Separation of powers

Separation of powers, in the American sense of the expression, hardly exists in countries with a parliamentary regime of government: although the judiciary is independent, the other two powers are intertwined. The government can only remain in power as long as a parliamentary majority is willing to support it; ministers are accountable to Parliament; and statutes are made – in fact, if not always in law – by the government and the Parliament acting together.

That is particularly true for Great Britain, where the development of cabinet government under a two-party system has tended to establish a clear distinction between the government and its parliamentary majority on the one hand, the opposition party on the other. This distinction characterizes the debates in the House of Commons, the directly elected house, where most decisions of political importance are discussed. The parliamentary debates illustrate that the executive is not independent, or ‘separate’ from the legislative bodies. Cabinet ministers participate in these debates as members of Parliament, from the government ‘front bench’. The opposition party has its own ‘front bench’, or ‘shadow cabinet’. Bills are usually introduced by government ministers; it is also possible for any MP to introduce a ‘private member's bill’, but such a bill will only be examined if it is compatible with the parliamentary timetable.

Terminology

This book examines the legal relations between political institutions and the courts in some European countries and in the United States. The author happens to be interested in this theme and, particularly, in the boundaries between judicial and political activities.

At first sight, it is a somewhat unlikely subject. There seems to be little that judges and politics have in common. The dry atmosphere of the courtroom cannot be compared to the vividness of a debate in – say – the House of Commons or the American Senate. Judges are normally represented as somewhat elderly gentlemen, who try to look as wise as they are supposed to be; a gown and (in the case of English judges) a wig will strengthen that impression. Politicians, by contrast, radiate a cheerful kind of optimism, illustrated by a happy smile or a determined look on their faces; the image they evoke is one of willingness to tackle any problem humankind may find in its way. Two different worlds, one would be inclined to say. However, appearances are deceptive. I hope to show that it is far from easy to determine the borderline between the scope of judicial and political activities. To complicate things further, differences between legal systems also concern the exact location of this borderline. What is ‘political’ in some systems, for example in English law, may be the kind of problem to be solved by the courts in a different system, for example, under the Constitution of the United States.

Authors may not always be fully aware why they write their books. When composing this book, I felt that my reasons were simple and compelling. When I returned to teaching law at a somewhat advanced age, I happened to rediscover how much comparative methods help to develop students' ability to define legal problems and to collect materials for solving them. Moreover, there is something exciting for them in being exposed to ways of reasoning they are not familiar with. I wrote the book in the hope that any serious reader of it would have the same experience.

The reader I had in mind was the senior student of law, history or political science, not necessarily British or American, with a certain interest in general problems of law or politics, or with a cosmopolitan view of life in society. However, other readers, whatever their background or their vocation in life, may also benefit from the methods I have used for making foreign constitutional systems accessible by comparing them to others. Constitutional law, if well explained, is not all that difficult to understand.

The book could not have been written without the help of a number of persons and institutions. I am thinking, in particular, of the Cambridge law faculty, which provided me in 1999–2000, when I was Goodhart Professor of Law, with a tiny little office in the heart of the Squire Law Library, very close to the law reports.

The parliamentary model

Relations between courts and political institutions cannot be properly assessed without a prior definition of the powers of the courts with regard to legislation. Do judges have to respect statutes validly approved by the competent political institutions in all circumstances, or are they, on the contrary, entitled to set aside or disregard statutes which, in their view, violate rules of higher law, for example, those of the constitution? This problem shows an interesting dissimilarity between the solutions adopted in British and in American constitutional law, which we shall consider first.

In nineteenth-century Britain, constitutional doctrine and constitutional practice came very close to what I shall call the ‘parliamentary model’. In this model legislation adopted by Parliament is supreme: it cannot be challenged – not by the head of State, not by the government, not by the courts, not by the citizens.

The British doctrine of the sovereignty of Parliament embodied that rule: by issuing a statute, an Act of Parliament, the legislative bodies had the final say. No court was entitled to question the legal validity of a statute; and every law-making body in the country was subject to it. For this doctrine, it is for the moment of no relevance that the term ‘legislative bodies’ includes not only both houses of Parliament – the House of Commons and the House of Lords – but also the Queen (or King), who must give the Royal Assent to a bill passed by both houses to sign it into law, under the responsibility of the Prime Minister.

The political question

Now and then courts refuse to examine a case because they feel it should be dealt with by the political institutions. The US Supreme Court describes such cases as ‘non-justiciable’. That view is not directly founded on the text of the American Constitution, which rather implies that the judicial power extends to ‘all’ cases and controversies. The nature of the case may be such, however, that judicial intervention would not be appropriate.

An early example of this conception is the interpretation of the ‘guarantee clause’ of the Constitution. It provides that the United States shall ‘guarantee to every state in this Union a republican form of government’ and protect each of them against invasion. In 1842, when there were two rival governments in the state of Rhode Island, the courts refused to determine which of the two was the lawful government of the state. The US Supreme Court finally held that action by the President of the United States had shown that the decision had been committed to other branches of the federal government. In 1912, the Supreme Court refused to adjudicate a claim that the initiative and referendum procedure instituted by the state of Oregon violated the guarantee clause. Justiciability of the clause would involve an ‘inconceivable expansion of judicial power’, said the Court, ‘and the ruinous destruction of legislative authority in matters purely political’. Strong language indeed.

The constitutional model

The opposite of the parliamentary model is the constitutional model: it is at the other end of the scale. In the constitutional model, a parliament cannot be ‘sovereign’ or ‘supreme’ in any sense of these words, because its legislation has to be compatible with higher law, in particular with the Constitution, and this compatibility will not be assessed by the parliament itself, but by a judicial body.

The American system of judicial review of legislation comes very close to this model. In the United States, any court to which a case or controversy has been brought will have to examine the arguments of the parties concerning the compatibility of statutes with the Constitution. If the court comes to the conclusion that a statute is unconstitutional, it will not apply that statute (it will ‘strike down’ the statute, in professional legal language). American reality shows, however, a somewhat different picture, because important cases on the interpretation of the Constitution will nearly always be referred to the US Supreme Court in Washington. It is true that this Court is only the highest appeal court in the hierarchy of federal courts, and that each of the fifty states has its own hierarchy of courts, with its own supreme court; but an appeal to the Court from state supreme courts is always possible if the compatibility of a state statute with the federal Constitution is raised.

Filling the gaps

Constitutional provisions, in particular those on human rights, tend to use lapidary expressions. Their actual wording is not always very helpful to those who wish to understand their meaning, as a German author once put it. Some provisions will at the least have a hard core that leaves no room for ambiguities: ‘freedom of the press’, although uncertain in its exact scope, is a term that admits no censorship of the press by the government. Other constitutional provisions, however, use a terminology where the words themselves can contribute only a little to the definition of the meaning. Expressions like ‘human dignity’ or ‘due process of law’ do not convey a definite legal meaning by themselves. Problems of interpretation therefore have a great importance in constitutional law.

Some authors try to deny or to minimize that importance. According to Justice Scalia, in his efforts to combat activist attitudes with regard to the US Constitution, it would be contrary to democracy for unelected judges to decide what the law ought to mean, as its meaning should quite simply be founded on the text of the relevant provisions. In case of a venerable constitutional document like the US Constitution, it might be necessary to give old words and phrases a broad rather than a narrow meaning, but ‘not an interpretation that the language will not bear’. This sounds like good advice, but it is not very helpful in difficult cases.

The ‘word’ and the ‘world’

Notions of ‘heritage’, no matter howsoever nuanced, privilege certain moments of domination as inaugural. Implied in these notions are constitutive ideas about historic time flattened by certain orders of narrative hegemony. Who fashioned the colonial heritage, with what means of violence and exclusion, what elements were constitutive of ‘its’ core and who ‘received’ it, which aspects of ‘it’ were imposed by force and who resisted ‘it’ and how, are questions that, once posed, open up vistas of heterogeneity of historic time and space that we symbolize by the words ‘colonial’/‘post-colonial’. The matter of ‘winners’ and ‘losers’ forces our attention to the shifting character of the calculus of interests that animated the imposition and/or the ‘reception’ of metropolitan legality as well as patterns of resistance. The missing middle term between traditions and transitions (the thematic of this book) is transactions. The addition of this ‘dangerous supplement’ enables a more differentiated understanding of the sources of violence inherent in patterns of the dominant historiography that silence the voices of the subordinated.

Genres of comparative legal studies determine what may be meaningfully said concerning ‘the’ colonial inheritance. The positivistic genre of comparative legal studies strictly addresses forms of normative and institutional diffusion of dominant global legality. Instrumentalist approaches, principally the Old and the now ‘New’ law-and-development genre, remain concerned with issues of efficient management of transition from ‘non-’ modern to modern law.

If I begin by saying that many comparatists have recently taken a ‘neo-Romantic turn’, it may sound as though I am mounting an attack on the persons responsible. After all, the term ‘Romanticism’ can have some comical associations and some ugly ones as well. This paper is not by any means meant as an unqualified attack, however. I am more or less in favour of our new Romanticism. Nevertheless, it is my goal in this paper to voice some gentle doubts about the new literature.

That said, let me begin by observing that the last couple of years have indeed seen something of a neo-Romantic turn in the philosophy of comparative law. Some of this has involved a revival of the early Romantic philosophers themselves. In particular, the theories of Johann Gottfried Herder, late eighteenth-century philosopher of the Volksgeist, have been rediscovered by William Ewald. Some of it has involved later and more difficult representatives of the long Romantic tradition. Thus, a number of different scholars, most prominent among them Pierre Legrand, have revived a mess of ideas from the twentieth-century neo-Romantic tradition of hermeneutics – from the philosophical tradition that conceives interpretation as the enterprise of ‘understanding’ the ‘other’, of developing a sympathetic grasp of fundamentally alien cultures and other persons. Alongside Legrand, the names that should be mentioned here include notably those of Vivian Curran and Nora Demleitner; of the anthropologist Annelise Riles; and, from an older generation, that of Josef Esser as well.