Paul P. Craig (University of Oxford - Faculty of Law) has posted Political Constitutionalism and Judicial Review (EFFECTIVE JUDICIAL REVIEW: A CORNERSTONE OF GOOD GOVERNANCE, C. Forsyth, M. Elliott, S. Jhaveri, A. Scully-Hill, M. Ramsden, eds., Oxford University Press, Forthcoming) on SSRN. Here is the abstract:
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The principal academic challenge to the legitimacy of judicial review is presently the work of political constitutionalists. Their main focus hitherto has been constitutional review, but there is now also literature challenging non-constitutional review, which is explored in this paper. The structure of the argument is as follows. In part one the political constitutionalist argument against constitutional review is considered. I do not claim to add to the sophisticated literature on this issue, but its relevance to the Human Rights Act 1998 will be considered. The implications of political constitutionalism for judicial review in administrative law are however much less well-developed. Thus parts two and three critically assess what are termed the radical and moderate view of political constitutionalism. In part four legal constitutionalism is revisited and a moderate view thereof is presented that best captures the legitimacy of judicial review in administrative law, and provides a balanced account of the inter-relationship of courts and the political process in delivering accountable government. In part five the relationship between legal and political constitutionalism is clarified, while part six addresses some of the broader criticisms of legal constitutionalism in the light of the moderate version thereof presented in this paper.
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Griffith is properly regarded as a leading exemplar of political constitutionalism and he was strongly opposed to constitutional review of statute.1 He was almost certainly a rights-sceptic, stating that it was ‘misleading to speak of certain rights of the individual as being fundamental and inherent in the person of the individual’2 and that ‘so-called individual or human rights are no more or no less than political claims made by individuals on those in authority’.3 Griffith was also undoubtedly a court-sceptic, viewing proposals for a Bill of Rights to be policed by the courts as objectionable because ‘law is not and cannot be a substitute for politics’,4 and that such proposals merely ‘pass political decisions out of the hands of politicians and into the hands of judges or other persons’.5 Griffith opposed rights-based constitutional review because the rights to be included and their interpretation was controversial. Thus speaking of Article 10 ECHR Griffith opined that ‘it sounds like the statement of a political conflict pretending to be a resolution of it’,6 and that incorporation of the ECHR into domestic law would result in the judiciary interpreting ‘woolly principles and even woollier exceptions’.7
The general issue as to whether there should be constitutional review of statute has generated a veritable mountain of literature. The debate has now assumed prominence once again. Waldron8 and Bellamy9 are the leading opponents of rights-based constitutional review of statute.10 Waldron is a court-sceptic, but not a rights-sceptic. Bellamy’s position is more complex. He is certainly a court-sceptic, and is also more sceptical about rights insofar as he believes that citizenship should not be equated with a narrow concept of individuals being rights-holders against the state but comprises a ‘continuously reflexive process, with citizens reinterpreting the basis of their collective life in new ways that correspond to their evolving needs and ideals’.11
There is nonetheless much common ground in the reasons for their court- scepticism. Thus the central premise to Waldron and Bellamy’s argument is the prevalence of disagreement concerning the rights that should be included within any Bill of Rights and their interpretation. For both writers such disagreement pervades the very foundational ideas of justice on which society is grounded. They maintain therefore that whether viewed in terms of process, or in terms of outcome, it is preferable for such matters to be decided ultimately by the political and not the legal process. The detailed arguments for and against this position are complex, and I do not intend to add anything directly to this debate. It is however necessary to clarify the focus of this challenge, since there are differences between Waldron and Bellamy.
