Editor’s Note: Earlier this month Policy Exchange’s Judicial Power Project hosted a lecture by Professor John Finnis on Judicial Power: Past, Present and Future. The Project has invited leading commentators from Australia, Canada and the UK to reply to the lecture. In keeping with this website’s goal of encouraging debate about the proper bounds of judicial power, we have invited replies from commentators with a range of views. Some might be expected to be more sympathetic to Professor Finnis’s lecture and others much less so. Our first reply earlier this week was by Prof Mark Elliott (University of Cambridge). Our second reply is by Professor Grégoire Webber (Queen’s University, Canada). 

In his Maccabaean Lecture, delivered to the British Academy on 30 October 1985, John Finnis examined the case for making justiciable in British law and courts the European Convention on Human Rights. Thirty years later almost to the day, in his 20 October 2015 lecture in Gray’s Inn Hall, Finnis returns to some of the themes explored in that earlier lecture, themes now informed by the Human Rights Act and an accumulation of cases by British, European, and Commonwealth courts exercising judicial authority to review legislation for compliance with human rights as guaranteed in the Convention and like instruments.

Finnis’ lecture on Judicial Power: Past, Present and Future explores, patiently and by appeal to principle and experience, the thought that concluded the 1985 lecture:  the risk of ‘alienation from the Rule of Law’ by the exercise of judicial power undisciplined by past legal commitments and instead appealing to rights instruments less precise and articulate in their formulation of rights and duties than other parts of the law. The structure of Finnis’s argument affirms that the risk to the Rule of Law and its materialisation can be appreciated only by first examining the constitutional necessity of judicial power, a power to resolve disputes between parties by application of pre-existing law to facts agreed by the parties or determined by a court.

My comment revisits a proposition articulated in Finnis’ 1985 lecture that is left untouched in his 2015 lecture: that ‘a community living without judicial review of legislation lives dangerously’, including the danger that ‘some real risks of injustices’ will go uncorrected. This proposition anchors another ground to justify judicial power, but it is a ground that itself invites some risks of injustice and so complicates yet further the questions confronting Finnis and us all, then and now and into the future.

Past to present in the exercise of judicial power

Finnis stages his argument across ten theses, devoting half to constructing a positive case for judicial power, meditating on the relationship of past to present in the exercise of judicial responsibility, and the other half to a critical examination of judicial power that reaches beyond the past and assumes a responsibility for the future.

The distinctively judicial responsibility, Finnis argues, is to adjudicate between parties in dispute over their legal rights and duties by applying to facts the law that defined those rights and duties at that time past when the matter in dispute arose (thesis 1). This responsibility is to bring the past to bear on the present dispute, such that the resolution of the dispute, though issued now, by this judge, is attributable to the community’s law, then settled.

The evolution of the common law—even the overruling of more or less settled precedent—is guided by this relationship of past to present, whereby changes in legal direction can, notwithstanding their novelty in the immediate case, be said to be declared, not made, if the changes bring the common law in line with ‘principles, policies and standards acknowledged (now, and when the dispute arose) in comparable parts of our law’ (thesis 2), parts of our law themselves established by the accumulation of precedent and legislation that precedes the instant case. The difference between the evolution of the common law and novel law-making will ‘sometimes, even often’ be ‘subtle, or arguable’. But, for the judge seeking to redirect the common law, the distinction is grasped by appreciating the difference between looking back to the law as it stands, in this and other areas, with a view to coherence and fairness and looking forward to what would be, all things considered, ‘a better pattern of inter-relationships’, even if unmoored from the past.

Finnis’ positive case for judicial power is informed by a constitutional division of authority, which assigns to some institutions (legislatures) responsibility for the future and to others (courts) a responsibility to relate the past acts of legislatures and common law courts to present disputes between parties. On this account of judicial power, a court oversteps the confines of its office when it concerns itself with the future rather than the past and so distances itself from the eighth desideratum of legality articulated by Fuller: congruence between official (including judicial) action and declared rule.

This illuminating meditation on the relationship of past to present to inform the distinctively judicial responsibility to do justice according to law builds a powerful positive case for judicial power. My only note of dissent is to draw attention to another positive case for judicial power, one that goes unmentioned in Finnis’ first five theses and that receives only indirect (and critical) attention in the five negative theses. It is grounded in the proposition that, as I said above, Finnis’ lecture leaves untouched from 1985: the prospect that judicial power is necessary to correct legislative injustices.

The risk of uncorrected injustices

Few will deny that ‘a community living without judicial review of legislation lives dangerously’. Those suffering from what Finnis identifies as the ‘characteristic disdain of law schools and their alumni for legislatures and legislation’ will exaggerate the risk and mischaracterise the legislative forum as a utilitarian interest maximiser unconcerned with principle or rights. Those who resist this ‘déformation professionelle’ will evaluate the legislature in the light of the reasons that lead the good constitutional drafter to favour establishing a legislative assembly, reasons that include the responsibility ‘to make Laws for the Peace, Order, and good Government’. Those same persons will not, of course, deny the standing risk of injustice in the exercise of legislative power, but will situate that risk within a wider perspective that includes the risk of injustice that accompanies all exercises of public power—legislative and judicial.

Against the risk of legislative injustice, judicial review is offered as a remedy. Although this ground for judicial power is not one with Finnis’ argument of relating past to present, it is not entirely divorced from it. British courts review legislation further to the past decision to award them this power under the Human Rights Act 1998; Canadian courts review legislation further to the past decision to award them this power under the Canadian Charter 1982; the Strasbourg Court reviews state acts further to … On its face: past to present.

On further inspection, the analogy breaks down insofar as the decisions captured in the Convention, Charter, and like instruments are imperfect when measured against the requirements of the Rule of Law. Those decisions standardly identify one class of persons (‘Everyone’, ‘Every citizen’, ‘Every accused person’) and one subject matter (‘life’, ‘liberty’, ‘expression’) and unite them by declaring that a class of persons has a right to a subject matter. But what is it for everyone to have a right to life, or to liberty, or to expression? Human rights instruments do not answer the question. Those responsible for these instruments choose to leave it to others to determine how that past inchoate commitment to human rights will, henceforth and into the future, secure a pattern of inter-relationships that will give to each his and her rights. The formulation of rights in the Convention and Charter is, as Finnis aptly puts it, ‘open-ended to views about the future’. It is, in other words, an explicit invitation to have courts concern themselves with ‘a better pattern of inter-relationships’ as and when the legislature has established a pattern that fails in justice.

The Supreme Court of Canada has been especially transparent in articulating its role under the Charter. The doctrine of precedent, so central to the artificial reason of the law and the relationship of past to present, provides no bar—not even against a trial court confronting ‘settled rulings of higher courts’—if ‘there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate”’ (Carter v Canada, 2015 SCC 5, para 44). The judicial responsibility is explicitly for the future.

So: on the understanding of those fearful of living dangerously absent a judicial power to correct legislative injustices, Finnis’ negative theses miss the mark: the constitution sometimes must be made by the exercise of judicial power precisely because the constitutional ‘settlement’ was left incomplete by constitution-makers (contra thesis 6), the courts sometimes must act as the forum of rights and defenders of minorities when the legislature fails in its duty to be more than a forum of interests and for the majority (contra theses 7 and 8), the open-ended doctrine of proportionality is justified by the sometime need to maintain sufficient flexibility to correct injustices (contra thesis 9), and courts sometimes find their justification as roving law commissions where there is need to reform unjust laws (contra thesis 10).

The risk of injustice in correcting for injustice

Are Finnis’ negative theses therefore deprived of their force? Do they fail to counter the reach of a judicial power justified not as a relationship of past to present but rather justified as a check against injustice? No: Finnis’ reflections on judicial method point to the risk of injustice in correcting for injustice.

Trial and appellate court procedures are well designed to resolve the ‘dispute about the legal rights of the parties as those rights stood … at the time past when the cause of action arose or the proceedings were initiated’. In the discharge of these functions, the ‘bearers of judicial power are rightly made immune from any requirement to answer for their judgments’. But when an institution designed to apply past legal decisions to present disputes is invited to take responsibility for the future, there is reason to question the competence of an adversarial setting suited to inter partes disputes.

Constitutional drafters concerned to design an institution to supervise the justice and rights-compliance of legislation would be unlikely to take the adversarial common law court as a model. Those drafters would be aware of the ‘blind spots in legal learning’ and would refuse to endorse the possibility that ‘concessions by counsel’, whilst proper in an inter partes setting, should hold sway in an institution with responsibility for the future of all.

What is more, the drafters, mindful of the dominance of the doctrine of proportionality and how it invites evaluations quite independent of legal skills, would question whether a legal forum is best suited to evaluate the reasonableness of counter-factuals and more or less speculative social science evidence, all with a view to judging whether legislation fails in justice.

Finnis adduces convincing grounds for the claim that ‘even with the best will in the world and much professional skill and dedication’, the judicial forum employs ‘an incompetent method of reforming law more than incrementally, and one that is likely to deny some or many of those affected a fair chance of making their voice heard in society’s deliberation about its and their future’.

Even granting the imperfections of the judicial forum to correct the risk of legislative injustices, the argument does not deny the risk. But it does complicate our assessment of how to respond to it by insisting that there are risks of injustice (by the court) in attempting to correct for the risks of injustice (by the legislature). Those risks include (1) a risk to persons whose rights are deflected from careful consideration by an ineptly drafted and interpreted Convention and Charter, which invites the court to weigh rights against the common good and to justify the infringement of rights in the public interest; (2) a risk to persons whose rights may receive insufficient consideration because, though their rights are protected by the very legislation being challenged, they are not awarded standing before the court (e.g. victims of hate propaganda are not awarded standing when hate propaganda laws are challenged for violating freedom of expression); (3) a risk to constitutional government if decisions fundamental to the community’s choices for the future are made by persons institutionally unanswerable for their decisions; and (4) a risk to the moral standing of the legislature as the institution primarily responsible for the community’s future and the rights of everyone in the community if its reputation is progressively diminished by a court’s willingness to expand its mandate beyond correcting for injustice, as when it declares just legislation a violation of rights.

The lesson is simple: the exercise of public power carries with it the risk of injustice.

A tally of risks of injustice?

Is there, then, a final tally of risks of injustice, such that, even acknowledging the absence of risk-free choice, there is, on balance, a superior choice in the design of judicial power? No. Finnis’ 1985 lecture warns against the thought that there is a ‘grand balance sheet to be drawn up’. In this way, Finnis’ 2015 lecture leaves us very much in the same position that Bacon and Coke confronted in the 1600s: ‘permanent problems, capable it seems of only provisional rather than permanent solutions’. But that is not to suggest that the lecture falls short. To the contrary: in a professional and academic climate that questions whether an expansive judicial role can be otherwise than an unqualified human good, Finnis’ invitation to be watchful of the risks of injustice and departures from the Rule of Law at the hands of the very institution mandated to correct the injustices of others is rightly and powerfully made.

Professor Grégoire Webber
Queen’s University (Canada)