The sources of law recognized by common law courts are generally understood to include not only legislation and constitutions but also prior judicial decisions. Lawyers rely on judicial precedents in advising clients, and courts cite precedents in their opinions. Yet exactly what courts do, or should do, with precedents is a surprisingly complex problem.

In this chapter, we outline competing views of the proper role of precedent in judicial decision making and defend one such view. Our position is that, subject to certain qualifications, courts can best serve the ends of the legal system by treating rules announced in past cases as binding. In other words, courts should apply previously announced rules to present cases that fall within the rules' terms even when the courts' own best judgment, all things considered, points to a different result.

In defending this approach to precedent rules, we adopt the point of view of an imaginary authority designing a legal system. We assume that the subjects of this legal system share a set of general aims and moral values but do not always agree on what these aims and values require in particular settings. Accordingly, the dominant end of the legal system, and the reason why its subjects have enlisted our imaginary authority to design it, is to settle peacefully and correctly the controversies that arise over how best to carry out shared aims and values in the course of daily life.

The common law tradition claims not only that the law is reason but also that the reason of the law is morally good. Judges' reasons for decision, their judgments, are considered within this tradition to be evidence for this claim, for the way in which the common law “works itself pure.” Philosophers of law who work in common law jurisdictions have taken one of three approaches to this claim.

First, there are philosophers who have tried to make sense of the common law through an argument that in attending to the way that judges interpret the law, we will not only best understand law but also discern the connection between law and morality. We will call such philosophers, without any pejorative intent, common law romantics. Most notable among them is Ronald Dworkin.

Second, philosophers have argued that the common law is a mess – in Jeremy Bentham's words, a “shapeless heap of odds and ends.” Such a mess, Bentham argued, leads to uncertainty about the law that not only is contrary to the demands of utility but permits “Judge & Co.” to arrogate power that properly belongs to the legislature.

The purpose of this chapter is to develop the principles that should, and largely do, govern legal reasoning in the common law. By the common law, I mean judge-made law, and by judge-made law, I mean law made by the courts taken as a whole.

Four Foundational Ideas

I begin with four ideas that provide the foundation of the principles developed in this chapter: (1) courts should make law concerning private conduct in areas where the legislature has not acted, (2) the principles of legal reasoning turn on the interplay between doctrinal propositions and social propositions, (3) legal rules can be justified only by social propositions, (4) consistency in the common law depends on social propositions.

Courts Should Make Law

The first foundational idea is that courts should make law concerning private conduct in areas where the legislature has not acted. Like other complex institutions, common law courts serve several social functions, but two of these are paramount. The first concerns the resolution of private disputes. The second is the enrichment of the supply of legal rules to empower and govern private conduct. Our society has an enormous demand for legal rules that private actors can live, plan, and settle by. The legislature cannot adequately satisfy this demand. The capacity of a legislature to generate legal rules is limited. Moreover, much of that capacity must be allocated to the production of public-law rules and to matters such as budgets, taxation, governmental organization, and public administration.

Laws can be classified in various ways. They can be classified according to the legal systems to which they belong (English, Roman, international, etc.) or according to the subject matter that they regulate (contracts, property, torts, etc.) or according to their normative type (duty-imposing, permission-granting, etc.). In this chapter I will be concerned with the classification of laws – and hence of law as a genre – in only one dimension. It is the classification of laws according to how they are made. This is already a philosophically partisan and some may say question-begging enterprise. Some laws, say some people, are not made at all. They are not artefacts. They have no agent(s) who serve as their originator or creator or author. By demystifying some of the intriguing ways in which laws are made, I hope to remove some of the appeal of this view.

In my first three sections I consider, respectively, legislated law, customary law, and case law. In the fourth section I discuss common law: How does it fit in? In the final section I conclude that all the types of law discussed here are types of positive law. There is, I suggest, no other type of law but positive law.

Legislated Law

In a way (to be explained at the end of this chapter), legislated law is paradigmatic law. So it is not surprising that some writers simply equate law making with legislating.

Judgment, Precedent, and Example

The Codex officially and resolutely set its face against reasoning by analogy: non exemplis sed legibus iudicandum est, it decreed. Orthodox logicians had deeper reservations. They insisted that exempla illustrant non probant; that is, as Francis Bacon put it, “examples may make things plain that are proved, but prove not themselves.” However, Bacon recognized a more significant role for analogy in reasoning when he added, “yet, when circumstances agree, and proportion is kept, that which is probable in one case is probable in a thousand, and that which is reason once is reason ever.” It was the latter view, and not the skepticism of the Codex or the logicians, that took root deep in common law soil. Bracton, for example, advised, “If new and unusual matters arise which have not before been seen in the realm, if like matters arise let them be decided by like, since the occasion is a good one for proceeding from like to like” (a similibus procedere ad similia). This reasoning, which he called “equity,” “is the bringing together of things, that which desires like right in like cases and puts all things on an equality. And equity is, so to speak, uniformity” (quasi aequalitas). The seventeenth-century common lawyer John Doddridge added, “Equitie therefore in all the use thereof … hath a double Office, Effect, or Function. Sometimes it doth amplifie. Sometimes againe (when reason will) it doth diminish or extenuate.”

Central to legal constitutionalism is the idea of constitutional rights. Constitutions do many things beyond enshrining rights. But probably nothing has been so influential in driving constitutionalism along the paths of legal rather than political thought than the emphasis on rights, their entrenchment in a constitutional document and their interpretation and elaboration by a supreme or constitutional court. It is this rights focus that gives contemporary constitutionalism its whole juridical cast, whereby a constitution's task is viewed as being to embody the substance of fundamental law rather than to provide a fundamental structure for law-making.

Of course, few people would deny that individuals have certain fundamental interests that should be legally and politically protected. However, a commitment to rights is different to assuming their protection requires their entrenchment in a bill of rights overseen by a constitutional court. Three reasons standardly motivate this position and lie at the heart of legal constitutionalism. First, rights-based judicial review is said to guard against majority tyranny and fecklessness. Though democracy offers a vital mechanism for citizens to pursue their interests and throw out governments that wilfully or negligently override them, prejudice, self-interest or simple thoughtlessness can lead majorities to pass legislation that oppresses minorities or even unwittingly works against their own concerns. Second, the integrity of law is said to depend on rights. Laws often allow more than one interpretation when applied to a given case, or have to be adapted to novel circumstances.

When judges criticise legislatures and governments they typically do so in the name of the rule of law. Unfortunately, politicians do likewise when they attack judicial activism. The first identify the rule of law with the judiciary's authority to determine the state of the law in a given case, to pass sentence and to review legislation for its compatibility with prevailing legal norms, including constitutional rights. They see attempts by politicians to contest or interfere with these powers as undermining the integrity of the legal system. The second, however, associate the rule of law with the right of a legally authorised government to pass laws according to the due formalities and to have them obeyed. They regard judicial moves to reinterpret or question duly passed laws as usurping the government's right to legislate. On this view, the prime danger to consistency in the legal process comes from courts aspiring to make the laws rather than simply applying them. Meanwhile, people's ability to influence and contest legislation via the ballot box also gets eroded. Given the often self-serving and apparently incompatible character of these two positions, it is perhaps small wonder that many theorists have regarded the concept as at best ‘essentially contested’, at worst no more than a ‘meaningless … self-congratulatory rhetorical device’.

As the two accounts outlined above indicate, different views of the respective powers of the legislature and the judiciary, and of the nature of their separation, lie at the heart of debates regarding the rule of law.

This book has defended democracy against judicial review. It has done so not on the grounds that democracy is more important than constitutionalism, rights or the rule of law, but because democracy embodies and upholds these values. The judicial constraint of democracy weakens its constitutional attributes, putting inferior mechanisms in their place. That is not to say that actually existing democracy is perfect and decisions made by judicial review necessarily imperfect, merely that the imperfections of the first cannot be perfected by the second. Though undeniably in need of improvement, the democratic arrangements found in the world's established working democracies are sufficient to satisfy the requirements of republican non-domination, whereas all efforts to improve on such arrangements through judicial intervention create conditions of domination. Judicial review undermines the equality of concern and respect between citizens that lies at the heart of the constitutional project and that democratic processes serve to secure.

It will be objected that I have praised a version of actually existing democracy that is currently passing out of existence. Party membership and voting are experiencing a steady if slow decline in all established democracies. Though the picture is mixed, with occasional increases in membership and turnout as well as significant variations between countries, and not yet at the crisis point regularly predicted by commentators of left and right since the 1960s, a sustained general downward trend is undeniable.

A written, justiciable constitution, incorporating a bill of rights, is widely accepted as a necessary safeguard against the abuse of power by democratic governments. This book challenges that common view and the often unexamined and erroneous assumptions about the workings of democracy on which it rests. Far from guarding against a largely mythical tyranny of the majority, the checks imposed by judicial review on majoritarian decision-making risk undermining political equality, distorting the agenda away from the public interest, and entrenching the privileges of dominant minorities and the domination of unprivileged ones. As such, legal constitutionalism can produce rather than constrain arbitrary rule, detract from the rights protection of weak minorities, and damage the rule of law in both the formal and the substantive senses of treating all as equals. By contrast, the workings of actually existing democracies promote the constitutional goods of rights and the rule of law. Party competition and majority rule on the basis of one person one vote uphold political equality and institutionalise mechanisms of political balance and accountability that provide incentives for politicians to attend to the judgements and interests of those they govern and to recruit a wide range of minorities into any ruling coalition. From the republican perspective adopted here, the procedures and mechanisms of established democracies offer adequate, if not perfect and certainly improvable, safeguards against domination and arbitrary rule. Most kinds of legal constitutionalism subvert these democratic protections, creating sources of arbitrariness and dominance of their own in the process.

Non-domination not only provides republicanism's basic case for establishing a system of self-rule, but also dictates how this system should operate and be organised. The key quality republicans have looked for in this regard is that the political process obliges decision-makers to ‘hear the other side’ (‘audi alterem partem’). Historically, they have associated ‘hearing the other side’ with a particular conception of public reason, on the one hand, and political arrangements that embody a balance of power, on the other. The former characterises the civic attitudes and types of deliberation citizens and politicians should adopt when making decisions, the latter the way decision-making power needs to be divided to encourage these virtues and facilitate access to the political process. Republicans claim that only political systems embodying these two elements will treat all as equals and so avoid domination through arbitrary rule.

This chapter has three aims. First, it criticises those versions of these two features of republican politics that have come to be associated with constitutional judicial review and somewhat depoliticised or apolitical forms of deliberative democracy. On the one side, reasoning by the public is distinguished from a stipulative form of public reason. On the other side, the balance of power so as to encourage all citizens to give equal consideration to each other's views and interests is contrasted with the separation of power, which is revealed to have the perverse effect of removing such incentives.

This book is about constitutions and democratic politics. The increasingly dominant view is that constitutions enshrine and secure the rights central to a democratic society. This approach defines a constitution as a written document, superior to ordinary legislation and entrenched against legislative change, justiciable and constitutive of the legal and political system. It contends that a constitution of this kind, not participation in democratic politics per se, offers the basis for citizens to be treated in a democratic way as deserving of equal concern and respect. The electorate and politicians may engage in a democratic process, but they do not always embrace democratic values. The defence of these belongs to the constitution and its judicial guardians. As Cherie Booth, the barrister wife of the former British Prime Minister Tony Blair, neatly put it: ‘In a human rights world … responsibility for a value-based substantive commitment to democracy rests in large part on judges … [J]udges in constitutional democracies are set aside as the guardians of individual rights … [and] afforded the opportunity and duty to do justice for all citizens by reliance on universal standards of decency and humaneness … in a way that teaches citizens and government about the ethical responsibilities of being participants in a true democracy.’

That the wife of a democratically elected political leader should express such a condescending view of democratic politics may be a little surprising, but it all too accurately reflects the prevailing opinion among legal constitutionalists.

The argument of Part I has been largely negative, criticising the claims and aspirations of legal constitutionalism. I now want to explore how these criticisms coalesce around the positive case for a political constitutionalism. Part II seeks to explain why the legal constitutionalist's fears about democracy prove misguided, with democratic decision-making actively promoting, rather than threatening, constitutional values. Moreover, unlike constitutional judicial review, democracy performs this constitutional role in ways that are congruent with these values being subject to the ‘circumstances of politics’. As we have seen, defenders of legal constitutionalism tend to focus on the capacity of a judicially protected and entrenched constitution to secure appropriate substantive results or outputs – notably, the defence of a given theorist's favoured view of individual rights, legality and democracy. While far from indifferent to these concerns, a political constitutionalism also looks at inputs. As such, it focuses on the legitimacy of the processes whereby we define and promote or restrict rights through legislation and administrative action. From this perspective, a failure to acknowledge the disagreements that surround constitutional values, and the resulting need for political mechanisms to resolve them, can itself be a source of domination and arbitrary rule that impacts negatively on rights and the rule of law.

Chapter 1 identified the core impetus of legal constitutionalism in the emphasis on rights and the need to protect them from political encroachments, not least by supposedly tyrannous democratic majorities.