CHAPTER 15 Constitutions, Law and Judges
‘Government without a constitution is power without right.’
TH O M A S PA I N E , The Rights of Man (1791–2)
P R E V I E W In the 1950s and 1960s, the study of constitutions and constitutional issues
became distinctly unfashionable. Political analysts turned instead to what were
seen as deeper political realities, such as political culture, and the distribution of
economic and social power. To be interested in constitutions was to perpetuate an
outdated, legalistic and, frankly, boring approach to politics, to focus on how a political
system portrays itself, rather than on how it actually works. Since the 1970s,
however, constitutional questions have moved to the centre of the political stage.
Developed and developing states have adopted new constitutions, and political
conﬂict has increasingly been expressed in terms of calls for constitutional reform.
This has occurred because constitutional change has far-reaching implications,
affecting not just how decisions are made within government but also the balance
of political forces that shape these decisions. Nevertheless, there is considerable
debate about how constitutions should be conﬁgured and about the nature and
extent of their political signiﬁcance. Such issues, in turn, have had major implications
for the role of law and the position of judges. Law has widely been seen as a
vital guarantee of public order, but disagreement about the relationship between
law and morality, and especially about the extent to which law should uphold individual
freedom, have long been core themes in political theory. As far as the position
of judges is concerned, although the courts have usually been viewed as
strictly separate from politics, in practice, in many parts of the world, they have
acquired a growing capacity to shape public policy. This has encouraged a search for
a revised balance between judicial, executive and legislative power, and also led to
calls for the reform of the courts and the judiciary.
K E Y I S S U E S What is a constitution, and what forms can it take?
What is the purpose of a constitution?
To what extent do constitutions shape political practice?
What is the relationship between law and politics?
What is the political signiﬁcance of the courts?
Can judges keep out of politics? Should judges keep out of politics?
CONSTITUTIONS
Constitutions: their nature and origins
Traditionally, constitutions have been associated with two key purposes. First,
they were believed to provide a description of government itself, a neat introduction
to major institutions and their roles. Second, they were regarded as the
linchpin of liberal democracy (see p. 270), even its deﬁning feature. Sadly, neither
view is correct. While constitutions may aim to lay down a framework in which
government and political activity are conducted, none has been entirely successful
in this respect. Inaccuracies, distortions and omissions can be found in all
constitutions. Similarly, although the idea of constitutionalism (see p. 337) is
closely linked to liberal values and aspirations, there is nothing to prevent a
constitution being undemocratic or authoritarian. In the case of communist
states and some developing states, constitutions have, indeed, been profoundly
illiberal. Why then bother with constitutions? Why include in an account of the
machinery of government a discussion of constitutions? The reason is that the
objective of constitutions is to lay down certain meta-rules for the political
system. In effect, these are rules that govern the government itself. Just as government
establishes ordered rule in society at large, the purpose of a constitution is
to bring stability, predictability and order to the actions of government.
The idea of a code of rules providing guidance for the conduct of government
has an ancient lineage. These codes traditionally drew on the idea of a
higher moral power, usually religious in character, to which worldly affairs were
supposed to conform. Egyptian pharaohs acknowledged the authority of Ma’at
or ‘justice’, Chinese emperors were subject to Ti’en or ‘heaven’, Jewish kings
conformed to the Mosaic Law and Islamic caliphs paid respect to Shari’a law.
Not uncommonly, ‘higher’ principles were also enacted in ordinary law, as seen,
for example, in the distinction in the Athenian constitution between the nomos
(laws that could be changed only by a special procedure) and the psephismata
(decrees that could be passed by a resolution of the assembly). However, such
ancient codes did not amount to constitutions in the modern sense, in that they
generally failed to lay down speciﬁc provisions relating to the authority and
responsibilities of the various institutions, and rarely established authoritative
mechanisms through which provisions could be enforced and breaches of the
fundamental law punished.
Constitutions are thus best thought of as a relatively recent development.
Although the evolution of the British constitution is sometimes traced back to
the Bill of Rights of 1689 and the Act of Settlement of 1701, or even to the Magna
Carta (1215), it is more helpful to think of constitutions as late eighteenthcentury
creations. The‘age of constitutions’ was initiated by the enactment of the
ﬁrst ‘written’ constitutions: the US constitution in 1787 and the French
Declaration of the Rights of Man and the Citizen in 1789. The examples of the
USA and revolutionary France not only provided in form and substance a model
for later constitution-makers to follow, but also shed light on why and how
constitutions come about.
The enactment of a constitution marks a major breach in political continuity,
usually resulting from an upheaval such as a war, revolution or national
independence. Constitutions are, above all, a means of establishing a new polit-
332 P O L I T I C S
CONCEPT
Constitution
A constitution is, broadly,
a set of rules, written and
unwritten, that seek to
establish the duties,
powers and functions of
the various institutions of
government; regulate the
relationships between
them; and define the
relationship between the
state and the individual.
The balance between
written (legal) and
unwritten (customary or
conventional) rules varies
from system to system.
The term ‘constitution’ is
also used more narrowly
to refer to a single,
authoritative document
(a ‘written’ constitution),
the aim of which is to
codify major
constitutional provisions;
it constitutes the highest
law in the land.
ical order following the rejection, collapse or failure of an old order. In this light,
the revival of interests in constitutions since the 1970s (with new constitutions
being adopted in countries such as Portugal, Spain, Canada, Sweden and the
Netherlands, and the issue of constitutional reform becoming more prominent
in, for example, the UK, India, Canada, New Zealand and Australia) indicates
growing disenchantment, even disillusionment, with existing political systems.
In general, it can be said that political conﬂicts assume a constitutional dimension
only when those demanding change seek to redraw, and not merely readjust,
the rules of the political game. Constitutional change is therefore about
the reapportionment of both power and political authority.
Classifying constitutions
Constitutions can be classiﬁed in many different ways. These include the follow-
ing:
the form of the constitution and status of its rules (whether the constitution
is written or unwritten, or codiﬁed or uncodiﬁed)
the ease with which the constitution can be changed (whether it is rigid or
ﬂexible)
the degree to which the constitution is observed in practice (whether it is an
effective, nominal or façade constitution)
the content of the constitution and the institutional structure that it establishes
(whether it is, for example, monarchical or republican, federal or
unitary, or presidential or parliamentary).
Traditionally, considerable emphasis has been placed on the distinction between
written and unwritten constitutions. Written constitutions are, in theory, constitutions
that are enshrined in laws, while unwritten constitutions are supposedly
embodied in custom and tradition (see p. 82). The former are human artefacts, in
the sense that they have been ‘created’, while the latter have been seen as organic
entities that have evolved through history. This system of classiﬁcation, however,
has now largely been abandoned. In the ﬁrst place, an overwhelming majority of
states now possess basic written documents that lay down major constitutional
provisions. Only three liberal democracies (Israel, New Zealand and the UK)
continue to have unwritten constitutions, together with a handful of non-democratic
states such as Bhutan, Saudi Arabia and Oman. Moreover, the classiﬁcation
has always been misleading. No constitution is entirely written, in the sense that all
its rules are formal and legally enforceable. Few constitutions, for instance, specify
the roles of, or even mention, political parties and interest groups. Similarly, no
constitution is entirely unwritten, in the sense that none of its provisions have any
legal substance, all of them being conventions, customs or traditions.
Every constitution, then, is a blend of written and unwritten rules, although
the balance between these varies signiﬁcantly. In countries such as France and
Germany, in which constitutional documents act as state codes, specifying in
considerable detail the powers and responsibilities of political institutions, the
emphasis is clearly on written rules. The US constitution (the world’s ﬁrst
written constitution) is, however, a document of only 7,000 words that conﬁnes
itself, in the main, to broad principles, and so lays down only a loose framework
C O N S T I T U T I O N S , L AW A N D J U D G E S 333
CONCEPT
Convention
A convention, in everyday
language, is either a
formal political meeting,
or an agreement reached
through debate and
negotiation. A
constitutional
convention, however, is a
rule of conduct or
behaviour that is based
not on law, but on
custom and precedent.
These non-legal rules are
upheld either by a sense
of constitutional
propriety (what is
‘correct’), or by practical
circumstances (what is
‘workable’). Conventions
of this sort exist in all
constitutional systems,
usually providing
guidance where formal
rules are unclear or
incomplete, but they are
particularly significant in
‘unwritten’ constitutions.
for government. US institutions of undoubted constitutional signiﬁcance, such
as congressional committees, primary elections (see p. 228) and the bureaucracy
(see p. 361), have simply evolved over time. Other constitutions, although not
entirely unwritten, place considerable stress on conventions. For example, the
ability of UK ministers to exercise the powers of the Royal Prerogative (technically,
the monarch’s powers) and their responsibility, individually and collectively,
to Parliament is based entirely on convention.
The worldwide trend, however, is to favour the adoption of written and
formal rules. Not only has the number of unwritten constitutions diminished,
but also, within them, there has been a growing reliance on legal rules. Although
respect for the Torah, the Jewish book of holy law, encouraged the Israelis to
establish an independent state in 1948 without an authoritative constitutional
document, within two years the Knesset had voted to adopt such a constitution
by evolution over an unspeciﬁed period of time. The publication in the UK of
documents such as Questions on Procedure for Ministers has given detailed formal
substance to practices that were previously covered by ill-deﬁned conventions.
The passage in New Zealand of the Constitution Act 1986 (which consolidated
previously scattered laws and principles), and the adoption in 1990 of a bill of
rights (see p. 340), has been interpreted by many commentators as indicating
that New Zealand should no longer be classiﬁed amongst the ranks of states with
unwritten constitutions.
More helpful (and more accurate) than the written/unwritten distinction is
the contrast between codiﬁed and uncodiﬁed constitutions. A codiﬁed constitution
is one that is based on the existence of a single authoritative document.
As pointed out above, most constitutions can be so classiﬁed, even though they
may differ in the degree to which constitutional detail is speciﬁed and the extent
to which other provisions are unwritten. The signiﬁcance of codiﬁcation is,
nevertheless, considerable.
First, in a codiﬁed constitution, the document itself is authoritative, in the
sense that it constitutes ‘higher’ law; indeed, the highest law of the land. The
constitution binds all political institutions, including those that enact ordinary
law. The existence of a codiﬁed constitution thus establishes a hierarchy of laws.
In unitary states, a two-tier legal system exists, in which the constitution stands
above statute law. In federal states, there is a third tier, in the form of ‘lower’
state or provincial laws. Second, the status of the codiﬁed document is ensured
by the fact that at least certain of its provisions are entrenched, in the sense that
it is difﬁcult to amend or abolish them. The procedure for establishing the
constitution, and for subsequently revising it, must therefore be in some way
more complex and difﬁcult than the procedure for enacting ordinary statute
laws. Finally, the logic of codiﬁcation dictates that, as the constitution sets out
the duties, powers and functions of government institutions in terms of ‘higher’
law, it must be justiciable, meaning that all political bodies must be subject to the
authority of the courts and, in particular, a supreme or constitutional court. This
substantially enhances the importance of judges, or at least senior judges, who
become, in effect, the ﬁnal arbiters of the constitution, and thereby acquire the
power of judicial review (see p. 347).
Uncodiﬁed constitutions, although few in number, have very different characteristics.
The UK constitution, which is properly thought of as an uncodiﬁed
but partly-written constitution, draws on a variety of sources. Chief amongst
334 P O L I T I C S
Codified constitution: A
constitution in which key
constitutional provisions are
collected together in a single
legal document, popularly
known as a ‘written
constitution’ or ‘the
constitution’.
Statute law: Law that is
enacted by the legislature.
Uncodified constitution: A
constitution that is made up of
rules drawn from a variety of
sources, in the absence of a
single authoritative document.
these are statute law, which is made by Parliament, common law, conventions,
and various works of authority that clarify and explain the constitution’s unwritten
elements. The absence of a codiﬁed document implies, most importantly,
that the legislature enjoys sovereign or unchallengeable authority. It has the right
to make or unmake any law whatsoever, no body having the right to override or
set aside its laws. By virtue of their legislative supremacy, bodies such as the UK
Parliament and the Knesset in Israel are able to function as the ultimate arbiters
of the constitution: the constitution means what they say it means.
In the UK in particular, this has stimulated deep controversy and widespread
criticism. Parliamentary sovereignty (see p. 336) has been held responsible for
what Lord Hailsham (1976) termed ‘elective dictatorship’; that is, the ability of a
government to act in any way it pleases as long as it maintains majority control
of the House of Commons. The concentration of power in the hands of the executive
to which this leads, and the consequent threat that it poses to individual
rights and liberties, has encouraged some to argue that the UK has no constitution
at all. If governments can, once elected, act in whatever way they wish, they
are surely at liberty to enlarge their own powers at will, and are thereby unconstrained
by constitutional rules of any kind. In Grifﬁth’s (2010) phrase, the
constitution in the UK is ‘what happens’. Such concerns fuelled, in the 1980s and
1990s, a growing campaign in the UK for radical constitutional reform, which,
C O N S T I T U T I O N S , L AW A N D J U D G E S 335
Focus on . . .
A codified constitution: strengths and weaknesses
The strengths of a codified or written constitution
include the following:
Major principles and key constitutional provisions
are entrenched, safeguarding them from interference
by the government of the day.
The power of the legislature is constrained, cutting
its sovereignty (see p. 58) down to size.
Non-political judges are able to police the constitution
to ensure that its provisions are upheld by
other public bodies.
Individual liberty is more securely protected, and
authoritarianism is kept at bay.
The codified document has an educational value, in
that it highlights the central values and overall
goals of the political system.
The drawbacks or weaknesses of codification include
the following:
A codified constitution is more rigid, and may
therefore be less responsive and adaptable than an
uncodified one.
Government power may be more effectively
constrained by regular elections than by a constitutional
document.
With a codified constitution, constitutional
supremacy resides with non-elected judges, rather
than with publicly accountable politicians.
Constitutional provisions enshrined in custom and
convention may be more widely respected because
they have been endorsed by history and not
‘invented’.
Constitutional documents are inevitably biased,
because they endorse one set of values or principles
in preference to others, meaning that they may
precipitate more conflicts than they resolve.
Common law: Law based on
custom and precedent; law that
is supposedly ‘common’ to all.
together with the Labour Party’s long period in opposition (1979–97), eventually
converted the party to the reformist cause. From 1997 onwards, the Blair government
reshaped important aspects of the UK’s constitutional landscape.
Devolution (see p. 390) was introduced in Scotland,Wales and Northern Ireland;
referendums (see p. 201) and proportional electoral systems were more widely
used; the European Convention on Human Rights (1950) was incorporated into
UK law through the Human Rights Act (1998); most hereditary peers were
removed from the House of Lords; and freedom of information legislation was
passed. Although this programme stops short of codiﬁcation, some have argued
that it has brought about a shift from parliamentary sovereignty to popular
sovereignty (Hazell, 2008).
An alternative form of classiﬁcation distinguishes between rigid and ﬂexible
constitutions. What procedures exist for amending a constitution? How easily
does the constitution adapt to changing circumstances? On the face of it, codiﬁed
constitutions are likely to be relatively inﬂexible because their provisions are in
some way entrenched in ‘higher’ law. By the same token, uncodiﬁed ones appear
to be ﬂexible and adaptable, because laws of constitutional signiﬁcance can be
changed through the ordinary legislative process and conventions are, by their
nature, based on conduct and practice. However, there is no simple relationship
between written constitutions and rigidity, or unwritten ones and ﬂexibility.
Various degrees of ﬂexibility are possible, and, surprisingly, the ﬂexibility of
a constitution is not directly proportional to the formality of its procedures and
rules. Whereas the US constitution has endured, albeit with amendments, since
1787, France has had, over the same period, no fewer than 17 constitutions.
Similarly, amendment procedures may be more or less complex or difﬁcult. In
Australia, Denmark, Ireland and Spain, for example, referendums are used to
obtain the public’s approval for constitutional amendments or to ratify those
endorsed by the legislature. In other cases, special majorities must be achieved in
the legislature, as in the requirement in Germany’s Basic Law (1949) that amendments
must have two-thirds support in both the Bundestag and the Bundesrat. In
the USA, in addition to two-thirds majorities in both houses of Congress, constitutional
amendments must be ratiﬁed by three-quarters of the 50 states. This
requirement has meant that a mere 27 constitutional amendments have been
passed, with 10 of these (the so-called ‘Bill of Rights’) having been introduced in
the ﬁrst two years of the constitution’s existence.
The seeming rigidity this produces is, however, misleading. Although the
words of the US constitution and other codiﬁed documents may change little,
their meanings are subject to constant revision and updating through the process
of judicial interpretation and reinterpretation. The role of the judiciary in this
respect is examined in the ﬁnal main section of this chapter. Just as written provisions
can allow for ﬂexibility, unwritten ones can, at times, be rigid. While, in the
UK, the conventions of ministerial responsibility have proved to be so adaptable
they can almost be reshaped at the convenience of the government of the day,
other conventions are so deeply engrained in the political culture and in popular
expectations that their abandonment or modiﬁcation is virtually unthinkable.
This certainly applies in the case of conventions that restrict the political role of
the monarchy and prevent monarchs challenging the authority of Parliament.
A third system of classiﬁcation takes account of the relationship between
constitutional rules and principles, on the one hand, and the practice of
336 P O L I T I C S
CONCEPT
Parliamentary
sovereignty
Parliamentary
sovereignty refers to the
absolute and unlimited
authority of a parliament
or legislature, reﬂected in
its ability to make,
amend or repeal any law
it wishes. Parliamentary
sovereignty is usually
seen as the central
principle of the UK
constitution, and results
from (1) the absence of a
codiﬁed constitution,
(2) the supremacy of
statute law over other
forms of law, (3) the
absence of rival
legislatures, and (4) the
convention that no
parliament can bind its
successors. Parliamentary
sovereignty is a strictly
legal, and not political,
form of sovereignty (see
p. 58).
Popular sovereignty: The
principle that there is no higher
authority than the will of the
people, directly expressed.
government (the ‘working’ constitution), on the other. As early as 1867, Walter
Bagehot in The English Constitution ([1867] 1963) distinguished between the
‘digniﬁed’ parts of the constitution (the monarchy and the House of the Lords),
which promoted popular allegiance but exercised little effective power, and its
‘efﬁcient’ parts (the cabinet and the House of Commons). An effective constitution
is one that fulﬁls two criteria. First, in major respects at least, the practical
affairs of government correspond to the provisions of the constitution. Second,
this occurs because the constitution has the capacity, through whatever means,
to limit governmental behaviour.
An effective constitution therefore requires not merely the existence of
constitutional rules, but also the capacity of those rules to constrain government
and establish constitutionalism. As we shall see below, however, all constitutions
are violated to a greater or lesser extent; the real issue is thus the signiﬁcance and
regularity of such violations. Some constitutions can be classiﬁed as nominal, in
that their texts or principles may accurately describe governmental behaviour
but fail to limit it. For instance, the 1982 Chinese constitution acknowledges that
China is ‘a socialist state under the people’s dictatorship’, but the constitution
lacks signiﬁcance because the judiciary, charged with interpreting the constitution,
is kept under ﬁrm party control. Other states have sham or façade constitutions.
These differ substantially from political practice and tend to fulﬁl, at
best, only a propaganda role. This is particularly the case in dictatorial or authoritarian
states, where the commitment to individual rights and liberties extends
little further than the content of the state’s constitutional documents.
Constitutions have also been classiﬁed in terms of their content and, speciﬁcally,
by the institutional structure they underpin. This enables a number of
distinctions to be made. For example, constitutions have traditionally been categorized
as either monarchical or republican. In theory, the former invest constitutional
supremacy in a dynastic ruler, while, in the latter, political authority is
derived from the people. However, the emergence of constitutional monarchies
(see p. 292), in which power has effectively been transferred to representative
institutions, has meant that, apart from in the surviving absolute monarchies in
states such as Swaziland, Oman and Saudi Arabia, this distinction is no longer of
central importance. More widely used, though, is the distinction between
unitary and federal constitutions (discussed more fully in Chapter 17); that is,
the difference between constitutions that concentrate sovereignty in a single
national body and ones that divide it between two levels of government.
Yet another approach is to differentiate between what are seen as parliamentary
constitutions and presidential constitutions. The key here is the relationship
between the executive and the assembly. In parliamentary systems, the executive
is derived from and accountable to the assembly; in presidential systems the two
branches of government function independently on the basis of the separation
of powers (see p. 313). These different systems are examined in Chapters 13 and
14. Finally, pluralist constitutions can be contrasted with monopolistic ones. The
former are characteristic of liberal democracies, in that they ensure that political
power is dispersed, usually through guarantees of participatory rights and party
competition. The latter are more commonly found in communist or authoritarian
states where the unquestionable authority of a ‘ruling’ party or supreme
leader is formally entrenched, thus demonstrating that a constitution and liberal
constitutionalism do not necessarily go hand-in-hand.
C O N S T I T U T I O N S , L AW A N D J U D G E S 337
CONCEPT
Constitutionalism
Constitutionalism, in a
narrow sense, is the
practice of limited
government ensured by
the existence of a
constitution.
Constitutionalism can,
thus, be said to exist
when government
institutions and political
processes are effectively
constrained by
constitutional rules. More
broadly, constitutionalism
is a set of political values
and devices that
fragment power, thereby
creating a network of
checks and balances.
Examples of such devices
include codified
constitutions, bills of
rights, the separation of
powers, bicameralism,
and federalism.
The purpose of a constitution
Not only do the vast majority of states have constitutions, but also most institutions
and organized groups have rules that have some kind of constitutional effect.
This applies in the case of international bodies such as the United Nations and the
European Union, and is also true of regional and provincial government, political
parties, interest groups, corporations, churches, clubs and so on. The popularity of
these constitutional rules draws attention to the fact that constitutions somehow
play a vital role in the running of organizations. Why is it difﬁcult, and perhaps
impossible, for states and other organized bodies to function without a constitution?
The difﬁculty with answering this question is that constitutions do not have
a single or simple purpose. Rather, they have a number of functions and are used
in a variety of ways. The most important of these are to:
empower states
establish unifying values and goals
provide government stability
protect freedom
legitimize regimes.
Empowering states
Although the popular image of constitutions is that they limit government
power, a more basic function is that they mark out the existence of states and
make claims concerning their sphere of independent authority. The creation of
new states (whether through the overthrow of colonialism, the fragmentation of
larger states, or the uniﬁcation of smaller ones) is invariably accompanied by the
enactment of a constitution. Indeed, it can be argued that such states exist only
once they have a constitition, since without one they lack formal jurisdiction
over a particular territory, or a governing apparatus that can effectively exercise
that jurisdiction.
The state of India can thus be said to have come into existence in the period
between the granting of independence in 1947 and the adoption of its federal
constitution in 1950: during this time, a UK-appointed Governor General
continued to exercise supervision. In the same way, the American Declaration of
Independence in 1776 initiated the process through which the USA achieved
statehood, but this was not completed until the US constitution was ratiﬁed in
1789. The need for empowerment also applies to subnational and supranational
bodies. In federal systems, for example, constituent provinces or states have their
own constitutions in order to guarantee their sphere of authority relative to that
of central government. Although the idea of a formal EU constitution was abandoned
in 2005, following its rejection by the Netherlands and France, a collection
of treaties – including the Treaty of Rome (1957), the Single European Act
(1986) and the Treaty of European Union (1993) and the Treaty of Lisbon
(2009) – have constitutional effect, in that they authorize EU bodies to intervene
in various ways in the affairs of member states. This highlights the fact that,
although treaties differ from constitutions, the former can constitute part of the
latter. EU law and treaties, for instance, serve as a source of the constitution for
each EU member state.
338 P O L I T I C S
Treaty: A formal agreement
between two or more states, on
matters of peace, trade or some
other aspect of international
relations.
Establishing values and goals
In addition to laying down a framework for government, constitutions invariably
embody a broader set of political values, ideals and goals. This is why constitutions
cannot be neutral; they are always entangled, more or less explicitly,
with ideological priorities. The creators of constitutions therefore seek to invest
their regime with a set of unifying values, a sense of ideological purpose and a
vocabulary that can be used in the conduct of politics. In many cases, these aims
are accomplished explicitly in preambles to constitutional documents, which
often function as statements of national ideals. These ideals can vary from a
commitment to democracy, freedom or the welfare state to a belief in socialism,
federalism or Islam. The 1982 Turkish constitution is dedicated to ‘the concept
of nationalism as outlined by Atatürk’, the founder of the republic, while
Germany’s Basic Law states a determination to ‘serve the peace of the world’.
In other cases, however, these values and ideological priorities are largely
implicit. Charles Beard (1913), for example, argued that the provisions of the US
constitution were shaped essentially by economic interests, in particular the
desire to defend property against the rising power of the propertyless masses.
Similarly, it can be argued that, while the Fourteenth Amendment and Fifteenth
Amendment to the US constitution acknowledge the signiﬁcance of racial divisions,
the constitution effectively conceals divisions that arise from social class or
gender. In the case of the UK constitution, the doctrine of parliamentary sovereignty
has been interpreted as a means of discouraging, or even discrediting,
forms of extraparliamentary political action.
Providing government stability
In allocating duties, powers and functions amongst the various institutions of
government, constitutions act as ‘organizational charts’, ‘deﬁnitional guides’ or
‘institutional blueprints’. As such, they formalize and regulate the relationships
between political bodies and provide a mechanism through which conﬂicts can
be adjudicated and resolved. The Indian constitution, for instance, contains a
highly detailed description of institutional powers and relationships in a lengthy
document containing almost 400 articles. Despite varying in their degree of
speciﬁcity and their effectiveness, all constitutions fulﬁl the vital function of
introducing a measure of stability, order and predictability to the workings of
government. From this point of view, the opposite of constitutional government
is random, capricious or arbitrary government. This is precisely why constitutions
go hand-in-hand with organization. Complex patterns of social interaction
can be maintained only if all concerned know the ‘rules of the game’ and, therefore,
who can be expected to do what.
Protecting freedom
In liberal democracies, it is often taken for granted that the central purpose of a
constitution is to constrain government with a view to protecting individual
liberty. This is why constitutions tend to be viewed as devices for establishing
and maintaining limited government. Certainly, constitutions lay down the
relationship between the state and the individual, marking out the respective
C O N S T I T U T I O N S , L AW A N D J U D G E S 339
CONCEPT
Freedom
The term ‘freedom’ (or
liberty) means, in its
broadest sense, the
ability to think or act as
one wishes. A distinction
is nevertheless often
made between ‘negative’
and ‘positive’ liberty
(Berlin, 1958). Negative
freedom means noninterference:
the absence
of external constraints on
the individual. Freedom,
in this sense, is a private
sphere within which
individuals are ‘at liberty’
to act as they wish.
Positive freedom is linked
to the achievement of
some identifiable goal or
benefit, usually in the
sense of personal
development, selfrealization,
or self-
mastery.
Limited government:
Government operating within
constraints, usually imposed by
law, a constitution or
institutional checks and
balances.
spheres of government authority and personal freedom. They do this largely by
deﬁning civil rights and liberties, often through the means of a bill of rights. The
impact of liberal constitutionalism has ensured that, in many cases, ‘classic’ or
traditional civil liberties (see p. 404), such as freedom of expression, freedom of
religious worship, freedom of assembly and freedom of movement, are recognized
as ‘fundamental’ in that they are constitutionally guaranteed. These socalled
‘negative rights’ have a liberal character in that, because the state is thus
prevented from encroaching on the individual, they mark out a sphere of
government inactivity.
A growing number of states have, in addition, entrenched a range of
economic, social and cultural rights, such as the right to health care, the right to
education and, even, the right to work. These positive rights, however, have
caused controversy, because they are linked to the expansion, not contraction, of
government, and because their provision is dependent on the economic and
social resources available to the state in question. Can these rights and freedoms
be thought of as ‘fundamental’ when there is no practical way of guaranteeing
their delivery? In the Indian constitution, this is acknowledged through the qualiﬁcation
that the right to work, for example, is secured ‘within the limits of
economic capacity and development’.
Legitimizing regimes
The ﬁnal function of a constitution is to help build legitimacy (see p. 81). This
explains the widespread use of constitutions, even by states with constitutions
that are merely nominal or a complete façade. This legitimation process has two
dimensions. In the ﬁrst place, the existence of a constitution is almost a prerequisite
for a state’s membership of the international community and for its
recognition by other states. More signiﬁcant, however, is the ability to use a
constitution to build legitimacy within a state through the promotion of respect
and compliance amongst the domestic population. This is possible because a
constitution both symbolizes and disseminates the values of the ruling elite, and
invests the governmental system with a cloak of legality. To make the constitution
more effective in this respect, attempts are often made to promote veneration
for the constitution itself, either as a document of historical importance or
as a symbol of national purpose and identity.
Do constitutions matter?
The value of a constitution is often taken for granted. The existence of a constitution,
so the assumption goes, provides beneﬁts such as political stability,
limited government, and guaranteed rights and liberties. Nowhere is this faith in
a constitution more developed than in the USA, where it amounts, in Louis
Hartz’s (1955) words, to ‘the cult of constitution worship’. Of course, this faith
has been severely tested, not least by allegations during the Watergate crisis that
President Richard Nixon had helped to cover up illegal acts by senior White
House ofﬁcials during the 1972 election campaign. Nevertheless, Nixon’s resignation
in 1974 enabled his successor, Gerald Ford, to declare that ‘our constitution
works’, reiterating the classic sentiment of constitutionalism: ‘we have a
government of laws, not of men’. However, the mere existence of a constitution
340 P O L I T I C S
CONCEPT
Bill of rights
A bill of rights is a
constitutional document
that specifies the rights
and freedoms of the
individual, and so defines
the legal extent of civil
liberty (see p. 404).
Entrenched bills of rights
can be distinguished from
statutory ones. An
entrenched bill of rights
is enshrined in ‘higher’
law and, thus, provides
the basis for
constitutional judicial
review (see p. 347). A
statutory bill of rights, or
statute of rights, can be
amended or repealed
through the same
processes as other
statute laws. Unlike an
entrenched bill of rights,
it does not breach
parliamentary
sovereignty (see p. 336).
Negative rights: Rights that
mark out a realm of
unconstrained action, and thus
check the responsibilities of
government.
Positive rights: Rights that
make demands of government
in terms of the provision of
resources and support, and thus
extend its responsibilities.
does not ensure that a government is constitutional. Indeed, there is little
evidence that a constitution is a major guarantee against tyranny, still less that it
offers a ‘ticket to Utopia’.
Constitutions ‘work’ in certain circumstances. In other words, they serve
their various purposes only when they are supported by a range of other
cultural, political, economic and social conditions. In particular, constitutions
must correspond to and be supported by the political culture; successful constitutions
are as much a product of the political culture as they are its creator. This
is why so many of the model liberal-democratic constitutions bequeathed to
developing states by departing colonial rulers failed to take root. Constitutional
rules guaranteeing individual rights and political competition may be entirely
irrelevant in societies with deeply entrenched collectivist values and traditions,
especially when such societies are struggling to achieve basic economic and
social development.
In the same way, the various Soviet constitutions not only enshrined ‘socialist’
values that were foreign to the mass of the people, but also failed to develop
popular support for such values during the 74 years of the USSR’s existence. In
the USA, as a result of widespread and institutionalized racism, the constitutional
guarantees of civil and voting rights for black Americans enacted after the
Civil War were often not upheld in Southern states until the 1960s. On the other
hand, the 1947 Japanese constitution, despite the fact that it was imposed by the
occupying USA and emphasized individual rights in place of the more traditional
Japanese stress on duty, has proved to be remarkably successful, providing
a stable framework for postwar reconstruction and political development. As in
postwar Germany, however, the Japanese constitution has had the advantage of
being sustained by an ‘economic miracle’.
A second key factor is whether or not a constitution is respected by rulers and
accords with the interests and values of dominant groups. Germany’s Weimar
constitution (1919), for example, despite the fact that it enshrined an impressive
array of rights and liberties, was easily set aside in the 1930s as Hitler constructed
his Nazi dictatorship. Not only did the competitive democracy of the Weimar
regime conﬂict with the ambitions of the Nazis and conservative elites in business
and the military, but it was also poorly supported by a population facing
economic crisis and little accustomed to representative government. In India,
under Indira Gandhi during 1975–77, and in Pakistan, under General Zia ulHaq
during 1977–81, major provisions of the constitutions were abrogated by
the declaration of ‘states of emergency’. In these cases, the support of the military
leadership proved to be far more crucial than respect for constitutional
niceties. The UK’s uncodiﬁed constitution is often said to provide unusual scope
for abuse because it relies so heavily on the self-restraint of the government of
the day. This became particularly apparent as the Conservative governments of
the 1980s and 1990s exploited the ﬂexibility inherent in parliamentary sovereignty
to alter the constitutional roles of institutions such as the civil service,
local government and the trade unions, and, some argued, substantially undermined
civil liberties.
The ﬁnal factor is the adaptability of a constitution and its ability to remain
relevant despite changing political circumstances. No constitution reﬂects political
realities, and few set out speciﬁcally to do so. Generally, successful constitutions
are sufﬁciently ﬂexible to accommodate change within a broad and
C O N S T I T U T I O N S , L AW A N D J U D G E S 341
State of emergency: A
declaration by government
through which it assumes
special powers, supposedly to
allow it to deal with an unusual
threat.
enduringly relevant framework; those that are inﬁnitely ﬂexible are, strictly
speaking, not constitutions at all. The US constitution is particularly interesting
in this respect. Its ‘genius’ has been its concentration on broad principles and the
scope it therefore provides to rectify its own deﬁciencies. US government has
thus been able to evolve in response to new challenges and new demands. The
formal amendment process, for example, allowed US institutions to be democratized
and, in the twentieth century, judicial interpretation made possible the
growth of presidential powers, a shift of authority from state to federal
government and, in certain respects, a widening of individual rights.
Such changes, however, can be said to have occurred within the constitution,
in that core principles such as the separation of powers, federalism and individual
liberty have continued to be respected, albeit in renewed form. The same is
true of the reforms the Blair government introduced in the UK’s uncodiﬁed
constitution after 1997. In contrast, the constitution of the Fourth French
Republic proved to be unworkable, because the emphasis it placed on the
National Assembly tended to produce a succession of weak and unstable governments.
As the constitution offered no solution to this impasse, the result was a
new constitution in 1958, inaugurating the Fifth Republic, which broadened
presidential power according to a blueprint devised by General de Gaulle.
THE LAW
Law, morality and politics
The relationship between law and morality is one of the thorniest problems in
political theory. On the surface, law and morality are very different things. Law
is a distinctive form of social control, backed up by the means of enforcement; it
deﬁnes what may and what may not be done. Morality, on the other hand, is
concerned with ethical questions and the difference between ‘right’ and ‘wrong’;
it prescribes what should and what should not be done. Moreover, while law has
an objective character, in that it is a social fact, morality is usually treated as a
subjective entity; that is, as a matter of opinion or personal judgement.
Nevertheless, natural law theories that date back to Plato (see p. 13) and Aristotle
(see p. 6) suggest that law is, or should be, rooted in a moral system of some kind.
In the early modern period, such theories were often based on the idea of Godgiven
‘natural rights’. This assertion of a link between law and morality became
fashionable again as the twentieth century progressed, and it was usually associated
with the ideas of civil liberties or human rights.
However, the rise in the nineteenth century of the ‘science of positive law’
offered a very different view of the relationship between law and morality. Its
purpose was quite simply to free the understanding of law from moral, religious
and mystical assumptions. John Austin (1790–1859) developed the theory of
‘legal positivism’, which deﬁned law not in terms of its conformity to higher
moral or religious principles, but in terms of the fact that it was established and
enforced: the law is the law because it is obeyed. This approach was reﬁned by H.
L. A. Hart in The Concept of Law (1961). Hart suggested that law stemmed from
the union of ‘primary’ and‘secondary’ rules, each of which had a particular function.
Primary rules regulate social behaviour and can be thought of as the
342 P O L I T I C S
CONCEPT
Human rights
Human rights are rights
to which people are
entitled by virtue of
being human; they are a
modern and secular
version of ‘natural rights’.
Human rights are
universal (in the sense
that they belong to
human beings
everywhere, regardless of
race, religion, gender and
other differences),
fundamental (in that a
human being’s
entitlement to them
cannot be removed),
indivisible (in that civic
and political rights, and
economic, social and
cultural rights are
interrelated and co-equal
in importance) and
absolute (in that, as the
basic grounds for living a
genuinely human life,
they cannot be qualified).
Law: A set of public and
enforceable rules that apply
throughout a political
community; law is usually
recognized as binding.
Legal positivism: A legal
philosophy in which law is
defined by the capacity to
establish and enforce it, not by
its moral character.
C O N S T I T U T I O N S , L AW A N D J U D G E S 343
At the heart of questions about the relationship between law and morality is the issue of freedom and the proper
balance between those moral choices that should be made by society and enforced through law, and those that should
be reserved for the individual. While liberals have typically argued that laws are only justifiable if they enlarge, rather
than contract, the sphere of freedom, conservatives and others have claimed that law serves interests beyond those of the
individual.
YES NO
Debating . . .
Is the central purpose of law to protect freedom?
Personal and social development. The classic liberal
belief is that law and freedom are intrinsically related.
Freedom is only possible ‘under the law’ (because each
citizen is a threat to every other citizen) but, at the same
time, the sphere of law should not extend beyond the
protection of freedom (otherwise law is non-legitimate).
In On Liberty ([1859] 1982), J. S. Mill (see p. 198) thus
asserted that, ‘Over himself, over his own body and mind
the individual is sovereign’. Mill was prepared to accept
the legitimacy of law only when it was designed to
prevent ‘harm to others’. This so-called ‘harm principle’
can be justified in two ways. First, it reflects the fact that
human beings will only grow or develop if they enjoy the
widest possible scope for unconstrained action, allowing
them to make their own moral decisions. Second, a wider
sphere for freedom promotes healthy debate and discussion,
so advancing the cause of reason and promoting
social progress.
Fundamental freedoms. An alternative defence for
liberty-based law derives from attempts to establish
freedom as a fundamental value. In Immanuel Kant’s (see
p. 410) view, freedom consists in being bound by laws
that are, in some sense, of one’s own making, as individuals
should be treated as ‘ends in themselves’. However, in
modern political debate the notion of human beings as
autonomous agents is most commonly grounded in the
doctrine of human rights. Human rights are rights to
which people are entitled by virtue of being human. They
are therefore ‘fundamental’ rights, in that they are
inalienable: they cannot be traded away or revoked. The
doctrine of human rights implies that civil liberties –
especially classic civil liberties such as freedom of speech,
freedom of the press and freedom of movement and
assembly – are fundamental entitlements, which are
upheld for all people and in all circumstances. To treat
such rights and freedoms, not as moral absolutes, but as
matters of convenience, is to leave the door open to
tyranny and oppression.
Order over freedom. The flaw in the liberal theory of law
is a failure to recognize that law exists, primarily, not to
defend freedom, but to uphold order; and that, by widening
freedom, order can be put at risk. In this view, liberals
can only argue that the protection of freedom should
be set above other considerations because they embrace
an optimistic model of human nature in which people
are portrayed as rational and moral creatures. Citizens
can thus be endowed with freedom because they can be
trusted, in normal circumstances, not to use and abuse
their fellow citizens. Conservatives, in contrast, adopt a
pessimistic, even Hobbesian, view of human nature, but
one which they argue is more realistic. As individuals are
greedy, selfish and power-seeking creatures, orderly existence
can only be maintained through strict laws, firm
enforcement and, where necessary, harsh penalties. ‘Soft’
laws or the treatment of civil liberties as fundamental
freedoms threaten to bring about a descent into crime
and delinquency.
Enforcing morality. Instead of promoting personal and
social development, unrestrained freedom may damage
the fabric of society. At issue here is the moral and
cultural diversity which Mill’s view permits, or even
encourages. A classic statement of this position was
advanced by Patrick Devlin in The Enforcement of Morals
(1968), which argues that there is a ‘public morality’
which society has the right to enforce through the instrument
of law. Underlying this position is the belief that
society is held together by a ‘shared’ morality, a fundamental
agreement about what is ‘good’ and what is ‘evil’.
In particular, Devlin argued that Mill’s notion of harm
should be extended to include ‘offence’, at least when
actions provoke what Devlin called ‘real feelings of revulsion’,
rather than simple dislike. The central theme of
such arguments is that morality is simply too important
to be left to the individual. Where the interests of society
and those of the individual conflict, law must always take
the side of the former.
344 P O L I T I C S
‘content’ of the legal system: criminal law is an example. Secondary rules, on the
other hand, are rules that confer powers on the institutions of government. They
lay down how primary rules are made, enforced and adjudicated, thus determining
their validity.
In view of the crucial role that law plays in regulating social behaviour, no
one can doubt that it has immense political signiﬁcance. Nevertheless, questions
about the actual and desirable relationship between law and politics – reﬂecting
on the nature of law, and its function and proper extent – have provoked deep
controversy. Much of our understanding of law derives from liberal theory. This
portrays law as the essential guarantee of civilized and orderly existence, drawing
heavily on social-contract theory (see p. 62). In the absence of the state and a
system of law – that is, in the ‘state of nature’ – each individual is at liberty to
abuse or threaten every other individual. The role of law, then, is to protect each
member of society from his or her fellow members, thereby preventing their
rights and liberties from being encroached on. However, the notion that the
central purpose of law is to protect freedom has provoked deep controversy (see
p. 343).
As this protection extends throughout society and to every one of its
members, law has, liberals insist, a neutral character. Law is therefore ‘above’
politics, and a strict separation between law and politics must be maintained to
prevent the law favouring the state over the individual, the rich over the poor,
men over women, the ethnic majority over ethnic minorities, and so on. This is
why liberals place such a heavy emphasis on the universal authority of law,
embodied in the principle of the rule of law. This view of law also has signiﬁcant
implications for the judiciary, whose task it is to interpret law and adjudicate
between parties to a dispute. Notably, judges must be independent, in the sense
that they are ‘above’ or ‘outside’ the machinery of government and not subject to
political inﬂuence.
THE JUDICIARY
The judiciary is the branch of government that is empowered to decide legal
disputes. The central function of judges is therefore to adjudicate on the
meaning of law, in the sense that they interpret or ‘construct’ law. The signiﬁcance
of this role varies from state to state and from system to system. However,
it is particularly important in states with codiﬁed constitutions, where it extends
to the interpretation of the constitution itself, and so allows judges to arbitrate
in disputes between major institutions of government, or between the state and
the individual.
The signiﬁcance of the judiciary has also been enhanced by the growing
importance of international law. The International Court of Justice in the Hague
(formally known as the World Court) is the judicial arm of the United Nations.
It provides a forum in which disputes between states can be settled, although, as
international law respects the principle of sovereignty, this requires the consent
of all parties. The International Criminal Court (ICC) has revived the idea
established by the 1945–46 Nuremberg trials of war crimes or ‘crimes against
humanity’. The ICC has indicted and arrested a number of people for mass
crimes including, in 2001, the former Yugoslav president, Slobodan Milosevic. In
CONCEPT
Rule of law
The rule of law is the
principle that the law
should ‘rule’, in the sense
that it establishes a
framework to which all
conduct and behaviour
must conform. This
requirement applies
equally to all the
members of society, be
they private citizens or
government officials. As
such, rule of law is a core
liberal-democratic
principle. In continental
Europe, it has often been
enshrined in the German
concept of the
Rechtsstaat, a state based
on law. In the USA, the
rule of law is closely
linked to the status of
the constitution as
‘higher’ law and the
doctrine of ‘due process’.
In the UK, it is grounded
in common law and
implies that a codified
constitution is not
needed.
War crimes: Acts that
violate international
conventions on the conduct of
war, usually involving either
aggressive warfare or atrocities
carried out against civilians or
prisoners of war.
addition, there are international courts with regional jurisdiction, such as the
EU’s European Court of Justice in Luxembourg and the (unrelated) European
Court of Human Rights in Strasbourg.
One of the chief characteristics of the judiciary – in liberal-democratic
systems, its deﬁning characteristic – is that judges are strictly independent and
non-political actors. Indeed, the ability of judges to be‘above’politics is normally
seen as the vital guarantee of a separation between law and politics. However,
this image of the judiciary is always misleading. The judiciary is best thought of
as a political, not merely a legal, institution.As central ﬁgures in the legal process,
judges play a vital role in such undeniably political activities as conﬂict resolution
and the maintenance of state authority. Although judges are clearly political,
in the sense that their judgements have an undeniable political impact, debate
about the political signiﬁcance of the judiciary revolves around two more
controversial questions. First, are judges political in that their actions are shaped
by political considerations or pressures? Second, do judges make policy in the
sense that they encroach on the proper responsibilities of politicians?
Are judges political?
Certain political systems make no pretence of judicial neutrality or impartiality.
For example, in orthodox communist regimes, the principle of ‘socialist legality’
dictated that judges interpret law in accordance with Marxism–Leninism,
subject to the ideological authority of the state’s communist party. Judges thus
became mere functionaries who carried out the political and ideological objectives
of the regime itself. This was most graphically demonstrated by the ‘show
trials’ of the 1930s in the USSR. The German courts during the Nazi period were
similarly used as instruments of ideological repression and political persecution.
In other states, however, judges have been expected to observe strict political
neutrality. In states that subscribe to any form of liberal constitutionalism, the
authority of law is linked to its non-political character, which, in turn, is based
on the assumption that the law is interpreted by independent and impartial
judges.
External bias
Judges may be political in two senses: they may be subject to external bias or to
internal bias. External bias is derived from the inﬂuence that political bodies, such
as parties, the assembly and government, are able to exert on the judiciary. Internal
bias stems from the prejudices and sympathies of judges themselves, particularly
from those that intrude into the process of judicial decision-making. External bias
is supposedly kept at bay by respect for the principle of judicial independence. In
most liberal democracies, the independence of the judiciary is protected by their
security of tenure (the fact that they cannot be sacked), and through restrictions
on the criticism of judges and court decisions. However, in practice, the independence
of judges may be compromised because of the close involvement of political
bodies in the process of judicial recruitment and promotion.
Judges in the USA supposedly hold ofﬁce for life on condition of ‘good behaviour’.
Supreme Court judges, however, are appointed by the US president, and
these appointments are subject to conﬁrmation by the Senate. This process has,
C O N S T I T U T I O N S , L AW A N D J U D G E S 345
CONCEPT
Neutrality
Neutrality is the absence
of any form of
partisanship or
commitment; it consists
of a refusal to ‘take
sides’. In international
relations, neutrality is a
legal condition through
which a state declares its
non-involvement in a
conflict or war. As a
professional principle,
applied to the likes of
judges, civil servants, the
military and other public
officials, it implies,
strictly speaking, the
absence of political
sympathies and
ideological leanings. In
practice, the less exacting
requirement of
impartiality is usually
applied. This allows that
political sympathies may
be held as long as these
do not intrude into, or
conflict with, professional
or public responsibilities.
Judicial independence: The
constitutional principle that
there should be a strict
separation between the
judiciary and other branches of
government; an application of
the separation of powers.
since F. D. Roosevelt’s battles with the court in the 1930s, led to a pattern of overt
political appointment. Presidents select justices on the basis of party afﬁliation
and ideological disposition, and, as occurred to Robert Bork in 1987, the Senate
may reject them on the same grounds. The liberal tendencies of the Warren Court
(1954–69), and the more conservative inclinations of the Burger Court (1969–
86), the Rehnquist Court (1986–2005) and the Roberts Court (since 2005), have
thus been brought about largely through external political pressure.
Politics may also intrude into the US judiciary due to the practice found in
most states of choosing some, most or all of their judges through contestable
popular elections, some of which are openly partisan. Supporters of this practice
argue that democracy requires that the electoral principle should apply as much
to those who interpret law as to those who make law. Otherwise, judges are
accountable to no one, being able to act according to their own views and preferences,
rather than those of the public. On the other hand, critics of elected
judges point out not only that elections inevitably draw judges into partisan
politics, and so make judicial neutrality impossible, but also that selecting judges
on the basis of popularity may compromise their expertise and specialist knowl-
edge.
UK judges were traditionally appointed by the government of the day, senior
judges being appointed by the prime minister on the advice of the Lord
Chancellor. However, the 2005 Constitutional Reform Act not only removed the
appointment of judges from the political arena by establishing a Judicial
Appointments Commission, but also significantly strengthened judicial independence
through the creation, in 2009, of the UK Supreme Court, in place of
the appellate committee of the House of Lords. The Conseil Constitutionnel
(Constitutional Court) in France, which is empowered to examine the constitutionality
of laws and can, thus, restrain both the assembly and the executive, is
subject to particularly marked political inﬂuence. Its members have, in the main,
been politicians with long experience, rather than professional judges. The
French president and the presidents of the National Assembly and the Senate
each select one-third of the members of the Court, party afﬁliation often being
a signiﬁcant factor.
In Japan, the Supreme Court is effectively appointed by the cabinet, with the
high judges being selected by the emperor on the nomination of the cabinet.
Prolonged Liberal-Democratic Party (LDP) domination in the post-World War
II period meant, however, that the LDP packed the Court with its own supporters,
ensuring that it remained ﬁrmly subordinate to the Diet. One of the consequences
of this was that, despite widespread gerrymandering in favour of the
LDP in rural districts, the Supreme Court was never prepared to nullify election
results, even when, as in 1983, elections were declared to be unconstitutional
because of the disproportionate allocation of seats (Eccleston, 1989).
Internal bias
Judicial independence is not the only issue; bias may creep in through the values
and culture of the judiciary as easily as through external pressure. From this
perspective, the key factor is not so much how judges are recruited, but who is
recruited. A long-standing socialist critique of the judiciary holds that it articulates
the dominant values of society, and so acts to defend the existing political
346 P O L I T I C S
Gerrymandering: The
manipulation of electoral
boundaries so as to achieve
political advantage for a party
or candidate.
and social order. This tendency is underpinned by the social exclusivity of judges
and by the peculiar status and respect that the judicial profession is normally
accorded. Grifﬁth (2010) argued that this conservative bias is particularly prominent
in the UK’s higher judiciary, and that it stems from the remarkable homogeneity
of senior judges, who are overwhelmingly male, white, uppermiddle-class,
and public school and ‘Oxbridge’ educated. Similar arguments
have been used to suggest that judges are biased against women, racial minorities,
and, indeed, any group poorly represented within its ranks.
Although the US Supreme Court has included a nominal black judge since
the 1950s and in 2012 contained three female judges, its membership has generally
been dominated by white Anglo-Saxon Protestants drawn from the USA’s
middle and upper-middle classes. On the other hand, in states such as Australia
attempts have been made to counter such tendencies by making the judiciary
more socially representative. For instance, since the 1980s,Australian judges have
been recruited from the ranks of academics, as well as lawyers. Nevertheless, even
critics of the judiciary recognize that there is a limit to the extent to which judges
can be made socially representative. To achieve a judiciary that is a microcosm of
the larger society, it would be necessary for criteria such as experience and
professional competence to be entirely ignored in the appointment of judges.
Do judges make policy?
The image of judges as simple appliers of law has always been a myth. Judges
cannot apply the so-called ‘letter of the law’, because no law, legal term or principle
has a single, self-evident meaning. In practice, judges impose meaning on
law through a process of ‘construction’ that forces them to choose amongst a
number of possible meanings or interpretations. In this sense, all law is judgemade
law. Clearly, however, the range of discretion available to judges in this
respect, and the signiﬁcance of the laws that they invest with meaning, vary
considerably. Two factors are crucial here. The ﬁrst is the clarity and detail with
which law is speciﬁed. Generally, broadly-framed laws or constitutional principles
allow greater scope for judicial interpretation. The second factor is the existence
of a codiﬁed or ‘written’ constitution. The existence of such a document
signiﬁcantly enhances the status of the judiciary, investing it with the power of
judicial review. In the case of the US Supreme Court, it has turned the court into,
as Robert Dahl (1956) put it, ‘a political institution, an institution, that is to say,
for arriving at decisions on controversial questions of national policy’.
The Supreme Court’s signiﬁcance as a policy-maker has been evident
throughout US history. In the late nineteenth century and early twentieth century,
for example, Supreme Courts wedded to laissez-faire principles used the doctrine
of due process to strike down welfare and social legislation: in particular, the
court blocked much of Roosevelt’s New Deal programme in the early 1930s. It
was only after the so-called ‘court revolution’ of 1937, following the appointment
of pro-New Deal judges such as Hugo Black and William O’Douglas, that the shift
to economic and social intervention gained judicial endorsement. During the
1950s and 1960s, the court, under Chief Justice Earl Warren, made landmark
liberal decisions such as Brown v. Board of Education (1954), which rejected segregation
in schools as unconstitutional, and Baker v Carr (1962), which required
that legislative constituencies in the USA be of uniform size.
C O N S T I T U T I O N S , L AW A N D J U D G E S 347
CONCEPT
Judicial review
The power of judicial
review is the power of
the judiciary to ‘review’,
and possibly invalidate,
the laws, decrees and the
actions of other branches
of government. In its
classical sense, the
principle stems from the
existence of a codified
constitution and allows
the courts to strike down
as ‘unconstitutional’
actions that are deemed
to be incompatible with
the constitution. A more
modest form of judicial
review, found in
uncodified systems, is
restricted to the review
of executive actions in
the light of ordinary law
using the principle of
ultra vires (beyond the
powers) to determine
whether a body has acted
outside its powers.
Due process: Conduct of
legal proceedings strictly in
accordance with establised
rules and principles, linked to
ensuring a fair trial.
348 P O L I T I C S
Events: The 2000 US presidential election, held on
7 November, was contested between Vice President
Al Gore, the Democratic candidate, and Texas
Governor George W. Bush, for the Republicans.
Having initially conceded defeat in a close-fought
election, Gore retracted his concession in the early
hours of 8 November, as uncertainty grew over the
result of the election in Florida, whose 25 electoral
college votes would have given either candidate the
overall majority needed to win. Doubts of various
kinds had surfaced about the accuracy of the count,
not least linked to the working of the punch-card
ballots used in Florida. In these circumstances, Gore
requested hand recounts of votes in four of
Florida’s counties, and the Florida Supreme Court
eventually ordered a state-wide recount of ballots.
The US Supreme Court heard two cases, both
known as Bush v Gore. In the first, the Court
granted a temporary delay in enforcing the Florida
Supreme Court’s order and, in the second, which
concluded on 12 December, the Court ordered that the
Florida recount be stopped. Gore, as a result, withdrew his
objections to the electoral outcome and Bush duly became
the 43rd president of the USA. It is generally believed that
had the state-wide recount gone ahead, Gore would have
won Florida and the presidential election.
Significance: The Supreme Court’s capacity to terminate
the election of 2000 and, in essence, deliver the presidency
to George W. Bush derives from the system of judicial
review that operates in the USA. The US constitution
makes no mention of judicial review, but, arguably, embodies
the logic that made its emergence inevitable. As the
constitution laid down legal standards for the behaviour of
government institutions, these needed to be supervised or
policed, and the judiciary (more specifically, the Supreme
Court) was the only institution equipped for this purpose.
In the case of Bush v Gore, the Supreme Court determined
that the actions of the Florida Supreme Court were not
compatible with the US constitution because they did not
afford Bush the ‘equal protection of the laws’, as stipulated
in the Fourteenth Amendment. The judgement has been
defended on the grounds that, in a context of deep and
continuing uncertainty, the matter simply had to be
resolved. In blocking the Florida recounts, the Supreme
Court was acting to bring an end to a damaging period of
political insecurity. The exceptional nature of the case was
acknowledged in the ruling itself, which stipulated that it
should not be used as a precedent for future cases.
However, the Supreme Court has been accused of ‘judicial
misbehaviour’ on at least three grounds. First, many have
argued that the Court simply overreached itself. Not only
has its interpretation of the equal protection clause of the
Fourteenth Amendment been questioned, but a belief in
states’ rights, embodied in the Tenth Amendment, would
suggest that the matter should have been settled not by
the US Supreme Court, but by the Florida Supreme Court.
Second, given the profound implications of the judgement
and the deep controversy surrounding it, the Court
demonstrated worrying divisions, the split decision, 5–4,
meaning that the outcome was determined by a single
vote. Previous landmark judgements have usually been
decided unanimously. Third, and most seriously, it has
been claimed that the ruling was motivated by considerations
of partisan political advantage. Each of the five
Justices who supported it had been appointed by
Republican presidents and were judicial conservatives, who
usually supported states’ rights and, above all, judicial
restraint. Critics have therefore suggested that these
Justices had either acted to promote the advantage of a
particular political party, or that, by installing a Republican
rather than a Democrat in the White House, they were
increasing the chances of further conservative appointments
to the Court in the future.
POLITICS IN ACTION . . .
Bush v Gore: the US Supreme Court substitutes itself
for the electorate?
In many cases, the Supreme Court was ahead of Congress and the presidency,
often paving the way for later legislation, as in the case of the civil rights reforms
of the mid-1960s. Similarly, the Supreme Court upheld the constitutionality of
abortion in Roe v. Wade (1973), at a time when elective institutions refused to
address such a deeply controversial issue. Although the judicial activism of this
period subsequently subsided, reﬂecting the impact of the conservative appointments
of Republican presidents such as Nixon, Reagan and George Bush Sr,
the Court continued to exert inﬂuence; for instance, in allowing the gradual
reintroduction of capital punishment and growing restrictions on the right to
abortion. Nevertheless, perhaps the most politically signiﬁcant of Supreme
Court judgments came in December 2000, when the court effectively resolved
the disputed presidential election in favour of George W. Bush (see p. 348).
If judges are policy-makers, they must operate as part of the broader machinery
of government and within constraints established by the political culture and
public opinion. The difﬁculties the judiciary may encounter in fulﬁlling its role
as guardian of the constitution were demonstrated by the battle between Indira
Gandhi and the Indian courts in the 1970s. Despite its written constitution, the
balance between US-style judicial review and Westminster-style parliamentary
sovereignty in India has never been fully resolved. Amid mounting criticism of
Prime Minister Gandhi’s autocratic leadership style, in June 1975 the Indian
High Court declared her guilty of electoral malpractice and disqualiﬁed her from
political ofﬁce for ﬁve years. Although the Indian Supreme Court suspended the
disqualiﬁcation pending an appeal, within days Gandhi declared a‘state of emergency’,
allowing for the arrest of hundreds of her political opponents and for the
introduction of stiff censorship. Even though the judiciary was able to restore its
authority after the lifting of the emergency in March 1977, it has subsequently
practised greater self-restraint and has been reluctant to challenge the government
of the day so openly again.
The view that judges are policy-makers is less persuasive in the absence of a
codiﬁed constitution. Where the constitution is unwritten, judges lack a legal
standard against which to measure the constitutionality of political acts and
government decisions. The UK Parliament is therefore sovereign, and the judiciary
is subordinate to it. Before the Glorious Revolution of 1688 in the UK, judges
were prepared to set aside acts of Parliament when they violated common law
principles, as occurred in Dr. Bonham’s Case (1610). The revolution, however,
established the supremacy of statute law (law made by Parliament), a principle
that has only subsequently been challenged by the courts in relation to the higher
authority of EU law. The power of judicial review can, nevertheless, be applied
in a narrower sense in the case of executive powers that are derived from
enabling legislation. In such cases, the principle of ultra vires can be used to
declare actions of ministers, for instance, unlawful. Indeed, since the 1980s there
has been a marked upsurge in judicial activism in the UK, highlighting the
growing political signiﬁcance of judges. This growing activism reﬂects both the
spread of a ‘human rights culture’ within the UK judiciary and anxiety about the
misuse of executive power that ﬂows from the absence of effective constitutional
checks and balances in the UK. The Human Rights Act (1998) has bolstered this
trend by widening judges’ capacity to protect civil liberties in relation to terrorism
and other issues, often leading to clashes with ministers.
C O N S T I T U T I O N S , L AW A N D J U D G E S 349
Judicial activism: The
willingness of judges to
arbitrate in political disputes, as
opposed to merely saying what
the law means.
Ultra vires: (Latin) Literally,
beyond the powers; acts that
fall outside the scope of a
body’s authority.
Questions for discussion
How useful is a constitution as a guide to political
practice?
What factors determine the level of respect that
rulers show for their constitution?
Are uncodified constitutions doomed to be ineffec-
tive?
Do codified constitutions and bills of rights merely
lead to the tyranny of the judiciary?
Should law be rooted in ‘higher’ moral principles?
Is it desirable that law be separate from politics,
and if so, why?
How scrupulously is judicial independence maintained
in practice?
Does it matter that the social composition of the
judiciary does not reflect that of society at large?
Should judges be elected?
SUMMARY
A constitution is a set of rules that seek to establish the duties, powers and functions of the institutions of
government and deﬁne the relationship between the state and the individual. Constitutions can be classiﬁed
on the basis of the status of their rules, how easily their rules can be changed, the degree to which their rules
are observed in practice, and the content of their rules and the institutional structure that they establish.
Constitutions do not serve a single or simple purpose. Amongst their functions are that they empower states
by deﬁning a sphere of independent authority, establish a set of values, ideals and goals for a society, bring
stability, order and predictability to the workings of government, protect individuals from the state, and legitimize
regimes in the eyes of other states and their people.
There is an imperfect relationship between the content of a constitution and political practice. Constitutions
‘work’ in certain conditions, notably when they correspond to, and are supported by, the political culture,
when they are respected by rulers and accord with the interests and values of dominant groups, and when
they are adaptable and can remain relevant in changing political circumstances.
Questions about the actual and desirable relationship between law and politics are deeply controversial.
Liberal theory, sensitive to civil liberties and human rights, tends to emphasize the limited province of law
operating simply as a means of guaranteeing orderly existence. The conservative view, however, emphasizes
the link between law and social stability, acknowledging that law has an important role to play in enforcing
public morality.
The separation of law from politics is accomplished through attempts to make the judiciary independent and
impartial. Judicial independence, however, is threatened by the close involvement of political bodies in the
process of judicial recruitment and promotion. Judicial impartiality is compromised by the fact that nowhere
are judges representatives of the larger society. In western polyarchies, for instance, they are overwhelmingly
male, white, materially privileged and relatively old.
As judges impose meaning on law, they cannot but be involved in the policy process. The extent of their
inﬂuence varies according to the clarity and detail with which the law is speciﬁed and the scope available for
judicial interpretation, and according to the existence or otherwise of a codiﬁed or written constitution,
which invests in judges the power of judicial review.
350 P O L I T I C S
Further reading
Alexander, L. (ed.), Constitutionalism: Philosophical
Foundations (2001). Stimulating reflections on
theories and ideas that underpin constitutionalism.
Griffith, J. A. G., The Politics of the Judiciary (2010).
A stimulating and provocative study of why the
judiciary cannot act neutrally, from a UK stand-
point.
Lane, J.-E., Constitutions and Political Theory (2011). A
thorough and coherent discussion of key debates
related to constitutions and constitutionalism.
Shapiro, M. and A. Stone Sweet, On Law, Politics and
Judicialization (2002). An authoritatve analysis of
the causes and consequences of the ‘judicialization
of politics’ in a wide range of empirical settings.