Vol. 14 No. 6 (June 2004), pp.449-452
CONSTITUTIONAL JUSTICE: A LIBERAL THEORY OF THE RULE OF LAW, by T.R.S. Allan. Oxford: Oxford University Press, 2003. 342pp. Hardcover. $105.00 / £52.50. ISBN: 0198298307. Paper. $29.95 / £19.99. ISBN: 019926788X.
Reviewed by Beau Breslin, Department of Government, Skidmore College, firstname.lastname@example.org
The quest to identify a normative theory of law has preoccupied the considerable talents of some of the twentieth and twenty-first centuries’ most impressive legal scholars. From the earlier writings of Lon Fuller and H.L.A. Hart to the contemporary standouts, Ronald Dworkin, Joseph Raz, and John Finnis, we can trace a continuous intellectual exchange whose central thread has been the pursuit of the ideal. Each, in his own way, has not only shed light on the various shortcomings of contemporary jurisprudence, but also, as a significant consequence of such a project, given us hope that a more just and egalitarian system of law is possible. All normative scholarship is, after all, a chance at renewal.
T.R.S. Allan’s CONSTITUTIONAL JUSTICE fits neatly into this conversation. In many ways a continuation of the work begun in his LAW, LIBERTY, AND JUSTICE, the book sets out to defend a conception of the rule of law that is a “necessary component of any genuine liberal or constitutional democratic polity” (p.1). Of course, the critical word is “genuine,” and Allan later indicates that what he really means by a “genuine” polity is one that promotes “the equal dignity of all citizens” (p.2). According to the author, regimes are considered constitutionally just if they place primacy on the dignity of the individual, thereby fostering an environment in which people are able to associate freely, speak without fear of reprisal, and, in certain situations, even refuse to abide by state-sponsored laws when those laws offend one’s “personal moral judgment” (p.89). A state that recognizes “the citizen’s moral autonomy or independence of mind [as] an internal characteristic of law” (p.89)—as a fundamental or vital component of the law—is a state that achieves the rigorous standards Allan so meticulously demands.
Allan begins by defining what he describes as the “first principles” of constitutional justice—the rule of law and separation of powers. Law, he insists, must be evenly applied insofar as it cannot impose discriminatory burdens on some citizens and not others without a corresponding rational justification that supports the common good and, perhaps more importantly, still maintains the dignity of all citizens. To do that, he argues that a division of power between lawmakers and those who execute the laws, as well as an independent judiciary, are essential. A man, he implies, should not be a judge in his own case.
In addition, Allan insists that the law be general; it must apply equally to private citizens as well as public officials. It is here that we are first introduced to the [*450] work of Lon L. Fuller, the late Harvard legal theorist whose book THE MORALITY OF THE LAW has clearly had an enormous impact on Allan’s intellectual development. Fuller’s “inner morality of law”—the “model of law as a body of general, clear, stable, and prospective rules, capable of obedience, and faithfully applied by judges and other public officials” (p.61)—serves as the foundation of Allan’s broader discussion of the rule of law. Allan seems to suggest that Fuller got it mostly right, and that he, himself, will both clarify and expand Fuller’s central thesis. Allan writes: “The connection that Fuller asserted between law and justice is ultimately forged by adherence to [my] ideal of the rule of law” (p.67).
In Chapters 3 and 4 Allan emerges from under Fuller’s shadow. These chapters are principally concerned with the concept of legal obligation, or the extent to which one is obliged to follow rules that may be morally suspect. Because Allan understands that the rule of law under liberal constitutions must acknowledge, first and foremost, the moral independence of citizens, he defends the notion that one is not morally obligated to abide by every law. There may be times when obedience to the law runs counter to an individual’s moral conscience, and since the first principle of Allan’s normative argument is respect for individual dignity, legal obligation is largely informed by personal choice. He writes: “At the heart of the ideal of the rule of law . . . is the role of the individual moral conscience: any rule’s entitlement to obedience, even when issued in apparent exercise of the state’s authority, is ultimately a matter of personal moral judgment” (p.89). To be sure, Allan also asserts that one who doubts the moral legitimacy of certain laws is still obliged to follow most rules because of the need to foster the common good; but in those instances where the law tests one’s moral courage and does not seem to enhance the community, Allan insists that the principle of legal obligation disappears. Not surprisingly, then, the right to free speech, free conscience, and even the freedom to be silent as a form of protest, are virtually inviolate in Allan’s ideal world.
And, so are the principles of equality and due process. In Chapter 5, Allan describes his version of these pillar ideals. Again, he notes that the law must be generally applied. He further contends that it must “secure a fair balance between public and private interests” (p.157), and that it not be a result of “popular prejudice” or “governmental hostility” toward a marginalized group. As for the principle of due process, he says that it cannot merely be confined to simple procedures—to the courts, for example, following just the letter of the law. Due process means something more: the ideal of the rule of law requires that due process take on a substantive component, that officials provide “appropriate criteria” for their decisions, and that those criteria be compatible with the common good. Allan is convinced that this more robust definition of due process will actually impose tangible limits on the power of government officials.
His conviction appears to be driven by a deep and profound skepticism of the political process. Like a good constitutionalist, Allan is wary of any political regime that places politics [*451] above justice. He argues in Chapter 6, for example, that we ought to be cautious before defining an issue as a “Political Question,” thereby throwing it back to those institutions that are governed primarily by power. Similarly, we ought to take issue with any argument that rests on a belief in the “unqualified or absolute” sovereignty of parliament, a point he makes repeatedly in Chapter 7. “It is the rule of law,” he says, “that is truly absolute, constituting the basis of the legal order within which legislative sovereignty must be located and defined” (p.201).
All this leads to a provocative argument in Chapter 8 on the importance of a written constitutional text. Is it necessary, he asks, for a regime like the United States to locate clauses in its constitutional text that support, say, his complex theory of equality? What happens, he continues, when the text is vague, or even silent, about the scope of its power? Interestingly, Allan appears largely untroubled by such matters. He remarks that his argument throughout the book has been based on some notion of “higher” or “natural” law, and, as a result, it presupposes the “subordination” of any constitutional text that may limit or confuse the general principles of the rule of law. What is more, he seems to think this is perfectly logical: “is this not,” he asks, “an inevitable, and perfectly legitimate, consequence of accepting that the rule of law and the separation of powers are implicit assumptions that underlie and inform the written constitution?” (p.263). Should not the constitutional text be read with an appreciation of its central purpose—a purpose, at least according to Allan, that rests inescapably on the main tenets of the rule of law?
Provocative questions, to be sure. And they are not the last. Allan concludes his overall discussion, in Chapter 9, by suggesting that certain forms of democracy—namely deliberative democracy—are more compatible with the system of constitutionalism he has sketched. In the process, he raises questions about the impact of public consensus on individual moral conscience, and, perhaps more intriguingly, about the possibility that a liberal constitutional regime could identify and foster certain shared communal values. Perhaps unwittingly, Allan thus leaves us pondering the place of community in his predominantly liberal portrait.
The many virtues of CONSTITUTIONAL JUSTICE are evident throughout the piece. The author should be congratulated, first of all, for even attempting to construct a normative theory of liberal constitutionalism. Surely there is no more daunting task in the field of legal philosophy than trying to capture, in a comprehensive way, the essence of western constitutional government. He sets out to explore some of the broadest questions in constitutional thought, including fundamental questions about the citizen’s relation to the state, and he succeeds in clarifying both the questions and the answers. What is more, his use of precedent from the United States, Australia, and the United Kingdom proves highly useful in elucidating his major themes.
On a slightly smaller scale, CONSTITUTIONAL JUSTICE is also demonstrably effective as a rejoinder to the conventional belief throughout British law and legal theory that [*452] Parliament is truly sovereign. His insistence that the rule of law is paramount, combined with his vigorous defense of an independent judiciary, sets Allan apart from many of his contemporaries—but not from all of them. I suspect many would contend that Allan’s greatest contribution to the literature on jurisprudence is building on the theories originally developed by Ronald Dworkin. I am not sure I would agree.
It is difficult to criticize Allan for standing on the shoulders of giants, but surely we can claim that such a vantage point lends itself to a certain repetition of ideas. To a great extent, the subject tackled by Allan—normative legal theory—is one that fosters only incremental intellectual advances. There is nothing wrong with that; but one must also recognize that, when reading a work of legal theory, certain themes will recur over and over again. Take Allan’s defense of a robust conception of equality as an example. Dworkin, of course, has been advocating a roughly similar vision for almost three decades now. That is not to say that Allan’s position and Dworkin’s are identical (they are not); but rather the themes themselves are recurrent, and the visions articulated take on a slightly parallel tone. I think what distinguishes philosophers such as Ronald Dworkin and the late John Rawls from their contemporaries is that they advanced legal and political thought in more substantial ways. Allan’s work is not quite at that level, but it is interesting and provocative nonetheless.
A more penetrating critique may be that the book starts off brilliantly but then falters a bit at the end. Allan is at his best when carefully describing the principles of the rule of law; he is less effective when considering how those principles fit into a democratic scheme. His concluding chapter on “Public Reason and Political Conflict” is comparatively thin, and seems almost like an afterthought when measured up to the considerable detail of his earlier exposition. Moreover, this reader was not fully convinced that a polity could maintain the high degree of tolerance necessary to fulfill Allan’s liberal vision, and still allow for the state to “secure and enforce a wide range of human and social values” (p.304). I wish he had elaborated a bit more on that point, but, of course, that would have meant writing a different book.
Overall, CONSTITUTIONAL JUSTICE is a work that faithfully carries on the grand tradition of normative legal thought. No small task, and Allan succeeds admirably. Indeed, if the measure of one’s respect for a project such as this is whether one believes he/she could write at a similar intellectual level, then my respect for CONSTITUTIONAL JUSTICE is sizeable.
Allan, T.R.S. 1993. LAW, LIBERTY, AND JUSTICE: THE LEGAL FOUNDATIONS OF BRITISH CONSTITUTIONALISM. Oxford: Oxford University Press.
Fuller, Lon L. 1964. THE MORALITY OF LAW. New Haven: Yale University Press.
Copyright 2004 by the author, Beau Breslin.