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.