutional order. The limits of the possible, as regards interpretation, define those boundaries of legitimacy and allegiance. Our conscientious lawyer must respect the workings of a legal order that he cannot simply redesign according to his own moral or political preferences; but the mode of constraint matches that applicable to the chain novel:

It is not the constraint of external hard fact or of interpersonal consensus. But rather the structural constraint of different kinds of principle within a system of principle, and it is none the less genuine for that.51

From the internal perspective of lawyer or legal reasoner, the constraint is genuine enough: judgements of law are not the same as proposals for fresh legislation or radical constitutional change. But legal argument in hard cases, when acknowledged general principles pull in different directions, must be a species of moral and political debate, albeit a controversy generated by a tradition that claims the loyalty of all participants (or all those acting in good faith, at least). As Lon Fuller argued, in his own confrontation with legal positivism, we cannot determine the law in isolation from our beliefs about what, ideally, it ought to be: every judgement of law is a struggle to bring the whole system of law closer to the ideals of justice to which it implicitly aspires.52 Present law is always a pale reflection of what Dworkin calls the purer law within:

Present law …contains another law, which marks out its ambitions for itself; this purer law is defined by pure integrity. It consists in the principles of justice that offer the best justification of the present law seen from the perspective of no institution in particular and thus abstracting from all the constraints of fairness and process that inclusive integrity requires….It declares how the community’s practices must be reformed to serve more coherently and comprehensively a vision of social justice it has partly adopted …53

So legal argument is largely over how to understand and further the vision of justice embedded within existing practice when correctly understood; and no lawyer’s views on that matter could, in any context, be divorced from her broader moral opinions about what justice or human well-being, in any political community, truly require. We are constrained by history and precedent only in the sense that interpretation is ultimately a collective endeavour: we are free to read the tradition in the light of our most basic moral and political ideals, but we are shouting into a void if we do not elicit cooperation and support. Our individual protestantism is an equal one: we must appeal to conceptions of justice and well-being that others can recognize, seeking common ground on the basis of fundamental values that are widely endorsed, if only at a relatively abstract level of agreement.

We must nevertheless confront the objection that if practice is interpreted in the light of theory, and theory reflects the divergent moral convictions of interpreters, we may have some doubt about how far competing interpretations actually focus on the same practice. Alan Brudner complains that, while fit and justification must be separated to forestall invention, that very separation is suspect:

Since theory determines what is settled in a practice, the practice that the theory must fit tends to be absorbed into the theory, leaving the latter with nothing to fit; since what reveals the practice in its (p.344) best light is a matter of controversy between the competing conceptions of justice, that criterion is incapable of arbitrating among these conceptions.54

While there is undeniably some force in this objection, we have seen that the distinction between fit and appeal (or justification) is admittedly provisional and tentative. We aim to achieve broad agreement on a ‘single and comprehensive vision of justice’, which by showing us how best to understand and develop an existing tradition fuses fit and justification.55 Justification is partly a matter of conformity to a vision of justice capable of eliciting broad assent; fit is partly a matter of broad agreement about the power of such a vision to illuminate a shared tradition.

Brudner’s own elaborate interpretation of liberal constitutionalism seeks a comprehensive fit with a practice in which competing ideals of justice vie for primacy: ‘certifying fit means exhibiting the theory’s ability to integrate what, apart from the theory, appears as a practice riven by competing conceptions of fundamental justice—conceptions such as liberty, equality, community, and the good life’.56 In Brudner’s ‘inclusive’ conception of liberal justice—one that meets all the conditions essential to individual human dignity—the criteria of fit and justification merge:

The theory that best fits the practice because it integrates the (putative) conceptions of fundamental justice competing for control thereof also exhibits the practice in its best light because it reveals the practice as governed by a conception that is impartial—truly public—vis-a-vis the others.57

Brudner seeks an overall or overarching conception of liberal justice appropriate to the idea of human dignity, reflecting what he calls the ‘liberal confidence’, which is the idea that ‘the individual agent possesses final worth …so that there is no more fundamental end to which it may be unilaterally subordinated’.58 The individual’s worth is possessed ‘as a separate individual, distinct from (that is, not immersed in or obliterated by or subsumed under) other individuals as well as from the larger groups, society, or political association of which it is a member’; and the individual’s worth is inviolable, which means that ‘everyone is under a duty to respect it by forbearing from attempts to subdue the individual’s agency to his own ends or to some supposed superior end such as tribe, nation, society, or state’.

While there is no more fundamental end than the individual, however, in Brudner’s conception of ‘dialogic community’ the polity itself enjoys an equal and independent status: ‘the political community is neither an end to which the individual is unilaterally subordinate nor a means to the pre-political ends of the individual’.59 Instead, ‘each is a means to the end-status of the other, and so each is equally a final end’. The structure of ‘mutual recognition’ between individual and community differs according to the distinctive paradigms—libertarian, egalitarian, and communitarian—that together constitute the inclusive conception of liberal justice. Starting from a libertarian conception of public reason, in which the self is detached from all social relationships deriving from custom and contingency, Brudner traces ‘a conceptual path by which the individual person, in order to satisfy its claim to final worth, is driven to richer conceptions of public reason—to the egalitarian conception, the communitarian conception, and finally to the conception of the public that integrates all of these as necessary to a political life that is sufficient for dignity’.60 The ambition is to (p.345) vindicate the contemporary style of liberal constitution, which superimposes on the classic libertarian safeguards of freedom the further protections of group rights, while qualifying the traditional civil liberties by state powers to secure the conditions of individual autonomy or self-authorship.61

Brudner contrasts his own ‘complex whole’ with Dworkin’s ‘simple whole’, which connects diverse political values with a single egalitarian principle of governmental concern for the lives of citizens; but both writers exhibit the search for a unified scheme of political values. Legal positivism, with its emphasis on authoritative determination of conflicts over justice or the demands of the common good, is a natural bedfellow of pluralist conceptions of value: public reason is powerless to adjudicate between the claims of competing and incommensurable rights or goods. Law is whatever has been explicitly adopted to determine specific rights or duties. An interpretative approach, by contrast—denying authority to any features of practice, treated as given independently of theoretical appraisal and ordering—must be resistant to assertions of moral pluralism and incommensurability. It must appeal to all members of the community, or at least all those who share the liberal confidence, by finding ways of integrating shared basic values in a larger scheme, able to reconcile divergent conceptions of liberty, equality, and justice. Our legal and constitutional practice must be interpreted in the light of the values that inform our wider moral and political discourse; but the practice must extend to argument over the correct understanding and arrangement of these values as they apply in the context of particular cases.

Dworkin’s defence of the unity of value, in Justice for Hedgehogs, capitalizes on the independence of value—its existence as a separate domain of inquiry and argument.62 If a moral judgement is objectively true, it is true in virtue of a substantive moral argument, invoking moral values or assumptions capable of being defended in a similar way. We try to interpret our moral concepts in the light of each other so as to form a coherent web of moral conviction: ‘We are morally responsible to the degree that our various concrete interpretations achieve an overall integrity so that each supports the others in a network of value that we embrace authentically.’63 If value judgements are true in virtue of the case we can make on their behalf, they cannot be barely true in the way that physical features of the world may be simply true. And if we confront conflicts of value, as we often seem to do, it must be because there is something wrong with our interpretative reconstruction of our moral concepts, or perhaps because certain conflicts of value best serve our moral responsibilities if we conceive them in that way. (Brudner’s conflicting constitutional paradigms provide an instructive illustration of this latter mode of thought.) Faced by any practical moral dilemma, we reinterpret our concepts to help resolve it: ‘the direction of our thought is toward unity, not fragmentation’.64

When legal or constitutional interpretation is placed in its proper context, as a special province of moral and political argument, we can see a promising way to reconcile interpretative protestantism, on the one hand, and the demands of collective, collaborative deliberation, on the other.65 What may seem at first to be antithetical modes of reasoning—one highly individualistic, the other much less so—can be understood as complementary. (p.346) An insistence on the truth of one’s own conclusions about constitutional rights or public law duties, even when they differ from those of other lawyers or even Supreme Court judges, is only an exercise of moral responsibility: it is what we owe to other lawyers and our fellow citizens. Any legal argument derives its power from an appeal not merely to formal legal sources, but to the moral values that enable us to interpret and apply relevant legal materials to particular cases. And the appeal to moral values is as much an appeal to shared practice as the citing of statutes and precedents; we appeal to the ideas and ideals that best make sense of our mutual commitment to what Brudner calls the liberal confidence.66

The web of moral conviction on which any legal interpreter must draw is a fully public one—it is her own present understanding of a scheme of moral value implicit in the social and political context in which she works. On what else could any conscientious lawyer draw in her interpretation of the moral and political values of her community—in this case the political community that claims a monopoly of legitimate force—than her own best understanding of what these are? Her protestantism, if the genuine product of moral conviction, represents her participation in the interpretative legal community. She adheres to the tradition she accepts and supports by holding it to its own standards: in challenging apparent inconsistencies or contradictions, she keeps faith with the legal and constitutional order that claims her allegiance. Her challenge may, of course, go unheeded; she must work for a moral consensus capable of changing the way legal practice is conducted and developed. But it remains an internal, not external, challenge: the moral debate concerns the requirements of the scheme of constitutional justice now in place—what we are already committed to in view of our adherence to the liberal and democratic tradition whose moral authority we grant.

III

Martin Loughlin emphasizes the gulf between analysis conducted within a legal positivist framework and an approach (like the present work) that treats law as an interpretative discipline.67 Public law is defined as a ‘set of practices concerned with the establishment, maintenance and regulation of the activity of governing the state’; and he maintains that ‘the nature of these practices can be grasped only once that activity is conceptualized as constituting an autonomous sphere: the political realm’.68 A somewhat dubious separation of the moral and the political is thus envisaged, Loughlin insisting that public law cannot be equated either with positive law (rules adopted in accordance with officially recognized procedures) or with moral reason. Public law reflects a form of political reason quite distinct from moral argument about the compatibility of state authority with individual (p.347) human freedom and dignity: ‘Politics as a set of practices concerning the art of the state constitutes an autonomous domain operating in accordance with its own rules and principles.’69 Loughlin substitutes ‘prudence’ for moral reason as the method of public law: even restraints on governmental action are ultimately designed to enhance and maintain the capacity to rule.70

Loughlin is right to maintain that, being expressed through established institutional forms that allow articulation of the general will, sovereign authority ‘has nothing in common with the exercise of an arbitrary power’.71 Understood as an expression of the relationship between the state and the people, or sovereign and subject, the general will takes the form of law: ‘sovereignty in reality means the sovereignty of law’. The command-style or rule-based conception of law, characteristic of legal positivism, accompanies a view of political power as ‘an empirical rather than a relational phenomenon’: positivism overlooks the idea of the ‘constituent power’—the people themselves—as the repository of sovereignty (rather than particular institutions such as Parliament or the executive).72 Loughlin is keen to stress the political as well as legal dimension of sovereignty—it stands ‘as a representation of the autonomy of the political’—but notes that it must not be confused with power of the sort conferred by economic wealth, feudal dominion, or despotism. Certain basic constraints are intrinsic to a conception of sovereignty ‘as being generated through an institutional framework established for the purpose of maintaining and promoting the peace, security, and welfare of citizens’.73

Invoking Michael Oakeshott’s distinction between societas and universitas, Loughlin contrasts competing conceptions of the state as a formal association, constituted by rules, and a form of joint undertaking in pursuit of common objectives: ‘Is modern government a formal engagement concerned with maintaining order through the establishment of general rules of conduct? Or is it a purposive engagement in which the rules of conduct are to be interpreted as being incidental to the pursuit of some common good?’74 It is, however, arguably both; and legal and political theory must help us to secure an appropriate accommodation between them. Public law, Loughlin maintains, is a highly polarized discourse: the polarities elsewhere ‘characterized as being between the normativist and functionalist styles of thought, are replications in legal consciousness of unresolved tensions between societas and universitas’.75 We cannot make progress, the argument goes, by ‘devising some ideal construct of law—whether as a model of rules or a model of rights—and then seeking to reinterpret the world in accordance with its precepts’.76 In the absence of some guiding ideal, however, it is doubtful whether we can make any progress at all—we are merely stuck with the tensions Loughlin identifies. Whether our conception of the rule of law can cope with the complexities of modern governance depends on the sophistication of the model of rules or rights it invokes.

According to Loughlin, the ‘error of constitutional legalism’ consists in ‘mistaking a part for the whole’: it fails to acknowledge the provisional character of constitutional arrangements, or that constitutional frameworks are only the contingent result of irresolvable conflict.77 (p.348) But lawyers’ efforts to find coherence and orderliness are a necessary part of the construction and consistent application of constitutional law; in downgrading or belittling such necessary efforts Loughlin is himself guilty of mistaking a part for the whole—subsuming the legal within a larger, undifferentiated sphere of the political. Modern constitutions are ‘prone to this type of orderliness’, Loughlin surmises, because ‘one of the basic legal myths is that an answer to any issue can be found in the body of the law’.78 But the answer provided by law will in many instances be that the legislature or executive has power to decide the matter in issue, within what are often broad jurisdictional boundaries. The conflicts and tensions that Loughlin’s broad historical and political viewpoint highlights are resolved in practice through a highly nuanced accommodation between the legal and the political, sensitive to the particular governmental context.

The ‘primacy of the political’ that Loughlin emphasizes is largely a reflection of his chosen subject matter: he fixes his gaze on political practice to the exclusion of legal practice, which is dismissed as little more than a reflection of politics—a ‘set of practices embedded within, and acquiring its identity from, a wider body of political practices’.79 If, however, with Loughlin, we acknowledge that the ‘establishment of a legal system that operates in accordance with its own conceptual logic while remaining free from gross manipulation by power-wielders is an achievement of considerable importance’, it must be worthy of our attention.80 That conceptual logic is a fit subject of theoretical study, even if the connections with political practice must be borne constantly in mind. An internal perspective, rooted in the pertinent legal values, will illuminate questions in the kind of detail that Loughlin’s overarching and detached perspective cannot. He is right to observe that we cannot simply identify the rule of law, in the present context, with adjudication between citizens or the provision of rigorous procedures in criminal trials; constitutional law is indeed ‘much more complicated’.81 But that means only that our theory of the rule of law must be more sophisticated, not that we should abandon it for a sweeping account of political practice.82

Loughlin is right to remind us of the special functions of public law: we cannot simply equate our conception of the rule of law, in this context, with the governing ideal of private law; public law rights (as I emphasize above) are very different creatures from their private law counterparts. The complexities of governance impose great burdens on the judiciary when asked to ensure legality: the rule of law must accommodate the demands of the political system for adaptation to changing circumstances and responsiveness to a fluctuating political will. We cannot (as again I emphasize) expect legal doctrine to do too much: the delicate balance between prudence and law—political realism and legal or constitutional logic—is invariably a function of all the circumstances, more a matter of wise judgement in the light of experience than rigorous adherence to published rules or official guidelines. So we should not deny that the ‘rights revolution’ of modern governance is a challenging experiment: its displacement of the sovereignty of rulers by the sovereignty of the individual, whose liberty and dignity are treated as ultimate values, has had profound implications for the institutions of government:

Law, once a form of coercive order, now presents itself as a means of maintaining freedom. Once founded on sovereign authority and authorized by representative democracy, law is now based on rights and legitimated by an appeal to moral autonomy. Law, in short, is no longer fundamentally a matter of will, but an aspect of reason.83

(p.349) Loughlin is entitled to remain sceptical, doubtful of the ability of judges to reach persuasive answers on the relative importance, in specific contexts, of conflicting social and political claims or interests. But we cannot escape the internal debate over constitutional interpretation that Loughlin would prefer to avoid. Nor is the political domain wholly autonomous, divorced from our ordinary moral judgements about what sorts of treatment of other persons are acceptable and which are not.84 If it is ‘an error to reduce our understanding of politics to that of a struggle for domination’, as Loughlin concedes, it is an error to treat the political sphere as wholly detached from ordinary moral debate and appraisal.85 Public law reason cannot be reduced to a species of political reason focused wholly on the ‘survival and well-being of the state’, unless the well-being of the state means the welfare of its inhabitants.86 And the latter is a question of moral reason in which the rights and interests of persons, whether as citizens or individual human beings, take centre-stage. Loughlin’s attachment to the notion of public law as pure reason of state—denying the connections between political prudence and objective moral truth or value—reflects a view of governance that, by his own admission, has been overtaken by attitudes and convictions that broadly affirm the vision he decries.87

The pure theory of public law is plainly an abstraction somewhat removed from the reasoning and experience of public lawyers, compelled to search for legal answers to questions of constitutional authority and legitimacy. Loughlin’s method entails an important distinction between the roles of scholar and actor—the former limited to identifying patterns of thought in the manner of external critic, detached from the moral and political argument relevant to the content of constitutional law.88 This book defends a different kind of interpretative inquiry: it looks at public law from the inside, trying to make sense of lawyers’ reasons and arguments as they are actually presented and defended. It supposes that we can best understand public law by participating in the interpretative endeavour its practice entails. And if our arguments are sufficiently persuasive we may even change it—if only by holding others to the implications of basic ideas and values they purport already to acknowledge and endorse. (p.350)

Notes:

(1) Peter Cane, ‘Theory and Values in Public Law’, in Paul Craig and Richard Rawlings (eds), Law and Administration in Europe: Essays in Honour of Carol Harlow (Oxford: Oxford University Press, 2003), 3–21, at 14.

(2) Ibid, 6 (footnote omitted).

(3) Ibid, 18.

(4) Cane’s essay is, in part, a critique of the distinction between ‘red light’ and ‘green light’ approaches to administrative law adopted by Carol Harlow and Rick Rawlings, Law and Administration, 2nd edn (London: Butterworths, 1997), 3rd edn (Cambridge: Cambridge University Press, 2009).

(5) Compare Martin Loughlin, ‘Theory and Values in Public Law: An Interpretation’ [2005] PL 48–66, at 58–60.

(6) Paul Craig, ‘Theory and Values in Public Law: A Response’, in Craig and Rawlings (eds), Law and Administration in Europe, 23–46, at 24.

(7) Ibid, 43.

(8) Ibid, 37.

(9) Ibid, 43–5. See also Paul Craig, ‘Public Law, Political Theory and Legal Theory’ [2000] PL 211–39, where the pertinence of political theory to the doctrine of parliamentary supremacy is powerfully defended, emphasizing the need for normative justification. The analysis, however, remains external and detached. Craig concludes that it is ‘arguable’ that the best interpretation, as a basis for ‘future constitutional discussion’, is that ‘Parliament has sovereign power, provided that there is the requisite normative justification for that power’. The way is opened, by way of historical review, ‘for legal argument about whether a legally untrammelled Parliament is justified in the present day’ (Ibid, 230).

(10) See especially Ronald Dworkin, Law’s Empire (London: Fontana, 1986).

(11) See Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979), ch 3. Raz explains that the ‘sources of a law are those facts by virtue of which it is valid and which identify its content’; a law has a source ‘if its contents and existence can be determined without using moral arguments’ (Ibid, 47–8).

(12) Dworkin, Law’s Empire, 255–6. Dworkin adds, however, that ‘even when an interpretation survives the threshold requirement, any infelicities of fit will count against it …in the general balance of political virtues’. See below for an extended discussion.

(13) Craig, ‘Theory and Values in Public Law’, 45.

(14) See especially Ronald Dworkin, A Matter of Principle (Oxford: Clarendon Press, 1986), chs 5–7.

(15) See Ronald Dworkin, Justice for Hedgehogs (Cambridge, Mass: Harvard University Press, 2011), Parts 1 and 2. Dworkin distinguishes helpfully between ‘internal scepticism’, which denies the truth of certain sorts of moral judgement, from ‘external scepticism’, which asserts a second-order view about morality, denying the objective truth of moral judgements.

(16) Cane, ‘Theory and Values in Public Law’, 19.

(17) John Locke, Two Treatises of Government (originally published 1690; London: Dent, Everyman, 1924).

(18) See Chapter 3, above.

(19) Compare Mark Walters’s reflections on Dworkin’s legal humanist predecessors, linking liberal and republican conceptions of the state and the individual by way of common law theory: Mark D Walters, ‘Legal Humanism and Law-as-Integrity’ [2008] CLJ 352–75, at 374–5.

(20) Paul Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ [1997] PL 467–87, at 487.

(21) Martin Loughlin concludes that the debate between Cane and Craig is conducted within a legal positivist framework: Loughlin, ‘Theory and Values in Public Law: An Interpretation’. But see in reply Paul Craig, ‘Theory, “Pure Theory” and Values in Public Law’ [2005] PL 440–7. For Loughlin’s ‘pure theory’ of public law, based on the idea of an autonomous political sphere, see Loughlin, The Idea of Public Law (Oxford: Oxford University Press, 2003); see further below.

(22) Joseph Raz, The Authority of Law, 224.

(23) Ibid, 211.

(24) Craig, ‘Formal and Substantive Conceptions of the Rule of Law’, 469.

(25) Ibid, 478.

(26) Ibid, 479–81; see for example Sir John Laws, ‘The Constitution: Morals and Rights’ [1996] PL 622–35.

(27) Compare Nigel Simmonds, Law as a Moral Idea (Oxford: Oxford University Press, 2007), especially chs 2 & 3.

(28) Craig’s critique of my own account of the rule of law is further developed in Paul Craig, ‘Constitutional Foundations, the Rule of Law and Supremacy’ [2003] PL 92–111, at 97–102. He objects that my inclusion of rights to freedom of speech, conscience, and association within the rule of law aligns the principle with a specific theory of justice, giving pride of place to those rights. But my argument was intended merely to stress the centrality of such rights to any fully interpretative approach, founded on argument over principles of liberty and justice. It was not my purpose to denigrate other fundamental rights; nor do I suppose that ‘our discussion about free speech, association, would be “about the rule of law”, while discourse about the meaning of other rights would not’ (Ibid, 102).

(29) Dworkin, A Matter of Principle, 11–12.

(30) Dworkin’s ‘principle of integrity in legislation’, for example, ‘asks those who create law by legislation to keep the law coherent in principle’: Dworkin, Law’s Empire, 167.

(31) Ibid, 166.

(32) Ibid, 167. Compare Ibid, 404: ‘We accept integrity as a distinct political ideal, and we accept the adjudicative principle of integrity as sovereign over law, because we want to treat ourselves as an association of principle, as a community governed by a single and coherent vision of justice and fairness and procedural due process in the right relation.’

(33) Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Clarendon Press, 1994), 360.

(34) Ibid, 358.

(35) Ibid, 359.

(36) Craig, ‘Formal and Substantive Conceptions of the Rule of Law’, 484.

(37) See also Jeffrey Jowell, ‘The Rule of Law and its Underlying Values’, in Jeffrey Jowell and Dawn Oliver (eds), The Changing Constitution, 7th edn (Oxford: Oxford University Press, 2011), 11–34. As Craig fairly observes, however (in respect of an earlier edition) the principles regulating judicial review, which Jowell makes central to the rule of law, can only be one component of a larger theory of constitutionalism (see Craig, ‘Formal and Substantive Conceptions of the Rule of Law’, 485–6).

(38) Craig, ‘Constitutional Foundations, the Rule of Law and Supremacy’ [2003] PL 92, at 107–11.

(39) Ibid, 108.

(40) See Chapter 7, above.

(41) See especially Chapters 35. In Chapter 6, I explore the implications of different approaches for recent debate over the constitutional foundations of judicial review, seeking to articulate a fully developed interpretative standpoint.

(42) Some of the implications for doctrinal scholarship are considered by N E Simmonds in ‘Protestant Jurisprudence and Modern Doctrinal Scholarship’ [2011] CLJ 271–300.

(43) At the ‘pre-interpretive’ stage there is only a preliminary identification of rules and standards ‘taken to provide the tentative content of the practice’, and even though there must be a ‘very great degree of consensus’ at this early stage, the true content of the practice will be determined at the ‘post-interpretive or reforming’ stage in accordance with the justification accepted at the interpretative stage: Ronald Dworkin, Law’s Empire (London: Fontana, 1986), 65–6.

(44) Dworkin, Law’s Empire, 234.

(45) Ibid, 239.

(46) Ibid, 255.

(47) Ibid, 139.

(48) Ibid, 231.

(49) For the distinction between interpretation and invention, see Ibid, 66–8.

(50) Ibid, 237.

(51) Ibid, 257.

(52) See especially Lon L Fuller, The Morality of Law, revised edn (New Haven: Yale University Press, 1969), 82–91, 224–42.

(53) Dworkin, Law’s Empire, 406–7.

(54) Alan Brudner, Constitutional Goods (Oxford: Oxford University Press, 2004), 17.

(55) Dworkin, Law’s Empire, 134.

(56) Brudner, Constitutional Goods, 16.

(57) Ibid, 17.

(58) Ibid, 13.

(59) Ibid, 31.

(60) Ibid, 15.

(61) For fuller discussion, see my review ‘The Rule of Law as Liberal Justice’ (2006) 56 UTLJ 283–90.

(62) Ronald Dworkin, Justice for Hedgehogs (Cambridge, Mass: Harvard University Press, 2011). There is a summary of what Dworkin calls ‘Hume’s Principle’, at 44–6.

(63) Ibid, 101.

(64) Ibid, 119.

(65) Compare Gerald J Postema, ‘“Protestant” Interpretation and Social Practices’ (1987) 6 Law & Phil 283–319.

(66) Such mutual commitment must not be confused with the much narrower conception of public reason that John Rawls defends, which is artificially insulated from more comprehensive moral or philosophical opinions or doctrines: Rawls, Political Liberalism (New York: Columbia University Press, 1993), Lecture VI. For effective criticism, see Brudner, Constitutional Goods, 3–11; Dworkin, Justice in Robes (Cambridge, Mass: Harvard University Press, 2006), 251–4.

(67) Loughlin suggests that the gulf between positivism and interpretivism is so wide that ‘what appears to an author on one side as rational argument is received by the audience on the other as incoherent noise’: Loughlin, ‘Theory and Values in Public Law: An Interpretation’, 64. According to Loughlin, public law within positivist thought ‘is that body of positive law concerned with regulating the activities of the governing institutions of a state’: ‘By analyzing the pattern formed by this body of law, positivists claim that the values underpinning an existing order can be revealed’ (Ibid, 54).

(68) Loughlin, ‘Theory and Values in Public Law: An Interpretation’, 58.

(69) Martin Loughlin, The Idea of Public Law (Oxford: Oxford University Press, 2003), 156.

(70) Ibid, 148–52.

(71) Ibid, 87.

(72) Ibid, 88–90.

(73) Ibid, 92.

(74) Ibid, 27.

(75) Ibid, 28. For the distinction between normativist and functionalist styles of thought, see Martin Loughlin, Public Law and Political Theory (Oxford: Clarendon Press, 1992).

(76) The Idea of Public Law, 28 (citing H L A Hart, The Concept of Law; Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass: Harvard University Press, 1977), and Dworkin, Law’s Empire).

(77) Ibid, 49.

(78) Ibid, 50 (citing Ronald Dworkin, Taking Rights Seriously).

(79) Ibid, 43.

(80) Ibid, 42.

(81) Ibid, 43.

(82) For comment on Loughlin’s ‘dismissive attitude to self-understanding in the British context’, see the review by J W F Allison at (2005) 68 MLR 344–8, at 347–8.

(83) Loughlin, The Idea of Public Law, 128.

(84) Compare the critique in N W Barber, ‘Professor Loughlin’s Idea of Public Law’ (2005) 25 OJLS 157–67, at 158–65. Barber’s discussion underlines the difficulty in making moral sense of a rigid division between the moral and the prudential, as if the survival of the state could be an ultimate end, wholly detached from the interests of its citizens.

(85) Loughlin, The Idea of Public Law, 156.

(86) Ibid, 150.

(87) Compare Tom R Hickman, ‘In Defence of the Legal Constitution’ (2005) 55 UTLJ 981–1022, especially 992–1004. Hickman rightly observes that Loughlin fails to challenge ‘liberal legalism’ on its own normative ground, attacking what is mainly a caricature of that approach. In Hickman’s view, moreover, ‘the central problem for Loughlin is that in any state that holds itself out as a modern liberal democracy, the practices of public law will inevitably require a large dose of liberal legalism, and the dosage will increase according to the extent of its support and observance’ (Ibid, 1004).

(88) Loughlin, ‘Theory and Values in Public Law: An Interpretation’, 65–6.