Larry Diamond documented the trend of global decline of democratic standards in democratic states beginning in the 1970’s. Scholars such as Ingrid van Biesen, Huq & Ginsburg and Dr Thomas Daly expanding upon this observation through research into the phenomenon of democratic decay and constitutional capture. In the US, and the EU with Poland and Hungary representing prominent casualties of modern democratic theory, the decline of democratic standards has moved into the center of present political discourse. Much attention has been given to explaining the phenomenon of democratic decay however as present the current orthodox of the rapidly growing body of scholarship surrounding democratic decline has indicated the phenomenon is political in nature. Neil Walker offers an interesting perspective on democratic decay by presenting democracy as an incomplete ideal and in doing so incorporates constitutionalism into his understanding of democratic theory. In Walker’s account democracy is a concept that is incapable of fulfilling itself and requires further qualification in order for its function to be realized.(1) What is of particular interest in Walker concept of democratic incompleteness is not just the framing of democracy vis a vis constitutionalism but the dual relationship of constitutionalism to democracy.
By virtue of this dual relation Walker observes that it is difficult to define a form of constitutionalism independent of democratic, or meta-democratic credentials as the function of constitutionalism to realize democracy is so central to its fundamental definition.(2) Equally, just as democratic models are incomplete so too is constitutionalism and in need of some manner of democratic credentials or qualification however meta such qualifications may be in practice. An interesting parallel can be drawn between the incompleteness of constitutionalism and HLA Hart’s pathology of a legal system.(3) My intent is to explore what I perceive to be a connection between Walker’s understanding of constitutionalism and Hart’s comments on the connection between the validity of law and the acceptance of law. In short, both Walker and Hart are speaking to a related concern. Law as a system of regulation requires some external component of acceptance, or qualification of sorts, in order to operate in a manner congruent with its function. Just as Walker presents democracy as incomplete so to is law. This incompleteness is the result of the divorce of the validity of law and the acceptance of law or as Walukow refers to “Hart’s Hell”.(4)
My intention is to not to critique Walker’s understandings of democratic incompleteness but rather the opposite. Walker’s account of democracy offers up a remarkable and intuitive view of democracy as a broader system of part components. This opens up the horizon of diagnosing democratic decay beyond the realm of simply political or sociological considerations. This is not only intuitive but also creative. The purpose of my writing this essay is to offer up what I consider a humble addition to Walker’s concepts by connecting democratic incompleteness to democratic decay. In doing so we can identify the issue of attachment which raises concerns regarding the acceptance and validity of the necessary non-democratic constitutional values required for the qualification and realisation of democracy. I wish to consider a specific issue of democratic incompleteness and in doing so relate the common law model as presented by Waluchow to the issue of incompleteness. The structure of this essay will be split into three thematical sections; firstly, I will provide a brief account of democratic decay and relate it to Walker’s concept of democratic incompleteness.(5) Secondly, I will consider the broader implications of meaning, attachment and acceptance presented in Walker’s account of incompleteness. Let us now begin our slow decent into Hart’ Hell and in doing so observe the deeper crisis of meaning present in constitutionalism. Lastly, I will explore the relevance of the common law model to the issue of incompleteness.
1. Democratic decay and constitutional capture
Larry Diamond defines democratic decline as a step, by step, incremental process of degradation a number of key state features; democratic pluralism, civil liberties and the rule of law until a point of no return. This point of no return is unobservable until crossed which results in democratic decline being a difficult problem to address within the confines of legal structures as common policy attitudes are retrospective meaning policy often wishes to address instances of instability with a view of returning them to stability.(6) Such reactive attitudes are problematic as often the moment of instability occurs long before it is observable in the most obvious meaning of the word resulting in a policy response that is both too late and politically unachievable. The temporal difficulties in observing democratic decay noted by Diamond are echoed by Huq and Ginsburg who frame democratic decay as constitutional retrogression.(7) Huq and Ginsburg recast Diamond’s conception of democratic decay by emphasizing the incremental nature of decay resulting from the nature of changes in democracy which are in of themselves incremental and innocuous in nature. Dr Thomas Daly presented what I believe is a useful conception of democratic decay as the incremental degradation of structures and substance of liberal constitutional democracy.(8) The terminology introduced by Daly in this formulation of democratic decay will prove relevant later in this essay as it encapsulates the systemic nature of democratic decay within a constitutional order. It is for this reason that the definition as presented by Daly will serve as the basis for my understanding of democratic decay moving forward.
It is perhaps due to the causal peculiarities associated with instances of democratic decay and retrospective policy attitudes that many developed democracies have struggled to present any form of effective legal defense to constitutional retrogression and instead have relied upon political solutions. Yet despite the fundamental difficulty in accurately observing democratic decay in real time it is possible to outline a pattern of behavior through to serve as a constructive guide in understanding democratic decay and in doing so we can begin to construct a socio-legal understanding of democratic decay. As noted by Diamond in recent decades democratic decline has manifested itself in a number of forms with the primary agent being illiberal populism.(9) Diamond outlines a number of behavioral examples associated with processes of democratic decay namely; the neutralizing of structures with the function of constraint such as the court system, the office of the public prosecutor, legislative, mass media, electoral administrations and regulatory agencies.(10) Daly proposes an additional structural focus of democratic decay; the institutionalization of political parties. (11) He continues and notes that far too often commentators label structural weaknesses synonyms with instances of democratic decay as broadly political centric problem however such a position fails to capture the full scope of behavioral patterns which comprise democratic decay. Daly suggests that democratic decay should also be understood to be party political problem inherent within the concept of external political parties.(12) Daly relies upon the definition of constitutional liberal democracy as presented by Huq and Ginsburg which I have referenced above by expanding upon the feature of competitive elections to include the following constitutional features; a functioning opposition, the existence of credible alternatives and a political party system wherein political parties respect the rules of the democratic game. (13)
It would seem that a crucial element of structural weakness within liberal democratic systems is the existence of party-political structures outside the remit of the constitutional order. Modern constitutional theory relies upon the separation of powers as a mechanism through which political equilibrium can be maintained however political science failed to address the position of political parties within the broader separation of powers. (14) Pildes and Levinson observed that the traditional school of thought underpinning the modern democratic theory which relies extensively on the inter-institutional competitive model that is the separation of powers has been entirely undermined by the institutionalization of party-political systems. (15) Daly emphasizes the problematic nature of political parties is a result of their dual private-public dimensions; political parties wield public and state power yet they are by nature private entities. (16) Ingrid van Biezen notes that political parties occupy an uncertain position within the constitutional order by acting as intermediaries between the government and the broader society yet existing as private entities. (17) van Biezen suggests that it is perhaps due to the peculiar nature of political parties as private organizations wielding public competencies that most modern democratic constitutions have failed to clearly and coherently place political parties within the broader political and constitutional landscape. To reference Daly once more it would seem that political parties are indeed” cuckoos in the constitutional nest. (18)
We have now passed through the first circle of Hart’s Hell and in doing so we have observed the structural manifestation of the crisis of meaning or the divorce of validity from acceptance. The above is a brief account of democratic decay as a set form of behavioral patterns that can be observed postiori. Democratic decay is structural in nature and it relates to observations of phenomenon within the context of function specific structures such as legal systems, party political systems, mass media and electoral systems. Due to the structural and cognitive reality of these structures I will henceforth refer to these instances of democratic decay as the thin democratic problem. Huq and Ginsburg in providing their definition of a constitutional liberal democracy reference a thin and thick conception of democracy and this categorization has largely inspired my own approach to the problem of democratic decay.
Following the same logic, the observed patterns of behavior in relation to definable structures lends democratic decay to being a problem procedural in nature and thus a thin problem. Accordingly, the result of such a phenomenon must be found somewhere else. In my next portion of the essay, I will move to consider a deeper democratic problem - one relating to the relationship between modern democratic theory and constitutional theory. Neil Walker refers to this relationship as the incompleteness of democracy and it is due to the fundamental nature of this relationship that I will refer to this problem as the thick democratic problem. Both problems are not to be understood in isolation. To attempt to address instances of decay will always prove unfruitful unless a deeper understanding of constitutional theory and its relationship with our understanding of modern democracy can be fostered. Having past the first circle of Hart’s Hell we will now enter the second where the divorce of validity and acceptance in the abstract will be observed as we consider the fundamentals of democracy and the essence of constitutionalism.
2. Democratic incompleteness
Neil Walker presents democracy as an incomplete ideal. (19) This incompleteness is both empirical incompleteness and normative incompleteness. Empirical incompleteness means democracy is incapable of supplying its own application and normative incompleteness relate to what Walker refers to as the moral or normative incompleteness of democracy. Both forms of incompleteness – empirical and normative – together form the dual-nature of democratic incompleteness which creates the contingency of modern constitutionalism. Democracy cannot be realized by itself but rather must rely on some other structure in order to complete itself as a stable structure. Walker notes that modern constitutionalism fulfills a dual function vis a vis democracy by both realizing and qualifying modern democratic theory.(20) In light of the democratic incompleteness if we briefly return to the prior noted dilemma of democratic decay, we can now better understand democratic decay not as something to be solved but rather an inevitable process that stems not from political interests solely but from the fundamental nature of democracy as being empirically and normatively incomplete resulting in structural weaknesses and potential for deviant behavior. The thicker democratic problem is one that portrays what I consider to be a deeper understanding of democratic decay. Let us consider the following dilemma; if one selects any of the possible behavioral patterns that result in instances of democratic decay, we are also inadvertently selecting a feature, process or structure that is compliant procedurally with democratic understandings.
To address any instance of undemocratic behavior so indicative of democratic decay one would be required to limit the democratic structure or process being appropriated. It would appear that to address undemocratic behavior would require equally as undemocratic responses. Perhaps to prevent undemocratic political parties seizing control we would have to accept a limitation of a freedom of association to limit the manipulation of media this would equally require some form of qualification of the freedom of expression. I am hesitant to accept the merit in such a position for a number of reasons. Firstly, such a position requires an assumption of democracy as entirely whole and conceptually sound. Secondly, one would also need to assume that only certain structures are democratically qualified while others are not. The fundamental right to an activity is legitimate yet the legal response to the abuse of this right is somehow illegitimate. The purpose of this illustration is to present the possible the connection between validity and acceptance. It is not necessarily so that a legal response cannot be democratically qualified nor is it correct to adopt the view that democracy as a system is entirely self-sufficient when it is incapable of addressing instances of instability. When considering democracy, we must really ask ourselves what came first, the democracy or the rules that made it? To establish the connection between democratic decay and democratic incompleteness a number of important concepts require consideration. In this portion I will discuss the following; a brief account of democratic theory, an equally as brief account of constitutionalism and lastly democratic incompleteness.
Ros Dixon defines the democratic minimum core as the commitment to free and fair elections, the separation of powers, basic fundamental rights and concepts of government accountability.(21) This definition is a useful starting point however we should consider expanding upon this definition further to consider both procedural and substantive accounts of democracy. A useful authority on the procedural account of democracy is Freedman who presents democracy in purely procedural terms as a set of procedures, and processes by which law determining decisions are made in light of the concept of majority rule.(22) The orthodoxy of Freedman’s vision of democracy is in contrast with the more pragmatic definition presented by Dworkin. Dworkin qualifies the procedural orthodoxy of democracy through the use of substantive democratic conditions.(23) Per Dworkin the question of what is democracy is less concerned with the qualifying of decision-making procedures by majority rule but whether the procedural features of democracy respect a number of substantive ideals. Dworkin’s account of a democracy is perhaps the most insightful and, in my opinion, the most appropriate in this context as Dworkin captures the functional structures of a democracy as a form of order by orientating decision-making procedures around a single government qualified by majority rule. Yet despite this, holding to an orthodox view of democracy invites a number of considerations of which procedural accounts may struggle to address. Democratic decay presents one such consideration as often the patterns of behavior observed as illiberal in nature are quite often procedurally sound rendering the distinction between democratic change and democratic decay too subtle to differentiate at an early stage. Accordingly, there must be some deeper normative concept to which democracy as a procedural model must reference. Let us consider what this concept may be.
According to Dworkin the contents of these democratic conditions can vary from society to society however they must always be constructed to realize the principal ideal of democracy; equal status.(24) The primary purpose of democracy is to ensure that the procedural structures and institutions of the state treats all stakeholders of a society as equal individuals whose interests and concerns are respected equally. Per Dworkin the procedure centric decision-making process is not justified exclusively by majority rule but also by the extent to which the procedures and subsequent decisions contribute to the general equilibrium that democracy seeks to achieve. The vision of democracy presented by Dworkin is echoed by Waluchow who notes that democracy must be understood to concern substantive values such as equal status and self-governance rather than the decision-making procedures through which we realise these values.(25) By including substantive or value-based features into a definition of a democracy we import a notably higher degree of malleability in terms of what decision can or cannot be made. If one adopts an orthodox view of democracy such as that presented by Dixon one must accept that decision-making is legitimate so long as it is qualified by majority rule. As noted by Waluchow majority decision making can result in undemocratic decisions which is an undesirable predicament for those concerned with the longevity and stability of modern democracies.(26) It is clear that there is a tension between the procedural possibilities within democracy and the guidance of these possibilities.
It is against the background of the above discussion regarding the defining of democracy that Walker presents democratic incompleteness. By positions himself somewhere in the middle ground between Dworkin and Freedman Walker presents his understanding of incompleteness as being both empirical and normative.(27) Walkers' rationale for the centrality of his views is that both ends of the spectrum fail to fully outline the relationship between democracy and constitutionalism.(28) An insight into the basis for Walker’s position can be understood when viewed through the lens of the dual-constitutional relationship prior referenced. Walker contends that the connection between constitutionalism is not only structural but also one that relates to an internal moral connection.(29) Categorically incompleteness is to be understood as empirical and normative. Both of these two categories comprise of structural considerations and what Walker refers to as the internal” moral order”.(30) Empirical incompleteness concerns constitutionalism as ”democracy-realising”.(31) Accordingly, this category of incompleteness entails number of considerations being authorship, stakeholding, representation and competence. By authorship Walker means the expression of political will as an act of initial constitution founding. The second consideration of stakeholding relates to the appropriate interests to be expressed within the democratic system. Thirdly, constitutionalism considers representation meaning the manner in which stakeholders are to be democratically represented. Lastly constitutionalism considers competence as a prerequisite to a democratic system – what are the qualities of the stakeholders and representatives necessary to operate the democratic system in a democratic manner. Normative incompleteness relates to the non-democratic values of constitutionalism that supplement and qualify democracy.(32) Walker references Dworkin and presents the following normative values; equality, liberty dignity and fraternity. (33) Walker notes that these normative values are reflected in the implementation of the overall system of government. (34)
In summary, constitutionalism provides the basic rules and qualifications in relation to the operation of the democratic system however as observed by Walker these features are not democratically determined but rather, they determine democracy. (35) Walker concludes by leaving the door open so to speak as to the role of the judiciary in his understanding of constitutionalism. It is not necessary for there to be democracy” all the way down” and it is permissible that the collective understanding of self-rule and the concept of individual rights may be supported by a regime of judicial review and administrative discretion. (36) Walker contends that there are broader sociological elements to the implementation of the constitution by way of the fostering of attachment by constitutionalism towards the values it professes as a result of the functionality of constitutionalism in implementing democracy. (37) Walker refences the dual relationship between democracy and constitutionalism as being one both structural and moralistic in nature. For the purposes of this essay, I wish to consider the structural element to Walker’s position. While there is ample to address within the context of moralistic considerations for the purposes of this essay such considerations are not wholly relevant. The concept of attachments to values would represents a broader issue that is the dilemma of validity and acceptance. Let us now consider the implications of Hart’s Hell in Walker’s account of incompleteness.
3. Hart’s Hell
By outlining the basic premise of Walker’s thesis of democratic incompleteness and considering the relation of same to the phenomenon of democratic decay we can observe what I have consolidated as the dual democratic problem; one of essence and phenomenon. Democratic incompleteness offers an interesting explanation as to the why and how of democratic decline. Through Walker’s account of democracy, we can identify and explain the instances of instability as being the result of democracy’s inability to complete itself both normatively and empirically. This flaw is resolved through the coupling of democracy to constitutionalism and vise versa in what Walker defines as a dual structural and moralistic relationship.(38) An interesting point to emphasis is the specific placement of attachment in relation to the democratic system and the requirement for constitutionalism to foster attachment to the itself as a concept.(39) For reasons I will outline below, attachment is a fickle a concept and any reference to same cannot be under looked or glossed over. To present attachment in relation to constitutionalism and the implantation of democracy the issue of meaning and value is thrown wide open. This inadvertently requires a deeper analysis of the qualifying of constitutionalism beyond the context of democratic or meta-democratic credentials and to move into the realm of meaning. Walker’s reference to moralistic order and normative values raises an issue of meaning and as Raz observes that ”meaning is invested in the world by our attachments”.(40) Through the use of attachment and the need for the fostering of same in order for constitutionalism to realise and qualify democracy Walker perhaps unintentionally opens the door to Hart’s Hall.
Waluchow coined the term “Hart’s Hell” in A Common Law Theory of Judicial Review: The Living Tree.(41) The term references the concerns outlined by HLA Hart in his works in regards to what he referred to as the pathology of a legal system.(42) As a society transitions from a pre-legal model of simple rules to a more complex legal society with a legal system a number of structural changes occurs. Law as a tool for societal order and prediction in social interactions becomes more capable of deeper abstractions and complexity through the incorporation of Hart’s secondary rules. Hart however was all too aware that the features of law capable of achieving good outcomes were paradoxically capable of destabilizing outcomes due to the shifting of rule acceptance to the validity of law through the rule of recognition.(43) This presents in the mind of the legal subject the potential for a crisis of meaning or rather as Waluchow observes the divorce of acceptance from validity of legal norms.(44) Hart continues and theorizes that the potential result of the drifting apart of validity and acceptance is emergence of a system where no one accepts the systems save the official who exercise the competencies made possible through the adoption of secondary rules or a regime of primary rules.(45) Waluchow phrases Hart’s Hell as a society where legal validity is wholly removed from acceptance and critical reflective attitudes essential for the operation of rules is replaced with passivity.(46) The hell Hart was concerned with was not a figurative hell or a theoretical regime but a very real hell on earth – the Nazi Regime. For Hart the Nazi Regime represented a conceptually bankrupt system of rules and precisely the form of legal system he sought to caution against.(47) The possibility of such a regime of primary rules coming to pass turned on the remedying of acceptance and validity. It would seem that by implementing democracy through constitutionalism we must be cautious as to the possibility for the achievement of quite the opposite form of regime.
The success of constitutionalism functionally implementing democracy is largely dependent upon the success of constitutionalism fostering some level of attachment to the values it represents.(48) It would seem to be the case that the stabilizing of democracy is indirectly resting on the delicate relationship between the acceptance of constitutional law and the validity of constitutional law. By virtue of the abstraction of law through the adoption of secondary rules the legal system creates not only further opportunities for development but also the potential for regression. Where a regime of primary rules differs to a pre-legal system of rules is the regime of primary rules enjoys the benefit of being able to appropriate the secondary rules for sustenance; a self-affirming form of validity. If we are to frame the completion of democracy as being achieved through constitutionalism then we are professing to an abstract legal solution to a deeply complex political and societal issue which requires a deeper analysis of acceptance and validity. It is highly likely that the non-democratic values present in constitutionalism would be susceptible to a crisis of meaning and the fostering of attachment to the relevant non-democratic structures which correspond to these values may prove problematic. Perhaps we can already observe this prediction through empirical observations of current examples of democratic decay such as Poland for instance where narratives regarding the legitimacy of non-elected judges offered a foothold for the establishment of illiberal constitutionalism through the abuse of secondary rules.
Can this crisis be prevented? Hart held a relatively optimistic outlook on the issue and suggested that the stink of the not-so-distant Nazi Germany still lingered in the air.(49) While Hart appealed to rational sensibilities Waluchow adopts a more pragmatic position on the issue suggesting that an appropriate protective mechanism is required.(50) Waluchow reframes Hart’s possibility as a probability and in doing so demonstrates the inherent flaw present within a legal system. It is important than in in our understanding of constitutionalism and the realizing and qualifying values it contains that some focus is spent on the issue of the meaning of these values and the attachment of a polity to the constitutional laws they are supposed to not only observe but value. The drifting of acceptance from qualifying or validating mechanisms is not a possibility as Hart suggests but it is a probability. It is the result of the structural nature of a legal system as being the union of primary rules and secondary rules. For constitutionalism to fulfil its dual function of both realising and qualifying democracy in both structural and moralistic dimensions then the form of such completion must be considered, at least from a structural point of view. Any model of constitutionalism that seeks to complete democracy must factor the inevitability of acceptance and meaning becoming divorced and preemptively address this issue so as to reduce the likelihood of such a system as Hart’s Hell coming to pass. It is not so much a question of if such a transition will occur but when.(51) It would appear that in order to solve the problem of democratic incompleteness some consideration as to the stability of constitutionalism is required.
If we are to consider a model wherein constitutionalism and democracy exist in a dual-qualifying and realising relationship then the form in which this model is implemented requires consideration. In this regard Hart serves as a useful guide in relation to the form of democratic completeness. The form to which I am speaking is structural in nature and it is connected to what Hart refers to as the “social needs” to which law must fulfil (52); ”the need for certain rules which can...safely be applied by private individuals to themselves without fresh official guidance or weighing up social interests and the need to leave open, for later settlement by an informed official choice...” These social needs represent the bare minimum that law must achieve in a functional sense. The fulfilment of these social needs must be transposed into a constitutional setting. In the fulfillment of its dual-realising and qualifying competencies constitutionalism must address these two core needs; the need for guidance and the need for flexibility. In predicting the form of democratic implementation, we should design such a model on the basis of Hart’s analysis. Law as an implementing tool must meet the social needs required and it must be aware of the crisis of meaning stemming from the rule of recognition.(53)
Perhaps the model of implementation we must consider is not too dissimilar from the common law model suggested by Waluchow.(54) Waluchow’s common law model consists of two dimensions; the entrenchment of normative values through the adoption of an open-texture charter and a regime of judicial review where moral value is impressed upon the texture of this charter and thus the broader democratic dimensions of the society.(55) The benefits of such a model are as follows; there is a practical reason for not requiring legislators to positivize the normative aspects of a legal system. By doing so we would violate Hart’s social needs and usher in the crisis of meaning. Raz notes that there may be sufficient reasons to believe that a legislature will not try to define the rights people have, or the boundaries of such rights due to normative disagreement however the judiciary, tasked with enforcing constitutional values, will attempt to do so.(56)
4. The implementation of democracy through the common law model
The common law model represented by Waluchow is a two-part model; the adoption of an open-texture, and written charter supplemented through a regime of judicial interpretation and review. In order to implement democracy through constitutionalism the concerns raised by Hart require attention. In considering the common law model two additional issues requires considerations; firstly, what form should this potential charter adopts and secondly, the legitimacy of judicial review and the role of judges. The primary rationale supporting the connection between the necessity for a Charter endorsing the rule of law formally and the operation of judicial review is that jointly each supports, supplements, and enables equality in both empirical and normative dimensions. Let us consider this statement by first starting with considerations regarding Charters.
Let us begin by considering what is a Charter? A charter is a definitive declaration of a society's fundamental normative values. Such values are typically moralistic in content and almost exclusivity abstract. The adoption of a Charter is a political declaration endorsing a defined number of abstracts rights as the state’s primary law.(57) Next, let us consider why there is a need for same to be in written form. Waluchow offers a compelling argument in favor of the adoption of a written charter by way of entrenchment. The argument for entrenchment of moral or other normative rules begins with what Hart refers to as the static quality of rules. The response to this defect is the adoption of one of Hart’s secondary rules; the rules of change.(58) Waluchow observes that informal social norms are typically more rigid and entrenched than written norms due to the change of same requiring systemic and general changes in longstanding attitudes, beliefs and behaviors in a polity.(59) Thus, it is clear that for constitutional norms to fulfil their purpose they must be written rules so as to permit a greater degree of change, and thus the potential for the importation of meta-democratic credentials.(60) For such rules to exist in an unwritten is to simple increase the likelihood of validity and acceptance drifting apart. A possible structure of a Charter could be the placement of the rule of law and equality in express written terms. In doing so we move beyond the abstract interpretation of what seems to be judge made law and into a more affirmative realm where these concepts are bestowed some manner of democratic validity. This uplifts the abstract concepts and places them in a central political and societal position. This not only offers meta-democratic validity for the legal system but the decisions of judges when making determinations as to the correct interpretation of these abstracts. With the practical considerations addressed let us move on to consider the position of judicial review.
Walker remarks that there is a need for non-democratic constitutional values in order for democracy to be implemented. In doing so Walker offers up the example of judicial review as means to serve the fundamental rights of the individuals.(61) In light of Waluchow’s common law method and Hart’s analysis of the concept of law it is clear there is certainly merit in considering judicial review as a key focal point between the democratic and non-democratic values of the dual-democratic and constitutional completing model. Perhaps the concept of judicial review offers one of the best mechanisms for guarding democracy and its principles currently at our disposal. As we have seen, this act of guardianship is two-dimensional. Not only must the judiciary be capable of protecting democracy realising values from illiberal intentions but equally the judiciary must be capable of addressing the concerns raised by Hart.(62) Through the adoption of a Charter a positive act of democratic acceptance is bestowed upon the newly validated constitutional norms and in doing so we couple the mechanisms of legal validity with democratic processes. However, the terms of this document are open-texture and thus some level of interpretation is required. In interpreting the contents of these abstract concepts, the broader societal system, all decisions, acts and conflicts are interpreted in line with the Charter. It is here that we arrive at an important issue; by leaving the process of interpretation to the competency of judges we leave the door open for the supplementing of a judge's individual position into the opening left through the employment of open-texture terms. As judges are not directly elected some doubt may be cast over their democratic credentials and thus the legitimacy of judicial review within the common law model is called into question. Let us now consider the primary issue at the heart of the common law model; the legitimacy of judicial review.
Dyzenhaus remarks, in reference to Dworkin, that the role of a judge is to transmit the content of moral law.(63) While the moralistic connotations of this statement are clear there is a functional use that can be deduced from what Dyzenhaus is suggesting. We can appropriate this functionality to our common law model and in doing so we outline the basic premise for the legitimacy of judicial review; the role of a judge is to transmit the content of the law, whatever it maybe, provided it is done so in compliance with the provisions of the hypothetical Charter. Dyzenhaus defends his statement in two ways; firstly, he remarks that we do not live in Bentham’s legislative state but rather the modern world is one of the administrative state. Accordingly, to attempt to derive some basis of legitimacy exclusively from the political institutions of the state results in an untenable position that is not sustainable upon critique. As Dyzenhaus remarks; ”there is in this state, discretion all the way down.”.(64) Thus, the role of a judge extends far beyond the dimensions of legality and authority and directly into the legitimacy of the authority of the law.(65) It is for this reason that perhaps judges offer up a stabilizing mechanism through which not only the legal system is ordered but the attachment, or acceptance, of the polity towards the validity of the norms being enforced. It is essential to note that the judges are limited in some capacity in that they can only reference the contents of the Charter itself. (66)
Resting the realisation of democracy upon the shoulders of a small minority of non-elected judges subjects the health of a democratic system to the discretion of a non-elected official. (67) But perhaps we can establish some legitimacy in relation to the role of judges in the common law model. Waluchow observes that the adoption of a Charter results in the protection of the entrenched values from being changed by an act of a judge.(68) It is the values to which the Charter professes to entrench that the foundation of judicial review is legitimized. The debate regarding the foundation of judicial review is one that is rich in substance and of considerable depth. To cover the full spectrum of the foundational debate in this essay alone would be a difficult task and it would extend the discussion beyond the simple objective I had initially outlined at the onset of this essay which was to establish the link between democratic decay and democratic incompleteness with the objective being to provide the common law model as a potential solution. As the common law model relies extensively on the concept of judicial review the topic of the foundation of judicial review requires at a minimum some exploration. I will limit the analysis of judicial review to the common law position.
Dyzenhaus argues that the basis for judicial review is democratic and procedural in nature with some inspiration from substantive elements.(69) While there is certainly room for further analysis in this statement alone the statement does offer us a useful starting position in regards to the construction of some workable understanding in regards to the basis for judicial review within the common law model. Allan suggests that judicial review is the embodiment of the rule of law and the rule of law is the procedural guarantee of equality.(70) In Allan’s account the purpose of the rule of law is to provide a general constitutional framework through which the relationship between public officials and private individuals is outlined.(71) This is a constructive definition of judicial review and perhaps one amenable to the goals of the common law model. Tom Bingham defines the rule of law in similar terms “that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws...”.(72) By combining the definitions of Allan and Bingham we can construct a judicial system of equality enforced through procedural guarantees. We are getting closer to understanding the role of judicial review in the common law model however it is clear some level of functional understanding of the rule of law is required in order to explain the foundation of judicial review.
Hart defines justice as relating to the concept of fairness.(73) In this regard Hart is not focused on the treatment of individuals but rather the treatment of classes of individuals. Accordingly, Hart formulate equality as to” treat like cases alike...and different cases differently.”(74) Hart continues and comments that this formula for justice is in of itself incomplete as it offers no form of guidance as to when to treat a case as like or differently.(75) There is within justice a deeper understanding; one constant in nature and static in nature, the like for like example given by Hart, and another which is variable and determinative. This determinative feature is the equal distribution of burdens and rights through the equal application of the law.(76) It is on the basis of this understanding of equality that I am framing my use of the rule of law. The rule of law is ensuring the equal application of law across the full spectrum of society in terms of. Bingham also provides an account of equality in his formula for the rule of law by incorporation equality expressly as a feature of the rule of law itself;” the rules of the land should apply equally to all, save to the extent that objective differences justify discrimination”.(77)
Forsyth voices a number of concerns regarding the framing of the procedures of judicial review without reference to substantive elements. The rationale for his criticism is that if a judge is to base his authority upon the common law this could be perceived by a democratic polity as a” political power grab by unelected officials”.(78) By employing the common law model suggested by Waluchow we frame judicial review in approximation to a democratically validated Charter. Through this act of democratic validation, we not only address the concerns of Forsyth directly but also dismiss the need for fig-leaves all together. As observed by Craig, the historical development of judicial review is connected not to understandings of legislative intent but rather to the development of remedies to perceived instances of procedural inequalities or injustices. Craig offers the example of the historic common law remedy of the prerogative writ of Mandamus with Craig citing Bagg’s Case as the relevant authority in this regard.(79) From a historical perspective to suggest the basis of judicial review lies not in the doctrine of ultra vires but in common law competencies is not as radical of a suggestion as a proponent of the orthodox position may assume.
To bring this section to a close, the implications of the above are wide reaching and require further consideration before any definitive position can be adopted as to the benefit of adopting such a constitutional model. By offering up the concept of a Charter we are introducing the need for an open conversation as to the foundation of judicial review and the fig-leaves covering our society. The role of the judiciary is to interpret and apply the law equally. Through judicial review this equalizing power is applied throughout all layers of the administrative state ensuring the law is truly applied equally. It would seem that by fixing the problem of Hart’s Hell we arrive at a more complex issue – the constitutional foundation of judicial review and the legitimacy of judicial decision making.
5. Conclusion:
Democratic incompleteness as a concept introduces a useful framework which can be applied to our understandings of democracy, constitutionalism and the phenomena of democratic decay. By adopting a deeper analysis of the problems associated with democratic incompleteness we can observe a deeper incompleteness present within law. The common law model offers a stable form of democratic implementation that both satisfies the empirical and normative incompleteness as observed by Walker and also the concerns raised by Hart which as I have demonstrated above are central to the solving of the democratic puzzle. I am hesitant to firmly defend the common law model as the ideal model for democratic implementation as there are a number of additional considerations that I have not touched upon in this essay namely the implications of post-state constitutionalism and the varying alternative iterations of the common law model. Nonetheless, it is clear that the benefits offered by the common law model means the model is some level of consideration. From a surface glance it is clear that procedurally reliant definitions of democracy and constitutionalism lend themselves to an increased likelihood of a decent into Hart’s Hell. In this regard further comparative studies into the broader spectrum of democratic constitutions and empirical observations of instances of democratic decay is required. While further consideration is required it is clear that at a minimum there is a plausible connection between democratic decay, Walker’s understanding of democratic incompleteness and the concerns of Hart.
The common law model relies on the fostering of an understanding and attachment to the rule of law and equality which in turn addresses Hart’s concerns in relation to law. At the center to the dilemma of democratic incompleteness is the exploration not of the merits of a regime of judicial oversight but the perception and experience of those subjected to such a system. The adoption of a Charter offers one half of the solution however the Charter itself is incomplete without supplementation of its contents through judicial review. Formalizing abstract concepts such as the rule of law and equality is one thing but some manner of action is required to fully implement them. To reference Bingham; “these are fine aspirations. But aspiration without action is sterile. It is deeds that matter.” (80) Ultimately, the emphasis placed on judicial review in the common law model means a deeper analysis into the foundation of judicial review is necessity. If we are to consider the deeper implications of democratic incompleteness then a discussion regarding the legitimacy of judicial review cannot be avoided, a discussion regarding not just the essence of law but also the phenomenon of law.
Footnotes:
Neil Walker, Constitutionalism and the Incompleteness of Democracy: An Iterative Relationship (2010)
ibid, pg 26 - 27
HLA Hart, The Concept of Law (1961) 3rd edn, pg 117 - 123
WJ Waluchow, The Common Law Theory of Judicial Review: The Living Tree (2007), pg 190 - 194
Neil Walker, Constitutionalism and the Incompleteness of Democracy: An Iterative Relationship (2010), pg 1
Adam Podgorecki, Law and Social Engineering (1962), pg 177
Huq and Ginsburg, How to Lose a Constitutional Democracy (2018), pg 6 - 16
Thomas Daly, Diagnosing Democratic Decay (2017), pg 6
Larry Diamond, Breaking the Democratic Slump (2020), pg 37
ibid, pg 39 - 40
Thomas Daly, Parties Versus Democracy (2020), pg 509 - 510
ibid
ibid, pg 512
ibid, pg 514
Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2312 (2005–2006)
Thomas Daly, Parties Versus Democracy (2020), pg 515
Ingird van Biezen, Constitutionalizing Party Democracy: The Constitutive Codification of Political Parties in Post-war Europe (2012), pg 207
Russell Muirhead & Nancy L. Rosenblum, The Uneasy Place of Parties in the Constitutional Order (2015)
Neil Walker, Constitutionalism and Incompleteness: An Iterative Relationship (2010), pg 1
ibid pg 2
See R Dixon, ‘Populist Constitutionalism and the Democratic Minimum Core’ Verfassungsblog 26 April 2017
Samuel Freeman, Constitutional Democracy and the Legitimacy of Judicial Review Law and Philosophy 9 (1990–1), pg 335.
Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (1996), 17
ibid
W. J. Waluchow, A Common Law Theory of Judicial Review: The Living Tree, Cambridge Studies in Philosophy and Law (2007), pg 109
ibid
Neil Walker, Constitutionalism and Incompleteness: An Iterative Relationship (2010), pg 10 - 21
ibid, pg 9
ibid, pg 29
ibid
ibid, pg 10
ibid, pg 17
ibid, pg 18
ibid, pg 19
ibid, pg 11
ibid, pg 19
ibid, pg 20
ibid, pg 20
ibid
Joseph Raz, Values, Respect and Attachment (2001), pg 16
WJ Waluchow, The Common Law Theory of Judicial Review: The Living Tree (2007)
HLA Hart, The Concept of Law (1961), pg 118
ibid pg 120 - 122
WJ Waluchow, The Common Law Theory of Judicial Review: The Living Tree (2007), pg 190 - 191
ibid
WJ Waluchow, The Common Law Theory of Judicial Review: The Living Tree (2007), pg 193
Hart, Positivism and the Separation of Law and Morals (1958), pg 72
Neil Walker, Constitutionalism and Incompleteness: An Iterative Relationship (2010), pg 18
Hart, Positivism and the Separation of Law and Morals (1958) pg 72
WJ Waluchow, The Common Law Theory of Judicial Review: The Living Tree (2007), pg 193
ibid, pg 208
HLA Hart, The Concept of Law (1961), pg 130 - 131
WJ Waluchow, The Common Law Theory of Judicial Review: The Living Tree (2007), pg 208
See Waluchow (ibid) generally
ibid, pg 259 - 264
Joseph Raz, Disagreements in Politics (1993), pg 46
WJ Waluchow, The Common Law Theory of Judicial Review: The Living Tree (2007), pg 1 -3
HLA Hart, The Concept of Law (1961), pg 91 - 92
WJ Waluchow, The Common Law Theory of Judicial Review: The Living Tree (2007), pg 188
ibid, pg 189
Neil Walker, Constitutionalism and Incompleteness: An Iterative Relationship (2010), pg 19
ibid, pg 63 - 64
David Dyzenhaus, The Very Idea of a Judge (2010), pg 65
ibid
ibig, pg 67
WJ Waluchow, The Common Law Theory of Judicial Review: The Living Tree (2007), pg 214
David Dyzenhaus, The Very Idea of a Judge (2010), pg 68
WJ Waluchow, The Common Law Theory of Judicial Review: The Living Tree (2007), pg 214
David Dyzenhaus, Form and Substance in the Rule of Law: A Democratic Justification for Judicial Review, in Christopher Forsyth, Judicial Review and the Constitution (2010), pg 142
Trevor Allan, The Rule of Law as the Rule of Reason: Consent and Constitutionalism, (1999), at 243.
ibid
Tom Bingham, The Rule of Law (2011), pg 37
HLA Hart, The Concept of Law (1961), pg 158
ibid, pg 159
ibid
ibid pg 164
Tom Bingham, The Rule of Law (2011), Chapter 5
David Dyzenhaus, Form and Substance in the Rule of Law: A Democratic Justification for Judicial Review, found in Christopher Forsyth, Judicial Review and the Constitution (2010), pg 154
Paul Craig, Ultra Vires and the Foundations of Judicial Review, in Christopher Forsyth, Judicial Review and the Constitution (2010), pg 63
Tom Bingham, The Rule of Law (2011), pg 173