The Courts and the People: Friend or Foe?: The Putney Debates 2019

260 Pages·2021·1.128 MB·English

by  DJ Galligan (editor)

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Names: Putney Debates: the Courts, Friend or Foe (Conference) (2019 : Putney, London, England) |
Galligan, D. J. (Denis James), 1947- editor.
Title: The courts and the people : friend or foe? : the Putney Debates 2019 / edited by DJ Galligan.
Description: Oxford ; New York : Hart, 2021. | "On 28 October 1647, the weekly meeting of the General Council of the
New Model Army held in St Mary's Church, Putney turned into a debate about matters of constitution ... Nearly four
centuries later, in 2017, the Putney Debates were revived. The constitutional controversies aroused by the referendum in
2016 on Britain's membership of the European Union were the stimulus ...This volume results from the 2019 debates
on the subject of the courts ... The following chapters, with one exception, began with the presentations at Putney
in March 2019 ...The debate was made possible by the sponsorship of the Foundation for Law Justice & Society, an
independent institute, which has now ceased activities but was at the time affiliated with Oxford University" - ECIP
Preface. | Includes bibliographical references and index.
Identifiers: LCCN 2021030086 (print) | LCCN 2021030087 (ebook) |
ISBN 9781509940035 (hardback) | ISBN 9781509952694 (paperback) |
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Subjects: LCSH: Judicial independence— Great Britain— Congresses. | Political questions and judicial power— Great
Britain— Congresses. | Judicial independence— Congresses. | LCGFT: Conference papers and proceedings,
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Preface
O
N 28 OCTOBER 1647, the weekly meeting of the General Council of
the New Model Army held in St Mary ’ s Church, Putney turned into a
debate about matters of constitution. Stretching over several days, the
meeting ranged across critical matters of great moment. The civil war had been
won, the king was in captivity, parliament in disarray, and the New Model Army
in charge. Competing ideas of c onstitution were expressed and the Levellers ’
proposed A greement of the People was, after animated debate, consigned to
committee from which it never re-emerged.
Nearly four centuries later, in 2017, the Putney Debates were revived. The
constitutional controversies aroused by the referendum in 2016 on Britain’ s
membership of the European Union were the stimulus. A signal that beneath
the calm and seemingly settled constitutional order of the United Kingdom,
the views of members of parliament, the courts, offi cers of government, and
most of all the people differ widely and are often defended passionately.
The need for better instruction and more informed debate accessible to the
public became plain. The new Putney Debates were instituted as an annual
event with the aim of contributing in a modest way to those ends. Each year
a subject is selected for examination, and speakers are invited to make brief
but informed presentations followed by debate among themselves and with
the audience. The proceedings are recorded on fi lm and accessible to the
public.
This volume results from the 2019 debates on the subject of the courts, their
place in the constitutional order, their relations with the people, and the divi-
sion of power between the courts and the other institutions of government. The
following chapters, with one exception, began with the presentations at Putney
in March 2019. I would like to record my thanks to the contributors for the
considerable time and labour spent in converting a fi ve-minute presentation into
a substantial chapter. While the emphasis is on courts in the United Kingdom, a
comparative element is included with contributions from Europe and the United
States.
The debate was made possible by the sponsorship of the Foundation for
Law Justice & Society, an independent institute, which has now ceased activi-
ties but was at the time affi liated with Oxford University and based at Wolfson
College. My thanks to the Trustees for their support and to the administrative
vi Preface
staff, Ms Judy Niner and Mr Phil Dines, for ensuring the debates ran smoothly
and are recorded for posterity. I wish also to thank Hart Publishing, a division
of Bloomsbury, for publishing the volume. It has been a pleasure to work with
the editors, Ms Rosemarie Mearns, Ms Kate Whetter and Ms Linda Staniford.
Denis Galligan
Editor
Table o f Contents
Preface.........................................................................................................................................v
List of Contributors...............................................................................................................ix
The People and the Courts: An Introduction...................................................................1
DJ Galligan
1. The Case for Judicial Independence in the Age of Populism..........................17
Robert J Sharpe
2. Judicial Independence and Perceptions of Legitimacy.....................................35
Nick Friedman
3. The Judicialisation of Politics and Threats to Judicial Independence:
When Should We ‘Cry Wolf 7.....................................................................................59
Ezequiel Gonzalez-Ocantos
4. Judicial Independence and Transformative Constitutionalism:
Squaring the Circle of Legitimacy............................................................................73
Daniel Butt
5. Self-fulfilling Prophecies: ‘Populism’ and ‘Judicial Independence’
in Europe............................................................................................................................93
Bogdan Iancu
6. Judicial Independence - The View from Israel...................................................115
Amir Paz-Fuchs
7. The Nature of Judicial Review in America........................................................133
John W Adams
8. Under Pressure: Building Judicial Resistance to Political
Interferences...................................................................................................................153
Katarina Sipulova
9. Transparency in the ‘Fairyland Duchy of Luxembourg’................................171
Catherine Barnard
10. From Mystery to Transparency: How Judges Promote Public
Understanding of the Judicial Role.......................................................................189
Paul Magrath
vili Table of Contents
11. Legal Elites, Lord Chancellors and Judicial Independence............................205
Graham Gee
12. Ally or Enemy, Friend or Foe...................................................................................223
DJ Galligan
Bibliography...........................................................................................................................241
Index........................................................................................................................................249
List of Contributors
John Adams is Adjunct Professor at Rutgers University, New Brunswick, USA.
Catherine Barnard is Professor of European Law and Employment Law at the
University of Cambridge and Fellow of Trinity College, Cambridge, UK.
Daniel Butt is Associate Professor at the Department of Politics and International
Relations at Oxford University and Fellow of Balliol College, Oxford, UK.
Nick Friedman is Fellow and College Lecturer in Public Law at St John ’ s
College, Cambridge, and University Lecturer, Faculty of Law, University of
Cambridge, UK.
Denis Galligan is Professor of Socio-Legal Studies Emeritus at Oxford University
and Professorial Fellow Emeritus at Wolfson College, Oxford, UK.
Graham Gee is Professor of Public Law at Sheffi eld University, UK.
Ezequiel Gonzalez-Ocantos is Associate Professor at the Department of Politics
and International Relations at Oxford University and Professorial Fellow at
Nuffi eld College, Oxford, UK.
Bogdan Iancu is Associate Professor in Comparative Constitutional Law and
Theory at the University of Bucharest, Romania, and Fellow of the Foundation
for Law, Justice & Society, UK.
Paul Magrath is Head of Product Development and Online Content at the
Incorporated Council of Law Reporting, UK.
Amir Paz-Fuchs is Professor of Law at Sussex University and Fellow of the
Foundation for Law, Justice & Society, UK.
Robert J Sharpe is Distinguished Jurist in Residence, Faculty of Law, University
of Toronto; Visiting Professor, Oxford University; and Retired Justice, Court
of Appeal for Ontario.
Katarina Sipulova is Senior Researcher at the JUSTIN Faculty of Law,
Masaryk University, Czech Republic.

The People and the Courts:
An Introduction
DJ GALLIGAN
I
T
HE AIM IN the following chapters is to examine the place of the courts in
the constitutional order, an order that consists of powers and relation-
ships. Power is the subject matter of relationships among the people,
between the people and the agencies of government, and among the agencies
themselves. Relations between the people and the courts have centre stage,
with other sets in supporting roles. The issues under review are the nature and
purpose of the power of courts, the reasons and justification for it, the con-
straints and limits, and how power is used in practice. The different ways of
conducting the analysis are evident in the chapters. Some start with a political
theory from which the constitutional order follows. Political theories tend to
be less concerned with the world as it is but rather how it ought to be ordered
according to a set of ideals. Others are inclined towards a social understanding
which means examining relations as practised and experienced, aiming to draw
out the sentiments and dispositions that guide the parties in their perceptions
and understandings. Yet another approach is the historical where the aim is to
uncover the foundations of the relationship and to chart the route from the
past to the present, guided by the adage that in order to know where we are
today, we need to know how we got here. A final approach is the comparative,
the idea that nations confront common issues is the design and practice of the
constitutional order, from the study of which we gain knowledge of constitu-
tions generally and acquire insights into particular cases. Some of the chapters
here are squarely within one or other of the approaches, while others combine
elements of each. My purpose in this introduction is not to give a brief descrip-
tion of each chapter but to sketch the setting and to show how each contributes.
888
The setting of the 2019 Putney Debates was one of criticism, and by some
condemnation, of the courts. The courts are condemned for being part of an
elite separate from the common people and criticised for lacking knowledge
of or showing concern for the common people. In the opening chapter Robert
2 DJ Galligan
Sharpe confronts both these issues and sets out to show how the courts, properly
framed, are the friends rather than the foes of the people. On his account, the
primary duty of judges is to apply the law in deciding the cases before them,
while the law is on the side of the people. First, the law protects their peace and
security, saves them from oppression by the powerful and guarantees that even
unpopular cases will be dealt with according to settled standards. Secondly, if the
law becomes remote from the people, distant from their lives and experiences,
and instead refl ecting the interests of groups and guilds, the courts are there to
keep it in line with ‘ contemporary social mores and perceptions’ , in ‘h armony
with prevailing social values ’ . Legal values follow from social values, the most
fundamental of which is the right of each person to be treated with dignity and
respect, which generates juridical equality and the right to be treated equally
before the law. The courts make sure the legal interpretation of social values
keeps pace with contemporary understanding. Thirdly and critically, the law
‘ serves and belongs to the people ’ and ‘ must remain within the broad channels
of public acceptability if it is to be respected ’ . And fi nally, public acceptability
imposes its own constraints, for the courts have a duty to uphold the rights of
individual persons and vulnerable groups. So in a few deft sentences the courts
are bolted securely into the constitutional order. The rule of law protects the
people and provides social goods of fundamental importance, of which the
courts are the guardians. In order to earn that place, discharge their duties and
be effective guardians, courts need to have independence.
The rule of law is not the only constitutional value, and here democracy
enters the arena. The two do not at fi rst sight seem happy companions. Relations
between them are best approached, fi rst, by saying what we mean by democracy,
secondly, showing how courts fi t in, and thirdly, noting the problems that result.
Democracy has its origin in the idea of the people, the d emos , ruling themselves.
On that foundation all sorts of structures are erected, each claiming the creden-
tials of democracy. Just as equity was said to be as long as the lord chancellor ’ s
arm, democracy appears to be in the eye of the beholder. It is enough for present
purposes to settle on a rather middle-of-the road notion that power in some
sense comes from the people, is to be used to serve the well-being of the people,
and is to be accounted for to the people. If that is the governing idea enthroned
at the summit of society, the route down to practice passes through several
circles, each contributing to the whole yet each offering a choice of pathways.
The constitutional order is the fi rst circle conceived and designed to give
effect to the governing idea. It is itself open to copious variation. Two ideas are
most prominent. One is that each person counts, and is entitled to equal concern
and respect, which translates into juridical equality and rights to be treated in
certain ways. The other is that the people are the source of the authority of agen-
cies to which they delegate much of their native authority, while reserving some
matters for their own resolution. Descending to the next circle, the people ’ s task
is to settle the content to these general ideas. Again there are various options
from which to choose. One is how far to extend equal treatment, whether it