Judicial Power, Democracy and Legal Positivism

Tom D. Campbell, Jeffrey Goldsworthy, Tom D. Campbell, Jeffrey Goldsworthy

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351924641
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

In this book, a distinguished international group of legal theorists re-examine legal positivism as a prescriptive political theory and consider its implications for the constitutionally defined roles of legislatures and courts. The issues are illustrated with recent developments in Australian constitutional law.

PART I
REORIENTING LEGAL POSITIVISM

1 Democratic Aspects of Ethical Positivism

TOM CAMPBELL¹

This book deals with constitutional questions about the role of judiciaries and legislatures in contemporary democracies. These issues are discussed in the context of the suggestion that the tradition of legal positivism has an important bearing on the formulation of principles specifying how judges and legislatures ought to carry out their tasks.

This is a formidable undertaking. It requires the articulation and deployment of both a theory of law and a theory of democracy, and this in an age in which theories of any sort are suspect. It is a particularly formidable task because the theory of law in question is legal positivism, a paradigm which has been systematically questioned as a result of developments in philosophy and the social sciences. Today, legal positivism is widely regarded as intellectually, empirically and morally untenable, and legal positivists no longer have the confidence which arises from espousing what used to be the reigning orthodoxy of leading practitioners.

The intellectual problems of legal positivism arise principally from the role that legal positivists ascribe to rules as a means of controlling conduct, including the conduct of governments, which runs counter to contemporary views on the indeterminacy of language. The empirical problems of legal positivism centre on their perceived failure to identify the boundaries between law, morality and politics in actual legal systems. Morally, legal positivism is frequently portrayed as bankrupt, having in the past tolerated slavery,² Hitler’s democratic socialism³ and South Africa9s apartheid system,⁴ and currently resisting the progressive institutionalization of the human rights movement. It is also held responsible for the failure of legal systems to adapt to changing circumstances, the insensitivity of judges to the personal and social realities affecting the litigants who pass through their courts, and the amorality or immorality of lawyers whose professional conduct is often regarded with contempt.⁵

Democracy gets a rather better press, although its almost universal popularity makes it harder, rather than easier, to find our way through to a satisfactory theory of democracy. Beyond the conceptual link between democratic government and political equality and a high level of agreement that it is desirable that governments be subject to periodic popular elections, accompanied by a minimum threshold of civil liberties and political rights, there is no single coherent theory of democracy which can both guide us as to what sort of democratic system we should have and, at the same time, elicit the general support of specialist participants and ordinary citizens which would be required to put it into practice. We seem doomed to operate with an uneasy mixture of incompatible democratic ideals with, on the one hand, a market model according to which political power is a commodity and voters as consumers are out to satisfy their individual desires by purchasing the political package that seems to offer them most of what they want and, on the other hand, a participatory or deliberative theory which relies on the unlikely prospect of giving a controlling political influence to a public discourse which is directed to the achievement of a consensus as to what constitutes justice and the common good.

Notwithstanding these difficulties, this chapter suggests a framework for deriving some tentative answers to some rather familiar questions – answers which have some prospect of commanding general approval and generating practical guidance. These answers and guidance are designed to be relatively neutral in terms of the particular substantive matters which divide citizens as to the content of first-order political and legal decisions but enable them to set up democratically acceptable legal processes and procedures for the resolution of such disagreements and direct those who operate such institutions as to how they should conduct their business.

I call the politico-legal framework of principles proposed ‘democratic positivism7. Democratic positivism is positivistic in the tradition of a legal positivism that is wedded to the political significance of channelling governmental power through specific unambiguous conduct-governing mandatory rules, with genuine exclusionary force, capable of being applied without recourse to contentious moral and political judgements – rules which have their source in empirically identifiable and constitutionally defined human acts.⁶ Democratic positivism is democratic in that it affirms that the source of these authoritative rules is empirically identifiable institutional acts which are the outcome of democratic procedures. Democratic procedures are taken to be procedures which serve to maximize the involvement of all those affected by the rules which bind them in a way which approximates to the ideal of giving their choices equal weight with respect to rules and decisions which are binding on them. This confines the term democracy to those systems of government which seek to approach equality of individual self-determination, either through direct participation in the legislative and executive process or through the election of representatives whose role is to legislate and govern on their behalf, subject to periodic election ongoing opportunities for criticism and systems of answerability which require public responses to criticism, both prior and subsequent to electoral accountability.⁷

Democratic Positivism

Democratic positivism is a theory in tension in so far as the positivist aspects involved can come into conflict with its democratic elements. For instance, a democratic political process may come up with a decision to depart from the rule of positive law in favour of more particular and less formal outcomes. Or the requirement of the rule of positive law may prevent elected governments from exercising judicial functions or passing laws embodying vague moral standards.

We can reduce this tension between democracy and positivism by excluding, from the normal democratic process, those rules which constitute the electoral procedures and the systemic prerequisites, such as freedom of speech, which give legitimacy to putatively democratic decision-making. These prerequisites, which could even include the governance of rules as a means of promoting political equality, may be exempt from democratic change on the grounds that they are constitutive of democracy and cannot therefore be dispensed with without undermining the democratic credentials of the system. This move does not solve that core problem of democratic theory which concerns the appropriate decision procedures for determining precisely what these untouchable democratic fundamentals should be, but it is an indispensable part of any genuinely democratic theory that self-destructive ‘democratic’ decisions are not democratic at all. And, in so far as it can be shown that legal positivism is itself a democratic prerequisite, and therefore partially constitutive of any acceptably democratic system, the tension between legal positivism and democracy is eliminated. Moreover, it is arguable that a system of law and government which embodies the norms of prescriptive legality is part of the presuppositions which constitute democratic systems. On this view, the issue of whether government must be conducted in accordance with a system of positive law is not open to democratic disposal.

To follow through this analysis, we must move from clarification of terms enabling empirical descriptions of political and legal institutions to the substance of the rationales and justifications of democracy and legal positivism which are indispensable to the further specification of both concepts. In relation to legal positivism, the main justificatory task relates to the social utility and moral significance of societal rules, as opposed to unfettered individual autonomy or the discretionary power of officials, and the moral appropriateness of rule governance in the distribution, exercise and control of political power. In The Legal Theory of Ethical Positivism,⁸ I explore such instrumental virtues of rule governance with respect to predictability, regularity, coordination, conduct control, conduct facilitation, dispute resolution, individual autonomy, economic efficiency, power allocation, the formal preconditions of substantive justice and the focus of democratic dialogue. There I argue that these are the principal reasons why it is good for a society to have systems of specific mandatory rules which preclude individual members from exercising their own judgement over certain matters with respect to their own conduct.

I do not rehearse all these rationales here, although they are central to the understanding of democratic positivism, including its account of legal authority and legal obligation. However, it is worth highlighting those justifications of rule governance which are particularly germane to democracy. These rationales focus on the thesis that empowering officials with wide-ranging discretion, although it holds out the prospect of utilizing expert opinion and making fine-tuned decisions in the light of the particular circumstances of each situation, is inappropriate where the decisions call for value judgements whose content depends both on the personal or collective outlook of those exercising that discretion and their susceptibility to the influence of interested parties, so that what varies is not so much the circumstances of the case as the personal beliefs and interests of the officials who have the discretionary power and the pressures which are brought to bear on them.

In the arena of political conflict and evaluative disagreement, the advantages of expertise and particularized justice promised by the wise deployment of such discretionary power are negated, for the democratic positivist, by the scope provided thereby for the impact of opinions and influences which have no legitimacy within the system. Abstracting from the content of rules, which may or may not be themselves embodiments of class, gender and racist attitudes, the absence of rules increases the vulnerability of parties to controversial political or discriminatory attitudes and beliefs which are as endemic within legal institutions as they are in society at large. The contention is that rule governance can be an effective way to promote the neutralization of unauthorized ideology, prejudice and illegitimate self-interest in the exercise of power.

Pointing out the various benefits of rule governance does not imply that social life as a whole should be strictly rule-based or that there should be a system of positivistic rules covering every aspect of social life. The thesis is, rather, that where there is government – that is non-optionality enforced by punishment and detriment – then it must be rule-governed. Indeed, legal positivism fits neatly with a political theory which favours a limited domain for government along the few simple rules model developed by Epstein.⁹ However, in the light of the pervasive role of unjustifiable domination in social relations, in most complex societies the domain of law should be far more extensive than anything envisaged by libertarians.

Further, it is important to note that, in practice, rules and democracy converge in so far as rules are a powerful instrument for bringing about predictable change and democracy is justified in part by self-determination in the strong sense in which people can collectively achieve their goals in and through the public sphere. If rule governance has a positive correlation with effective governance, defined in terms of meeting the objectives of those with legitimate power, then it makes for a more effective democracy (if that is the system in operation) just as it can make for a more effective tyranny.¹⁰ Arguments based on the alleged effectiveness of rules in producing desired outcomes are vulnerable to evidence that they do not do so either in general instances or contexts. Why, then, is the democratic process not a source of legitimate decision-making as to whether positive rule governance is or is not desirable in this or that circumstance? After all, there is much interesting, and apparently evenly balanced, discussion about whether certain policy objectives are better served by setting general standards rather than enacting specific rules.

The answers to this essentially empirical challenge to the paramountcy of rules directs us towards less contingent rationales for rule governance which have more to do with the issues of political authority which generate theories of democracy. It can be argued, for instance, that any exercise of political power must have its substance approved by the consent of the governed and that this can only be achieved prospectively by the democratic authorization, not just of rulers but of rules. Anything less subjects the citizen to a degree of illegitimate coercion. The system violates the principle of political legitimacy that no one should be subject to the democratically unconstrained will of another to the precise extent that state officials – that is, persons whose decisions are backed by coercive sanctions or non-voluntary detriments – have discretionary power. If rules are a necessary element in the control of government officials, it follows that exclusionary rules...