Judicial Power and the Balance of Our Constitution

This collection reflects on the place of judicial power in the common law constitutional tradition. It is framed around two lectures by John Finnis. The first, delivered in Gray’s Inn in October 2015, considers the idea of judicial power in historical and philosophical perspective, outlining the balance that has long characterised the Westminster constitution, and considering the extent to which that balance is now in doubt.

Four eminent judge-jurists (Justice Brown, the Supreme Court of Canada, Sir Patrick Elias, formerly Court of Appeal, England and Wales, Dyson Heydon, formerly High Court of Australia and Justice Glazebrook, Supreme Court of New Zealand) and one outstanding philosopher-legislator (Baroness O’Neill) comment on the lecture. Their commentary explores the nature of judicial power and its changing character over time and across the common law world. A rejoinder by Finnis completes the exchange.

The second lecture, delivered in Lincoln’s Inn in December 2016, considers the separation of powers – the constitutional balance – in relation to the UK’s entry into, and withdrawal from, the EU. The lecture was delivered immediately before, and was much discussed in, the Supreme Court’s hearing of Miller (the Brexit case). It is supplemented here by a postscript critically evaluating the Supreme Court’s judgment in Miller.

With a foreword from Lord Burnett, the Lord Chief Justice of England and Wales, and an introduction by Richard Ekins, the collection is an important contribution to the public conversation about the constitution. It aims to help recall our historical constitutional tradition, and its balance of powers, to outline and evaluate contemporary judicial practice, and to inform reflection about its future development.

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