John Finnis is one of the most distinguished legal philosophers of our age, who has spent more than half a century thinking and writing about the concept of judicial power.
In October 2015 Professor Finnis delivered his powerful lecture, “Judicial Power, Past Present and Future”, which was the genesis of this fascinating collection of essays. He concluded that judicial independence secured as part of the constitutional settlement of the Glorious Revolution brought with it an acknowledgement of the supremacy of the Crown in Parliament, but that in modern times there is “drift everywhere to the subjection of legislative power, directly, or indirectly, to judicial power”. His conclusion is that at least some judges do not respect the differing institutional competencies of the legislature, executive and judicial arms of the state. Five eminent common-law thinkers from around the world were invited to respond to Professor Finnis’s lecture and have contributed thought-provoking essays which, to various extents, disagree with aspects of his reasoning and conclusions. As if we were being treated to a series of submissions in court, Professor Finnis has replied in his rejoinder. I am happy to say that it is not for me to provide a resolution to the conflicting views.
This is academic discussion at its best, with robust but courteous disagreement.
Professor Ekins has brought the collection together and added The Sir Thomas More lecture given by Professor Finnis entitled “Brexit and the Balance of our Constitution” which, it should be emphasised has nothing to say about the merits of British membership of the European Union but concerns the Miller litigation. He has contributed his own penetrating introduction.
The collection represents a serious and important series of reflections on the common-law tradition of adjudication which illuminates important questions. All judges called upon to decide cases that occupy the intersection between judicial power and that of Parliament and the executive must work out for themselves where in the spectrum of judicial activism they lie. That such a spectrum exists cannot seriously be doubted. One need look no further than the nine judge decision of the Supreme Court in Nicklinson on assisted dying, discussed by Sir Patrick Elias in his contribution, to see its manifestation.
Reading this collection of essays is likely to clarify, perhaps lead to the evolution of, the views the reader started with.
Rt. Hon. Lord Burnett of Maldon is the Lord Chief Justice of England and Wales. He was called to the bar at Middle Temple in 1980, took Silk in 1998, became a Bencher in 2001, and was later head of Temple Garden Chambers. He was appointed to the High Court in 2008 and the Court of Appeal in 2014, serving as Vice Chairman of the Judicial Appointments Commission from 2015-2017.
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