The Constitutional Balance, a new work by the former judge John Laws, was published posthumously in January. Here, David Feldman discusses the key themes of the book, and pays tribute to the author, a long-serving judge, who served as a Lord Justice of Appeal and was one of the most well-respected public law judges of the last 50 years.
The late Sir John Laws stood out as one of the greatest English public law judges of the last 50 years. Throughout his distinguished and creative career as Treasury Devil – First Junior Treasury Counsel (Common Law), responsible for advising and representing the government in a large range of public law matters – and judge, he was uniquely willing to argue publicly for and apply in his judgments a systematic philosophy of the liberal, democratic state and of the respective roles within it of the people, their representatives, the government and the judiciary. After retiring from the Bench he spent the 2016-17 academic year as A. L. Goodhart Visiting Professor of Legal Science at Cambridge. There he gave a course of 16 lectures, primarily for final-year undergraduates, entitled ‘Judicial Review and the Constitution’. In them he distilled his latest thinking on matters to which, as writer and judge, he had made distinctive contributions to our public law. These included parliamentary sovereignty and the interpretation of statutes, the importance of the common law in constitutional development, the place of human rights in the constitution, the role of judicial review, how government and judiciary should understand and give appropriate respect to each other’s different, equally legitimate roles in the governance of the country, and the proper relationship between religion and the law.
Sir John used his lectures as the basis for a book, The Constitutional Balance. Unfortunately his zest for life was severely dented by the death in 2017 of Sophie, his wife, and his physical health deteriorated. Nevertheless, greatly helped by Nigel Pleming QC, his long-standing colleague and friend, Sir John finished the text before he, too, died in 2020.
At the heart of the book lies a connection between his view of the constitution and his understanding of the human condition. Ideally, he thought, people are rational, enjoy free will (and so are responsible for their actions), are social, communing with others of their kind (pages 6-7) and have to find ways to coexist fairly with them. These characteristics demand freedom of thought and expression, and rigorous rejection of ideology (‘a preconception or preconceptions, an assumption or assumptions, not tested by reason, by argument, by practice or by results; an a priori belief, given or imposed in advance, assumed to be true’: page 2) that forecloses debate about the good and the bad, and reliance on reason and fair process to conduct and resolve disagreement (pages. 2-6 and 134-138). Sir John saw reason, fairness and a presumption in favour of liberty as key values of the common law, that unique system whereby principles and precedents are continuously tested through rigorous argument and gradually developed over centuries, and of a democratic constitution respecting the rule of law.
Political decision-making, too, he saw as grounded on rationality, free speech and social cohesion in democracies: unable to rely on revelation, people debate and make their own laws; but the method of politics is different. Whilst the common law looks back in order to move forward, political law-making typically relies on hope about or predictions of the future, employing consequentialist arguments, with electoral accountability for the success or failure of the measures enacted.
The different outlooks and justifying moralities of common law and politics, despite both being at heart rational and humane in different ways, can lead to conflict between judicial and democratic institutions. Sir John resisted attempts to give priority to one or the other. Both are human, social and political goods, and both have potential for good or harm. The common law’s reluctance to reason in a consequentialist way can put people at risk, and democracy carries the danger that the fact that a decision is popular will often close down discussion of the decision’s merits, particularly as it affects people’s freedom. Instead, he writes, a medium is needed ‘through which democracy and the rule of law … become a unified force in the service of just government in a free polity’ (page 8). This medium is ‘the constitutional balance’, and the attitudes and actions needed to maintain it form the spine of the book (pages 8-10 and chapters 3 and 6).
Sir John acknowledged many debts to earlier works, including Plato and other classical Greek philosophers, Kant, H L A Hart’s conception of the human condition in The Concept of Law, and his own earlier work, notably his Hamlyn Lectures, The Common Law Constitution. Nevertheless, the book is distinctively Sir John’s, built on his own personality and developed through long reflection and discussions with anyone willing to engage rationally with the subjects. In debate, Sir John was unfailingly polite and measured, without rancour, his enjoyment of the symposium evident, as keen to learn from his interlocutors as to impart his wisdom to them. He enlivened his arguments with historical anecdotes; if they carried a whiff of gossip, or were entertaining, so much the better. As in the common law which he celebrated, normative and descriptive theories equally had to be tested against the hard realities of life, and could not be accorded unquestioning or absolute acceptance. The fact that a god, dictator, Parliament or church elder was taken to have decreed something to be good, true or compulsory was never to be treated, without independent moral justification, as imposing an obligation to obey. Religious beliefs were to be afforded no privileges in the law for their own sakes.
Sir John generated the idea that common law recognised some legislation as having constitutional status which partly immunised it against implied repeal. He developed and applied common-law constitutional rights, and insisted that interpretation of statutes by an independent judiciary was a necessary grounding for parliamentary sovereignty, as well as protecting against arbitrary government (chapters 4, 7 and 8). In all these ways he has had a continuing influence on the UK’s constitutional law, as shown, for example, by the judgments in the Supreme Court in 2020 in R. (Privacy International) v. Investigatory Powers Tribunal. For this, he was sometimes misunderstood as a judicial supremacist, anti-democratic and individualist. But Sir John, perhaps influenced by his time as Treasury Devil, was deeply sensitive to the needs of the executive, and determined not to impose unnecessary burdens and restrictions on government. Friends at the Bar say that it was far from easy to persuade him, as a judge, that a minister had acted unlawfully. At the heart of the book is his idea of deference, the notion that judges should give the benefit of any doubt to the executive, in some circumstances more than others (chapter 6). He insisted that judges should respect the democratic process, and the government’s related obligation to advance the welfare of the nation (as the government of the day conceives it) through law (among other mechanisms), and should accommodate them as constitutional imperatives in a balanced constitution. To him, a balanced constitution was one in which the protection of liberty (protected principally by the judiciary) and the operation of democracy (protected principally by parliament and the executive, but also by the judiciary and others) work alongside each other, not necessarily always harmoniously.
The book stands as Sir John’s final statement on the constitution, but he would have hated the idea of its being treated as the last word. He hoped that it would stimulate more debate. Had he lived, he would have relished taking part in them. I was fortunate to know him for 20 years and to be embraced in his vast circle of friends, covering every nation in Europe (although his chief love was Greece) and embodied in the European Group of Public Law (EGPL) and European Public Law Organisation based in Athens (of which he was a founding member and avid supporter). Reading The Constitutional Balance, I hear his rich voice intoning his elegant cadences, not in a Cambridge lecture room on a Friday morning in winter, but in the warmth of a Greek autumn, holding members of the EGPL in rapt attention, before changing into a battered Panama and vibrantly coloured shirt, decorated with huge parrots and palm trees, and travelling with Sophie and friends to an island taverna for a leisurely lunch, discussing law, ecclesiastical history (Sophie’s speciality), the design of triremes, morality, and Greek history and society, over a glass or two of ouzo and a selection of Greek delicacies. I am biased, but do not think that one needs to have experienced that to enjoy and be stimulated by the book: it is engaging, provocative and illuminating in its own right.
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About the author
Professor David Feldman is Emeritus Rouse Ball Professor of English Law, University of Cambridge and an Academic Associate at 39 Essex Chambers.