Debating With the Bench

A note on recent judicial engagements

Last month I was delighted to receive a copy of an edited volume on “Unwritten Constitutionalism” to which I had contributed a co-authored chapter (written with my friend and co-editor Michael Foran). Our chapter offered an account of the basic premises of common good constitutionalism and the classical legal tradition and made the case for why it offers a sound framework for approaching issues of constitutional design and interpretation. We argued it provided a compelling theoretical framework for fleshing out and giving content to unwritten principles of constitutionalism one finds invoked in countless legal systems, including principles like the separation of powers, rule of law, and subsidiarity/federalism. Anyone who is interested in reading the chapter can find it here on SSRN.

We were also delighted to have two senior and respected Canadian judges offer comments on our chapter. Our contribution was discussed briefly by Mr Justice Russell Brown (a former Justice of the Supreme Court) in his foreword to the edited volume, and more extensively by Justice Peter Lauwers (a judge of the Court of Appeal for Ontario) in his own interesting contribution which offered some thoughtful engagement with common good constitutionalism.

The thrust of the learned judges’ remarks was that, while the classical legal tradition might have interesting things to say that can enrich our legal debates, some of its core propositions are in tension with the proper role of the judge in a well-ordered political community. Justice Lauwers’ thoughtful chapter expressed concern that a common good constitutionalist approach to adjudication and interpretation would empower judges to override constitutional or statutory text to promote a conclusion more consonant with natural law and the common good. In any sound theory of judging, said Justice Lauwers, “the positive law must prevail” even if this leads the judge to a result they think is contrary to the common good. Mr Justice Brown’s brief comment also stressed that “the positive law must prevail” and appeared to imply that common good constitutionalism was in some tension with the proposition.

I look forward to engaging further with Justice Lauwers in future debates, but here I want to make one point in response that I think is particularly important. I want to stress how the classical legal tradition is emphatic about the centrality of the positive law to securing the common good and how the central job of the judge is to render justice according to law to resolve the dispute before them. If what both learned judges meant to say was that a judge should not swap rendering judgment according to law, with judgment according to what they think a better version of the law would be, then I agree entirely. As I wrote in a previous post for the New Digest, the:

“heart of the judicial function is the faithful application of already existing law, including law posited by the community’s legitimate authority. Adhering to this function will certainly rule out judicial legislation for the community and usurpation of the lawmaker’s authority.”

I suspect, however, that when some jurists use a phrase like “the positive law must prevail” to object to embracing or returning to a classical legal approach, they are implicitly infusing that pithy statement with quite a thick host of background concepts about the nature and point of law, lawmaking, and legal interpretation. Often this phrase is intended to mean that a judge should only search for, and treat as relevant to their adjudicative function, those legal sources that they can safely conclude have been picked out by a Constitution-maker or legislator as a matter of socio-historical fact. In other words, all legal sources that are fit to be relied upon and applied by judges must be traced back to an earlier exercise of political will - a highly positivistic understanding of the nature and source of a community’s law.

The corollary of this view is that natural law principles are not treated as binding ipso jure, or applicable of their own force. Rather, they can only be invoked or relied upon as sources of law relevant to the judicial task if a judge can conclude that they’ve affirmatively been picked out and incorporated in prior precedents, statutes, or constitutional provisions. On this view they can, in theory, have zero relevance for the judicial task of rendering justice according to law, if they never happen to be picked up by a socio-historical fact source. In other words, the relevance of natural law in adjudication is all a matter of historical contingency. If the phrase “the positive law must prevail” used by the learned judges is to be understood in this sense, then the classical lawyer will rightly reject it and its underlying positivist legal ontology.

This is, however, not the only way to understand this phrase. There is an alternative, classical, and I think better way to understand it. As we never tire of saying here at the New Digest, the classical legal view is that the most important role played by principles of natural law during adjudication is not to displace posited law, but to assist in discerning its meaning. Posited law is understood by classical jurists as a determination by the lawmaker that tries to make more concrete the often open-ended demands of the natural law and right reason in the context of the time, place, and socio-economic circumstances of the community. The interpretation of positive legal texts in the classical tradition takes for its starting point the axioms that (i) their main rasion d’etre is to concretize the demands of right reason for the common good of the community and (ii) that doing so is the central case of lawmaking and what it means to be a responsible lawmaker.

The object of legal interpretation is the search for the reasoned intent of the lawmaker and the choices they enacted into law in and through legal text. But this search for the lawmaker’s intent does not proceed in the manner akin to how, say, the historian, journalist, or critical theorist would conduct it. Their search for the intention behind a legal provision is often framed by a highly jaundiced view of political authority, where any standing presumptions brought to the table about the lawmaker’s intent is more likely to encompass axioms like “legislation is the consequence of unprincipled political horse-trading”, a “manifestation of class oppression”, or a “product of irrational and often incoherent compromises”. This approach and these presumptions, however, would be unintelligible for classically minded lawyers and judges arguing about what the law requires in a given case. Because for them, the search for a lawmaker’s intent is filtered through a very different web of standing legal presumptions, like the idea the lawmaker intends to act rationally and not absurdly, reasonably and not viciously, and for public and not private facing ends. Other presumptions (that retain vibrancy in many systems today in constitutional law doctrine) include a presumption lawmakers will act consistent with other elements of a polity’s corpus juris, like the common law and basic constitutional principles. The classical lawyer considers basic natural law precepts just as much part of the polity’s corpus juris as positive law, and they therefore form an important part of the legal context against which the lawmaker legislates and makes its choices for the community known.

In classical legal thought and practice, the precepts of natural law have their biggest impact playing what Professor Helmholz dubs an “internalist” role in legal interpretation, being used to “discover the meaning of existing laws”.[1] Precepts of natural law and their emphasis on peace, justice, and the need to secure the conditions of a flourishing community, all help to structure basically every assumption, presumption, and canon that classical lawyers and judges bring to bear concerning what lawmaking is and how the lawmaker should be understood to act and use language: as an authority that takes its stewardship over the community seriously, by promulgating ordinances of reason for the common good.

The classical lawyer can, then, entirely affirm that “the positive law must prevail” and that the job of the judge is rendering justice according to the law. But this is only if the positive law is properly interpreted in a manner conscious of what it is: ordinances of reason whose full meaning and intent fall to be discerned in light of background principles of natural law that are also part and parcel of a community’s law and its overall juridical ordering to the common good. Indeed, understood in this richer and non-positivistic sense, the common good demands that the positive law must prevail over judicial whim, caprice, or attempts at judicial legislation from the bench.

[1] For a sophisticated and more extensive discussion of this point see this essay by my friend and co-editor Adrian Vermeule, https://iusetiustitium.com/enriching-legal-theory/.