Responsible judges, therefore, must make up their own minds with respect to the best or the right answer to the specific questions of law and must take full responsibility for their judgments and rulings according to law. The doctrine of judicial responsibility specifically applies to the process of constitutional adjudication.
Judges who are asked to review the constitutionality of legislative acts must follow their own constitutional convictions. They must assess the validity of a challenged law in light of their own best understanding of constitutional norms and values.
This means they cannot subordinate their own constitutional views to the will or judgment of others or formally defer to the views of others. And this proposition would apply equally to the judges' relationships to legislatures. Judges who would simply defer to the legislatures, with respect to constitutional interpretation and validity, would not be responsible. As a consequence, the doctrine of judicial responsibility must be considered inconsistent with the idea of judicial deference to the legislatures with regard to the constitutionality of challenged laws.
Moreover, judges do not have to justify their decisions on the basis of reasons that legislatures would necessarily accept. The judicial decisions must be in accordance with the judges' deepest convictions about what the law requires in particular cases. Of course, the government is generally entitled to explain to the court the reasons that support the challenged laws and to defend its view about the proper constitutional balance between principles and policy.
But there is nothing special about this. The doctrine of judicial responsibility includes a certain number of duties, such as the adjudicative duty to accord to every legally interested person in a proceeding the full right to be heard prior to a decision. However, the mere fact that judges, in constitutional cases, listen to the government and attend to its arguments does not necessarily mean that a deliberative dialogue is going on between the courts and the legislatures.
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The justification of the government's right to be heard does not correspond to an equal right to participate in a process aiming at a reasoned agreement among equals. The justification of the government's right to be heard is the right to state one's case, to present one's version of the facts, and to submit one's best conception of constitutional interpretation to a third party—the courts—which have the ultimate responsibility of making a just constitutional decision. Moreover, insofar as the doctrine of judicial responsibility requires the judges to be convinced that their decisions are legally the best, indeed, the only correct ones, it is highly desirable that prior to a decision, the judges hear and seriously try to understand what the legislatures thought about the validity of the laws.
This is a case where the quantity of information, presented as competing views and arguments, increases the probability of reaching the correct decision. Of course, for this very reason, judges might extend the right to be heard to all those who have something relevant to say about constitutional interpretation: philosophers, sociologists, political scientists, journalists, judges in other jurisdictions, legal scholars, and the like. But that is another subject. The doctrine of judicial responsibility requires that judges have the last word with respect to the proper meaning, force, and scope of the constitutional values and principles they apply in particular cases.
This last word holds not only in cases where judges nullify a piece of legislation, that is, where the courts are thought of as initiating a dialogue, but also in all subsequent cases where new laws, enacted to correct what the legislatures regard as mistaken judicial nullification, are challenged.
In other words, the judges cannot recognize as constitutionally valid a particular law enacted to reverse, modify, or avoid a judicial decision nullifying a former legislative act unless they are convinced, on balance, that the corrective legislation is consistent with their best understanding of the proper meaning of constitutional norms and values. An institutional dialogue theorist might reply that, at least in Canada, the override provision empowers the legislatures to make the final authoritative decisions.
But this is misleading.
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First, the override provision empowers the legislatures to avoid specific judicial decisions nullifying particular legislation only with respect to a limited set of rights and only for a limited period of time. The provision only empowers the legislatures to override, in limited fashion, such authoritative determinations as are made by the courts. Legislation using the override might be temporarily valid, but it would not properly contribute to the authoritative determination of the proper balance between constitutional values and social policies.
Kent Roach seems to acknowledge that section 33 is not a means by virtue of which the legislatures can contribute to the final determination of the proper balance between constitutional values and social policies, but a means that preserves the court's constitutional interpretation and decision.
This is paradoxical because one justification of the theory of institutional dialogue is the fact that the legislatures would participate in the process of determining the proper balance between constitutional values and social policies. Like the courts, they too must determine for themselves whether the law they enact or redraft, in order to correct what they regard as judicial mistake, is consistent with their best understanding of the proper meaning and scope of the constitutional norms.
It would not be true, then, to claim that the judges have the last word. From the point of view of the doctrine of judicial responsibility, no form of legislative responsibility can trump the ultimate responsibility of the judges to decide cases according to their own constitutional lights; however, from the point of view of a similar doctrine of legislative responsibility, no form of judicial responsibility can trump the ultimate responsibility of the legislatures to determine what legislation is constitutionally permissible in accordance with their own constitutional beliefs.
But this view is also misleading. The situation it describes leads to practical constitutional conflicts. And since there would be no institution empowered to make authoritative determinations with respect to the proper meaning, force, and scope of the constitutional norms and values, including—in the case of Canada—the override provision, the practical conflicts could lead to a serious constitutional crisis threatening the rule of law.
And it would proceed independently of the ways provided for in most constitutions. See the arguments put forward by the American constitutional scholars Larry Alexander and Frederick Schauer in On extrajudicial Constitutional Interpretation , Harv.
C omment. See also Cameron's argument, supra note Finally, an institutional dialogue theorist might reply that the courts could recognize a second-order rule of constitutional interpretation, one which provided that judges ought to accept formally all legislative reversals and avoidances of former judicial nullification. Moreover, such second-order rule could be consistent with the doctrine of judicial responsibility.
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I agree. But this rule would entail a radical form of judicial deference or submission to the judgments of the legislatures, something similar in principle to the conception of the role of the judiciary within the orthodox doctrine of parliamentary sovereignty. Although this strategy could be acceptable from a normative point of view, it cannot be thought of as constituting a form of deliberative dialogue. Judicial deference or submission to the views of another is inconsistent with the idea of dialogue among equals. The theory that there is a form of deliberative dialogue between the courts and the legislatures encounters a substantial limitation in the doctrine of judicial responsibility.
I now want to examine what I consider to be the most important limit to the theory of institutional dialogue. This second limit supports the first; it is both normative and conceptual. This limitation has its origin in the general conditions that judicial power and decision making must satisfy in order to be accepted as morally legitimate.
L egal S tud. It is generally admitted within our political and legal tradition that judicial power ought to act, as far as possible, in a legitimate manner. But it has underpinned most systematic thinking on moral and political legitimacy within liberal and democratic thought. The recurrent debate over the legitimacy of judicial review logically presupposes the more abstract principle's validity; the interest in the theory of institutional dialogue would be futile, indeed unintelligible, without the existence of such moral principle.
Since judges exercise political authority in the state, they would come within the ambit of this moral principle. It follows that they, too, are subject to a basic abstract moral duty: they ought to act, as far as possible, in a legitimate fashion. But what general conditions must judicial power satisfy in order to be accepted as morally legitimate? The modern constitutional answer has generally postulated two main conditions. If it is true that the moral legitimacy of judicial power is conditioned by the law that governs it the rule-of-law condition , then this power has no more legitimacy than the moral legitimacy of the governing law.
It follows, then, that the legitimacy of the judicial power is conditioned by the legitimacy of the law that governs the composition, process, and decision making of the courts the legitimacy-of-law condition.
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In order to fulfill their basic moral duty to act, as far as possible, in a legitimate way, judges must satisfy both conditions. Within certain modern conceptual systems, it has been argued that the rule-of-law condition is sufficient to establish the moral legitimacy of the judicial power.
Legalism is a formal condition. It postulates that moral legitimacy is a matter of acting in accordance with a set of valid legal rules, independently of their intrinsic moral worth or consequences. It reduces moral legitimacy to legality. Legalism would imply that a judicial decision enforcing a totally arbitrary rule the killing of all red-haired Canadians, for example enacted in accordance with constitutional form and process by a dictator who has taken power in a nondemocratic way would be morally legitimate.
But this is incoherent from the point of view of political morality. Moral legitimacy requires consistency with at least one standard of political morality that can provide the conditions the state's system of laws and institutions must satisfy in order to be morally acceptable. Since no moral standard could legitimize a dictator's decree to put one class of citizens to death for no reason at all, such a decree cannot be conceived as morally permissible.
Yet, legalism claims that judicial decisions enforcing such a decree would be morally legitimate. Since the decree cannot confer moral legitimacy on any decision based on it the decree has no moral force , legalism must presuppose the existence of at least one independent moral principle that could morally require the courts to enforce decrees that are not morally permissible.
But there is no such principle. If there were such a principle, political morality would be incoherent. On the one hand, totally illegitimate governments could legitimize their own arbitrary decrees merely by having them enforced by the courts; on the other hand, the judicial authority would be morally entitled to enforce what is not entitled morally to enforcement. Legalism is not a sufficient condition to establish the legitimacy of judicial action. Judicial power cannot execute its basic abstract moral duty unless it satisfies the rule-of-law condition and the legitimacy-of-law condition.
Accordingly, if the norms that is, the rules, principles, standards that govern courts' composition processes, and decisions were not, in a certain sense, legal or, if legal, were not, in a certain sense, morally legitimate, then judicial authority would not be legitimate. More specifically, if the reasons for judicial decision in a certain sense, legal, or if they were legal reasons but not, in a certain sense, morally legitimate, then the decision based upon them would not be legitimate either.
The legitimacy of the judicial power, therefore, requires that judges justify their own actions and decisions on the basis of reasons that are, at least in a certain sense, legal, provided that these legal reasons are also morally legitimate. This reasoning explains and justifies the fundamental moral and conceptual basis of judicial review.
In sum, the process of judicial review constitutes the means by which judges are able to execute their basic moral duty to act, as far as possible, in a legitimate way. On the one hand, judicial review is the process whereby judges may verify whether the particular norms they are asked to apply or enforce in specific cases are, in those special senses, legal and legitimate.
On the other hand, by means of judicial review judges may choose not to enforce or give effect to norms that are not legal or that are not morally permissible. In short, the process of judicial review constitutes the institutional instrument by which judges verify whether a given norm is entitled to judicial enforcement or not and act accordingly. In practical life, judicial review becomes operational as a result of the judges' own commitments to execute their basic, albeit abstract, moral duty to act in a legitimate way. The legitimacy of judicial review is general in the sense that it depends on a basic, abstract moral principle conferring a general authority on the courts.
The principle of consent, for example, indicates a specific fact, the act of consent, and this fact specifically confers moral authority on what has been consented to. Or—another example—according to the principle of democracy, a certain form of democratic pedigree specifically confers legitimacy on political decisions.
According to the general legitimacy thesis, however, no such principle specifically authorizes judicial review. Judicial review is morally legitimate by virtue of a basic, abstract, and general moral principle imparting general authority to judges to verify whether the conditions they must satisfy in order to act in a legitimate way are actually satisfied and then to act accordingly.
Where a state is committed to the moral legitimacy of its system of laws and institutions, the institution of judicial review is both necessary and permissible. Yet, it does not follow that the judges should always nullify, in part or as a whole, all the norms that are not legal or legitimate. First, as recourses there are other technical devices; for example, the judges could interpret the norms in ways that may make them legally valid or morally legitimate.
Second, in particular cases, legal and moral reasons might be trumped by prudential or pragmatic reasons; for example, where nullification is likely to provoke social chaos, arbitrary repression, greater injustices, or institutional loss of credibility it might be better for the courts, on balance, to enforce illegal norms or illegitimate laws. Finally, good faith and judicial responsibility require that the judges be fully persuaded, after weighing all the reasons, that the norm they are prepared to nullify is neither legal nor legitimate.
A certain rational process of discussion, argumentation, and justification must be conducted prior to decision.