Hostname: page-component-cd9895bd7-dk4vv Total loading time: 0 Render date: 2024-12-25T08:04:01.476Z Has data issue: false hasContentIssue false
  • English
  • Français

Questioning common law constitutionalism

Published online by Cambridge University Press:  02 January 2018

Thomas Poole
Thomas Poole*
Affiliation:
University of Nottingham
Get access Rights & Permissions [Opens in a new window]

Abstract

This article takes a critical look at common law constitutionalism, a theory which has received much support in public law circles of late. The first part of the article elaborates the common law constitutionalist position. The second part of the article assesses the cogency of the theory in terms of its ability to accommodate certain paradigmatic features of judicial review. The article concludes with the suggestion that public lawyers, in their forays into theory, might do better to look to the special role that judicial review plays in assessing the legitimacy of governmental action rather than its supposed connection with ‘fundamental principles of morality’.

Type
Research Article
Information
Legal Studies , Volume 25 , Issue 1 , March 2005 , pp. 142 - 163
Copyright
Copyright © Society of Legal Scholars 2005

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. Compare the debate in other common law jurisdictions: see eg MD Walters ‘The Common Law Constitution and Legal Cosmopolitanism’ in D Dyzenhaus (ed) The Unity of Public Law (Oxford: Hart Publishing, 2004); J Goldsworthy ‘Interpreting the Constitution in Its Second Century’ (2000) 24 Melbourne University Law Review 677; I Holloway Natural Justice and the High Court of Australia: A Study in Common Law Constitutionalism (Aldershot: Ashgate, 2002); P Rishworth’ Common law rights and navigation lights: Judicial review and the New Zealand Bill of Rights' (2004) 15 Public Law Review 103.

2. T Poole ‘Back to the Future? Unearthing the Theory of Common Law Constitutionalism’ (2003) 23 OJLS 435. On the ‘common law tradition’ more generally, see eg AWB Simpson ‘The Common Law and Legal Theory’ in W Twining (ed) Legal Theory and Common Law (Oxford, 1986); GJ Postema ‘Classical Common Law Jurisprudence (Part 1)’ (2002) 2 Oxford University Commonwealth Law Journal 155 and ‘Classical Common Law Jurisprudence (Part 2)’ (2003) 3 Oxford University Commonwealth Law Journal 1.

3. See eg D Oliver ‘Is the Ultra Vires Doctrine the Basis of Judicial Review?’ (1987) PL 543; P Craig ‘Competing Models of Judicial Review’ (1999) PL 428; P Joseph ‘The Demise of Ultra Vires-Judicial Review in the New Zealand Courts' (2001) PL 354; T R S Allan, ‘Doctrine and Theory in Administrative Law: An Elusive Quest for the Limits of Jurisdiction’ (2003) PL 429.

4. See eg C Forsyth and M Elliot ‘The Legitimacy of Judicial Review’ (2003) PL 286; P Craig ‘Constitutional Foundations, the Rule of Law and Supremacy’ (2003) PL 92; T R S Allan ‘The Constitutional Foundations of Judicial Review: Conceptual Conundrum or Conceptual Inquiry’ (2002) 61 CLJ 87.

5. For critical commentary on the debate, see eg N Barber ‘The Academic Mythologians’ (2001) 21 OJLS 369; A Halpin ‘The Theoretical Controversy Concerning Judicial Review’ 2002) 64 MLR 500.

6. See eg C Forsyth ‘Heat and Light: A Plea for Reconciliation’ in C Forsyth (ed) Judicial Review and the Constitution (Oxford: Hart Publishing, 2000) p 393.

7. See eg Forsyth, C Of Fig Leaves and Fairy Tales: the Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review’ (1996) 55 CLJ 122; PCraig ‘Ultra Vires and the Foundations of Judicial Review’ (1998) 57 CLJ 63; M Elliot ‘The Ultra Vires Doctrine in its Constitutional Setting’ (1999) 58 CLJ 129.CrossRefGoogle Scholar

8. See eg Bamforth, N Ultra Vires and Institutional Independence’ in Forsyth Judicial Review and rhe Constitution, above n 6.Google Scholar

9. B Lewis The Assassins: A Radical Sect in Islam (London: Phoenix, 1967) p 59.

10. A Bickel The Leust Dangerous Branch: The Supreme Court at the Bar of Politics (New York: Irvington, 1962) p 103.

11. Allan, T R S Constitutional Foundations’ n 4 above p 123. See also Allan'Constitutional Dialogue and the Justification of Judicial Review’ (2003) 23 OJLS 563.Cf Bamforth, above n 8, p 117: ‘The real disagreement between supporters and opponents of ultra vires… concerns the appropriate constitutional role of the courts in judicial review.’.CrossRefGoogle Scholar

12. See eg M Hunt Using Human Righrs Law in English Courts (Oxford: Hart Publishing 1997).

13. See eg N Walker ‘Beyond the Unitary Conception of the United Kingdom Constitution?’ (2000) PL 384: C Harlow ‘Export, Import. The Ebb and Flow of English Public Law’ (2000) PL 240.

14. See eg N MacCormick Questioning Sovereignty (Oxford: Oxford University Press, 1999); C McCrudden’ A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights' (2000) 20 OJLS 499.

15. See eg K Ewing ‘The Human Rights Act and Parliamentary Democracy’ (1999) 62 MLR 79; A Tomkins ‘What is Parliament For?’ in N Bamforth and P Leyland (eds) Public Law in a Multi-Layered Constitution (Oxford: Hart Publishing 2003); J Tully Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press 1995).

16. See eg Sir J Laws ‘Illegality: The Problem of Jurisdiction’ in M Supperstone and J Goudie (eds) Judicial Review (London: Butterworths, 1992); Craig ‘Competing Models of Judicial Review’ n 3 above, ‘Ultra Vires and the Foundations of Judicial Review’ above n 7 and ‘Constitutional Foundations' above n 4; Oliver above n 3. Note, however, that Trevor Allan has become increasingly critical of the common lawyers' assault on ultra vires: see Allan’ Constitutional Dialogue’ above n 11 and ‘Constitutional Foundations of Judicial Review’ above n 4.

17. D Oliver Common Values and the Public-Private Divide (London: Butterworths, 1999) ch 3.

18. A caveat ought to be entered here. Allan's position seems currently to be undergoing some modification. (See in particular ‘Doctrine and Theory in Administrative Law’ above n 3 and ‘Constitutional Dialogue’ above n 11.) He seems to be distancing himself from what might be called the stronger form of common law constitutionalism in two main ways. First, he seems to be moving away from assuming a ‘bright-line’ distinction between constitutional politics and ordinary politics (on which see below). Second, he has begun to accentuate the importance of context in judicial review decision-making. These changes - if pursued systematically - may necessitate a reconsideration of Allan's theory. In the present piece, I follow the position defended by Allan in his most recent comprehensive statement, his book Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press 2001) which I have analysed and criticised elsewhere: see T Poole ‘Dogmatic Liberalism? T.R.S. Allan and the Common Law Constitution’ (2002) 65 MLR 463.

19. See eg Allan ‘Constitutional Dialogue’ above n11; Craig’ Constitutional Foundations' above n 4.

20. J Barzun From Dawn to Decudence: 500 Years qf Western Cultural Life (New York: Perennial, 2000) Preface xxii.

21. Laws, J The Constitution: Morals and Rights’ (1996) PL 622, 623. For a recent elaboration of the philosophy underlying this position, see Laws’ Beyond Rights' (2003) 23 OJLS 265. Compare on this point the position articulated by Sir Stephen Sedley: see eg ‘Human Rights - A Twenty-First Century Agenda’ (1995) PL 386 and ‘The Sound of Silence: Constitutional Law without a Constitution’ (1994) 110 LQR 270.Google Scholar

22. M C Nussbaum Women and Humun Development (Cambridge: Cambridge University Press, 2000) pp 71–72. See also M C Nussbaum ‘Human Functioning and Social Justice: In Defense of Aristotelian Essentialism’ (1992) 20 Political Theory 202: ‘to find out what our nature is seems to be one and the same thing as to find out what we deeply believe to be most important and indispensable’ in a human life. See also eg M C Nussbaum, The Fragilitv of coodness: Luck nnd Ethics in Greek Trugedy and Philosophy (Cambridge: Cambridge University Press, 1986); M Perry The Idea of Human Rights (Oxford and New York: Oxford University Press, 1998).

23. See, in particular, T R S Allan ‘Equality and Independence: Private Morality and Public Law’ in I Loveland (ed) A Special Relationship? American Influences on Public Law in the UK (Oxford: Oxford University Press, 1995) and ‘Fairness, Equality, Rationality: Constitutional Theory and Judicial Review’ in C F Forsyth and I Hare (eds) The Golden Metwandand the Crooked Cord (Oxford: Oxford University Press, 1998).

24. Oliver Common Vulues above n 17 and ‘The Underlying Values of Public and Private Law’ in M Taggart (ed) The Province of Administrative Law (Oxford: Hart Publishing, 1997).

25. See in particular Laws’ Constitution: Morals and Rights' above n 21.

26. Laws’ Constitution: Morals and Rights' above n 21, p 623.

27. Laws’ Constitution: Morals and Rights' above, n 21, p 623. For a criticism of this position, see Griffith, J A G The Brave New World of Sir John Laws’ (2000) 63 MLR 159.CrossRefGoogle Scholar

28. J B Schneewind ‘Autonomy, obligation, and virtue: An overview of Kant's moral philosophy’ in P Guyer (ed) The Cambridge Companion to Kanr (Cambridge: Cambridge University Press, 1992)pp 309–310. CfO O'Neill ‘Agency and Autonomy’ inbounds of Justice (Cambridge: Cambridge University Press, 2000) p 43: ‘Kantian autonomy is the capacity to adopt principles that can be universally adopted, because they are law-like, and more significantly the rejection of principles that cannot be universally adopted; the exercise of this capacity is the core of Kantian ethics.’ (Italics in original.) See also eg J Rawls Lectures on the History of Moral Philosophy (Cambridge, Mass: Harvard University Press, 2000) pp 123–325; C Douzinas The End of Human Rights (Oxford: Hart Publishing, 2000) pp 184–201; S Nieman Evil in Modern Thought (Princeton NJ: Princeton University Press, 2002) pp 60–84.

29. I Kant Groundwork of the Metaphysic of Morals [1785], 4:429 (Cambridge: Cambridge University Press, ed M Gregor, 1997) p 38. See eg Laws ‘Wednesbury’ in Forsyth and Hare, above n 23 and above n 21, p 623; T R S Allan Law, Liberty, and Justice: The Legal Foundation of British Constitutionalism (Oxford: Oxford University Press, 1993) pp 109–118 and Constitutional Justice above n 18, pp 62–67, 301–315; Oliver, above n 17, pp 7–8, 60–62.

30. Although Laws emphasises that rights are not co-equal with morality. Moral values are primary; rights are ‘a consequence of man's shared morality’ and thus have a ‘secondary nature’. See ‘Constitution: Morals and Rights' above, n 21; ‘The Limitations of Human Rights' (1998) PL 254.

31. R Dworkin Taking Rights Seriously (London: Duckworth, 1977). For the connection between Dworkin's legal philosophy and common law constitutionalism see eg T R S Allan ‘Dworkin and Dicey: The Rule of Law as Integrity’ (1988) 8 OJLS 266. On the philosophy of rights more generally, see eg M Kramer, N Simmonds and H Steiner A Debate over Rights (Oxford: Oxford University Press, 1998); M Freeden Rights (Milton Keynes, 1991).

32. Laws’ Constitution: Morals and Rights' above n 21, p 626. But which rights? Common law constitutionalists are not precise when it comes to specifying which rights result from the translation of the fundamental values of the good constitution into non-ideal (real world) conditions. The assumption appears to be that there is an unproblematic connection between the fundamental values they articulate and the (predominantly) civil and political rights guaranteed by ‘classic liberal’ documents such as the United States Constitution and the European Convention on Human Rights.

33. T R S Allan ‘Common Law Constitutionalism and Freedom of Speech’ in J Beatson and Y Cripps (eds) Freedom of Expression and Freedom of Information (Oxford: Oxford University Press, 2000) pp 23–4. For a similar statement see J Rawls Politicul Liberalism (New York: Columbia University Press, rev edn, 1996).

34. On republicanism, see eg P Pettit Republicanism (Oxford: Oxford University Press, 1997); J G A Pocock The Machiavellian Momenr (Princeton NJ: Princeton University Press, 1975); Q Skinner Liberty, Before Liberalism (Cambridge: Cambridge University Press, 1998); D T Rodgers ‘Republicanism: the Career of a Concept’ (1992) 79 J of American History 11; P Springborg ‘Republicanism, Freedom from Domination, and the Cambridge Contextual Historians’ (2001) 49 Political Studies 851.

35. Cf Adam Tomkins’ analysis of the use of republicanism to generate a basis for political constitutionalism: ‘In Defence of the Political Constitution’ (2002) 22 OJLS 157. See also eg R Bellamy ‘Constitutive Citizenship versus Constitutional Rights: Republican Reflections on the EU Charter and the Human Rights Act’ in T Campbell, KD Ewing, and A Tomkins (eds) Sceptical Essays on Human Rights (Oxford: Oxford Universit; Press, 2001); C Harvey ‘Governing after the Rights Revolution’ (2000) 27 JLS 61.

36. Constitutional Justice above n 18, p 24.

37. Common Values above n 17, p 8.

38. Laws ‘Wednesburv’ above n 29, p 201.

39. Sir J Laws ‘Public Law and Employment Law: Abuse of Power’ (1997) PL 455, 455.

40 ‘Wednesbury’ above n 29, p 190.

41. See in particular L L Fuller ‘The Forms and Limits of Adjudication’ (1978) 92 Harvard Law Review 353. See also JWF Allison A Continental Distinction in the Common Law: A Historical and Comparative Perspective on English Public Law (Oxford: Oxford University Press, 1996) and ‘The Procedural Reason for Judicial Restraint’ (1994) PL452.

42 ‘Common Law Constitutionalism’ above n 33, p 30.

43. Constitutionul Justice above n 18, p 85.

44. Constitutional Justice above n 18, p 85 (emphasis in original).

45. Constitutional Justice above n 18, p 78. Cf DJ Galligan Due Process and Fair Procedures: A Study of Administrutive Procedures (Oxford: Oxford University Press, 1996); N Lacey ‘The Jurisprudence of Discretion: Escaping the Legal Paradigm’ in K Hawkins (ed) The Uses of Discretion (Oxford: Oxford University Press, 1992); I H Dennis ‘Reconstructing the Criminal Law of Evidence’ (1989) CLP 21.

46. Constitutional Justice above n 18, p 19. Paul Craig has pursued this argument with particular vigour: see eg ‘Public Law, Political Theory and Legal Theory’ (2000) PL 211.

47. I have argued elsewhere that this argument represents a species of ‘ancient constitutionalism’ in that it rests claims for the normativity of common law on the basis of its age: see my ‘Back to the Future?’ above n 2, pp 444–447. See also eg J G A Pocock The Ancient Constitution and the Feudal Law (Cambridge: Cambridge University Press, 2nd edn, 1987); M I Finley ‘The Ancestral Constitution’ in The Use and Abuse of History (London: Chatto & Windus, 1975); G Burgess The Politics of the Ancient Constitution (London: Macmillan, 1992); M P Thompson ‘The History of Fundamental Law in Political Thought from the French Wars of Religion to the American Revolution’ (1986) 91 American Historical Review 1103.

48. Allan ‘Common Law Constitutionalism’ above n 33, p 21.

49. Common law constitutionalists seem to think that it is unproblematic to assume that these organically produced fundamental values will correspond to the fundamental values regarded as central to the flourishing of the human condition.

50 ‘Common Law Constitutionalism’ above n 33, p 21.

51. Allan, T R S The Rule of Law as the Rule of Reason: Consent and Constitutionalism’(1999) 115 LQR 221, 239.Google Scholar

52. Sir Laws, J Law and Democracy’ (1995) PL 72, 85. See also Laws ‘Judicial Remedies and the Constitution’ (1994) 57 MLR 213, 223.Google Scholar

53. Laws ‘Public Law and Employment Law’ above n 39, p 455.

54. Allan, T R S Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism’ (1985) 44 CLJ 111, 116.CrossRefGoogle Scholar

55. Laws’ Judicial Remedies' above n 52, p 223.

56. See FA Hayek Law, Legislation and Liberty. Vol. I Rules and Order (London: Routledge, 1973). See also Allan, Cortsritutional Justice above n 18, chs 1 and 2. However, Allan seems to be in the process of abandoning the dualist approach of his earlier work in favour of a more dialogic conception: see in particular ‘Constitutional Dialogue’ above n 11.

57. Laws ‘Wednesbury’ above n 29, p 199 (emphasis in original).

58. The term ‘dualist constitution’ derives from B Ackerman We the People - Vol. I Foundations (Cambridge Mass: Harvard University Press, 1991).

59. Laws ‘Law and Democracy’, above n 52, p 84.

60. Oliver’ Underlying Values' above n 24, pp 230–231.

61. J Jowell ‘Beyond the Rule of Law: Towards Constitutional Judicial Review’ (2000) PL 671, p 675. See also Jowell ‘Judicial Deference and Human Rights: A Question of Competence’ in P Craig and R Rawlings (eds) Law and Adminisrrurion in Europe (Oxford: Oxford University Press, 2003).

62. Some common law constitutionalists go further, arguing that the common law protects (or ought to protect) individuals from anyone who holds power over them, whether the source of that power is public or private: see eg Oliver Common Values n 17 above: Laws ‘Public Law and Employment Law’ n 39 above.

63. See eg Griffith, J A G The Political Constitution’ (1979) 42 MLR I; Tomkins ‘In Defence of the Political Constitution’ above n 35. On the ‘traditional English’ model of public law see eg C Harlow ‘A Special Relationship‘? American Influences on Judicial Review in England’ in LovelandA Special Relutionship? n 23 above; D J Galligan’ Judicial Review and the Textbookwriters' (1982) 2 OJLS 257.CrossRefGoogle Scholar

64. Allan, T R S Dworkin and Dicey: the Rule of Law as Integrity’ (1988) 8 OJLS 266, 273.CrossRefGoogle Scholar

65. Allan Constitutional Justice above n 18, p 10. Allan's formulation is mirrored by other leading common law constitutionalists. Cf Oliver ‘Underlying Values' above n 24, p 233: ‘Where there is an imbalance of power in relationships' then the courts should’ impose higher order duties on the superior.’ Laws ‘Is the High Court the Guardian of Fundamental Constitutional Rights?’ (1993) PL 59, 69: ‘In cases of judicial review, the greater the intrusion proposed by a body possessing public power over the citizen into an area where his fundamental rights are at stake, the greater must be the justification which the public authority must demonstrate.’.

66. According to Joseph Raz, A good interpretation is one which ‘covers adequately the significant aspects of the work interpreted … explains the aspects of the work it focuses on and … in doing the above it elucidates what is important in the work.’ See Raz ‘Interpretation without Retrieval’ in A Marmor (ed) Law and Interpretation (Oxford: Oxford University Press, 1995). Note that it is no part of my argument to suggest that the theorists in question personally fail to understand these aspects of judicial review, just that the theory they have constructed fails to accommodate them.

67. See eg Allan above n 42.

68. Fuller ‘Forms and Limits of Adjudication’ above n 41. See also eg Allison ‘The Procedural Reason for Judicial Restraint’ above n 41.

69. See eg C Harlow and R Rawlings Law and Administration (London: Buttenvorths, 2nd edn, 1997) pp 495–496.

70. While the form of judicial review proceedings may be bipolar, the substance of the dispute should not be thought of in similar terms. As the very labelling of a case - its exparte form - suggests, it seems to be the case that the general interest of the political community forms something of a silent third party in all cases of judicial review. See eg Sir H Woolf ‘Judicial Review: A Possible Programme for Reform?’ (1992) PL 221; Law Commission Report No 226 Administrative Lnrv: Judicial Review and Statutory Appeals (HC 669, 1994).

71. On the ‘triadic’ structure of adjudication ree A Stone Sweet ‘Judicialization and the Construction of Governance’ in M Shapiro and A Stone Sweet On Law, Politics, and Judicialization (Oxford: Oxford University Press, 2002).

72. See eg R v Ministry of Defence, ex p Smith and others [1996] QB 5I7 (discussed below); Equal Opportunities Commission v Secreta? of Srate for Employment [1995] 1 AC 1 (where the House of Lords held that the EOC had standing, but that the individual applicant, Mrs Day, did not).

73. P Cane ‘Standing up for the Public’ (1995) PL 276; Cane ‘Statues, Standing and Representation’ (1990) PL 307; J Miles ‘Standing Under the Human Rights Act 1998: Theories of Rights Enforcement and the Nature of Public Law Adjudication’ (2000) 59 CLJ 133. Cf A Chayes ‘The Role of the Judge in Public Law Litigation’ (1976) 89 Harvard Law Review 1281.

74. C Harlow ‘Public Law and Popular Justice’ (2002) 65 MLR 1.7. See also C Harlow and R Rawlings Pressure Through Law (London: Routledge, 1992).

75. See eg S Hannett ‘Third Party Interventions: In the Public Interest?’ (2003) PL 128.

76. See eg R v Bow Street Magistrate and others, ex p Pinochet Ugarte (No 3) [1999] 2 WLR 827 (intervention by Amnesty International and others).

77. See eg R v Lord Chancellor, exp Witham [1998] QB 575 (intervention by the Public Law Project).

78. Harlow argues on legitimacy grounds that it is wrong to move beyond the adversarial paradigm: see ‘Public Law and Popular Justice’ above n 75. Cf H Collins ‘Democracy and Adjudication’ in N MacCormick and P Birks (eds) The Legal Mind: Essays for Tony Honoré (Oxford: Oxford University Press, 1986).

79. Common law constitutionalists themselves sometimes seem to be aware of this, although they do not always follow this insight to its logical conclusion. For instance, Trevor Allan thinks that third parties should not, in general, have access to the court, arguing that judicial review ought to be confined to individual claimants raising questions of individual right: see Consrirurional Justice above n 18, p 195.

80. Fuller ‘Forms and Limits of Adjudication’ above n 41. See also eg J W F Allison ‘Fuller's Analysis of Polycentric Disputes and the Limits of Adjudication’ (1994) 53 CLJ 367; Harlow and Rawlings, Law and Administation above n 70, pp 598–602.

81. [1995] 1 WLR 898.

82. For commentary on the case see eg Parkin, A Allocating Health Care Resources in an Imperfect World’ (1995) 95 MLR 867.CrossRefGoogle Scholar

83. See above n 81, p 906.

84. M Freedland ‘Government by Contract and Public Law’ (1994) PL 86, p 97.

85. Fuller ‘Forms and Limits of Adjudication’ above n 41. See also Allison ‘The Procedural Reason for Judicial Restraint’ above n 41.

86. N Lacey ‘The Jurisprudence of Discretion: Escaping the Legal Paradigm’ in K Hawkins (ed) The Uses of Discretion (Oxford: Oxford University Press, 1992) p 371. See also eg J Shklar Legalism (Cambridge Mass: Harvard University Press, 1964).

87. See eg J Dunn The Cunning of Unreason (London: HarperCollins, 2000); R Geuss Hisroty and Illusion in Politics (Cambridge: Cambridge University Press, 2001).

88. This argument has even greater purchase when set against the avowed republicanism of some common law constitutionalists. Republicanism, according to one of its leading contemporary proponents, is a ‘debate-based’ theory of politics. (Pettit Republicanism above n 34, p 187.) Judicial review, which has such obvious difficulties in accommodating widespread participation does not come close to matching this ideal.

89. See eg S F C Milsom Historical Foundations of the Common Law (London: Butterworths, 2nd edn, 1981). One important difference between the two is that whereas the medieval forms of action were procedural (and liminal), modern judicial review has substantive categories.

90. An example of this might be the pre-Human Rights Act development of the doctrine of proportionality being tacked onto the longer-standing Wedtlesbury principle: Council of Civil Service Unions v Ministerfor the Civil Service [1985] AC 374; Wheeler v Leicester City Council [1985] AC 1054; R v Barnslev Metropolitan Borough Council, exp Hook [1976] 3 All ER 452. See also eg J Jowell and A Lester ‘Proportionality: Neither Novel nor Dangerous’ in J Jowell and D Oliver (eds) New Directions in Judicial Review (London: Sweet & Maxwell, 1989); ‘Beyond Wednesbury Substantive Principles of Administrative Law’ (1987) PL 368; S Boyron ‘Proportionality in English Law: A Faulty Translation?’ (1992) 12 OJLS 237.

91. On which see eg R Thomas Legitimate Expectations and Proportionality in Administrative Law (Oxford: Hart Publishing, 2000); S Schønberg Legitimate Expectations in Administrative Law (Oxford: Oxford University Press, 2000).

92. See eg M Shapiro’ Towards a Theory of Stare Decisis' in M Shapiro and A Stone Sweet On Luw, Politics, and Judicialization above n 71.

93. On which see eg Le Sueur, A The Judicial Review Debate: from Partnership to Friction’ (1996) 31 Government and Opposition 8.CrossRefGoogle Scholar

94. Unsustainable, at least, unless one is prepared to advance a non-democratic conception of politics as a normative ideal.

95. See eg H Arendt, The Human Condition (Chicago: University of Chicago Press, 1958); J Waldron Law atid Disagreement (Oxford: Oxford University Press, 1999).

96. J Raz ‘Free Expression and Personal Identification’ in Raz Ethics in the Public Domain: Essay in rhe Morality of Law und Politics (Oxford: Oxford University Press, 1995) p 155. See also eg D A J Richards Free Speech and the Politics of ldentify (Oxford and New York: Oxford University Press, 1999).

97. See eg R Baldwin Rules and Government (Oxford: Oxford University Press, 1995) in which the author’ explores the nature of legitimacy claims or attributions and employs the notion of a discourse of justification within which certain values operate‘. (These legitimacy values include - the legislative mandate claim, accountability, due process, expertise, and efficiency: pp 41–46.) See also eg D Dyzenhaus Legality and Legitimacy (Oxford: Oxford University Press, 1997); LB Tremblay ‘General Legitimacy of Judicial Review and the Fundamental Basis of Constitutional Law’ (2003) 23 OJLS 525. On the notion of legitimacy in general see eg R Barker, Political Legitimacy and the State (Oxford: Oxford University Press, 1990); B Manin’ On Legitimacy and Political Deliberation (1987) 15 Political Theory 338.

98. [1996] QB 517. For commentary on the case see eg M Norris’ Ex parte Smith: irrationality and human rights' (1996) PL 590.

99. Of course, not all judicial review cases involve rights - eg those in which one public body challenges a decision of another - which poses difficulties for a theory which thinks that judicial review can be understood ‘as a scheme for protecting the rights of citizens in public law‘: Allan’ Dworkin and Dicey’ above n 64, p 273.

100. [1996] QB 517 at 532 (per Simon Brown LJ at first instance), 5 56 (per Sir Thomas Bingham MR) and 565 (per Thorpe LJ).

101. R v Cambridge Health Authority, ex p B [1995] 1 WLR 988. For the first instance judgment of Laws J, see [1995] 1 FLR 1055.

102. It is probably a mistake, when theonsing about public law, to assume too readily that a political community is underpinned by consensual norms. As Raymond Geuss puts it, it ‘is not that consensus is inherently a bad thing, but it is such an obscure and elusive concept that one is right to be suspicious of substantive claims that depend too strongly on it.’ (History and Illusion in Politics above n 87, p 5.).

103. See eg J Hart Ely Democracy and Disrrust (Cambridge Mass: Harvard University Press, 1980) ch 3.

104. Hoffmann, Lord Human Rights and the House of Lords’ (1999)62 MLR 159, 159.CrossRefGoogle Scholar

105. Dunn Cunning of Unreason above n 87, p 105. See also eg Freeman, S Constitutional Democracy and the Legitimacy of Judicial Review’ (1990) 9 Law and Philosophy 353.CrossRefGoogle Scholar

106. It is perhaps worth noting that I do not see these features of adjudication as weaknesses. They are offered as conceptual observations which, if accurate, help us to think more clearly about what it is that judicial review does (and can do) within the political community.