PRESCRIPTIVE LEGAL POSTITIVISM: LAW, RIGHTS AND DEMOCRACY

Vol. 15 No.8 (August 2005), pp.726-729

PRESCRIPTIVE LEGAL POSTITIVISM: LAW, RIGHTS AND DEMOCRACY, by Tom Campbell. London: Cavendish Publishing/UCL Press, 2004. 342pp. Paper. £25.00/$50.00. ISBN: 1844720225. Cloth. £50.00/$70.00. ISBN: 1844720233.

Review by Martin Shapiro, School of Law, University of California, Berkeley.

Tom Campbell is an Australian moral philosopher with a particular interest in law and politics. His work is grounded in a standard theory of moral sentiments in which every individual is informed by an empathically based altruism when in a contemplative state that is somewhat distorted by self-interest when the individual moves to action. The moral truths that contemplative persons seek as guides exist and are knowable through analytical discourse, so that democracies are capable of enacting normatively correct laws. Knowing that their actions are likely to be excessively influenced by self-interest, citizens of a democracy will enact laws curbing and guiding that self-interest in order to achieve the outcomes to which their moral sentiments inspire them. Thus Campbell labels his position positivism because it carefully distinguishes is from ought, treats laws or rules as human creations and holds that laws should themselves contain no moral terms. He rejects Austinian varieties of positivism that define law as the command of a unitary sovereign and logical positivism that treats morals as mere individual or collective preferences. Instead his is a morals based and thus “prescriptive positivism.”

As a political theory his position becomes one of the rule of law, that government shall act by, and itself be governed by, general, clear and specific rules. Making these rules is the exclusive province of the legislature. Courts are not to make law but only to apply the laws made by legislatures to achieve the intent of the legislature as revealed by the plain meaning of the statutory language in light of the social circumstances surrounding their enactment.

Two overlapping features of Campbell’s approach move very usefully beyond the conventional. The first is an extended treatment of the ethical duties of various participants in government by rule of law. While recognizing that, in fact, legislators sometimes deliberately enact statutes that do not clearly state a single or compatible set of intents, Campbell assigns them an ethical duty to do so. Similarly recognizing the element of discretion to be inescapable in judicial statutory interpretation, Campbell assigns judges the ethical duty to follow legislative intent and avoid judicial law making. And, unlike most writing on the rule of law, Campbell takes lawyers very seriously as participants. Moreover, rather than parroting the usual clichés about the glories of adversary proceedings or the current cries of alarm about excessive adversarial legalism, Campbell places an ethical duty on lawyers to subordinate the interests of clients to the prescriptions of the law.

Campbell accepts written constitutions and constitutional judicial review into his version of rule of law, although one [*727] senses here only a reluctant acquiescence in practices now too deeply ingrained in developed democracies to be opposed successfully. He is completely opposed to judicial enforcement of constitutional, individual rights, so he does not have the difficult task of fitting such review into a majoritarian, democratic legal positivism. His opposition to rights review is essentially Kelsenian, that rights review inevitably places far too much political discretion in the hands of judges to be compatible with democracy. Indeed as a socialist he is highly suspicious of the whole idea of rights which may serve to camouflage and sanctify various bourgeois defenses of the vicious capitalism and attacks on the holy welfare state. Part of the book is devoted to a carefully argued discourse of rights explicitly designed to vindicate left rights and denigrate right rights.

Ultimately, however, for Campbell even left rights are to be left to the standard electoral, representative law making processes and kept away from courts, except of course when legislatures enact clear rights statutes that themselves provide for judicial enforcement. Even then there are grave dangers of excessive judicial discretion that ought to caution legislatures against overly ambitious rights legislation. Campbell acknowledges the dangers to minority interests in his assignment of rights protections exclusively to legislatures. His response is a now familiar hymn to “deliberative democracy,” in which we will all talk so much to one another that we will love one another and our altruism will prevail over our selfish interests.

So in the end Campbell tells us that his prescriptive positivism is also democratic positivism and deliberative democratic positivism.

And finally there is some back tracking under pressure from those who place less faith in deliberate democracy to protect rights than Campbell (and such countries as Norway, Sweden and the Netherlands) have. There is a coy flirtation with some kind of deliberation rather than rights enforcing judicial review and even less enthusiastically with statutory, judicially partially enforceable, bills of rights.

For those basically interested in general legal philosophy, this book provides the kind of careful analytical arguments expected of philosophers and joins work by Postuma and Waldron whom Campbell cites as his allies.

For those basically interested in the politics of judicial review, this book adds another piece of anti-rights review argument along familiar lines. It is in no way a criticism of the book, which states its argument against rights review clearly and effectively, that it does not help us much with how judges legally educated in a dominant European and Latin American positivist tradition are to handle the rights constitutional judicial review now assigned to them by their national constitutions and various transnational rights instruments. Not at the philosophical and prescriptive levels at which Campbell quite justifiably chooses to operate, but at the level of everyday politics in which many of us are interested, the key question is how judges trained in a positivist and heavily Kelsenian tradition are to treat constitutional bills of rights declared by [*728] those very constitutions to be judicially enforceable, when the tradition in which they have been trained, and as expressed by Campbell, tells them not to do rights review. The relative passivity of Latin American judges in rights review is sometimes partially explained in terms of their positivist legal education. Yet, European judges also trained in positivism, and operating in separate constitutional courts explicitly structured according to Kelsenian principles, have been quite activist when, contra Kelsen and Campbell, they have been explicitly assigned rights review by their new constitutions (or in the French case seized it on their own).

For those interested in these kinds of questions, two portions of Campbell’s work are of particular interest—his treatment of the ethical duty of judges to follow the intent of statutes rather than make law, and his espousal of an “originalist” mode of interpretation of that intent.

Yet, the ultimate dilemma remains as cogent as Campbell’s reasons may be for rejecting constitutional rights review; deliberative, democratic, prescriptive positivists have no choice but to accept such review both as an is and an ought if the citizens have chosen, after due deliberation and by democratic processes, to institute a constitution that clearly and specifically prescribes a bill of rights and assigns courts a duty to vindicate the enumerated rights by declaring statutes invading those rights unlawful. Under such circumstances, the constitutional rights text itself becomes positive legal text, the intent of which, according to positivists, the courts have an ethical duty to implement. The analogy to statutory interpretation, however, does not quite fit. Even when constitution enactors act ethically, constitutional rights text is almost unavoidably going to be far more general, and thus less clear as to original intent, than ethically drafted statutory language. Moreover, although judges may well interpret statutory language in the light of the circumstances prevailing when the legislation was enacted, leaving it to legislators to revise or replace the statute as circumstances change, they can hardly follow this path in interpreting constitutions which, typically, are difficult to amend and whose enactors have more or less explicitly stated their intent that a constitutional language, unchanged, shall apply in future, as well as original, circumstances.

Indeed, mere statutes are sometimes clearly intended by legislatures to continue to be judicially applied, unchanged in language, to changing circumstances, as in continental civil codes. In order to obey the legislature’s intent, continental courts applying the codes have had to inform their plain meaning interpretation by considerations of changed circumstances as well as original ones. In many instances, changed circumstances on the continent have led to substantial revisions of the national code, with the same revision in some countries made by legislative amendment and in others by judicial interpretation. Here again Campbell provides good reasons for restraining judicial discretion, but the code enactors themselves have often demanded such discretion by enacting codes whose language they clearly intended to remain unchanged for long periods and which they, nevertheless, intended to be effective over long periods in which they [*729] knew circumstances would change. The positivist code law judge makes a good deal of law by “interpretation” because that is what he/she sees as the legislature’s intention.

Ultimately Campbell cannot give us much guidance beyond a general plea for caution, if what we are concerned with is the now flourishing and proliferating practices of constitutional rights judicial review. For the minority-majority problem, he offers the pie in the sky of “deliberative” democracy. For the problem of judicial discretion when Campbell’s (and Kelsen’s) strictures against rights review are ignored, as they often are, Campbell offers a canon of ethical judicial interpretation that does not quite fit and, in his own view, cannot be made legally binding, and a canon of rights which says that the rights he likes are rights, and those he doesn’t aren’t.

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