Vol. 15 No.5 (May 2005), pp.411-414
DEMOCRACY THROUGH LAW: SELECTED SPEECHES AND JUDGMENTS, by Johan Steyn. Aldershot, UK and Burlington, VT: Ashgate, 2004. 334pp. Hardback. $114.95 / £60.00. ISBN: 0754624048.
Reviewed by Rory O’Connell, Human Rights Centre, Law School, Queen’s University of Belfast. Email: email@example.com .
This is a collection of essays and case excerpts from Lord Steyn, one of the judges of the United Kingdom’s highest court, the House of Lords. Traditionally the judicial House of Lords has been a committee of the Upper House of the UK Parliament (also called the House of Lords), though the current government plans to establish a separate Supreme Court. Lord Steyn also sits on the judicial House of Lords’ alter ego, the Privy Council, which hears appeals from several Commonwealth countries.
Lord Steyn is a South African born judge and his experiences of legalized tyranny in that country under Apartheid left an “indelible” impression on him (p.xiii). His legal practice in England largely concerned commercial practice, but especially since becoming a member of the House of Lords in 1995 he has produced many thoughtful analyses of constitutional law and human rights. Lord Steyn offers insights into the constitutional reforms on-going in the United Kingdom, the principles of the 1950 European Convention on Human Rights (ECHR) and more generally into the role of a judge in today’s global rights conscious community. This is not merely a learned collection, but one marked by honesty, humour and considerable forthrightness. He admits to getting things wrong (p.131). He suggests that his elevation to the Bench was a result of mistaken identity (p.xiii). He leaves us in no doubt that US military tribunals planned for Guantanamo Bay detainees are reminiscent of kangaroo courts (p.207).
Lord Steyn’s collection discusses the ongoing reforms in UK legal practice. The very existence of this volume and its contents indicate some of the great changes underway in the UK legal culture. In the past thirty years senior judges have dropped much of the aura of judicial mystique which lead one comparativist to title a work the ORACLES OF THE LAW (Dawson 1968). UK judges have increasingly entered the public eye and explained some of the workings of their craft. Lord Steyn’s outspokenness is one of the most recent examples of this; writings by himself and other prominent judges such as Lord Bingham, Lord Justices Laws and Sedley, have contributed greatly to our understanding of the judicial role. Few judges though have been so forthright in their public pronouncements, as is evident from Lord Steyn’s comments on Guantanamo Bay (p.207).
Lord Steyn neatly summarises some of the changes in UK public law (for more extensive discussion please see Oliver 2003, Jowell 2004). Traditionally the UK constitution was a purely procedural or political one, where formally the will of Parliament was supreme and the [*412] constitutional workings were shrouded in the mysticism of monarchy; and practically the Executive government was the most powerful actor in the state.
Lord Steyn notes that current reforms tend to create a constitutional state: judges now refer to “citizens” and not “subjects of the Crown;” the “state” has become a recognised legal concept and now judges can issue injunctions against Executive ministers (p.140). Judges have developed the concept of the rule of law and have invoked the phrase “constitutional rights” to say that Parliament can only violate fundamental principles by explicit legislation (pp.xix, 55-6, 63-4. An example of this is in the ANUFRIJEVA case excerpted in this volume (p.143)). Constitutionalism is enhanced by diffusing authority so that all power is not centralized in the Executive. This has been promoted, with devolution to the different regions of the UK being the most dramatic example. These constitutional developments are reinforced by European influences such as the 1950 European Convention on Human Rights and European Union law (pp.141, 160). Importantly the ECHR has become part of domestic law thanks to the 1998 Human Rights Act. There are further changes necessary to promote constitutionalism: Lord Steyn describes how the judges of the House of Lords now rarely debate in the Parliamentary House of Lords and that there is a need for a proper separate Supreme Court which has now been “ineptly” announced by the Blair government (pp.xx, 125).
Yet Lord Steyn’s writings offer us much more than an introduction into changes in the UK legal culture. There are many points in this collection which are relevant to the role of the judge in today’s global legal community.
Lord Steyn largely rejects formalistic approaches to legal reasoning (pp.xviii, 77). Judges must be open about all factors, including moral and ethical principles, that influence their judgments and acknowledge that different judicial answers are always possible (pp.24-6). He acknowledges that judging is not an exact science and that judges, including himself, may make mistakes (pp.36-9, 131).
The formalist pursuit of mere consistency is sometimes not sufficient at the appellate level, though, in a nod to Dworkin, judges must respect law’s “integrity” (p.14). Interpretation is never merely a question of looking for the ordinary meaning of discrete words, nor is interpretation limited to cases where a text is ambiguous (p.60). Statutes should be purposively interpreted as if they are speaking in the “present tense” or are “always speaking,” rather than being limited to the historical context in which they first appeared (p.62-3). These principles apply even more so in the case of constitutional texts (citing Cardozo J. and Chief Justice Dickson of Canada, p.65) when ethical values are important in interpretation (p.173). In articulating their interpretation of the constitution, judges are not acting undemocratically but rather promoting respect for human rights, one of the pillars of democracy (p.130). With candor, Lord Steyn says that the “fallible judges with imperfect insights” have the “duty of reaching through reasoned debate the best attainable judgments in accordance with justice and law” (p.130). [*413]
This judicial duty is no longer one to be undertaken by national judiciaries in isolation. We can see the extent to which judging is now an international business. While reference to foreign and international law in US cases may still be somewhat rare and controversial (LAWRENCE v. TEXAS (2003); ROPER v. SIMMONS (2005)), Lord Steyn throws himself into the network of “transjudicial communication” (McCrudden 2000, Slaughter 2003). He makes public speeches in Britain, in addition to India, New Zealand and Canada, refers approvingly to Barak J. of the Israel (p.162). He draws on case law from the European Court of Human Rights and Inter American Court of Human Rights (p.xvii), and connects constitutional reform in the UK to the constitutional “renaissance” throughout the Commonwealth (p.159).
This internationalism expresses itself, not just in the use of comparative law in judicial cases (p.142), but also in a strong commitment to certain universal values, most notably human rights. Lord Steyn outlines the evolution of international human rights in “Human Rights: The Legacy of Mrs. Roosevelt” (pp.151ff). Human rights express both a moral claim and a necessary condition for democracy—democracy requires majority rule and human rights (pp.59, 152). This universalism appears in Lord Steyn’s judicial work. When Spain sought the extradition of General Pinochet for murder and torture, Lord Steyn offered a clear ruling that the former Chilean dictator was not entitled to any immunity for such acts (pp.163-70).
Lord Steyn’s commitment to universal values produces a stark paradox in death penalty cases. The United Kingdom has abandoned the judicial death sentence, and signed on to a Council of Europe protocol banning it. However the Privy Council hears appeals from countries which still have the death penalty. In the 1998 FISHER case, Lord Steyn tried to use the principle that the death sentence must not be inflicted following “exceptional and abnormal” delays to prevent an execution, but this was a dissenting opinion. The execution went ahead (p.93).
Lord Steyn has played a considerable role in explaining the implications of European human rights law in the United Kingdom. Importantly the values of European human rights law differ from some traditional principles in the application of constitutional rights in the United States (p.65). Lord Steyn outlined some of the European principles in a case where a person accused of drunk driving claimed that her right against self-incrimination had been violated—she had been obliged to identify herself as the driver of a car. Lord Steyn emphasised the sophistication of the European Convention: the drafters were aware that rights could collide and that “single minded concentration on the pursuit” of individual rights could harm the public good and even undermine “tolerant European liberal democracies” (p.178). The fact of living in a community requires limits on rights (Lord Steyn traces this to Article 29 of the 1948 Universal Declaration of Human Rights). These rights must satisfy the test of proportionality; rights may be limited only when narrowly tailored and necessary to protect an important public interest (pp.180-1). [*414]
The European Convention on Human Rights is thus critical in developing a “culture of justification” suitable for a modern democracy (p.66), though Lord Steyn believes that ultimate decision-making should still lie with Parliament and not with a final court of appeal (pp.98, 101, 135). Whilst rejecting some of the hysterical media reports about the impact of human rights law (p.174), Lord Steyn is not blind to the defects of the European Convention. He criticises the absence of a right to information (p.176) as a serious flaw in a democracy, and he is critical of the ECHR’s weak equality right (p.137).
Overall this collection offers considerable insight into the role of the modern judge. Being a compilation of essays on related topics, it sometimes suffers from inevitable repetition, and occasionally I would have appreciated more extended treatment of issues like the relationship between rights and democracy. I would also have liked more clarification on the role of legislation; although Lord Steyn speaks of the respect that is owed to Parliament (p.48), he also seems to have a low opinion of much of Parliament’s output (pp.50, 58). Certainly one can only agree with Lord Steyn that universities need to divert more attention to the role of legislation, a project promoted by Jeremy Waldron as well (Waldron 1999). And Lord Steyn’s repeated call for judges to stand for human rights even in a time of a “war on terrorism” is one which can hardly be repeated too much (p.xxii).
Dawson, John P. 1968. THE ORACLES OF THE LAW. Ann Arbor, MI: University of Michigan Press.
Jowell, Jeffrey, and Dawn Oliver. 2004. THE CHANGING CONSTITUTION. Oxford: Oxford University Press.
McCrudden, Christopher. 2000. “A Common Law of Human Rights?: Transnational Judicial Conversations Constitutional Rights.” 20 OXFORD JOURNAL OF LEGAL STUDIES 499-532.
Oliver, Dawn. 2003. CONSTITUTIONAL REFORM IN THE UK. Oxford: Oxford University Press.
Slaughter, Anne-Marie. 2003. “A Global Community of Courts.” 44 HARVARD INTERNATIONAL LAW JOURNAL 191-220.
Waldron, Jeremy. 1999. THE DIGNITY OF LEGISLATION. Cambridge: Cambridge University Press.
FISHER v. MINISTER OF PUBLIC SAFETY AND IMMIGRATION & ORS (No 2)  ICHRL 134.
LAWRENCE v. TEXAS, 539 U.S. 558 (2003).
REGINA v. SECRETARY OF STATE FOR THE HOME DEPARTMENT AND ANOTHER EX PARTE ANUFRIJEVA,  UKHL 36.
ROPER v. SIMMONS, 125 S.Ct. 1183 (2005).
© Copyright 2005 by the author, Rory O’Connell.