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Introduction

Rights are often seen as republicanism's Achilles' heel. Even certain friends of republican arguments fear its tendency to privilege democracy risks undermining respect for individual rights. As a result, they have suggested that we need to produce a marriage between liberalism and republicanism (for example, Dagger 1997, and in many respects Habermas 1996). Here I want to take a different tack and suggest that rights imply democracy rather than being a constraint upon it. By that I do not mean, as some have argued, that rights are implied by democracy – that all rights can be seen as somehow inherent components of a democratic process. Some, such as the right to vote, obviously are, but others, such as the right not to be tortured, have no intrinsic link to the democratic process (Jones 1994, 173–4). Rather, I wish to argue that rights claims can only be justified in democratic terms – as claims made under conditions of political equality. This understanding of rights is quite different to the deontological account standardly offered by liberal theories that hark back to the natural rights tradition. That account sits with a view of liberty as noninterference, which sees its main object as the restriction of law and government. By contrast, the democratic account of rights belongs to the republican view of freedom as nondomination. Here, rights reflect the common avowable interests of citizens and are both political in origin and in execution. On this account, the liberal view of a right against democracy appears both unjustifiable and incoherent.

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.

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.

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.

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.