Tuesday, 20 May 2014

Some Notes on Allan, The Sovereignty of Law

T.R.S. Allan is one of the most important public-law thinkers of the present age and his new book, The Sovereignty of Law, is a major contribution to public law theory. Here is a brief summary which may be of interest to readers.

At the heart of this book is the distinction made by H.L.A. Hart between the "external" and "internal" point of view. Allan, following Ronald Dworkin, takes an avowedly interpretivist approach, privileging the internal point of view. An external observer might say of a jurisdiction in which Parliament is sovereign that a statute requiring that all blue-eyed babies be put to death is legally valid. To view matters from the external point of view, however, is to adopt the wrong perspective as far as the common law is concerned. What matters is how lawyers (and citizens) would interpret any such statute:

The popular notion that parliamentary sovereignty ultimately overrides the rule of law is erroneous. Parliament’s authority is constrained by its dependence on language; and words take their colour from the broader context in which they are used. We determine the content of Parliament’s instructions in the light of those fundamental principles of law that give the British constitution its continuing authority and conceptual structure...the content of law is, instead, a complex matter of interpretation, in which statutory provisions must be integrated within an existing web of legal regulation, based on both common law and statute...(pp. 35-37)

Adopting an external perspective leads lawyers to make serious errors, as "[b]oundaries and distinctions that serve primarily descriptive purposes are pressed into the service of constitutional theory, where they obscure more than they reveal" (p. 82). For example, the idea that "clear" provisions can oust constitutional protections (such as access to courts):
When the statutory text is read as a whole, and the reading is informed [as it must be – PD] by those common law principles that delineate the relevant demands of legality, questions of clarity or certainty are related, most suitably, to any statement of interpretative conclusions. If anyone has the ‘last word’, it is the court that determines legality in all the circumstances of the particular case; but of course legality is a function of statutory purpose and context as well as general constitutional principle.
Privileging the internal point of view has important doctrinal consequences. Consider justiciability:

From the internal perspective of the public lawyer, justiciability – or susceptibility to review – is, instead, a function of the specific legal challenge to an exercise of power in all the circumstances. It is…properly the outcome of legal analysis rather than a straitjacket confining its course from the start. (p. 58)
Blunt-edged justiciability doctrines, which remove areas of executive power from judicial scrutiny regardless of the consequences for those affected, are inimical to the rule of law. Considerations of legality are suppressed in favour of political accountability, which depends on whether sufficient interest can be aroused to make suitable space in a crowded parliamentary timetable. Certain sorts of complainant, in the relevant fields, are deprived of access to the courts for the vindication of their rights – or the correction of wrongs – without any inquiry into whether, in all the circumstances, an exclusive reliance on political or administrative remedies is consonant with justice. (p. 78)

For administrative lawyers, "[a] misguided focus on competing sources of administrative law, characteristic of legal positivism, has deflected attention away from subtle practicalities of legal interpretation in particular instances" (p. 229):

The appropriate integration of general legal principle and specific statutory purpose is a matter calling for reflection and judgement. From within the practice of law – by contrast with a merely external or descriptive viewpoint – there is neither an omnipotent Parliament nor any free-standing criterion of administrative legality, independent of context. There is only the subtle and nuanced process of interpretation, sensitive to social and political context, that the doctrine of ultra vires invokes when correctly understood. If proponents of ultra vires sometimes emphasize the legislative context at the expense of general principle, its opponents often seem to underestimate the pliability of the grounds of review, which in many cases serve mainly to summarize a finding of illegality closely dependent on all the circumstances. (p. 224)

The law cannot be identified with whatever a majority of judges (or perhaps more senior judges) currently accept or assert, even if their views are elaborated in sufficient detail to give them definite shape in specific contexts. The law is rather the product of considered judgement in which general principle is brought to bear on the distinctive facts of particular cases, forging an accommodation between governmental aim, on the one hand, and the constraints of legality, on the other . (p. 230)
And a clear-cut distinction cannot readily be made between constitutional law and administrative law:

As servants of a sovereign Parliament, the courts must ensure that ministers and executive agencies observe the terms and limits of their statutory mandates; and in thus enforcing the law (it is supposed) the judges may take the content of those statutory mandates largely for granted. It has been a major theme of this book that, to the contrary, the law’s content is always a matter of interpretation, dependent on judgements of value that cannot be evaded by any responsible legal reasoned. What Parliament has authorized an official or agency to do in particular circumstances is always a matter of judgement, reflecting considered opinions about what, in such circumstances, it would be reasonable (or not unreasonable) to authorize. The meaning of legislative instructions cannot be divorced from the context in point: they derive their sense from the overarching tradition of governance to which they contribute. What it is lawful or reasonable for a public authority to do, in the performance of its statutory tasks, cannot be answered in the abstract. It depends on the consequences for constitutional rights and settled expectations and equal citizenship – all those large dimensions of legality that opponents of legal constitutionalism appear, in theory if not in practice, to banish from public law. (p. 317)
There is also a masterful postscript on public law theory. What should public lawyers do? There is a useful hint in the main text:

[P]ractice can be understood only in the light of the ideals or values it serves – those values that give us reason to pursue and sustain the practice and argue over its detailed implications. (p. 210)
The underlying values of public law are what matter most. They simultaneously describe, explain, justify and change the outcomes of concrete cases.

My only quibble with Allan's approach is that it perhaps privileges the internal point of view too much, whereas in legal practice lawyers and judges toggle between the internal and external, on the one hand arguing the merits of the individual case, on the other hand explaining how it can be reconciled with the existing authorities. I think Allan is sensitive to the need for lawyers to adopt dual perspectives though: his postscript features a piercing analysis (reconstruction, even!) of Dworkin's distinction between fit and justification. 

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