Comity among Authorities

[2015] Current Legal Problems 1-‐26 Comity among Authorities Timothy Endicott1

An authority often needs to decide whether to go along with a decision of another authority, in order to carry out its own responsibilities. The relevant considerations vary widely among different contexts, but there are some general principles of the approach that authorities ought to take toward the decisions of others. The most important is the principle of comity: that the authority passing judgment (I will call it the 'second authority') ought to act in a way that respects the capacity of the other (the 'first authority') to carry out its own role. A duty of comity is not a duty to trust the first authority. It does not require the second authority to approve of the decisions of the first. It arises not from the rights of the first authority, nor even from the first authority's success in carrying out its duties, but from the second authority's duties to those whom the second authority serves, and to those whom the first authority serves. The reasons for the principle of comity support two further principles: that the second authority has limited responsibility for justice, and that the second authority has no general duty to agree with the judgment of the first authority.

Outline 0. The n-‐body problem 1. Comity 1.1 Why act with comity? 1.2 Comity and rights and duties 1.3 Comity and mutuality 2. The principle of limited responsibility for justice 3. The disagreement principle 4. Comity and hierarchy within a system of law 5. The Limits of Comity 6. Jurisdiction 7. Conclusion 0. The n-‐body problem Consider four cases in which one authority needs to take account of a decision by another:

• A mother arrives at the school football game to find her son fighting with another small boy, and the other boy’s father is trying to exert his authority to solve the problem.

• A lieutenant comes to the parade ground and watches the sergeant instructing the

1 Fellow in Law, Balliol College, and Dean of the Faculty of Law, University of Oxford. I am grateful for many comments from participants in discussions at University College London, the University of Toronto, McMaster University, the University of Saskatchewan, and the Analytical Legal Philosophy Conference at the University of Southern California in April, 2015, and in particular from Annalise Acorn, Alan Brudner, John Gardner, Robin Kar, Joseph Raz, Jeremy Waldron, and an anonymous reviewer for Current Legal Problems.

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soldiers in their drills. • A court is asked to review the decision of an administrative authority. • A court is asked to give effect to a judgment of a foreign court.

I will call these cases the ‘four cases’. They are instances of a more general situation in which one authority (I will call it the ‘second authority’) needs to decide whether to go along with the decision of another authority (which I will call the ‘first authority’).

What attitude should the second authority take to decisions of the first authority? The question involves issues for the theory of authority that are much more complicated than the explanation of the binary relation between an authority and a person subject to the authority. Sir Isaac Newton worked out how to describe the gravitational interaction of any two bodies. In studying the movement of the earth and the moon, Newton discovered that if you add a third body to the system –such as the Sun– the problems become immensely more complex; he could not solve the three-‐body problem. Two hundred years later Poincaré established that there is no general analytical solution to the n-‐body problem of how to describe the gravitational interaction among bodies, where n is higher than two.2 All the situations I will discuss involve more than two bodies: at least two authorities, and at least one person or institution that is subject to more than one of the authorities.

You may think that, by analogy with Newton’s discovery, there is no general analytical solution to the problem of how authorities should interact. You would be right. And yet there are some things that can be said in general about the approach that the second authority ought to take toward the decisions of the first. I am not trying to raise your expectations, which ought to be very low: there is so little that can be said in general. So much depends on the authorities and persons in question, and on the circumstances in which one authority needs to pass judgment on the decisions of another, and on the issues at stake in those decisions and in that judgment. The second parent at the football match may be the sister of the first parent, or a close friend, or a bitter enemy, or they may never have met. The lieutenant may be under orders from the captain not to interfere with the sergeant. The administrative agency that is subject to judicial review may be a mental health tribunal deciding whether to detain someone against his or her will, or it may be a central government deciding how much funding to allocate in support of local governments. The European Union may have enacted rules as to the effect of the judgments of the foreign court in the United Kingdom. And so on. Can anything be said in general about the n-‐body problem of authority?

There are at least three very abstract, interrelated principles. The first is the principle of comity:

The principle of comity: The second authority should act, where possible, with respect for the legitimate authority of the first.

This principle may require the second authority to go along with a decision of the first authority, taken within the first authority’s jurisdiction (see section 6 on jurisdiction). By ‘going along with’ a decision, I mean treating it as authoritative. Because of the diversity of interactions among authorities, going along with the first authority’s decision may involve a variety of actions or dispositions: recognizing the decision as valid, complying with it or giving some form of effect to it, requiring someone to comply with it, refraining from interfering with it, or generally refraining from undermining the first authority’s capacity to exercise its authority in respect of the decision. In the four cases, if their decisions are treated as authoritative, the first parent, the sergeant, the administrative authority and the

2 See Stephen Wolfram, A New Kind of Science (Wolfram Media, 2002) p 972.

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foreign court are treated with comity.3 There may be a variety of reasons for the second authority to go along with a

decision of the first authority. For example, the first authority may be admirable, or a particular decision may have been a good one (and there may be many other reasons). But I will argue that the principle of comity does not depend on the justification for a particular decision by the first authority, or on reasons for the second authority to admire or to trust the first authority. And it does not depend on reciprocity or mutuality with, or courtesy toward, the first authority. The basic, general reasons for comity are found in the service that the second authority (the one acting with comity) ought to provide to persons subject to its own authority, and in the value of the first authority’s capacity to provide a service to persons subject to it.

Those reasons for the principle of comity support a further principle: The principle of limited responsibility for justice: The second authority has no general duty (and may have no jurisdiction) to bring about the disposition of affairs that the first authority would have chosen, if the first authority had made the right decision.

I use the word ‘justice’ broadly, to include everything that the first authority ought to have done as a matter of right toward persons affected by its decisions. The principle of limited responsibility for justice is one instance of a wider principle, that the jurisdiction of authorities is limited, insofar as their capacity to serve those subject to their authority is limited.

The third principle is related: The disagreement principle: The second authority has no general duty to agree with the judgment of the first authority.

The disagreement principle is a corollary of the principle of limited responsibility for justice: the second authority need not agree that the first authority got things right, in order to justify going along with the decision of the first authority. The disagreement principle is compatible with the principle of comity, because justifiable respect for the first authority’s function does not depend on the first authority’s having made the right decision (just as justifiable obedience to an authority does not depend on the authority’s having made the right decision).

These principles apply generally to the n-‐body problem of authority, even in the very abstract form in which I will address it (in which the four cases are all instances of the problem). 1. Comity If we used ‘comity’ in a broad sense for an appropriately positive attitude to legitimate authority, we might say that comity includes the appropriately obedient attitude of a person or institution that, in its own exercise of authority, is bound by the authority of another (as an English court is bound by a statute of Parliament, or by a precedent of a higher court). But for present purposes, we should think of comity in a narrower sense, as respect by the second authority for the first authority, where the second authority is not bound by the decisions of the first (I will try to justify this understanding of comity at the end of section 3 It does not follow that the second authority treats the first authority without comity, if the second authority does not go along with a decision taken outside the jurisdiction of the first authority. See section 6.

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1.2). In each of the four cases, the second authority has no duty to obey the first. If the

second parent at the football match tells her son not to do what the first parent said to do, or the lieutenant countermands the sergeant’s orders, or a court quashes an administrative decision on judicial review, or declines to give effect to a foreign judgment, the second authority is not disobeying the first authority. Conversely, if the second authority does go along with the first, the second is not obeying the first. Comity is the attitude that the second authority displays when it goes along with the decision of the first authority, without obeying the first authority.

Is it meaningful to distinguish in this way between a duty of an authority to obey another authority, and a duty of an authority to go along with a decision of another authority which it has no obligation to obey? Imagine two scenarios. In both, I am your teenage child and you are my dad. In the first, you know that my mom told me that I could not go out this evening, and you tell me that I cannot go out on the ground that my mom said that I couldn’t. In the second, you and I are out in our car, and you stop the car because a police officer directs you to. In each scenario, imagine that I reprove you for blindly going along with what someone else says to do, instead of making your own decisions. In each scenario you may have a good response. In the scenario with the police officer, it may be a good response for you to say that you have to obey the police officer (and you could explain the reasons). In the scenario in which my mom has told me that I could not go out this evening, the good response need not involve any reasons for you to obey my mom. You may be treating my mom not as having authority over you, but as having authority over me. Your attitude to my mom may be different from an attitude of obedience (which you display toward the police officer) in various ways. If you had been there when my mom said I could not go out tonight, the decision might have been one for the two of you to make jointly. And she may have no authority to order you to stop me from going out. In the first scenario, you are exercising your authority over me when you go along with what my mom decided; in the second, you are obeying the police officer.

Now consider the four cases. In each of them, the second authority has no duty to obey the first authority.4 But in each of them, the second authority must decide whether the good exercise of its authority requires that it go along with a decision of the first authority. In the four cases, the principle of comity leaves room for the possibility that the second authority may have reason not to go along with the decision of the first authority; I will address the limits of comity in section 5. First, we should ask why it might be right to act with comity. 1.1 Why act with comity? The private international lawyers have thought about this more than everyone else. We can start from their work, and draw from it the abstract principles that apply in diverse ways in other contexts. But of course, we cannot start from results reached by private international lawyers as a class, because they disagree with each other. American judges and scholars developed the notion that comity was an underlying rationale for much of private international law. Here is an example from the famous 1895 United States Supreme Court case, Hilton v Guyot:

4 Note that in the third and fourth cases, there may be rules of administrative law and of private international law, that bind the courts to act in ways that respect the authority of an administrative agency, or of foreign courts. Such rules may find their rationale in comity, and we might say that they require the courts to act with comity. It would still be right to say that the court is not obeying the administrative agency or the foreign court, even if it is bound by law to give effect to its decision.

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‘The extent to which the law of one nation… shall be allowed to operate within the dominion of another nation depends upon what our greatest jurists have been content to call "the comity of nations." Although the phrase has been often criticized, no satisfactory substitute has been suggested. "Comity"… is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience and to the rights of its own citizens or of other persons who are under the protection of its laws.’5

But some leading American judges and scholars have been suspicious. Benjamin Cardozo is an example:

'We are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home. …The misleading word “comity” has been responsible for much of the trouble. It has been fertile in suggesting a discretion unregulated by general principles.’6

Some English writers have been suspicious, too, for similar reasons; Dicey wrote in the first edition of his book that disputes over whether the enforcement of foreign law is a matter of comity were ‘idle logomachy’, and that the use of the word ‘comity’ suggested that the application of foreign law was ‘a matter of caprice or favour’ on the part of the judge, or that English courts give effect to French law out of courtesy toward the French Republic, when the reason is, instead, to avoid ‘gross inconvenience and injustice’.7 The fifteenth edition of Dicey, Morris, and Collins remains suspicious of comity, ‘a term of very elastic content’.8 The famous treatise still says that French law is to be given effect ‘in order to do justice between the parties, and not from any desire to show courtesy to the French Republic’ –suggesting that giving effect to foreign laws can be a matter of justice, while comity is, by contrast, a matter of politeness.9

Cheshire, North and Fawcett are even more hostile to comity. They consider that comity ‘has been employed in a meaningless or misleading way’, and that ‘comity implies a bilateral, not a unilateral relationship’ which assumes reciprocity (which the rules of English private international law, at least, do not rely upon). In the authors’ view,

‘the word itself is incompatible with the judicial function, for comity is a matter for sovereigns, not for judges required to decide a case according to the rights of the parties.’10

I think that these claims underrate comity by suggesting that it does not have to do with the rights of the parties, and underrate the role of judges by suggesting that a judicial decision cannot amount to an exercise of state sovereignty.11

In his 2011 Hague Lectures on 'The Principle of Comity in Private International Law',

5 Hilton v Guyot 159 US 113 (1895), 163-‐4 (Justice Gray for the majority). 6 Loucks v Standard Oil Co. of New York 120 NE 198 (1918), 202-‐3. 7 Dicey, Conflict of Laws (London: Stevens, 1896) 10, 14. 8 Dicey, Morris & Collins, The Conflict of Laws 15th ed (Sweet & Maxwell, 2012) 5-‐6. 9 Ibid. 10 James Fawcett and Janeen M. Carruthers, Cheshire, North, and Fawcett, Private International Law, 14th ed (Oxford University Press, 2008) 4. 11 On the idea that adjudication can be a sovereign act, see Adrian Briggs, 'The Principle of Comity in Private International Law' (2011) 354 Recueil des Cours: Collected Courses of the Hague Academy of International Law 65-‐182, 140. I will refer to these lectures as ‘Briggs’.

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Adrian Briggs concludes that ‘The observance of the principle of comity is the essence, the rule, of the common law of private international law’.12 ‘It is both the ancestor’, he says, ‘and the handmaiden of private international law’,13 meaning, as he makes clear, that the principle explains how we got the private international law we have, and also offers a guide to its development.

Professor Briggs insists that comity is not reciprocity,14 and ‘above all, comity is not deference; it is not the exercise of conceding decisional power, or superior right, to another’.15 He agrees with the fifteenth edition of Dicey, Morris and Collins (of which he was one of the editors) that English courts do not give effect to French law out of courtesy to the French Republic. But in his view, comity itself is not a matter of favour or politeness to the foreign state. It is a principle of respect for the work of legislative and adjudicative authorities in other jurisdictions and, in private international law, it involves the ‘territorial principle’ that the sovereign in question has authority over its territory:

‘Comity lays down the law in terms which are scrupulous in their respect for territorial sovereignty and non-‐interference.’16

Briggs gives a complex and persuasive account of the rules of private international law as reflecting the principle of comity. Comity principally, he says,

‘(1) requires a court to respect, and to not question, the laws of a foreign State in so far as these apply to persons, property, and events located within the territorial jurisdiction of a foreign State; (2) requires a court to respect, and to not interfere with, the integrity of judicial orders made by a foreign court in so far as these apply to persons and property within the territorial jurisdiction of the foreign State; and (3) requires a court to respect, and to not interfere with, the integrity of judicial proceedings taking place before the courts of a foreign State.’17

Respect for institutions of other states gives a rationale for rules of private international law, a ground for identifying and critiquing missteps in the development of the law, and a ground for judicial decision in the resolution of unsettled issues: comity requires respect for other people’s states, and in particular for their legislative jurisdiction over their territory, and for the adjudication of disputes in their courts of competent jurisdiction.

Why should we pay that respect to the sovereignty (and thereby to the authority) of other states, and to its exercise by their institutions? Let’s put to one side (as Briggs does) hope of reciprocity, and fear of retaliation, and politeness, none of which are grounds for

12 Briggs, 82. Cf. ‘the principle of comity does the job of explaining the shape of the law perfectly well, and other attempts are just an attempt to counterfeit the law’ (115). Cf also Joseph Story, Commentaries on the Conflict of Laws (1834), ‘There is, then, not only no impropriety in the use of the phrase ‘comity of nations,’ but it is the most appropriate phrase to express the true foundation and extent of the obligation of the laws of one nation within the territories of another' (§§ 33-‐38; cited in Hilton v Guyot at p 165). 13 Ibid, 88. 14 ‘We do not give effect to foreign laws, or accept the conclusiveness of foreign adjudications, because we wish other courts to mirror our rules; we do not condition our doing these things by reference to what we think the foreign court might do or have done’ (90). Hilton v Guyot used reciprocity as a limit on recognition of foreign judgments, and Briggs says that using comity in that way ‘is a Very Bad Idea’ (148; on Hilton v Guyot, see also Briggs 145-‐6). 15 Ibid 91. 16 Ibid 82; see also 91. 17 Briggs 181.

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the respect that is shown for foreign judicial decisions. I propose that the reason for this form of respect is a horizontal analogue (or you

might call it a horizontal aspect) of the principle of subsidiarity.18 In its vertical aspect, subsidiarity justifies local government in many countries, and federalism in some, and supranational governance in some matters, because powers of governance are best allocated to institutions that are close to a discrete group of persons who are particularly involved, on the one hand (as when a local authority has power to decide where to install street lights), unless on the other hand there is reason for decision making by an institution designed to take wider interests into account, or designed to avoid the distortion of decision making by pressure from irrelevant local interests (as when the institutions of the European Union are given power to regulate the single market).

The horizontal analogue (or aspect) of subsidiarity is the principle that the French can be expected to do a better job of regulating French property rights and commercial transactions, and of resolving disputes concerning property and transactions in France, than a U.S. court can do. The French authorities ought to have forms of expertise that are useful in regulating those aspects of the life of their community. They were able to regulate transactions prospectively. They have the capacity to achieve coordination of kinds that their community needs. And their institutions have a political responsibility that a U.S. court does not have, for the imposition of laws regulating (for example) property and commercial transactions in France.

I think it is important that those are the same features of the French legal institutions that may give legitimacy to the authority they claim over people and matters in their jurisdiction, in carrying through those forms of governance. Although the n-‐body problem of relations among authorities is more complicated than the two-‐body problem of the legitimacy of an authority’s directives vis-‐à-‐vis a person purportedly subject to them, these problems are related: if the courts of a foreign state have legitimate authority to decide disputes over property and commercial transactions in the foreign country, then there is good reason for the doctrines of private international law that require courts to recognize foreign judgments.

Even if you doubt the French authorities’ proclivity to do justice and to make and to implement good policy, you should at least have enough healthy realism –it may be fatalism– to admit that a U.S. court cannot expect to do a better job, when asked to decide what rights arise from transactions in the past between the parties in France, than a French court that has decided the matter. It is important to keep this realism in mind. It explains the fact that comity does not imply trust. Trust depends on the expectation that another will engage in good conduct. Comity only depends on the expectation that things will go less well if the first authority is not treated as an authority. And it is possible to identify a French institution as an authority, without judging or presupposing that it will conduct itself well.

When a French court applies French law to resolve a dispute over property in France, and the losing defendant moves its assets to the United States, horizontal subsidiarity supports the proposition that the U.S. courts should be willing to deal with the

18 I am using the term ‘subsidiarity’ in a broad sense. The principle of subsidiarity in European Union law is presented as preventing decisions from being made by the EU if they could be made adequately at a more local level: ‘Under the principle of Subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level’ (Treaty on European Union Article 5(3), italics added). If, in place of the highlighted passage, the Treaty said ‘if and only if the objectives of the proposed action can, by reason of the scale or effects of the proposed action, be better achieved at Union level’, then it would endorse (vertical) subsidiarity in the broader sense in which I use the term here.

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matter (because now that the assets are in the U.S., the U.S. courts can do a better job of resolving a dispute as to their disposition than the French courts can do), and also supports the proposition that the U.S. courts should recognize and give effect to the decision of the French court. The reason for recognition of foreign judgments is to do justice between the parties in a U.S. court. It is indeed, as Dicey wrote, to ‘avoid gross inconvenience and injustice’. But that does not mean that private international law needs some principle other than comity; it means, as Briggs suggests, that justice and convenience (i.e., good policy) may demand respect for other people’s institutions, which is a matter of comity.

We can abstract from the principle of comity in private international law, to a general principle of comity among authorities. The principle is that the second authority should act, where possible, with respect for the legitimate authority of the first. We can restate and elaborate the reasons for comity among authorities, with reference to the roles of the two parents at the school football match. The second parent is an authority in respect of her son (Small Boy 2), and the first parent likewise in respect of his son (Small Boy 1). And parents at a football match may well have a subsidiary authority over small boys who are not their own (arising from the capacities that the parents gain by maturity and experience and, as it may be, from a practice of involving parents in making things work at the football matches). So the first parent may have a sort of authority over Small Boy 2. The first parent’s capacity to serve Small Boy 1 as his parent is valuable. The second parent has reason to treat it as valuable, without even having assessed the first parent’s performance. The mere fact that he is Small Boy 1’s dad means that the second parent should not treat the first parent with disrespect (or even with disregard) in front of Small Boy 1. And likewise, the reasonable second parent will value the subsidiary authority that the first parent may have over her own son (Small Boy 2), if he does have such authority. She will, of course, have a particularly vivid concern to do a good job of serving Small Boy 2 as his mother.19 To do that, she has to take into account the ‘dependent’ reasons, as Joseph Raz calls them, that apply to Small Boy 2.

The dependence thesis in Raz’s account of authority is the proposition that ‘all authoritative directives [here, we are concerned with directives that the second parent might give to her son, or to others] should be based, among other factors, on reasons which apply to the subjects of those directives and which bear on the circumstances covered by the directives’.20 Reasons that Small Boy 2 has for obeying the first parent are dependent reasons in this sense; the second parent ought to have them in mind, and might base her directives to her son on them. She has the opportunity (and the responsibility) to mediate between her son and the reasons for action that he has, which is why Raz calls his account the ‘service conception’ of authority.21 Her service to her son should be based on her awareness of and respect for the reasons that her son may have, in virtue of a legitimate exercise of authority by the first parent. And she should not interfere in a damaging way with the first parent’s capacity to serve his son (and her son, and other children) as an authority.

Coming on the scene when the first parent is trying to sort out the fracas between Small Boy 1 and Small Boy 2, the second parent needs to treat the reasons that apply to Small Boy 2 in virtue of the first parent’s decisions as dependent reasons (that is, as reasons which apply to Small Boy 2, and on which her own exercise of authority is to be based). She should treat Small Boy 2 –her own son– as someone who is subject to the (admittedly, subsidiary) authority of the first parent. If the first parent has purported to exercise his

19 Since she is reasonable, she will also aim to treat other people decently; while that additional aim has its own rationale, I think that she will view it as an essential part of her aim of doing a good job as her child’s mother. 20 Joseph Raz, Ethics in the Public Domain (Oxford University Press, 1994) 198. 21 Ibid.

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authority to impose a resolution to the fracas, then the second parent should ordinarily be prepared to go along with it, and to hold her son to it. 1.2 Comity and rights and duties In private international law, the principle of comity can determine the law’s ascription of rights. But the rights in question are not the rights of the French court, or of the French Republic. They are rights of one of the parties to the action in the court of the country that is asked to give effect to French law, or to a French judgment. Likewise at the football match, the rights in question are primarily the rights of the Small Boys, who are entitled to conduct on the part of each parent that respects the other’s capacity to serve the Small Boys. It is not primarily a matter of the rights of the first parent, that the second parent should show respect for his interventions in the fracas. You might say that the first parent has a right to respect for his authority, and that the second parent owes him a duty to pay due heed to his attempts to make peace between Small Boy 1 and Small Boy 2. But the first parent only has any right to complain if (and then, I think, because) the second parent’s behaviour fails to show appropriate regard for the service that the first parent provides to Small Boy 1 and Small Boy 2. If the first parent is conscientiously working to make peace, and is not making an utter fiasco out of it, he has a right to cooperation from the second parent. But that right to cooperation does not arise because his status as an authority entitles him to VIP treatment. It results from the second parent’s duty to the Small Boys. We can say that the duty of comity is owed by the second parent to the first parent, but that is really a shorthand. The relationship between the second parent and Small Boy 2, and the second parent’s duty to put a true value on the relationship between the first parent and Small Boy 1, are primary. The rights of the first parent are secondary, and result from the primary considerations.

The second parent’s responsibility to show respect to the first parent derives from the reasons that justify the authority that each parent has. Likewise in judicial review, the court’s duties of comity toward (e.g.) a school board derive from the reasons why the community has instituted a school board as an authority (rather than authorizing the judges to run the schools), but has also instituted judicial review (rather than leaving persons with no recourse against an abuse of the board’s authority). The basic, general reason for a court to act with comity toward a school board is not that its members are entitled to VIP treatment, but that there is value for the community in a system in which the school board really does have authority to run the schools.

In the derivative nature of duties of one authority toward another, we can find an explanation for the notion among private international lawyers that comity toward the French authorities is not for the sake of the French Republic. It is for the sake of the persons who are subject to the authoritative acts of French institutions. I think this also explains why private international lawyers are ambivalent about whether comity is a matter of duty and, in fact, why they use the elusive term ‘comity’. Consider the dictum of Justice Gray in Hilton v Guyot that:

‘“Comity” in the legal sense, is neither a matter of absolute obligation on the one hand, nor of mere courtesy and good will upon the other.’22

The judges do not quite know whether to call comity a matter of obligation, because it seems that there is no obligation to the foreign authority. But the judges do not want to call it mere courtesy, and they deny that the matter is open to their mere discretion.23 So they 22 Hilton v Guyot 159 US 113 (1895) at 163-‐4. 23 See the quotation from Justice Cardozo at n 3 above.

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appeal to principle, and they call the principle ‘comity’, to the dissatisfaction of some English scholars. As Briggs points out, the ‘traditional English approach’ objects ‘that comity is insufficiently hard-‐edged to be of practical use’.24 If we see comity as involved in the service that the second and the first authorities can provide to the persons subject to them, we can understand the ambivalence as to the relationship between comity and obligation. We should say unequivocally that comity toward other authorities can involve a duty on the part of one authority to go along with the decisions of another. But it is a duty toward other authorities only by derivation from what is owed to the persons subject to the authorities. This is why it is a useful notion, and usefully distinguished from the duty of a subordinate authority to obey a higher authority. Comity involves a duty of respect by the second authority for decisions that do not bind the second authority. 1.3 Comity and mutuality Comity, you may say, ought to involve mutuality (which I take to mean a sharing of the attitude of comity between the first and second authority) and reciprocity (which I take to mean a disposition of one authority to do what the other would do in return). Things may well go better, in the fracas at the football match, if the first parent and the second parent reciprocate, and if they cooperate as friends. That is, as Aristotle explained friendship,25 with a mutual appreciation of each other’s goodness (not just as human beings, but each as the particular human being he or she is, in a relationship with the other). With mutual appreciation of each other’s character and attitudes, it may well be easier for the parents to serve their sons responsibly and effectively. I do not suppose that any friendship is entirely reciprocal, since good friends do not do exactly the same things for each other. They may be very different from each other, and they are most likely to express their mutual regard in distinctive ways that reflect their different capacities and opportunities and temperaments (and, of course, limitations). You do not have a general duty to do for your friend precisely the same things that he or she would do for you. But some degree of mutuality is essential to friendship. Mutuality is also supportive of comity. But it is not essential to comity. Suppose that the first parent and the second parent detest each other. Still, if the second parent comes on the scene to find the first parent taking half-‐decent steps to make peace between Small Boy 1 and Small Boy 2, the second parent may have reasons of comity to go along with the say-‐so of the first parent, just because of the service that each of them can provide to the boys, without any wider or deeper mutual regard between them.

Likewise, of course, U.S. recognition of French judicial decisions does not imply a friendship between the American and French judges. But it does involve a rather impersonal analogue of friendship –and perhaps this is another reason (besides the ambivalence about duty) why lawyers use a word whose Latin etymology lies in the notion of friendliness. In acting with comity, the U.S. court is not paying a compliment to the French judges, but it is at least recognizing something good, in the French court’s capacity to exercise authority.

This is only a rather distant analogy to friendship, because as Briggs points out, comity should not depend on reciprocity.26 If French private international law has no regard for U.S. judicial decisions, that does not entail that U.S. private international law should have no regard for French judicial decisions. If this is true, incidentally, Hilton v Guyot was badly decided. By a 5-‐4 majority, the U.S. Supreme Court declined to give effect to the French judgment on the ground that the French would not give conclusive effect to a U.S. judgment 24 Briggs 148. 25 Aristotle Nicomachean Ethics VIII.4: 1157a30-‐3. 26 Briggs 90.

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in the same circumstances.27 The dissenters gave a better account of the duty of their court: it was to do justice between the parties in a way that gave effect to the decision of the French court, because that court was competent to regulate the transactions into which the American company had entered. Chief Justice Fuller, writing for the dissenters, held that there was a rule in U.S. law that ‘private rights acquired under the laws of foreign states will be respected and enforced in our courts unless contrary to the policy or prejudicial to the interests of the state where this is sought to be done’, and that ‘although the source of this rule may have been the comity characterizing the intercourse between nations, it prevails to-‐day by its own strength, and the right to the application of the law to which the particular transaction is subject is a juridical right’.28 In his view, the decision of the court represented ‘retorsion’29 –that is, an act of retaliation against France– and the Chief Justice said that retorsion was a matter ‘for the government, and not for its courts’.30

The majority in Hilton v Guyot denied this characterization of their decision:

‘…we do not proceed upon any theory of retaliation upon one person by reason of injustice done to another, but upon the broad ground that international law is founded upon mutuality and reciprocity…’31

I propose that it is helpful to conceive of the decision in Chief Justice Fuller’s terms, as an act of retorsion. This view depends on the justice of treating the American company as bound by the French judicial decision, on the ground that it had engaged in commerce in France (rather than on the ground of the French court’s policy toward U.S. law). It might conceivably be justifiable for the second authority to abandon comity toward the first in retaliation for its failures of comity –perhaps to teach it a lesson. But if so, it is justifiable in spite of the basic reasons for comity.

Likewise, if the second parent knows that the first parent would show no respect for her authority if their roles were reversed, that does not by itself mean that she needn’t show any respect for his authority. The reasons for comity have to do with the services that she and the first parent can provide to the boys. Those reasons are reciprocal in the trivial sense that they apply to both authorities, but not in the sense that one parent’s duty depends on the other parent’s disposition to reciprocate. The reasons for comity are not cancelled by a lack of reciprocity on the part of the first parent. The second parent may conceivably have good grounds to engage in her own informal act of retorsion, by ostentatiously refusing to go along with the first parent’s decisions about the fracas at the football match, in order to make a point. But there would have to be some special reason to justify that. The basic reason for comity –the possibility that the second authority might best carry out its responsibilities by going along with the decisions of the first authority– does not depend on reciprocity. That reason is not necessarily defeated, if the first authority would fail in its duty of comity toward the second, if their positions were reversed.

I believe, incidentally, that this view is supported by the fact that reciprocity does not even arise as a possible ground of comity in some cases. In the case of the lieutenant and the sergeant, the lieutenant’s duty of comity cannot depend on reciprocity from the sergeant, as the sergeant has no duty of comity, but only a duty to obey. In the case of judicial review of administrative decisions, the court’s duty of comity toward other public officials cannot depend on reciprocity, because there is no such thing as administrative review of judicial decisions.

27 Hilton v Guyot 159 US 113 (1895), pp 227-‐8. 28 Ibid p 233. 29 Ibid p 234. 30 Ib. 31 Ibid p 228.

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2. The principle of limited responsibility for justice The principle of comity requires the U.S. court to give effect to the French decision, regardless of whether the French have got things right. This aspect of private international law reflects the principle of limited responsibility for justice. The U.S. court is not responsible for all questions of right and wrong between the parties, and is not responsible for righting everything that a French court may have got wrong. Generally, a wrong by one authority is not necessarily to be put right by another authority. It is controversial whether the force of this principle is exaggerated in public international law, through its restrictions on the grounds on which one nation can lawfully interfere in the domestic matters of another nation. But there undoubtedly ought to be restrictions. If the first authority is one nation, and the second is another nation, then the second authority may be justified in interfering with the first. But the fact that the first authority has perpetrated an injustice is not enough. When the second authority is a court of justice, this may seem tragic or paradoxical. Likewise, the notion that authority can ever be legitimate may seem tragic or paradoxical, if persons purportedly subject to authority are supposed to be autonomous. In respect of the potential legitimacy of authority, these tragedies and paradoxes have been exposed as false tragedies and pseudo-‐paradoxes.32 The related tragedies and paradoxes are false in the case of comity, for the same reasons. The U.S. court may be able to carry out its own specific responsibility for justice better, if it does not ask whether the French court got its decision right, and does not ask whether the French legislature made the law that it ought to have made. Private and public international law give effect to a very general principle: if the first authority has done something wrong, that is not even a prima facie reason for the second authority to interfere, or to decline to recognize a decision of the first authority. We can say the same thing about the second parent, and the lieutenant: if the first authority has done something wrong, we do not yet have a reason for the second authority to interfere, or to disregard the first authority’s decision. 3. The disagreement principle And then I hope it will be obvious that the disagreement principle is a sound one. U.S. judges sometimes have good reason to go along with French judgments. But the reasons for going along with those judgments are not reasons for thinking that the French made the right decision. On the contrary: the U.S. judge has no duty to come to a view. If a U.S. judge happened to be expert in French law, and could see that the French court had misapplied it, that insight would have nothing to do with the task of the U.S. judge.33 Generally, reasons for comity are reasons for the second authority to presume that it should go along with the decision of the first authority, but do not depend on reasons to presume that the first authority did the right thing. Perhaps judicial review of administrative agencies is the context in which it is clearest that one authority may have no duty to agree with another. The judge in judicial review must maintain both an attitude of comity toward another public authority (refusing to quash a decision merely because he or she would have decided differently), and also the attitude of independence that is essential if the judge is to vindicate the claims of those who have been dealt with unfairly or arbitrarily. 32 Notably in Joseph Raz, The Authority of Law (Oxford University Press, 1979), in particular at 25-‐27. 33 I am presuming here that the decision of the French court was not beyond the limits of comity; see section 5 below.

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Authorities do not belong to a club in which solidarity is a duty of membership. They have no general duty of loyalty to each other, and no duty not to criticize each other, except in special circumstances –as when cabinet ministers in a Westminster-‐style system of government have a duty of collective responsibility. A rule of collective responsibility enables and requires persons to act as one authoritative body, rather than as independent authorities. 4. Comity and hierarchy within a system of law Private international law has a feature that structures the role of comity: even in the twenty-‐first century, as Briggs explains, it is shaped by territorial sovereignty. The context of private international law is a radically unsystematic context, in which one nation’s laws and judicial decisions are not hierarchically related with another’s, and in which no institution has authority to require any nation to recognize judgments of another. If authorities have duties of comity in such an unsystematic context, it is all the more clearly the case that authorities within a single legal system ought to work together in comity. It will be necessary for the good functioning of the system in which they are elements.

You may want to say, to the contrary, that comity is a salient principle of private international law just because no higher law gives effect to French decisions in U.S. law. And then, you may think that comity is neither here nor there within a legal system, because legal systems have hierarchies of institutional authorities, and rules of priority and of closure, which govern relations among authorities, and determine the legal effect of each authority’s decisions. The rules of the system regulate the functioning of the system. Instead of deciding for themselves how to show comity toward someone else, you may conclude that institutions just need to adhere to the rules.

But comity can be essential to the good functioning of a hierarchical system. Consider the case of the lieutenant watching the sergeant train the soldiers. Suppose that the lieutenant could run the training session better than the sergeant is doing. The lieutenant is a superior officer, with general authority to issue mandatory orders to the sergeant in a clear-‐cut hierarchy of authority. Even in this case, the lieutenant ought to act with comity toward the sergeant. The lieutenant, in the sergeant’s boots, could do a better job. But he is not in the sergeant’s boots. For the purpose of doing a good job as a superior officer, he needs to work with the sergeant in a way that supports the sergeant’s authority over the soldiers. We can imagine circumstances in which the lieutenant ought to step in and countermand the sergeant’s orders. But those would be exceptional circumstances, because for the army’s purposes, it is useful to have sergeants who exercise authority. Armies have sergeants because the senior leadership will not have time to direct operations at every level at which direction is needed, and also because sergeants may be able to exercise some aspects of leadership more effectively than their superior officers could. It may be possible to appoint people as sergeants who will be well suited to that role, and who will acquire useful experience in the role, and the mere fact that the sergeant is close to the soldiers may enable her to exercise some aspects of command better than a general could. The principle is (vertical) subsidiarity: the sergeant’s proximity to the soldiers may be useful for purposes that cannot be well served by direction from a more remote authority. The division of responsibility in a well-‐ordered army is not based on the entitlement of senior officers to VIP treatment, but on the capacity of a hierarchy of command to serve the military purpose.

Likewise in the very different structures of authority in a system of institutions under the rule of law. Hierarchical rules of subordination within a legal system do not remove the need for comity; those rules establish a framework in which comity may be an essential

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institutional virtue. Comity does not subordinate the second authority to the first; it may be an essential virtue of a superordinate authority.

Consider the rule in English law (and in many systems) that the courts can set aside an executive decision on the ground that it is unlawful, while the executive cannot set aside a judicial decision on the ground that it is unlawful. That hierarchical arrangement subjects the executive decision to the judgment of the court, and requires the court to be prepared to strike down a decision; by the same token, the arrangement generates a need for comity by courts toward the executive, whenever the grounds of unlawfulness involve matters on which the executive judgment may demand respect from a court that does not have the agency’s expertise, processes, and political responsibility.

You may be inclined to doubt this (some judges have doubted it), and to say that the court has a duty to quash an unlawful decision, and a duty not to interfere with a lawful decision, and that in either case there is no latitude for its decisions to be coloured by respect for the first authority. Suppose, for instance, that reasonableness is a ground of judicial review of a particular sort of administrative decision. You may think that the court has no duty of comity at all, but only a duty to identify the rights of the claimant. The claimant has a right against the state to a decision that an unreasonable administrative decision was unlawful. The claimant has no right to a decision overturning a reasonable decision. The judge needs to ask what would be reasonable, and need have no regard for the fact that the administrative agency made the decision that it made.

But applying such an open-‐ended ground of judicial review means passing judgment on the reasoning of the administrative agency in question (an environmental protection agency, or a school board, or a competition tribunal, or…). From the reasons for instituting the agency (which may include advantages that the agency has in assessing the considerations relevant to the issues), the court incurs a duty of comity in forming its judgment as to the reasonableness of the first authority’s decisions. It is certainly possible to imagine a system of review without comity. Decisions of administrative agencies in such a system would be provisional, with an opportunity for a party disappointed by a decision to ask for a decision to be made afresh by another body that need pay no regard to the view taken by the first authority. There could be a second environmental protection agency, or school board, or competition tribunal, with no duty of comity to the first. Courts in judicial review incur duties of comity toward administrative agencies for (at least) two interrelated reasons: (1) they are not authorized –not even by a doctrine of reasonableness– to make a fresh decision, and (2) they are not an environmental protection agency, or a school board, or a competition tribunal.

Even in applying human rights legislation, there is good reason for certain forms of judicial deference to judgments of administrative authorities.34 All the more so in applying general administrative law doctrines of review for reasonableness: the courts have a duty (varying widely in intensity in relation to the dramatic variations in the issues at stake in very different administrative contexts) not to substitute their judgment for that of the first authority on issues that were committed to the first authority for good reasons of expertise, or process, or political accountability.35 5. The Limits of Comity

34 For an example of such deference see R (Begum) v Denbigh High School Governors [2006] UKHL 15, and for discussion see Endicott, Administrative Law 3rd ed (Oxford University Press 2015) 287-‐9. 35 Ibid p 234-‐6; on the role of comity in administrative law see p 20. U.S. scholars have sometimes referred to the relationship between courts and administrative agencies as involving duties of comity. See e.g. Merrick B Garland, ‘Deregulation and Judicial Review’ (1985) 98 Harvard Law Review 505, 555; Christopher F Edley, Administrative Law: Rethinking Judicial Control of Bureaucracy (Yale University Press, 1990) 255.

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In each of the four cases, there ought to be limits to comity. The limits depend on the reasons for comity, and therefore they depend on the service that each authority can provide to those subject to it. The lieutenant might have exceptional reason to countermand the sergeant’s orders; we can imagine circumstances in which the lieutenant ought to bring the sergeant before a court martial. And we can all too easily imagine circumstances in which the best thing that the second parent could do at the football match would be to rebuff the first parent, or to pick up Small Boy 2 and run. There can be reasons not to act with comity: there are such reasons, when one authority ought to oppose the exercise of authority by another person or institution.36 The principle of comity is that the second authority should act, where possible, with respect for the legitimate authority of the first. An authority is legitimate if its directives have the force that they purport to have vis à vis persons subject to them. We have seen that there is a link between the reasons for a person subject to the first authority to accept its directives as having that force, and the reasons for the second authority to show comity toward the first authority. The reasons for the second parent to act with comity toward the first parent depend on reasons for which Small Boy 1 and Small Boy 2 ought to accept the first parent as an authority.

Does this link mean that the second parent can rightly cease to act with comity when, and only when, Small Boy 2 would be justified in disobeying the first parent? I think that the situation is more complicated than that. The second parent is not in the same position as Small Boy 2. They have different capacities, and they have different perspectives. It may well be possible for the second parent to see that the first parent is being dangerous or intolerably obnoxious, where Small Boy 2 is in no position to judge (so that, unless the second parent steps in, Small Boy 2 ought to obey). This is one of the services that his mother can perform for Small Boy 2: she has the capacity (and the authority) to decide that another authority is outside its jurisdiction, or is abusing its power.

Perhaps we can say in general that the limits of comity have been passed, when the second authority is able to identify a decision of the first authority as outside its jurisdiction (see section 6), or as an abuse of its powers. And then it is easy to see how variable the limits of comity are, and how hard it is to generalise. A mother may be able to judge that another parent has overstepped the limits where her son could not do so. But a court may not be in a position to judge that foreign law or the foreign courts have overstepped the limits, where a party to the litigation can clearly see that that they have acted illegitimately.

We can at least say, perhaps, that the second authority has no duty of comity, where a purported exercise of authority is a sham. Shams dissolve duties of comity. If a litigant in a U.S. court proves that the document attesting to a French ‘judgment’ was a forgery, there is no problem of comity toward the French court. This should be uncontroversial. It corresponds to the rule in administrative law that only a ‘genuine exercise’ of a lawful power can count as a lawful use of that power.37 We can easily slide toward much more contentious grounds on which the second authority might be tempted to disregard a decision (if it can be called a ‘decision’) of the first authority. Perhaps a decision

36 But note that the potential reasons for not going along with another authority’s decisions do not all depend on defects in the first authority’s decision making. The second parent’s son may conceivably have some extraordinary need for solace or support, so that his mother would be failing him if she went along with perfectly reasonable attempts at mediation by another parent. Or some supervening emergency may make it necessary to abandon a reasonable way forward that the first parent had proposed. The principle of comity is still a general principle, because these reasons are exceptional, and involve special grounds for departing from a reasonable general policy of going along with the first authority. 37 Endicott, Administrative Law 3rd ed (Oxford University Press, 2015) pp 277-‐8.

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of an administrative authority that is not bona fide (because it is malicious) should not be recognized as a genuine exercise of its decision-‐making authority. Likewise a biased decision. And then perhaps a patently unreasonable decision should not be regarded as a decision. And if a patently unreasonable decision is not a decision for the purpose of the law, then why should the court leave in place any decision, when the administrative authority ought to have taken a different decision? If the ‘genuine exercise’ rule degenerates into a practice of quashing decisions that the court disapproves of, the result is an abandonment of comity toward administrative authorities. There is no precise general way of drawing a line between sham ‘decisions’, and genuine decisions; so the limits of comity are bound to be vague, and controversial.

6. Jurisdiction There are circumstances in which the first authority can still be recognized as an authority, and can be treated with comity, while the second authority decides not to recognize a particular decision, or decides to interfere with a particular decision of the first authority. It may seem impossible to disregard a decision, while acknowledging that the decision-‐maker is an authority. But in fact it is an important feature of authority in general, that a legitimate authority may make some particular decision that it has no authority to make. In fact, although such circumstances may be exceptional, that does not mean that they are rare. Private international law would be very different, if it recognized no such circumstances. Administrative law would be chaos if it recognized no such circumstances. Both areas of law need doctrines of jurisdiction.

At the football match, the second parent is still treating the first parent as an authority, if she applies a sound doctrine of his jurisdiction –if, for example, she goes along with the first parent’s say-‐so on matters involving peace and order at the football match, but not on matters such as what her son is to have for supper when they go home after the match. Private international law, likewise, needs doctrines that identify the jurisdiction of foreign courts. It is not a breach of comity, if those doctrines are established by the private international law of the state whose court is deciding whether to give effect to a foreign judgment, rather than by the foreign law. Generally, it is not a breach of comity if the second authority takes responsibility for determining whether a decision of the first authority was within its jurisdiction; on the contrary, that responsibility is a precondition of the second authority’s duty to go along with a decision of the first authority.

So it is not a breach of comity for a competent court in judicial review to quash an administrative decision that was taken without jurisdiction. Think of the famous English Court of Appeal decision in the Wednesbury case, in which Lord Greene held that the court should not interfere with a local authority’s licensing decision on grounds of unreasonableness (absent some recognized defect in the decision such as bias or bad faith or acting on an irrelevant consideration), unless the decision was so unreasonable that no reasonable local council could have adopted it. The doctrine, and the decision in the case, give effect to the principle of comity (and also, by implication, to the principle of limited responsibility for justice). Although the Wednesbury case is not generally explained this way by English lawyers,38 it seems to me that we can restate Lord Greene’s decision by saying that a town council has no jurisdiction to make decisions of the kind that he would have been prepared to quash.

The Court of Appeal has authority to quash decisions of the local council, but it has

38 Since the doctrine of administrative jurisdiction was mangled in the line of cases from Anisminic v Foreign Compensation Commission [1969] 2 AC 147 to Re Racal Communications [1981] AC 374, some English judges and scholars have not quite known whether to say that an administrative authority has a jurisdiction. See Endicott, Administrative Law 2nd ed (Oxford University Press 2011) 318-‐26.

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no authority to do so simply on the ground that the council ought to have made a different decision. The local authority won in the Wednesbury case; but suppose that a decision were held to be Wednesbury unreasonable, and were quashed on that ground. Would that reflect a decision by the court to abandon comity toward the local council? You might think so, because the Court is condemning the judgment of the council, rather than respecting the decision as authoritative. But this is different from the action of the lieutenant in asking a court martial to discharge a sergeant. The question is whether the court’s order would be compatible with respect for the town council’s authority. Or as we might put it, would the court still be treating the town council as a town council, if it quashed a decision that was so unreasonable that no reasonable town council would make it? Lord Greene, of course, was trying to find a way of treating councils as councils, without taking their authority away from them, while being prepared to interfere with an abuse of power.

A decision to quash a local authority’s decision on the grounds in the Wednesbury case can be compatible with comity, as long as the Court applies the doctrine conscientiously. It reflects, just as the Wednesbury decision itself reflected, a presumptive willingness on the part of the second authority to go along with decisions of the first authority, and a refusal to interfere with decisions that are within the jurisdiction of the first authority. It is consistent with adherence to the principle of limited responsibility for justice; it implies, in fact, that there are limits to the second authority’s responsibility.

A war to liberate a nation reflects an abandonment of comity toward that nation’s government. The dismissal of a military officer or of an administrative official for misconduct in public office reflects a judgment that the decisions of the person in question are not to be respected as authoritative. Perhaps a criminal conviction for misconduct in a public office does so, too. A judgment for the claimant in an action for misfeasance in public office is a borderline case. But the availability of judicial review to quash an abuse of power does not reflect an abandonment of comity. A court does not have to hold that there are no grounds for comity toward the first authority, before it can quash a decision. 7. Conclusion The same point can be made about judicial review of administrative action, that Professor Briggs makes about private international law: comity explains how we got some of the rules we have, and can be used to criticize some of them, and can be used to develop the law and to resolve unanswered questions. It also explains some of the expectations that parents have of each other at school football matches, and it can be used to work out what they ought to expect of each other. The principle of comity, the principle of limited responsibility for justice, and the disagreement principle apply generally to the attitude that one authority ought to take toward another. I should summarize some qualifications on the argument presented here in favour of these principles. First, the reasons offered for those principles are limited by the legitimacy of the first authority, and the second authority’s duty to go along with decisions of the first authority is limited by the jurisdiction of the first authority (which can be a matter for the second authority to determine). Secondly, I have not presented an exhaustive account of reasons for one authority to go along with a decision of another. I have argued that there are reasons for comity that are a matter of duty, arising from the service that an authority can provide to those subject to it. There can be many other reasons. Any valid rule binding the second authority to act with comity will provide an example. And the value of finality in decision making is another. You might say, in fact, that the value of finality is a sufficient prima facie reason for the second authority to go along with the decision of the first authority, in each of the four cases discussed above. But it is worth noting how this potential reason for going along with the

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decision of another authority is bound up with the service that the second authority can provide to those subject to it. The value of finality is not a general feature of decisions; it can depend on the legitimacy of the purported authority that has claimed to give a final decision on some matter, and it can also depend on that authority’s jurisdiction to make the decision. There may be a value in treating a decision of another parent at the football match as final, that does not arise in the case of a decision by a stranger. There may be a value in treating a decision by a legitimate foreign court as final, that does not arise in the case of a decision by an illegitimate foreign court. Some administrative decisions were within the jurisdiction of the agency that made them and others were not, and there may be no value in treating a decision taken without jurisdiction as final. So the second authority cannot act on the value of finality, where finality is of value, without making the judgments discussed above, as to the grounds for treating another authority with comity. Moreover, one important aspect of the service that the second authority can provide is to give authoritative decisions as to whether the decision of another authority is to be treated as final. Likewise in respect of other reasons for comity: the second authority will characteristically be able to serve those subject to it, by resolving any issue as to whether there is reason to go along with the first authority’s decision. So the reasons for comity identified here, arising from the service that the second authority can provide, are basic and general. Thirdly, we should be wary of generalizations, when dealing in the abstract with a myriad of deeply and variously different n-‐body problems, where n may be a large number. It would be impossible to design a good scheme of private international law without understanding the states in question and their institutions, and their relations among each other, and the subject matter of the laws in question, and so on, and there are bound to be various considerations in favour of and against one scheme or another, and there may be many possible reasonable schemes, and there may be various ways, within any such scheme, in which one authority may act with respect toward others. Likewise, in administrative law, no system could have a good general standard of judicial review of administrative decisions. Because of the massive variety of agencies and the massive variety of considerations on which they ought to act, the court’s willingness to defer to the judgment of administrative agencies must vary in different contexts. Likewise, it is not possible to write a general code prescribing the ways in which a parent ought to behave toward other parents at a football match. You have to know the whole situation. It may seem paradoxical, but this is the way with abstract principles: they apply generally, and yet their application depends on particulars.

Comity among Authorities

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