Sovereignty and the Rule of Law

   

What an honor it is to have one's essay critiqued by such able and distinguished scholars as David Wootton, Bruce Frohnen, and James R. Stoner, Jr. Insofar as my essay uncovered interesting and important features of the English Constitution and Bagehot's interpretation of it, these three scholars have extended the inquiry in fascinating directions. Insofar as I failed to do justice to the Constitution and to Bagehot, they have gone directly to the source(s) with knowledge and clarity. I learned much from reading all three essays.

Wootton and Frohnen pick up the central theme of my original essay, that Bagehot's constitution has no place for the rule of law in the comprehensive sense of a law that obligates both the rulers and the ruled. In this essay I will reply to them both. Stoner points toward a very rich and (it seems to me) different inquiry: What could we learn from Bagehot by considering him as a nineteenth-century Aristotle? I'll pursue that inquiry separately.

I think David Wootton and I might agree on more than at first appears. I agree that, in some ways, Britain fares better than the United States at the moment. And I agree that the difference can be attributed to a difference of statesmanship. Johnson has increased; Trump has… not always. Yet both men have largely achieved what they promised to achieve, and they have done so mostly in spite of the institutions in which they work.

Wootton argues that the British "political system" has succeeded, not failed. I agree. That success is, in my view, attributable to Johnson's statesmanship and new institutions, especially the popular referendum, rather than Parliament.

Wootton suggests that due process protections such as the right to remain silent "were only recently held to be issues of principle," and are now "waived aside as inefficient and impractical." Indeed. And I think this is a downstream implication of the pragmatic jurisprudence that Bentham and Bagehot championed.

Now to take up our disagreement. Wootton defends Bagehot's idea of English constitutionalism as unified sovereignty, and he challenges my claim that the constitution was once understood to consist of law. He understands the British constitution to consist of a single principle: the sovereignty of Parliament. Parliament's will is supreme; Parliament can change the law and the constitution at will. Far from signifying the failure of Parliament, Brexit represents the triumph of the principle of Parliamentary sovereignty.

This is problematic in two ways. First, it appears that Parliament has recently abdicated significant aspects of its sovereignty. Parliament did not enact Brexit on its own initiative; it did not exercise its own will. The people ordered Brexit to be accomplished, expressing their will by referendum. Even then, Parliament declined to accomplish what (a majority of) the people said they wanted. Were the people acting as Parliament's delegates, or the other way around?

It took a singular statesman—Boris Johnson, whom Wootton compares to "Prince Hal"—to break the deadlock between Parliament and the people. Why Parliament should get the credit for Johnson's achievement is not obvious. Johnson achieved the will of the people by appealing over Parliament to the people. Wootton might say that Johnson's ability to do so proves the superiority of Parliamentary government, because Parliament is more responsive to the will of the people than republican forms of government. But that would be to say that Parliament is more democratic. Which is to say that the people are sovereign.

Wootton interprets the UK high court's decision as a vindication of Parliamentary sovereignty against the government's unlawful attempt to prorogue Parliament. But if we are to accept Bagehot's idea that the sovereign powers of Parliament and Crown are fused in the Cabinet, what could it possibly mean for a court that is not within Parliament to vindicate the supremacy of one part of Parliament against an unlawful action by another part of Parliament, especially when those parts are the same part? Consider just one facet of the conundrum. Johnson is Prime Minister and a Member of Parliament. He is one natural person. The only way to make his actions intelligible is to conceive of his official (executive) personage as PM standing before the court opposed to the institution of which his official (legislative) personage as MP is part. And that is to show the incoherence in Bagehot's notion of fused sovereign powers.

Furthermore, the court purported to render judgment according to law. The court's judgment is either according to law or it is not. On Wootton's view, why should any member of Parliament defer to the court's declaration of the meaning of law? Wootten might reply that Parliament has delegated the resolution of such questions to the court. Parliament remains sovereign insofar as it could delegate the power to some other person or institution tomorrow. But if the law is simply Parliament's will, why does Parliament need an external institution to tell it what the law is?

Second, to acknowledge that the British Constitution is an unwritten, political constitution does not establish that there are no limits on Parliament's power to change the law. Whether or not any institution external to Parliament can oppose Parliament's acts, it makes sense to say, as English (and American!) jurists said for centuries, that Parliament is obligated by law. Members of Parliament are, at least in theory, as capable of following the just dictates of conscience as anyone else.

Wootton insists that what appear to be fundamental parts of the British constitution are in fact modern inventions. But the supremacy of Parliament is a modern invention. Due process of law and redress of wrongs are declared in Magna Carta in 1215 as rights belonging to (at least some) subjects of the Crown. The particular specifications of constitutional guarantees changed from Magna Carta to the Bill of Rights, and have changed since. Such changes do not entail that Parliament could lawfully deprive people of their lives, liberties, and estates without any process, nor that any process is sufficient to satisfy the requirements of reason.

Unlike Wootton, Bruce Frohnen approaches English constitutionalism from the internal point of view of those who preceded Bagehot, jurists who began with the understanding that law is not merely the will of the sovereign. The question he poses for us is how to restore that understanding.

Frohnen (rightly) worries about theories of natural law that ignore the legal specifications provided by customs and tradition. Those theories expect too much normative work from abstract principles, such as those expressed in the opening of the Declaration of Independence. In fact, most of the principles of natural law, and even the maxims of common law, require specification as concrete judgments. And we do well to defer to the specifications and judgments that have worked in the past. Legal concepts such as trespass and promissory obligation, customary norms and institutions such as juries and the right to remain silent, and the other artifacts of our Anglo-American legal tradition reflect hard-won practical wisdom that we should not lightly discard.

Nevertheless, we cannot do without a theoretical account of the good and right. Jurists from Justinian to Joseph Story have looked to both customary norms and the determinate judgments of the law of reason, in part because some customs are contrary to reason. Some acts are inherently wrong, never to be done intentionally. We need the law of reason to identify them by looking outside our own culture and traditions to identify universal human goods and the dispositions of mind and will that are inimical to them.

Finally, Frohnen wants to locate the new classical natural law theory of John Finnis among those abstract theories that should worry us. He cites Finnis as the sole example of theories that "reduce [natural law] to a set of logical deductions from presupposed human goods." But one finds in Finnis forceful arguments in defense of customary law and the role of pre-positive institutions to specify all of the matters of indifference—Finnis follows Aquinas in calling them matters of determinatio—that natural law shapes but does not fully determine.