Legislative form as a justification forlegislative supremacy

Eoin DalySchool of Law, NUI Galway

* Note: this is an earlier version of a paper publishedin Jurisprudence (2017) – seehttp://www.tandfonline.com/doi/full/10.1080/20403313.2017.1296621

Abstract

Defenders of legislative supremacy against judicialreview have primarily invoked various virtues oflegislative process – in particular, its deliberative anddemocratic qualities, the diverse perspectives and inputsit allows, and especially, its connection to a principleof democratic equality. However, I will argue that suchvirtues have been overemphasised as justifications forlegislative supremacy. Instead, I argue that insufficientattention has been paid to the form of legislation as ajustification for giving legislatures the “final say” onissues of fundamental rights. Firstly, I argue that legalphilosophy has underemphasised the extent to whichlegislative form, rather than legislative process, candiscipline and mediate “majoritarian” rule, andcorrespondingly how this undermines the most commonplacearguments for rights-based judicial review ofparliamentary legislation. Secondly, I suggest that thesame formal attributes give legislation a virtue ofpolitical transparency which can be contrasted with theesotericism of constitutional jurisprudence, itselfconsidered as a distinctive species of politicaldomination.

Introduction

A great deal has been written about the formal virtues oflaw – especially, its virtues of publicity,

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comprehensibility and generality1 – but rather less aboutthe formal virtues of legislation, compared with othertypes of law. Theorists who celebrate legislation tend tolaud it as a process or an activity rather than as a form– or see legislation’s form as being inherently connectedwith legislative process. Correspondingly, considerationsof form2 have made little impact on the centralconstitutional debate as to whether courts orlegislatures should enjoy the “final say” on issues offundamental rights. Little has been said concerning howthe formal attributes of legislation might bolster thecase for legislative supremacy. Instead, proponents oflegislative supremacy have appealed almost entirely tolegislation’s procedural virtues – in particular, itsdeliberative and democratic qualities, the diverseperspectives and inputs it allows, its connection to aprinciple of democratic equality, and so forth. The“dignity” of legislation, Waldron suggests, lies in thepolitical procedure that yields it; his argument focusesprimarily on legislatures rather than legislation. In contrast, Iwill argue that, in some respects, the formal rather thanthe procedural qualities of legislation offer sounderjustifications for giving legislatures the “final say” onrights issues.

In making this argument, I do not discount the valueof legislative process as such, and particularly its(potentially) deliberative, contestatory and otherdemocratic virtues. But such arguments are too reliant ondubious generalisations concerning parliamentary cultureand practice. Moreover, any process-based defence oflegislative supremacy which relies on a link betweenprocedural equality and political freedom is underminedby the vast inequalities of influence, and “real”political power, that characterise legislative politicsin contemporary liberal states. In short, defenders oflegislative supremacy have largely failed to account forhow power asymmetries in politics weaken the moral claims

1 See especially Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1964)2 By the phrase ‘legislative form’, I refer to the form of legislation as a distinctive species of law, rather than to the constitution, composition or structure of the legislature.

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of procedural political equality. In this light, my aimis to formulate a justification for legislative supremacythat is less dependent either on an overly idealisedaccount of parliamentary process or on an exaggeratedaccount of the intrinsic and instrumental value ofprocedural equality.

In many ways, considerations based on legislativeform are less dependent on such idealising assumptionsand thus are better grounded in the political realitiesof contemporary liberal democracies. As a starting point,I will argue that Rousseau’s theory of legislation can beread as defining political and individual freedom inrelation to the form of legislation as much as itsprocess. I read Rousseau as asserting that the form oflegislation allows a determinate political will to bepurposively and consciously directed at social problemsyet while orienting this will towards abstract categoriesrather than at specific individuals or disputes. Such aconcept of legislation can, I argue, support an argumentfor legislative supremacy under contemporary conditions.First, legislative form, more than parliamentary process,mediates and disciplines popular and parliamentary powerin a manner that largely undermines the “counter-majoritarian” argument against legislative supremacy.Secondly, legislation’s purposive generality entails what Iwill call a virtue of political transparency, whichcompares favourably with the relative esotericism ofjudge-made law.

1. The procedural virtues of legislation – and theirlimits

The most influential proponents of legislative supremacyreject judicial constraints on legislative power almostentirely with reference to the procedural virtues ofparliamentary legislation. In particular, they argue thatmajoritarian legislative politics offers the best processfor providing definitive resolution of all politicalissues – including issues of rights – because it treatscitizens as equals in a context of intractabledisagreement on fundamental matters.

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I will take Jeremy Waldron and Richard Bellamy to bethe main exemplars of this view. Both reject strong-formjudicial review – i.e. any judicial power to invalidateparliamentary legislation – in part because they rejectany understanding of courts as privileged expositors orinterpreters of “rights”. Both deny that courts, comparedwith parliamentarians, enjoy any special insightconcerning the “truth” of rights, or that rights are bestdiscovered and interpreted through judicial reasoning.3

They argue that the task of constitutional design is notto enshrine a determinate concept of rights to be placedbeyond the ordinary political process. Rather, thecentral and insoluble problem of politics is theintractability of disagreement concerning rights. Theyargue that constitutions cannot depoliticise rightsbecause conscientious citizens (including judgesthemselves) are deeply and intractably divided as toquestions of right as well as of the good: they disagree asto what “rights” should be enshrined, what these abstractaffirmations of right mean in specific practicalcontexts, and especially, how their conflicting claims ofright are to be ordered. Such disagreements arefundamentally ill suited to judicial resolution: theybelong to the “circumstances of politics”.4

While Bellamy and Waldron’s case stems largely fromtheir scepticism towards rights-based judicial review, bynecessity it also rests on a positive account concerningthe democratic credentials of legislative process. Asoutlined, both argue that political theory must accountfor the intractability of disagreement about rights. Ifwe are to accept such disagreement is insoluble, thechallenge of politics is how citizens can nonethelessengage in some kind of collective self-rule which settlessuch conflicts through a process each can recognise asnon-arbitrary, and so in which no citizen is dominated.If we take disagreement seriously in this way, politicalfreedom cannot be realised by enshrining a specificconcept of rights in the guise of a judicially enforced

3 Richard Bellamy, Political Constitutionalism (Cambridge: Cambridge University Press, 2007); Jeremy Waldron, ‘The Core of the Case Against Judicial Review’ (2006) 115 Yale Law Journal 1346.4 Bellamy (n 3), 25-26.

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constitution. Instead, it is realised in the procedurethat is adopted for settling conflicting rights-claims.And crucially, Bellamy and Waldron argue that if thisprocedure is to be non-dominating, it must be neutralwith respect to outcomes. In short then, legislativesupremacy enshrines a procedural understanding ofdemocratic equality. Given its institutional link withuniversal suffrage, parliamentary legislation isunderstood as the output of a process which enshrines aprinciple of “one person, one vote”, in which nocitizen’s view is privileged or prejudiced “up-front” inthe decision-making process.

On this account, majoritarian legislative politicsenshrines equality amongst citizens who disagree onrights because it “is neutral as between the contestedoutcomes, treats participants equally, and gives eachexpressed opinion the greatest weight possible compatiblewith giving equal weight to all opinions.”5 Dworkin, bycontrast, argues that substantive democratic principlesguaranteeing “equal concern and respect” must beconstitutionally entrenched against legislative change,because they are pre-conditions to any meaningfuldemocratic procedure. 6 Yet Waldron and Bellamy retortthat since the content of such principles is intractablycontested and controversial, “equal concern and respect”can only be realised through political process itself –through “real democracy”.7

Of course, legislation might embody virtues otherthan bare procedural equality – particularly, thoseassociated with parliamentary practices of compromise,deliberation and debate. Waldron claims legislation is“dignified”, as a “mode of governance” because it sees“the representatives of the community come together tosettle solemnly and explicitly on common schemes andmeasures that can stand in the name of them all.”8 Thus,he tries to counter an excessively “idealized” account of

5 Waldron (n 3), 1388.6 See especially Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Oxford: Oxford University Press, 1996)7 Bellamy (n 3), 210.8 Jeremy Waldron, The Dignity of Legislation (Cambridge: Cambridge UniversityPress, 1999), 2.

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judicial process with what seems like an idealizedversion of parliamentary law-making. Indeed an importantpart of Waldron’s argument is that, far from being thepreserve of courts, “rights” commonly feature inlegislative debate, if not always in a format and stylethat appeals to lawyers.9 Bellamy similarly invokes thereason-giving virtues of legislative process, againstwhat he regards as a crude caricature of legislativehorse-trading. Compared with the depoliticising effectsof legal constitutionalism, it encourages on-going andopen-ended contestation about rights. He refers to the“adversarial and competitive” virtues of “real” politics,to “its use of compromise and majority rule to generateagreement”, and to the fact that it ensures “discussionand criticism” of diverse views,10 “encourag[ing] thevarious sides to hear and harken to each other.”11

However, both Waldron and Bellamy implicitlyacknowledge an obvious problem: that the discursive orreason-giving qualities of legislative process are toocontextually contingent, or insufficiently generalizable,to offer any resilient justification for parliamentarysupremacy. Therefore, both tend to treat these asessentially secondary considerations, and retreat,instead, to the bare premise of procedural equality.While Waldron aims to identify an argument againstjudicial review that is “independent of both itshistorical manifestations and questions about itsparticular effects”,12 the converse applies to hispositive argument for parliamentary politics: it focusesprimarily on process-based legitimacy rather than dubiousuniversalising assumptions concerning legislativedeliberation. Thus both tend to argue that legislativesupremacy treats citizens as equals not because of itssubstantive deliberative qualities but rather itsprocedural structures. And for both, procedural equalityin this sense is simply a corollary of political freedomunderstood in a particular way: as an institutional

9 Waldron (n 3), 1384.10 Bellamy (n 3), 222, 210.11 ibid, 5.12 Waldron (n 3), 1351.

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translation of the idea of non-domination in a context ofintractable disagreement about rights.

Limits of the procedural account Waldron and Bellamy’s procedural arguments are especiallyvaluable in linking the argument against judicial reviewto an understanding of politics that accepts theinsolubility of social conflict concerning rights(without suggesting the impossibility of “right answers”about rights per se). However, ultimately their argument istoo reliant on a rather strained account of therelationship between procedural equality and politicalfreedom understood as non-domination. In particular, itfails to account for the insufficiency of proceduralequality, in the context of parliamentary democracy, inchecking the kinds of power asymmetries that mustconstitute domination under any feasible account.

As outlined, both Bellamy and Waldron implicitlyacknowledge that arguments based on the deliberative orreason-giving virtues of legislative process are toocontingent on the vagaries of political culture, and soretrench upon the premise of procedural equality, whichin turn (for Bellamy at least), is presented asenshrining freedom understood as non-domination, or non-arbitrary rule in a wider sense.13 However, proceduralequality is in many senses a strange translation of thenon-domination ideal. Integral to any concept ofdomination is that of power, and specifically the questionof how certain, asymmetrical configurations of powerengender various kinds of “alien control” over citizens’collective arrangements as well as their individual lifeplans. Yet it seems that the very point of focusing onprocedural equality, in the voting and legislative process,13 Waldron does not use the terminology of freedom as non-domination.In fact he rejects much of Pettit’s distinction between freedom asnon-interference and freedom as non-domination – see Jeremy Waldron,“Pettit’s Molecule”, in Geoffrey Brennan, Robert Goodin, FrankJackson and Michael Smith (eds.), Common Minds: Themes from the Philosophyof Philip Pettit (Oxford: Clarendon Press, 2007). Nonetheless, like Bellamyhe similarly sees judicial review as arbitrary, broadly speaking, inthe context of disagreement concerning rights.

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is to obscure issues of power. At some points, Bellamydefends procedural majoritarian democracy using thedistributive language of real power. Such a system isnon-dominating, he argues, because it gives “equal weight”to citizens’ divergent views.14 His reference to equal“weight” or equal “say” seems to appeal to an idea ofequality in the distribution of political influence orpower, and not simply a formal equality of status. Butobviously, formal procedural equality by itself is onlycasually related with the real distribution of politicalinfluence, power and control. Whereas the “weight” ofone’s voice is clearly a matter of degree, proceduralequality has an all-or-nothing character; it dissolvesquestions of power. Thus while Bellamy invokes equalityas a foil against domination, understood as arbitrarypower, the strictly procedural account of politicalequality he adopts cannot address distributions of power.

Similarly, Waldron sometimes uses the language of“weight”;15 he argues that procedural democracy enshrines“the right to have one’s voice counted even when othersdisagree with what one says”.16 Yet ultimately he seemsunsure whether political legitimacy lies in having one’svoice counted or simply one’s vote counted, which is hardlythe same thing, given the various disparate influencesthat are brought to bear on democratically electedlegislatures.

Certainly, it seems reasonable to assume thatprocedural equality is a necessary condition of non-domination in political contexts, and that it hasintrinsic as well as instrumental value. However, bothWaldron and Bellamy overstate its instrumental effectsand thus its sufficiency as a guarantee of non-domination. For both, the challenge of institutionaldesign is to identify a decision-making structure inwhich no citizen is dominated. Although it varies acrossdifferent accounts, the essence of domination issubjection to arbitrary, alien or unaccountable power.17

And while it is contested, I will assume that “power”,

14 Bellamy (n 3), 211, emphasis added.15 He says that majoritarian voting “gives each expressed opinion thegreatest weight possible” (emphasis added). Waldron (n 3), 1388.16 ibid 1373, emphasis added.

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narrowly speaking, means a capacity for interference inchoices that others are in a position to make. In mostaccounts, power is arbitrary when it is exercised basedon interests that are alien to, or unshared by, those itaffects, and where it eludes contestation (or perhapscollective control in the case of public power).18

Accordingly, Philip Pettit argues that in order tobe non-arbitrary and non-dominating, public power mustnot only track commonly avowable interests, but also thatit must be subject to a form of popular control that is“equally shared”.19 Of course, this seems a strikinglyoptimistic, almost impossibly ambitious demand incontemporary, complex mass democracies that distributeparticipative capacities in such obviously unequal ways.Popular “control” can only ever be described as being“equally” shared in an unfeasibly abstract way, whichobscures or rationalises substantive inequalities. Pettittries to dissolve this tension partly by attributingdifferences in participation and influence to naturaldifferences of ability and motivation – a step whichseems to risk naturalising dispositional inequalitieswhich are themselves structurally constituted.20

“Equality”, in his system of popular control, seemsnominal or symbolic at best.

By contrast, Bellamy assumes more modest horizons infocusing on procedural equality as the basis of non-domination, avoiding any over-ambitious account ofequally shared “control”. Yet by the same measure, he17 For the most influential analytical account of freedom as non-domination, see Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Clarendon Press, 1997).18 Philip Pettit, On the People’s Terms: a Republican Theory and Model of Democracy(Cambridge: Cambridge University Press, 2013)19 ibid, Chapters 4 and 5.20 Pettit suggests an “eyeball test” as a criterion for social non-domination. Non-domination obtains we can look our fellow citizens “in the eye” without need for ingratiation or deference. However he insists this test cannot account for us being able to look others in the eye based simply on our timidity or natural deference. Similarly,he insists that whereas popular “control” over government must be equally or jointly shared, this merely requires “equal access to the system of popular influence” and not equal input since “some individuals may choose not to play their part in the system.” See Pettit (n 18) 84-5, 169.

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fails to explain how public power can be considered non-dominating in spite of the obvious inequalities of inputand influence that characterize legislative politics inliberal states. 21 Consequently, his focus on proceduralequality as a foil against domination ends up obscuringthe moral significance of power disparities in politics.Ultimately, he treats such power disparities essentiallyas side issues that may have some bearing on thestability of parliamentary democracy, rather than asbeing integral to non-domination itself. Yet ifdomination is constituted by unaccountable or arbitraryconcentrations of power, then procedural equality offersa poor kind of inoculation against any account ofdomination that takes power seriously. Bellamy claimsthat “the distinctiveness of the democratic process liesin its non-dominating character”,22 but seems, at points,to locate non-domination almost solely in formalpolitical structures as distinct from the substantivedistribution of political capacities and influence. On analternative reading, he places real value ondistributions of influence and power, and assumesprocedural equality is instrumental in realising this.For example, he claims that “giving every citizen onevote in a general election offers a rough and ready andeasy to verify form of ensuring all citizens’ views carrythe same weight in collective decision-making”.23 In turn, heattributes existing inequalities of influence, in

21 Bellamy draws on Madison and Dahl to argue that, within majoritarian political systems, the “pluralism” represented by multiple, cross-cutting cleavage, whether identitarian or interest-based, mitigates concentrations of power and offers a better “balance” of power than the institutional separation of powers. Bellamy (n 3), 199-202. However, while this “coalition of minorities”argument serves to debunk the idea that majoritarian systems are oppressive towards minorities, it does not – and arguably does not even claim – to explain how procedural equality, in the context of majoritarian systems, offers something akin to the “equal say” that Bellamy’s account of non-domination seems to assume. In short, it points only towards partial balancing, but not an equalization of influence and power. For a broader account of the “pluralist” argument see Robert Dahl, Democracy and its Critics (New Haven: Yale University Press, 1989).22 Bellamy (n 3), 165.23 ibid 223, emphasis added.

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contemporary democracies, to various aberrations anddysfunctionalities, rather than understanding them asintegral to the model itself. Yet it seems odd to treatsubstantive power disparities as being somehow anomalouswithin a model of representative democracy that isdesigned, historically, to filter and mediate masspopular power.

Thus Bellamy comes close, at some points, toacknowledging the importance of citizens having somegenuine measure of equal influence, saying that “one ofthe basic sources of being treated as an equal [is]having an equal say with [our] fellows in how [our]collective arrangements are to be organised’.24 Therefore,non-domination “is best served through “citizens havingan equal vote in common elections where political partiescompete for the people’s vote and electoral andlegislative decisions are made by majority rule”.25 Butultimately he assumes either that procedural equalityactually equates, implausibly, to having an “equal say”, oralternatively that disparities of real power withinformally equal democracies are a secondary concern.Political participation is said to be “intrinsically”26

important, but its relation to political power iselusive. And certainly, it seems odd to reject thenotional or abstract equality enshrined in a system ofjudicially enforced constitutional rights, whilesidelining issues of real power and influence in adefence of the parliamentary-centred alternative. Eitherprocedural equality is thought to entirely dissolveproblems of disparate power – which seems morallyunsatisfactory – or it is imagined as actually equalisingreal power, which seems unrealistic.

The challenge, then, is to identify an alternativedefence of legislative supremacy which relies neither ondubious generalisations concerning parliamentary practice

24 ibid 152, emphasis added. Along with “equal weight” and “equal say”,he also refers to the value of “equal recognition”; ibid 220.25 ibid 219.26 ibid 152. However he rejects any account of positive liberty: “The negative desire to avoid domination is sufficient to motivate a concern with self-rule.” ibid 155

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nor on any tenuous conceptual link between proceduralequality and political non-domination.

2. Legislative form and its virtues

“Legislation” is an amorphous term: of course, judge-madelaw is “legislative” in the broad sense, because inruling on individual cases, judges may create rules orprinciples that are applicable to broader, indeterminatecategories of persons and cases. Judicial power canlegislate, then, in that it creates rules and principlesapplicable to general categories rather than specificparties.27 Therefore, I will assume a narrower sense of“legislation”: as a specific form of law of the kindexemplified by enacted statutes and codes. Tooversimplify, the distinctive formal attribute oflegislation – at least for the purposes of theconstitutional-design debate – is not its “written”character or even its generality as such. While judgesmay organically and incrementally “legislate” throughindividual rulings, legislative form is defined, as Iargue in the following sections, by its purposive generality.

a) Legislative generality and the “counter-majoritarian” problem

The first distinctive virtue of legislative form lies inthe mediating and disciplining effects it imposes onlegislative power. This, in turn, helps to counter thecommonplace “counter-majoritarian” argument againstlegislative supremacy.28 The standard version of thecounter-majoritarian argument holds that judicial reviewof legislation is needed to prevent potentiallyoppressive political “majorities” from undermining the

27 This applies even without a formal principle of precedent. Indeed,all purposive governmental activity is potentially “legislative” in this sense.28 See e.g. Alexander Bickel, The Least Dangerous Branch (Bobbs-Merrill, 1962). For a sceptical view see Scott Lemieux and David Watkins, ‘Beyond the “Counter-Majoritarian Difficulty”: Lessons from Contemporary Democratic Theory’ (2009) 41 Polity 30.

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rights of individuals or minorities.29 On the one hand,political constitutionalists have insisted that theentire premise of the “counter-majoritarian dilemma” ismisconceived. Both Bellamy and Waldron argue that apolitical decision cannot be intrinsically problematicfor the fact that it issues from a majority, withoutbeing arbitrary or oppressive according to someindependent metric.30 It is trite to say rights shouldnever be subject to a majority vote, since judges, whoalso disagree about rights, will decide the issue bymajority vote in any event. Thus the majoritariancharacter of a decision cannot in itself be oppressive,and it is hardly self-evident that a “minority” –including say, a wealthy elite – should enjoy recourseagainst majoritarian power. As Bellamy points out, it isthe most powerful and privileged minorities that willtend to successfully instrumentalise counter-majoritarianmechanisms.31 And in any event, the value of majoritariandemocracy is not that it crystallises the “will” of somediscrete majority but rather, simply that it enshrinesequality between citizens who are intractably divided onfundamental matters.

Proponents of legislative supremacy have also arguedthat any potentially oppressive effects of majoritariandemocracy are attenuated within the legislative processitself, through the structures of representativegovernment. The “counter-majoritarian” premise ismisleading, in this view, because parliaments simply arenot designed to crudely effectuate majoritarian “will” ondiscrete issues.32 No legislative system “blindly empowersthe majority”; in fact parliamentary “structures ofparticipation” may serve to air the plight of thoseatypical or neglected interests that courts are usuallyunderstood as better protecting.33

29 For an argument against a “statistical” or “majoritarian” account of democracy see particularly Dworkin (n 6). 30 Waldron (n 3), 1397-1400.31 Bellamy (n 3), 207.32 “Majorities” are in any case ephemeral and typically consist, as per the Madisonian argument, of shifting coalitions of cross-cutting minorities. See note 21 above.33 Waldron (n 3), 1378.

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Thus both sceptics as well as proponents of judicialreview are centrally concerned with the normativesignificance of legislative process. For the former,procedural majoritarianism imperils minorities; for thelatter, it actually protects rights by institutionalisinga balance of power and procures stability in a context ofinsoluble disagreement. However, both arguably overstatethe significance of process as such, at least for thepurposes of constitutional design. I will argue thatcontemporary legal philosophy has overlooked certain waysin which the form of legislation disciplines and mediatespolitical power independently of the representative anddeliberative process by which legislation might beenacted.

Provisionally oversimplifying matters, we can saythat the generality of legislation has a constrainingeffect: it means that any political agent wieldinglegislative power, or who must govern in accordance withlegislation, cannot exercise power over specificindividuals and disputes except with reference to and inaccordance with general rules and principles that areaddressed at abstract categories. In one sense, theseconstraining effects of legislative form seem toundermine the political functions often assigned tolegislation – and specifically, its supposed function inexpressing the will of a political community. This is aprominent tension in Jean-Jacques Rousseau’s theory oflegislation. Rousseau assigns legislation the function ofeffectuating the “general will” as the corporate will ofa political community – the rule of the general willbeing understood as the cornerstone of political freedom.Yet he also insists that “true” legislation must have ageneral form, addressing itself only to general andabstract categories and never to specific persons orgroups.34 This generality is, more fundamentally, anattribute of the general will itself, which is “general”in its object as well as its authorship and so cannotspeak “to some particular and determinate object”, or“pronounce on a man or a fact.”35 Legislation is by its

34 Jean-Jacques. Rousseau, Du Contrat Social (Paris: ENAG, 1988); (hereinafter The Social Contract) Book I, Chapter 635 Social Contract, Book II, Chapter 4.

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nature, he claims, addressed at general categories andprinciples rather than specific persons and situations.But in practice, of course, this will limit its capacityto enact or instantiate any determinate political will,as its vague and indeterminate provisions will beinterpreted, applied and developed by judges andadministrators.

On the one hand, this feature of legislative formseems to qualify the meaning of popular sovereignty inRousseau’s theory, simply because the legislative form ofthe sovereign’s rule necessarily limits its scope. Itmeans that legislation cannot effect a general will, orany political will, in an uncompounded form – that ineffect, a general will cannot rule in the wide sense thatis often assumed. By the same measure, however, thisconstraining effect of legislative form may also beunderstood as a distinctive political virtue in the senseoutlined, insofar as any political agent that is requiredto rule through, or in accordance with legislation,cannot exercise power over individuals other than withreference to standards that were enacted withoutreference to and in abstraction from specific individualsand cases.

By contrast, the “counter-majoritarian” thesisimagines that legislative power is self-executing, suchthat legislatures rule directly, unmediated, overindividuals and groups. But of course, legislative formmakes this impossible. The orthodox account of statutoryinterpretation suggests that judges’ function is simplyto discover and apply legislative intent, such thatlegislative intent actually decides particular cases.36

However, it is widely argued (despite some dissent) thatlegislative intent itself is constructed rather thandiscovered,37 or at least that it is indeterminate withrespect to specific cases, and that the wording of astatute will, in any event, be read against the backdrop36 For an account of the orthodox view see e.g. Francis Bennion, Bennion on Statutory Interpretation, (London: Butterworths, 5th Edition, 2008); Ruth Sullivan, Sullivan on the Construction of Statutes, (Toronto: Butterworths, 5th ed, 2008; John Bell and George Engle, Cross on Statutory Interpretation, (Oxford: Oxford Universty Press, 1995). 37 Ronald Dworkin, Justice for Hedgehogs (Harvard University Press, 2010), p. 85

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of established values and principles such that anyspecific judgment is irreducible to legislative intentper se.38 Certainly, legislation might effectuate the“intent” of a legislature – an intent formulated withcertain kinds of cases in mind – but arguably the onlyintention meaningfully discernible is an intention thatstate power be exercised, or cases decided, withreference to the conventional meaning of the wordsenacted.39 This intent is not dispositive of particularcases.

Roughly speaking, then, one virtue of legislativeform is that it means the intent of the legislator isapplied to social problems at a certain level ofabstraction, rather than at specific individuals anddisputes. Accordingly it prevents an uncompoundedlegislative will from directing the outcomes ofindividual cases, thus offering some measure of safeguardfor individuals and groups. One possible way ofunderstanding the advantage of legislative form in thisrespect is that it allows potentially oppressivelegislative standards to be mitigated in theirapplication at the judicial stage. Yet as I will furtherexplore below, the mediating virtues of legislative formcan equally be understood without reference to anycontroversial, constructivist account of judicial power:the mediating effect is achieved before legislation isapplied, but in a way that is not necessarily dependenton the representative or the deliberative qualities ofthe legislative process itself.40

Rousseau is perhaps an odd source with which toexplain the constraining merits of legislation, because heis usually understood as advocating a kind of democratic

38 For discussion, see T.R.S. Allan, “Legislative supremacy and legislative intention: Interpretation, meaning and authority” (2004) 63 Cambridge Law Journal 685.39 For this purpose, I adopt Waldron’s skeptical approach to the ideaof legislative intent. He says: “there is no question of our being able to attribute to the legislature as such any thoughts, intentionsbeliefs of purposes beyond the meaning embodied conventionally in thetext of the statutes.” Waldron (n 7), 27. For the opposite view, seeRichard Ekins, The Nature of Legislative Intent (Oxford: Oxford University Press, 2012). 40 I thank Richard Ekins for pointing this out.

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absolutism, with citizens’ accepting “total” alienationof their natural rights to an omnipotent popularsovereign.41 He seems to suggest that it is the verytotality of this subjection that is constitutive ofpolitical freedom properly understood. Yet the fact thatpopular sovereignty can only be exercised in legislativeform does much to qualify its ostensibly “absolute”nature. Pettit argues that Rousseau simply borrowed andadapted Hobbes’ early-modern concept of the sovereign –understood as an “absolute” and “unfettered” politicalauthority – and merely located it in a different entity,the people.42 Yet this overlooks, in particular, thestrictly legislative modality of sovereign power inRousseau’s account, a stricture that is absent in Hobbes’theory (given the adjudicative powers the Hobbesiansovereign holds).43 In contrast with Hobbes, Rousseau’ssovereign is not, directly at least, the ultimate arbiterof all social conflict, as its power is unbridled or“unfettered” only in the legislative dimension. Andwhereas citizens undergo “total” subjection to sovereignpower, they are subject to its legislative power only.44

While these formal attributes of legislation qualifythe apparently absolutist scope of popular sovereignty inRousseau’s thought – and explain how it is reconciledwith individual freedom – crucially, they also help toillustrate the limited scope of legislative supremacy asa more general constitutional concept. If generality isintrinsic to the very concept of legislation and notmerely a contingent feature, legislatures cannot rule

41 Pettit (n 18), 14.42 ibid, 12.43 T. Hobbes Leviathan: Or the Matter, Forme, and Power of a Common-WealthEcclesiasticall and Civill, ed. by Ian Shapiro (Yale: Yale University Press,2010), Ch. XXI.44 Furthermore, Colón-Ríos and others argue that the “legislation” created by the sovereign embraces only fundamental or foundational laws, and that confusingly, much of what is now understood as “legislation” is, in Rousseau’s thought, created by the “government” rather than the people as the sovereign. See Joel Colón-Ríos, “Rousseau, Theorist of Constituent Power” (2016) Oxford Journal of Legal Studies, Advance Access, published June 12, 2016, <http://ojls.oxfordjournals.org/content/early/2016/06/11/ojls.gqw012.full>

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directly over individuals, but only with reference toabstract categories. A people legislating, Rousseau says,is “considering only itself”; legislation “considerssubjects en masse and actions in the abstract, and never aparticular person or action”.45 Thus “no function whichhas a particular object belongs to the legislativepower”.46

Clearly, Rousseau’s concept of legislation isremarkably specific, and his criteria for valid or “true”legislation are very demanding; thus it remains to beestablished how his account of legislative generalityoffers a defence of legislative supremacy undercontemporary conditions where his concept of popularsovereignty seems unfeasible. Effectively, Rousseauincorporates a very specific political theory – arepublican notion of popular sovereignty – within theconcept of legislation. “True” legislation “unitesuniversality of will with universality of object”;47 itmust “come from all and apply to all”.48 This ostensiblyseems odd simply because many forms of law which lackthese qualities are described as “legislation”, and itmay be unclear why it is worth discussing which is the“true” or valid type. On the one hand, some have arguedthat Rousseau defined legislation in an idiosyncraticallynarrow way, meaning foundational and truly general laws(enacted by the sovereign), rather than say, routineparliamentary statutes (which he thought fell within“governmental” or executive power).49 More broadly, andregardless of this interpretation, there is nothinganomalous in defining the concept of legislation inrelation to a political norm or at least a politicalaspiration (of generality): after all, many – and notjust natural-law theorists – understand the concept of“law” itself with reference to a normative purpose,whether this be the giving of reasons for action torational agents, or to effect a purported understanding

45 Social Contract,, Book II, Chapter 646 ibid, Book II, Chapter 647 ibid48 ibid, Book II, Chapter 449 See Colón-Ríos, (n 44)

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of public good.50 Both Dworkin and Finnis, for example,insist “it is impossible to sort intelligently among thepractices, texts and institutions that have some claim tobe regarded as law … without some sense of why law shouldbe thought to be important.”51 I simply understandRousseau as adopting this approach in relation tolegislation itself as a peculiar species of law. WhileWaldron argues that the concept of law embraces an“aspirational” aspect – because law is distinguished from“brute force” by aspiring to an interpretation of “publicgood”52 – Rousseau similarly understands the concept oflegislation in relation to its political purpose.53 Toborrow Lon Fuller’s language, he understands legislationnot as a crude exercise of power, but as a purposiveenterprise that presupposes the pursuit of common aimsand interests. The criteria of validity for “true”legislation incorporate an understanding of its presumedpurpose, that of effectuating a general will – agoverning rationality – rather than a piecemeal diktat orcommand. This is why “true” legislation must be generalnot only in authorship, but also in object – why it mustspeak to the whole people as well as emanating from it. Alaw passed by a “part” of the people, such as aparliament, is not “legislation” in the true sense, evenif general in scope. Conversely, a law passed by theentire sovereign people, but directed specifically at aparticular individual, group or dispute, is an act ofpopular “magistracy”, not of legislation.54

While the requirement of generality of authorship issomewhat alien to our contemporary understanding of

50 For discussion, see Jeremy Waldron “Can there be a democratic jurisprudence” (2008-2009) 58 Emory Law Journal 675.51 ibid, 68352 ibid, 71553 Similarly, Simmonds argues “the concept of ‘law’ might not be bestunderstood in terms of a set of characteristics exhibited by all instances (or all non-marginal instances) of law or legal systems, but in terms of an intellectual archetype to which actual instances of law merely approximate to various degrees.” Nigel Simmonds, Law as a Moral Idea (Oxford: Oxford University Press, 2008), 52. Again, a similar approach can be adopted in relation to the concept of legislation, more specifically.54 Social Contract, Book II, Chapter 11

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legislation, arguably generality of object is not. We mayassume that at some level, it is in the nature oflegislation that it speaks to general categories ratherthan say, naming specific individuals or adjudicatingparticular cases. Technically and practically speaking,there may be little to prevent parliamentary“legislation” from exercising “magistracy”, in Rousseau’ssense, by referring to specific individuals or cases, orsay, by passing a bill of attainder. And indeed, manyroutine, unremarkable statutes – or even code provisions– are not, arguably, properly “general” in the strictsense Rousseau envisages, because they refer to specificsocial or economic sectors rather than the body of thecitizenry as a whole.55 Certainly, it is possible forparliamentary statutes to assume the functions of ajudgment, to rule on a case or on the rights of a namedparty56 – perhaps this is a matter of degree, as somekinds of legislation will, in practice, apply torelatively definite categories of persons. Yet equally itis possible, technically speaking, for a judgment toarrogate a freestanding legislative role: the point isthat each is considered a perversion of the respectiveform – where both concept and form are a function ofnormative political theory.

How, in turn, can this attribute of generality helpdefend legislative supremacy against the “counter-majoritarian” objection? While the safeguards oflegislative process are too contextually precarious,57 andwhile our contemporary politics all but eschewsRousseau’s understanding of legislation as an expressionof sovereign will, the independently constraining effects oflegislative form have been understated. While thestandard “counter-majoritarian” argument portrays the“majority” as a discrete political agent, I have arguedthat legislative form protects an important dimension ofindividual freedom because its attribute of generalityplaces important restrictions on the ways in which a

55 See Colón-Ríos, (n 44).56 See for example the Irish Supreme Court judgment in Buckley v Attorney General [1950] IR 67, which struck down as unconstitutional a statute that purported to determine the outcome of an ongoing case.57 For discussion see Dworkin (n 6), Chapter 18.

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political “majority”, or any political agent, may expressand exercise its will in relation to particular groups orindividuals. In this vein, Jennings, for example, arguesthat the British principle of “parliamentary sovereignty”is a misnomer in that it does not make the legislaturethe kind of omnipotent political authority of the sortthat the early-modern concept of “sovereignty” suggests.58

Its apparent omnipotence is limited both because theapplication of laws to individual cases remains thepreserve of courts, and correspondingly because courts,as per Dworkin’s account, constructively apply statutesin light of background values that are irreducible to thelegislator’s will.59

Arguably, the omnipotence that is often casuallyassociated with parliamentary supremacy stems from apeculiar command-centred concept of legislation thatdeveloped in British political culture, associated withAustin and Bentham in particular. Where statutes areunderstood as discrete “commands” by a single, cohesive“sovereign”, this dovetails with an understanding oflegislation as effectuating piecemeal or correctiveinterventions in a normative order whose basic principlesare defined by the common law. By contrast, French legaltheory, with its rejection of judicial precedent,understands legislation as a comprehensive, exhaustiveand originative normative framework, rendered in terse andabstract style, that aims to supply overarching andfoundational “principles” rather than only piecemeal,command-type “rules” (which is arguably echoed inRousseau’s understanding of legislation as foundational

58 Thus “legal sovereignty is not sovereignty at all. It is not supreme power. It is a legal concept, a form ofexpression which lawyers use to express the relations between Parliament and the courts. It meansthat the courts will always recognise as law the rules which Parliament makes by legislation; that is,rules made in the customary manner and expressed in the customary form.” Ivor Jennings, The Law and the Constitution (London: University of London Press: 1959), 147.59 On this point see T.R.S. Allan, “In defence of the common law constitution: Unwritten rights as fundamental law” (2009) 12 Canadian Journal of Law and Jurisprudence 187.

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legal rules).60 Historically, this reflected anunderstanding of legislation as crystallising anantecedent order of reason – or perhaps of natural law –rather than as the product of piecemeal utilitarianjudgements or even as the intent of any discretepolitical agent, corporate or individual. It was in thisspirit that Portalis, an architect of the French CivilCode, argued: “Legislation is no pure act of power: it isan act of wisdom, justice and reason. ”61 More broadly, itstems from an understanding of legislation asencapsulating a general will, that is, a statement ofgeneral abstract principle, rather than as a set ofdisaggregated or ad hoc sovereign commands. Thus in 18th

century Europe, “[a] particular doctrinal fusion ofnatural-law normative contents and utilitarian andeudemonist objectives of politics defined the frameworkfor the conditions of rationality of the action of theState and represented the ultimate impulse for thescience of legislation.”62

This, again, suggests a concept of legislation aspresupposing a purposive political enterprise –specifically, an attempt to crystallise a foundational orantecedent order of principle as distinct from piecemealutilitarian commands. And this concept is writ large inlegislative form: as early as the 16th century, Bodinunderstood that any conceptual basis of sovereign commandignored the problem of form – it made law so “wide andindistinct”63 so as to entail a “cognitive and practicaldifficulty of distinguishing legal regulations from anyother precept, decision, or express resolution of the

60 Admittedly, terse legislative principles of the kind found in codes must inevitably be supplemented by more specific rule-type provisions.61 Etienne de Portalis, “Premier discours”, See translation in Alain Levasseur (trans), “Code Napoleon or Code Portalis?” (1968-69) 43 Tulane Law Review 762.62 Maximiliano Hernández Marcos, “Conceptual Aspects of Legal Enlightenment in Europe”, in Damiano Canale, Paolo Grossi and Hasso Hofmann (eds.) A Treatise of Legal Philosophy and General Jurisprudence: Volume 9, A History of the Philosophy of Law in the Civil Law World, 1600–1900 (London: Springer, 2009).63 ibid, 110

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sovereign”.64 Blackstone intimated something similar inasserting that law is “a rule; not a transient suddenorder from a superior to or concerning a particularperson; but something permanent, uniform and universal”.65

Interestingly however, continental European thought hastended to treat this as an attribute of legislation ratherthan of law generally – an understanding that is in starkcontrast, for example, to Hayek’s66. Beyond any narrowcommand-centred view, Ekins has argued that “legislaturestend to make political choices in rule-form”,67 partlybecause of their composition and self-understanding. Butbased on what I have argued, this understanding iscoloured by a specifically Anglo-American tradition andshould not be seen as intrinsic to the concept oflegislation, even within democratic cultures. It may beargued that the more legislation assumes a general and“principled”, as distinct from a rule-based style, themore the premise of legislative supremacy itself isundermined, given the interpretive freedom that willaccrue to judges and administrators.68 Yet following fromthe discussion of Rousseau above, the virtue, or even thepurpose of legislative supremacy is not necessarily toempower a legislature vis-à-vis courts andadministrators, or to make legislative intent efficaciousand dispositive in respect of specific cases; legislativesupremacy, as a constitutional principle, is quiteconsistent with judicial (or administrative) mediation oflegislative standards. Indeed my argument is that in onesense this positively represents the virtue oflegislative form.

64 ibid, 110.65 William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765/1969), 4466 Friedrich Hayek, Law, Legislation and Liberty (Chicago: University of Chicago Press, 1976).67 Richard Ekins, “Judicial supremacy and the rule of law” (2003) 119Law Quarterly Review 127, 15068 Again, perhaps it is worth distinguishing between statutes, which,in the Anglo-American world, were historically used as piecemeal, corrective interventions in a legal order whose main principles were provided by common law, and legislative codes of the kind that tendedto offer a complete, self-sufficient set of “principles” as well as “rules”.

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Thus, my argument as to the virtues of legislativeform is entirely dissociable from any understanding oflegislation as being characteristically or typicallyrule-based. For Tom Campbell’s ethical positivism, thepolitical virtue of legislation lies largely in the factthat it assumes a form that, at least in most cases, willallow cases to be decided independently of controversialmoral standards.69 Yet for reasons that are furtherdeveloped in the final section, I argue, again, that thevirtue of legislative generality does not presuppose thatlegislation directs, in a strong sense, the outcomes ofcases or even that it minimises judicial power per se:the “internal morality” of legislation is quiteconsistent with its potentially open-textured and evenindeterminate form. And as I will further argue, thepredictability of rule-type legislation is quite distinct fromthe transparency that flows from the purposive generality oflegislative form.

Of course, the generality of legislative form offersno firm guarantee against oppressive government. Perhapsit precludes only gratuitously irregular kinds ofpolitical violence. Indeed, it seems nothing inlegislative form prevents legislatures from allowingunbridled executive discretion over individuals, or evenfrom specifically mandating discrimination againstspecific minorities in the manner of infamous Nazi laws.

However, adapting Fuller’s insights, again, we cansay there is at least a strong contingent relationshipbetween substantive morality and legislative, rather thanmerely legal form. Fuller argued that the concept of lawis defined in part by its purpose – that of subjectinghuman conduct to the governance of rules – and that thisin turn encompasses certain formal attributes such asgenerality, non-retrospectivity, minimal coherence, etc.70

He argued not only that the form of law is intrinsic toits concept, but also that it imposes important limits onlaw-making power. Although it is possible for oppressiveregimes to operate under legal forms, adherence to legalform will, generally speaking, encourage power wielders

69 Tom Campbell, The Legal Theory of Ethical Positivism (London: Routledge, 1996)70 Fuller (n 1).

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to treat persons with the respect that the forms of lawseem to presuppose.71 There is a strong link, then,between legal form and substantive morality, because ofthe purposes legal forms presuppose. My argument, by wayof analogy, is that the distinctive purpose and conceptof legislation similarly presupposes a certain set ofsubstantive moral commitments which, manifested throughlegislative form, mediates and disciplines legislativepower. While for Fuller, legal form presupposes law’s aim– that of regulating autonomous human agents – Rousseau’sinsight is that legislative form, specifically, presupposes aparticular understanding of political community based oncommon interests, and thus in turn, an understanding oflegislation as an attempt at capturing such interests.Waldron suggests that within a “democratic jurisprudence”that incorporates the evaluative within the descriptive,we might understand law not merely “as rules recognizedby participants in a socially effective practice” butalso “as norms that purport to stand in the name of thewhole society, and … that address matters of concern tothe society as such.”72 What I suggest, effectively, isthat the Rousseauan theory of legislation attributesthese features not to law as such, but to legislation,and that this opens promising avenues for considering thevirtues of legislation as a peculiar instrument ofgovernance.

In turn, this concept of legislation, writ large inlegislative form, has a strong contingent link withsubstantive ideals of equality and freedom. These moralaffinities of legislative form are evident, for example,where amidst the rough-and-tumble of unprincipledelectoral politics, opportunistic and sometimes basepolitical impulses – of the sort often crudely attributedto the “majority” – are tamed and given a mutedexpression as an abstract, generalizable scheme ofprinciple that is decoupled, both interpretively and inits enacted form, from the political machinations thatgave it birth. As noted, the virtue of legislativegenerality might be associated with the mediating effectsof judicial interpretation, whether based on a71 ibid.72 Waldron (n 47), 40.

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“constructive” understanding of interpretation orotherwise. Equally however, the virtue of legislativeform is not wholly dependent on judicial andadministrative mediation of legislative norms or(legislative intentions) at the applicative stage. The“mediating” effects of legislative form are wrought, Ihave argued, before statutes are applied in specificcases, in the bare “enacted” form of legislation.

Indeed Dworkin states that the ideal of “integrity”– the duty to render the law as a coherent whole, as theproduct of a singular, coherent moral vision – applies tolegislators themselves as well as judges.73 Indeed it issomething akin to legislative “integrity” that seesunprincipled political impulses translated to a moreabstract scheme of impersonalized principles and rules.What I have suggested, effectively, is that this kind ofpolitical alchemy that occurs in legislation can beunderstood as an attribute of legislative form that isrelatively independent from separate political virtues ofdeliberation and representation. Yet while I haveattempted to show that the formal virtue of legislativegenerality is distinct from the virtues of legislativeprocess, an obvious objection is that the form oflegislation – the fact that it is addressed at abstractcategories that aim to capture a common good – isintrinsically bound up with the kind of body that alegislature is, such that in turn, any virtues oflegislative form are merely contiguous with the virtuesof legislative process. On this view, any generality thatis inherent to or characteristic of legislation is anexpression of the reciprocity and balance that isengendered by the deliberative and representativecharacter of the legislature:74 indeed for Rousseauhimself, the generality of legislation guarantees freedomonly because and insofar as legislation reflects thegeneral will, and this is indissociable from the processby which legislation is enacted. Thus Ekins, for example,argues that the concept of legislation cannot be

73 See especially Ronald Dworkin, Law’s Empire (Cambridge, Mass.: Harvard University Press, 1986),74 See in particular Jeremy Waldron, “Representative lawmaking” (2009) 89 Boston University Law Review 335

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considered independently of the composition of thelegislature – of the kind of body it is. Statutes, hesuggest, “crystallise the political choices that havebeen made on behalf of the community”.75 And it is inlarge part “because of its composition and process” thatthe legislature is “open in principle to all that isrelevant”. 76

Nonetheless I argue that the formal virtues oflegislation are largely independent of the deliberativeand voting procedures associated with contemporaryparliaments (without denying these have a distinctivepolitical value). It is true that the concept oflegislation must be understood in terms of its purpose asa social practice, and that, in contemporary societies,the archetypal form of legislation is the parliamentarystatute voted upon by elected representatives. Yetwhereas it is true, as Ekins and others suggest, thatlegislators understand themselves as acting in theinterests of a community, there is no reason this shouldlead us to understand democratic proceduralism as such asintegral to the concept of legislation. On the one hand,those who actually draft legislation are not, typically,elected parliamentarians; empirically it is possible tounderstand parliament as having largely a ratificatoryrather than an originative role with respect tolegislative content.77 Thus the internal morality oflegislation cannot be specifically democratic. Beyond theAnglo-American world, many contemporary democraticcommunities appear content to maintain historicallegislation that was bestowed, pre-democratically, byquasi-mythical lawmakers (or anonymous jurists) – thebest example being the Napoleonic code of 1804 thatformed the basis for much of continental European privatelaw (and further discussed in the following section).Perhaps it is true that the concept of legislation mustembrace some normative account of how and why legislatorsact. But it is more plausible and useful to understandthis more narrowly than democratic proceduralism –perhaps, for example, in terms of a “basic legitimation75 Ekins (n 67), 148.76 Ekins (n 39), 11.77 Waldron, (n 70), 341.

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demand”78 – the requirement that a power wielder providepublicly accessible justifications for their authority.This reflects an idea that the advantages of legislativeform are dissociable, conceptually as much ashistorically, from the process and structure ofparliamentary lawmaking. The example of European codeshelps to show that the virtue of generality inlegislation is independent from the representative oreven the deliberative character of the legislature.79 Thetendency of legislation towards generality appearspresent whenever a legislative authority, regardless of itsconstitution, creates public norms through the form oflegislation – an idea that is supported, if onlyconjecturally, by the aforementioned historical lawgiversthat have little hold on the imaginary of the common-lawworld. This is linked with the purposive and intentionalcharacter of legislating that I will explore in thefollowing section.

In effect then, I have argued that legislative formreflects a substantive political-moral concept oflegislation, but that this concept is not specificallydemocratic in nature. Rousseau understood that “general”legislation was non-dominating only insofar as itreflected the “general will” rather than the “will ofall”, or an alliance of private interest, whichpresupposes a certain kind of legislative process.80 Yethe considered a species of political freedom that wasspecific to a cohesive, austere kind of society in whichthe general will might plausibly be legislated anddiscerned; in the contemporary context, our concern withthe political virtues of legislative form are necessarilymore modest, and cannot claim to rely on the capacity oflegislation or legislatures to effect a political will ofany kind – indeed this is partly why I have attempted toconceptually distinguish legislative form and legislativeprocess. Some contemporary thinkers have adaptedRousseau’s linking of legislative process and form.Waldron observes how, for Rousseau, there is a necessary

78 See Bernard Williams, In the Beginning was the Deed: Realism and Moralism in Political Argument (Princeton: Princeton University Press, 2005), 135.79 For discussion see Waldron, (n 47), 49.80 Rousseau (n 34)

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“match-up” between “the generality of laws in theirapplication and the generality [of] authorship.81 Herejects this idea that the generality of legislative formis intrinsically linked to the generality of thelegislature, partly because he argues that representationis a more effective means of abstracting from particularinterests than “direct” democracy is; it promotes apolitics of “judgment” rather than one of “will”.82 Yetimportantly, he still insists, with Rousseau, that theapplicative generality of legislation is intrinsicallylinked with the nature of legislative process, whilesimply adopting a different account of what the idealprocess is. In contrast, I have argued both that theconnection is both historically unconvincing as well asunhelpful analytically and conceptually. Much as the neo-republican argument about legislative process relies onunrealistic assumptions concerning the relationshipbetween voting rights and power, the argument as to theabstracting potential of political representation relieson an arguably exaggerated, if not an idealised accountof “real” politics and specifically, of legislators’originative power over legislative content.

There remains a further objection: that if thesafeguards of legislative form are merely contingent,then legislative form offers no better a justificationfor legislative supremacy than the contextually andempirically contingent safeguards offered by legislativeprocess. This is reinforced by the possibility thatRousseau’s requirement of generality applies to a narrow,foundational sense of “legislation”.83 Indeed, I haveacknowledged that the moral advantages of legislativeform and legislative process are both contingent in anempirical and contextual sense. Moreover, as alreadydiscussed, Rousseau may well have understood thecriterion and the virtue of generality as applying onlyto “legislation” in the idiosyncratically narrow sense offoundational law, and not to the bulk of routineparliamentary statutes.84 However, I have used Fuller’s81 Waldron, (n 74), 341.82 ibid83 See Colón-Ríos, (n 44).84 Colón-Ríos, ibid.

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thought precisely to show that the moral virtues ofgenerality are implicit in the concept of legislationitself and thus, that the link between substantivemorality and legislative form is not merely an empiricallycontingent one. It may be argued, as Ekins effectivelydoes, that these virtues of generality are equallypresupposed in the composition and process of thelegislature as a body. Yet on the one hand, while thecomposition and process of a legislature might bepredicated on political concepts of representation andthe common good, they have no bearing on the virtue ofgenerality as such: a procedurally rigorous, andperfectly representative assembly might exercise“magistracy”, over individuals, in the name of thecommunity generally, as many assemblies have historicallydone. As I pointed out in the previous section, therepresentative composition of a parliament may beinterpreted in quite contradictory and opposing senses,either as equalising and dispersing or as concentratingpower as between different categories of citizens. Thusthe substantive political morality presupposed by thelegislature’s composition, in either its elective orrepresentative nature, is much thinner or more contestedthan might be assumed.

b) Transparency and publicity as legislative virtues

One of the most striking claims in Waldron’s essay onjudicial review lies in his rebuttal of the commonplaceidea that, in contrast with legislative discourse,judicial review is centrally focused on “rights”. Insteadhe argues that, in fact, judicial review fails to trulyget “to the heart of the matter”, to confront what isreally at stake.85 Judges, he says, tend to avoid thepolitical-moral dimensions of rights, and instead focuson “side-issues about precedent, texts, and

85 Thus, “there are things about legislatures that sometimes make them vulnerable to the sorts of pressures that rights are supposed toguard against; but there are also things about courts that make it difficult for them to grapple directly with the moral issues that rights-disagreements present.” Waldron (n 3), 1376.

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interpretation”.86 They might focus on the text of a billof rights, but not on “rights” in the barer sense. Thusalthough idealized as exemplars of public reason andcontrasted with the vulgar horse-trading of legislativepolitics, in fact they systematically eschew any full-blown rights-based reasoning, seldom offering “thereasons that would be canvassed in a full deliberativediscussion.”87 Thus in sum, judicial review tends towardsa “legalistic obfuscation of the moral issues at stake inour disagreements about rights.”88

In part, this contrast stems from the polycentricityof the rights-issues that are usually implicated in theart of legislating. Judicial review is typicallyunderstood as a means of vindicating the rights ofindividual litigants, and its individually focused natureis usually considered an advantage. However, individuallitigants may be unrepresentative in many senses of thedifferent “rights” considerations that are implicated inthe legislation at issue; they simply happen to have hadthe resources or wherewithal to litigate. Those whose“rights” are potentially advanced by impugned legislationare never directly represented at all. For example, anequality statute challenged as limiting religious orassociational freedom may promote the rights of personswho are not parties to the case at all, and whose“rights” to equality are usually subsumed within anamorphous concept of state interest or some equivalent.Thus if anything, the individually focused character ofjudicial review has a distorting effect, and the“legislative” component of constitutional jurisprudenceis exercised, then, without taking into account the fullspectrum of “rights” affected. Therefore, one sense inwhich legislative process is transparent, compared toadversarial litigation, is that it lays bare the fullerrange of interests that is really at stake, simplybecause it speaks to and hears the diverse interests andperspectives – including the conflicting claims of right– that legislation typically mediates and balances.

86 ibid, 135387 ibid, 138288 ibid, 1406

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Yet Waldron actually understates this point. ForWaldron, this obfuscating tendency of constitutionaljurisprudence – its tendency to distort what is at stake,and to avoid confronting, head-on, the salient moral andpolitical arguments – is, implicitly, a pattern ofinstitutional behaviour. It is something judges simplytend to do, perhaps because, for example, they lack thesense of legitimacy or self-confidence they might need toengage in something resembling full-blown philosophicalreasoning about rights. Conversely, it is their sense ofelectoral legitimacy that allows legislators to invoke“rights” in a less roundabout and obfuscating way, andwhich means that the moral and political grounds oflegislative decision-making are ultimately moretransparent. However, I argue that we should understandthis difference not simply in terms of judicial versuslegislative behaviour, but rather as an attribute oflegislative form: (relative) transparency is a virtue notof legislators, but of legislation itself.

To illustrate this argument, we may return toRousseau. His preference for legislation over judge-madelaw is partly, of course, an expression of civic-nationalist, democratic and republican ideas: onlylegislation can embody the general will. However, heconsiders legislation not only as an expression ofpolitical sovereignty but also as a framework for socialregulation. And in this light, his principle oflegislative supremacy reflects a concern for the clarityand accessibility that he considered an attribute oflegislative form, compared to the mystifying complexityof customary and judge-made law – or indeed the pre-revolutionary, Roman-derived ius commune.

Thus whereas in The Social Contract Rousseau considerslegislation abstractly as an instrument of the generalwill, in Government of Poland he gives more practicalconsideration to legislative form and function – andspecifically, he celebrates legislation not only as amechanism of popular sovereignty but also as regulatorysocial framework that is comprehensive, exhaustive, clearand transparent. Echoing a commonplace theme of theeighteenth-century Enlightenment, he advises the Poles toreplace all supra-national and infra-national legal

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sources, including Roman law, customary law and judicialprecedent, with legislation. Presaging the legal thoughtof revolutionary and Napoleonic France, he recommends thePoles adopt three legislative codes – constitutional,civil and criminal – which should be as “short” and“clear” as possible, drafted in a terse and generalisticstyle.89 Thus he eschews the detailed, “precise” style oflegislative drafting associated with the English common-law tradition, in favour of the terse, elegant and“concise” style that later became associated with Frenchcivil-law culture.90 Indeed Rousseau contrasts legislativecodes with what he depicts as the needless complexity ofEnglish common law. Then, at least, English law consistsof judge-made principles elaborated incrementally anddeveloped analogically through application in specificcases, and supplemented only by piecemeal legislativeinterventions that are understood as ad hoc correctivesto a legal framework whose basic principles are definedby the common law. He also attacks the English preferencefor detailed statutory provisions that foresee specificfact-situations. He argues that while the English adoptedthis style to reduce judicial discretion, and “to avoidarbitrary judgments”, in doing so they introducedneedless complexity; they “subjected themselves to athousand judgments which are iniquitous, even absurd.”Thus they are “devoured by multitudes of lawyers,consumed by endless lawsuits; and with the mad idea oftrying to foresee every eventuality, they have turned

89 Thus “… it is possible, with a few clear and simple laws … to have justicewell administered.” Jean-Jacques Rousseau, Considérations sur leGouvernement de Pologne (1772) (hereinafter Poland), Chapter X.English translation see “Considerations on the Government of Poland”,in F. Watkins, Jean-Jacques Rousseau: Political Writings (New York: ThomasYelsen, 1953), Chapter 10.90 See generally Merryman and Pérez-Perdomo, The Civil Law Tradition: AnIntroduction to the Legal Systems of Europe and Latin America (Stanford, StanfordUniversity Press, 3rd ed. 2007). For example, see article 1382 of theFrench civil code, which defines civil liability : ‘Tout faitquelconque de l'homme, qui cause à autrui un dommage, oblige celuipar la faute duquel il est arrivé à le réparer’ (Any act of man,which causes harm to another, obliges he whose by fault it occurredto compensate it).

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their laws into an immense labyrinth where memory andreason alike are lost.”91

Thus although Rousseau understands legislation as anexpression of popular sovereignty, in fact hisoverwhelming emphasis is, counter-intuitively, theclarity and transparency of legislation as a form, ratherthan its virtues as a political process.92 And indeedhistorically, and particularly in post-revolutionaryEurope, legislative codification was associated withdemocratising aims of clarity and accessibility.Originally, it was envisaged that France’s Code Civil of1804, with its terse, often eloquent style, would beconsulted and comprehended without the aid of lawyers:93

it was contemplated as an instrument of civicdidacticism, as a secular version of the “family bible”94

and a means through which citizens could comprehendrepublican ideals. 95 Similar utopian ideas, along withsuspicions of self-interested lawyerly contrivance,motivated some codification projects in 19th century NorthAmerica.96

However, clarity as such hardly seems intrinsic tolegislative form. Of course, legislation can be complexand convoluted, needing professional deciphering as muchas case law, while common-law principles might be

91 Poland, Chapter 10.92 Given his apprehensive attitude towards deliberation in politics, it makes sense that Rousseau should celebrate the formal rather than the procedural virtues of legislation. On Rousseau’s apprehension towards deliberation, see Eoin Daly, “Republican deliberation and symbolic violence in Rousseau and Bourdieu” (2015) 41 Philosophy and Social Criticism 609.93 The original, somewhat utopian intendment of the Napoleonic codewas that it could be consulted without the aid of lawyers. Merrymanand Pérez-Perdomo (n 90), 29.94 Merryman and Pérez-Perdomo, ibid 39. Morriss notes a similar viewamongst certain figures in some of the 19th century American states,such as Montana, that attempted codification. Andrew Morriss“Codification and right answers” (1999) 74 Chicago-Kent Law Review 355,384.95 Rousseau insists: “it is necessary for all citizens … to betaught the positive laws of their own country, and the particularrules by which they are governed. They will find them in the codesthey are to study.” Poland, Chapter 10.96 Morriss (n 94), 376.

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rendered eloquently and clearly. Any apparent advantagesof legislative form might be contingent on legislativestyle. And while Rousseau, along with other 18th and 19th

century thinkers, suggested that legislation should, andindeed could be decipherable by lay citizens, sucharguments emerged in relatively homogenous, austerepolities, whereas in more advanced societies we tend toaccept legislative complexity as inevitable. Indeed,precisely because courts eschew complex, technical policyissues, judicial reasoning might bring more moral claritythan a morass of technically detailed legislativeprovisions. Crucially, even where legislation does assumean uncluttered, terse form – “concise” rather than“precise”, similar to the typical style of constitutionallaw – it will require an overlay of judicial developmentand elaboration that is not all that dissimilar fromconstitutional jurisprudence. Thus, legal republicanismseems to embrace conflicting aims: law must be accessibleand clear so as to instil civic virtue and communicatedirectly with citizens, yet it must be comprehensiveenough to prevent judicial discretion either fromsubverting the general will or subjecting citizens toarbitrary decisions.97 Essentially this tension – oneRousseau himself never directly acknowledges – underlaythe great European codification projects of the 19th

century: these aimed both to provide lay citizens with anintelligible account of the framework of rules andstandards by which the state ordered their relationships,yet also, implausibly, to supplant judge-made law with anexhaustive legislative framework that would confinejudges to a narrow, mechanistic role based on deductivereasoning.98

Yet the advantage of legislative form, in thiscontext, is not merely a practical matter of clarity andcomprehensibility, but rather transparency in a morespecific sense. Read in light of his wider thought,

97 Thus “the drafters of the Civil Code, Napoléon in particular, intended only to set general principles, leaving it up to judges to apply the principles to the circumstances of cases.” Claire Germain, “Approaches to statutory interpretation and legislative history in France” (2003) Duke Journal of Comparative & International Law 195, 195-6. 98 See generally Merryman and Pérez-Perdomo (n 94).

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Rousseau’s complaint is not simply that judge-made law isneedlessly complex – and thus conducive to confusion anduncertainty – but also that it renders public values inan intrinsically esoteric and mystifying way, which inturn, corresponds to a peculiar kind of political andsocial domination. Provisionally, we can say thattransparency refers to an idea that the grounds and thejustification of public decisions are reasonablyaccessible. It is only loosely connected with clarity; aruling of any kind might, for example, be clear in itssignificance and meaning, but its grounds obscure.

Although the relative clarity and accessibility ofstatutory and judge-made law are contextually variable,there is one important sense in which transparency is afunction of form, independently of considerations ofprocess. Building on Rousseau’s understanding ofgenerality as being intrinsic to the concept oflegislation, we can say that the transparency oflegislation, by contrast with judge-made law, lieslargely in the fact that the form it assumes is congruentwith its legislative function. Used as a mechanism forsettling conflicts about rights, parliamentarylegislation speaks directly to the controversies inquestion; it is unclouded by the individually focused,adversarial format of judicial review, or by thedistorting personification of competing legislative-typeclaims. By comparison, constitutional-rightsjurisprudence uncontestably performs a similarlylegislative function, in that it is develops principles thatare applicable to an indeterminate category of personsbeyond the litigants that appear in specific cases. Yetit performs this function not by addressing itselfdirectly to the legislative problem, but by ruling onindividual cases.99 In turn, it is presented andunderstood as a means of rendering justice forindividuals in individualised disputes, rather than as aresponse to social conflicts about rights – although this99 Indeed Waldron notes that whereas “courts do not present themselves to the public as lawmaking institutions”, a legislature isan institution publicly dedicated to making and changing law.” Waldron (n 74), 335. As Ekins notes, the adjudicative process … is simply not designed to function as the framework that makes rather than applies legal rules.” Ekins (n 67), 145.

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is undoubtedly in fact its main function. Itsadjudicative form, then, obscures its legislativefunction.

Indeed, Waldron suggests that a distinctive featureof legislation, compared with judge-made law, is that itis a “conscious” and “deliberate” kind of law making:thus “legislation is intentional action … the law isdeemed to have been changed simply in virtue of thelegislatures’ communication of its intention to do justthat.”100 By contrast, constitutional jurisprudence, aswell as judge-made law generally, disavows any intentionallegislative character, despite its undeniably legislativefunction.

What I argue, then, is that the intuitively esoteric,and thus, the politically dominating character ofconstitutional jurisprudence is attributable, in largepart, neither to its institutional culture nor to itscomplexity per se, but rather to this very incongruencebetween (legislative) function and (adjudicative) form.Since constitutional jurisprudence disavows any purposiveor intentional “legislative” character, this means, onthe one hand, that its legislative content – itsapplication to differently situated persons notconsidered by the court – is encoded.101 The problem, then,is not that judgments must be professionally decipheredsimply because they are technically sophisticated.Rather, the problem is that since their legislativecontent is not intentionally or purposively announced, itmust be constructively decoded via a body of privatisedexpert process. And arguably, this is why Rousseau, inparticular, understands legislative transparency not onlyas an instrument of republican didacticism, but also as afoil against the mystifying, and dominating esotericismof archaic pre-revolutionary laws.

Of course, codes or parliamentary statutes may, as Ihave noted, also suffer from obscurity or uncertainty:

100 Waldron (n 8), 26.101 Waldron makes a similar point: “The legislature presents itself publicly as a place for law-making … Courts, by contrast, present themselves publicly and acquire their legitimacy among the public generally as though law-making by them were out of the question.” Waldron (n 50), 27.

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they may be technically complex, or remain terse andvague and thus require judicial development of a kindthat resembles constitutional jurisprudence.102 It may becounter-argued, then, that the legislative content ofenacted legislation may be equally “encoded”. Yet, on theone hand the legislative content of parliamentarylegislation is more transparent both because it ispurposively and intentionally announced despite requiringfurther development, and correspondingly, because it isnot encoded by the elaborate analogical reasoning thatobscures the legislative content of constitutionaljurisprudence. More fundamentally, the adjudicative formof constitutional jurisprudence obscures not only itslegislative content, but its legislative character andfunction. Thus provisionally we can refer to legislationas having a justificatory rather than an interpretivetransparency. The “transparency” I invoke refers to itsjustification and its political function, not itsprocesses of application. What is clear is thelegislative grounds, if not always the legislative content– the legislature is “self-directing”.103 Of course, itmay be argued that it is the process of legislation –rather than the sometimes convoluted product – that isquintessentially “transparent”, given the public exchangeof reasons it involves. In this vein, Waldron states thattransparency is “the first virtue of legislativeinstitutions”, that is, an attribute of the institution, notthe form.104 And it is true, of course, that some kinds oflegislation may be procedurally transparent. But again,these qualities are contextually and historicallyvariable. They cannot, for example, be attributed to theenactment of historic codes. In contrast, the explicitlypolitical grounds of legislation, and the congruencebetween its form and function, are more universalizableattributes.

102 And indeed ironically, this is truest of the terse style of legislation Rousseau advocates.103 Ekins (n 39), 123. Ekins refers to legislatures as having ‘”the freedom to settle the content of the law.” Similarly, “the structure of the legislative act is directed towards positing law in the best form possible, by way of a public, canonical text.” ibid 123, 125104 Waldron (n 74), 337

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Publicity, transparency and domination

While I have argued that constitutional jurisprudencelacks a quality of transparency because its adjudicativeform obscures its legislative function, I will nowconsider how this entails a particular kind of politicaldomination.

In broad terms, publicity refers to the idea thatpublic norms should be known to and accessible by thecitizens who are subject to them. And while this iswidely understood as a necessary component of politicalfreedom, in turn it helps to explain how strong-formjudicial review constitutes a discrete species ofpolitical domination. Whereas Bellamy argues thatjudicial review entails political domination because itis an arbitrary process for resolving social disagreementsabout rights, I argue that a distinctive kind ofdomination stems from the obfuscation and esotericismthat are inherent to its form.

In the most influential contemporary accounts,constitutional jurisprudence is understood as lackingtransparency because it masks and obfuscates the role ofpolitics and ideology in legal reasoning. Duncan Kennedy,for example, argues that judicial reasoning involvesinescapable elements of “ideological choice”, but“carried on in a discourse with a strong conventiondenying choice”. 105 In turn he describes thedepoliticising ideology of judicial review as “badfaith”, as a failure to recognise and make explicit thereal grounds of decision. Clearly, non-transparency ofthis sort entails some dimension of political domination,as the grounds of public coercion are hidden from view.106

As Kennedy himself points out, it may serve to make anideologically inflected status quo appear as natural andinevitable, as the product of a neutral legal

105 Duncan Kennedy, A Critique of Adjudication [fin de siècle] (Cambridge: Harvard University Press, 1998). 106 For discussion see William Edmundson, “Transparency and Indeterminacy in the Liberal Critique of Critical Legal Studies” (1993) 24 Seton Hall Law Review 557.

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rationality. And the transparency that Kennedy and othercritical figures appeal to is not the kind ofjustificatory transparency associated with Rawls’liberalism – that is, one based on the justificatoryaccessibility of state power in its global sense, whichthey understand as impossible – but rather, in a lessabstract and more proximate sense, one that is based onthe participation of “actual people” within suchparticular processes.107

However, the obfuscation inherent to constitutionaljurisprudence need not necessarily be understood inrelation to ideology, whether in the Marxian or thebroader sense. That is to say, obfuscating lawyerlydiscourses need not necessarily be understood as afunction either of political interests or rationalitiesthat are antecedent to the juridical field itself. Thereis a strong tradition of intellectual apprehension oflawyerly obscurantism and contrivance, doctrinal andstylistic.108 Locke, for example, complained aboutlawyers’ “multiplied curious Distinctions, and acuteniceties”. Indeed he notes the mystifying effects ofjudicial doctrine compared to legislation: “a Man of anordinary capacity … very well understands a text of a Law… til he consults an Expositor, [who] makes the Wordssignifie either nothing at all, or what he pleases”.109

And arguably, Rousseau’s disparagement of lawyerlyartifice echoes his wider apprehension towards theabstract intellectualised discourse of public reason,which, he fears, will serve to cloak dominant sectionalinterests in the terminology of the common good.110

107 ibid, 558108 Waldron notes: “Jurisprudence has always been dogged by populist suspicion of lawyers and legalism and by a demand that the law of theland should be such as to be easily known and understood by ordinary folk. The more complex and technical law is, the more plausible the reproach that it is an alien imposition on the people by those who care only for their exploitation and submission. Certainly there seems to be something particularly offensive to democratic jurisprudence in systematic opacity or mystification.” Waldron (n 50), 31.109 John Locke, An Essay Concerning Human Understanding, Book 3, Chapter X,para. 9, cited in Waldron (n 8), 77.110 Joshua Cohen, Rousseau: a Free Community of Equals (Oxford UP, 2010), 72.

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Accordingly, his emphasis on the simplicity oflegislation, as a quintessentially republican legal form,echoes his wider apprehension of complex social practices– particularly specialised intellectual discourses andcultural pursuits – as insidious sources of dominationand social hierarchy in the early-modern context. Asalready noted, his republican argument for legislativecodification reflected an idea that the law should bedeprivatised, and to be deprivatised it would have to bedemystified, shorn of needless, archaic complexity.

The encoded character of judicial law making hassometimes been thought of as a good thing. Waldronsuggests that the “intentional” character of legislation,discussed earlier, partly explains why it hastraditionally been neglected and even disdained by Anglo-American legal thinkers who, he notes, “are morecomfortable with law making by bodies which deny they aremaking law than law making by bodies which aggressivelyannounce that as their very intention.”111 Both Oakeshottand Hayek, for example, unfavourably compare legislationwith more organic or spontaneous modes of socialregulation such as incremental, judge-made law. Moregenerally, Waldron claims, legislation is perceived asvulgar or even “brazen” in Anglo-American legal thoughtbecause it is a transparently political mode of law makingthat sweeps aside the organic growth of the common law.Thus ‘‘a judge when he legislates at common law has atleast the good grace to pretend that he is discovering whatthe law already was all along.”112

I have argued that this “pretending” – the judicialdisavowal of legislative power, and the understanding oflaw making as organic, non-intentional and unconscious –is best understood neither as an attribute ofinstitutional behaviour nor of process, but rather as afunction of differences in legal form. While suchobfuscation is an attribute of judge-made law generally,it is a characteristic par excellence of constitutionaljurisprudence. The idea of “legislating from the bench”is taboo in supreme courts, despite the plainlylegislative function assigned to them. We can see, then,111 Waldron (n 8), 24112 ibid, 12

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that Waldron’s distinction between “deliberate” and“unconscious” modes of law-making underscores therelative obscurity and esotericism of constitutionaljurisprudence compared to legislation. While hardlyunderstood as “neutral and anonymous in itsprovenance”,113 essentially constitutional jurisprudenceassumes the same traditional form as the common law, withprinciples of a “legislative” character emergingindirectly and incrementally, if not quite“unconsciously”, via individual rulings. Oakeshottidentified this as a virtue of the common law; heassociated the rise of legislation in England with arationalistic mindset whereby “the consciously plannedand deliberately executed [is] considered better thanwhat has grown up and established itselfunselfconsciously over a period of time.”114 Much the sameadvantage could be attributed to constitutionaljurisprudence. Yet it is precisely this “unconscious” and“organic” character of judges’ legislative power thatundermines publicity as a matter of political right.

Waldron implies that the disdain for legislationevident in Anglo-American jurisprudence stems from acultural aversion towards the very idea of making law“intentionally”, from a tabula rasa, in contrast with thesubtler, organic methods of the common law.115 Perhapshistorically this reflects a Burkean aversion to theabstract, rationalistic inclinations of post-revolutionary French legal thought, and the utopianhubris of Enlightenment legal thinking. But returning tomy early point, it is plausible that this aversion tolegislative form may stem not from any abstractideological stance, whether liberal or conservative, butrather from a specifically sentimental or culturalattachment to the lawyerly method. And in fact this, inturn, helps to explain one specific sense in whichconstitutional jurisprudence, with its disjuncture ofform and function, effects a kind of politicaldomination. On the one hand, rights discourse, as well

113 ibid, 24114 Michael Oakeshott, Rationalism in Politics and Other Essays (Indianapolis: Liberty Press, 1991), 26.115 Waldron (n 8), 10-24.

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as legal doctrine generally, might be understood simplyas ideology in the Marxian sense, as an elaboratelyencoded expression of dominant interests. Or at least,the expert discourse of law may obscure those elements ofideological or at least policy preference that areinevitably present in legal reasoning. Yet while thisterrain is well covered by critical legal theory, a focuson ideology risks overlooking the subtler sociologicalfunctions of legal discourse. Pierre Bourdieu, forexample, rejects not only the formalist view of law as anautonomous system of rules and principles, but also anyinstrumentalist understanding of legal doctrine andpractice as simply an extension of social and economicpower structures. Instead, the doctrinal and ritualartifices of law are irreducible to ideologies andinterests that are prior or antecedent to law itself.116

This is an extension of Bourdieu’s general sociologicaltheory, which posits that social practices, in varioussemi-autonomous social “fields”, are structured aroundforms of non-economic capital specific to such fields,yet presented as universally valid.117 Thus rather thanbeing simply a function of an underlying economic andclass structure, law – much like culture and art –constitutes an independent site of social and symbolicpower. It generates specific kinds of social and symboliccapital, for its practitioners, which are irreducible toany antecedent power structures: it is a source, and notmerely an instrument of power.

Thus since law is a “semi-autonomous” social“field”, legal doctrine operates according to a logicthat is “relatively independent of exteriorconstraint”;118 the “juridical field” is “an entire socialuniverse which is in practice relatively independent ofexternal determinations and pressures.”119 In turn, legaldiscourse must be understood in performative rather than

116 See Mauricio García Villegas, “On Pierre Bourdieu’s Legal Thought”(2004) 56 Droit et société 57117 See particularly Pierre Bourdieu, Distinction: a Social Critique of the Judgement of Taste (R. Nice translation, Harvard UP, 1987).118 Pierre Bourdieu, “The Force of Law: Towards a Sociology of theJuridical Field” (1987) 38 Hastings Law Journal 805, 815.119 ibid, 816

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propositional terms, and considered not as a system ofreasoning but rather as a social technique. Legaldiscourse, then, does not simply encode anterior orantecedent interests and ideologies; rather, it givesexpression to values and symbols that are native to the“field” itself, and whose value is arbitraryindependently of the participatory competence they conferwithin that field. The juristic “field”, in short, is asite of “symbolic production”.120 And the claim that“rights” issues are matters of law, to be settled byspecifically lawyerly methods and techniques, simplyexpresses the logic of the juridical “field” and thehabitus of those operating within it.121

What this view suggests is that an attachment todeciding rights issues by the case-law method, of thekind Waldron describes – and by extension, the discourseof constitutional law itself – is a reflection not somuch of ideology as of a lawyerly habitus, that is, the setof attitudes and dispositions that are acculturatedwithin the juristic “field”. The discourse ofconstitutional rights structures a discrete economy ofdistinction that operates semi-independently of externalideologies and interests. In turn, this effects a kind ofpolitical domination inasmuch as constitutionaljurisprudence – with its “esoteric legalisms”122 –projects itself, with some degree of success, as adisinterested discourse, as politically innocent.Bourdieu, in this vein, understands that a specific kindof domination obtains where specialised socialtechniques, such as legal reasoning, are assimilated to asense of natural legitimacy and authority, both by thosewithin and outside the “field”. This is the kind ofdomination that obtains where political issues, framed as

120 Bourdieu opines that “intellectualist” philosophy treats language(or discourse) as an “object of contemplation” rather than an“instrument of action and power”. ibid 37.121 Waldron notes: “the lack of candor and transparency associated with judicial lawmaking contributes to what some commentators have called the rather arid and contentless character of judicial argument.” Waldron (n 74), 340. Alternatively, however, its elaborateand encoded nature might be understood in relation to a contrived, overwrought complexity.122 ibid

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issues of “rights”, are depoliticised and divested to anexpert, juridical domain – and thus divested to a set ofvocabularies and reasoning techniques that disarm the layinterlocutor while providing a source of social andsymbolic capital for those inducted in the requisitetechniques. Such techniques may have no inherent valueindependently of the participatory competence they conferwithin the juridical field, yet they may be misrecognisedas disinterested, and as politically innocent. Thus “asthe quintessential form of legitimized discourse, the lawcan exercise its specific power only to the extent thatit attains recognition, that is, to the extent that theelement of arbitrariness at the heart of its functioning… remains unrecognized.”123 And again, this kind ofdomination cannot be understood solely with reference toantecedent interests; the esoteric quality of legaldiscourse does not merely serve to obscure antecedentpower structures but rather constitutes a semi-autonomoussource of symbolic and social power.

Although Bourdieu, in The Force of Law, focuses on amore formalistic style of legal reasoning familiar incivil-law countries, “principled” or rights-based legaldiscourse can equally be understood both as being partlyideological in content – as reflecting agendas andconcerns external to the law itself – but simultaneouslyas the exercise of a practical and social competence.Constitutional jurisprudence offers an example par excellenceof a specialised discourse operating amongst a relativelyautonomous field of practitioners that are inducted inthe requisite participatory techniques. And arguably, itconstitutes the specific kind of political dominationoutlined, because its methods and techniques arepresented, and largely understood, as disinterested andindependently legitimate; its political and socialfunction is obscured and misrecognised. On the one hand,it projects itself as an expert intellectual endeavourwith narrower grounds than the kind of explicitly“political” discourse associated with legislative debate.Yet it is also distinct from formalistic legal methodbecause it lays claims to public reason as distinct fromthe more modest claim of technical (or logical) lawyerly123 Bourdieu (n 118), 843

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skill. Bourdieu recognizes that “when esoteric discoursesare diffused outside the restricted field”, they “undergoa kind of automatic universalization, ceasing to bemerely the utterances of dominant agents within specificfields and becoming statements valid for all dominatingor dominated individuals.”124

Of course, legislative debate involves its ownspecialised rhetorical techniques, which may similarlyhave an arbitrary and even a mystifying value. But thedomination associated with specialised social practicesoperates as a matter of degree. And because of the formalattributes I have described, constitutional jurisprudenceundoubtedly operates at a greater distance from “lay”discourses about rights. In fact Bourdieu suggests thatthe “field” of law itself is constituted by thesuccessful establishment and maintenance of a distinctionbetween “properly professional competence” and thelayperson’s “sense of fairness”.125 Whereas constitutionallaw successfully arrogates political questions of rightwithin the domain of a “properly professionalcompetence”, this can hardly be said of legislativediscourse, which is more transparently “political”. This,in turn, underlines the peculiar kind of politicaldomination it represents. Again, the virtue oflegislative form, then, is that the political grounds oflegislative power are clearly avowed.126 Thistransparently political character is what Waldron hintsat in identifying the “brazen” character of legislatures’political agency. Legislation is understood as operating(relatively) on a tabula rasa, as being unconstrained byexisting norms, compared to the incremental and organicdevelopment of common law.127 And crucially, this124 Pierre Bourdieu, Language and Symbolic Power (J. Thompson ed HarvardUniversity Press, 1999), 4.125 Bourdieu (n 118), 828.126 For further discussion see Graham Mayeda, “The Nature of Common Law Judgment” (2006) 12 Canadian Journal of Law and Jurisprudence 107127 There may appear to be a tension between my understanding oflegislation as a “transparent” practice, created on a tabula rasa basis,and my earlier claim that legislation is “constructively” interpretedby judges in light of values that are irreducible to any legislativewill. More specifically, it may seem paradoxical to say thatlegislation has an interpretive life that is somewhat independent of

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advantage applies irrespective of the qualities oflegislative process; it is equally present in non-democratically enacted codes or statutes. Thus, again,the political virtues of legislative form cannot beunderstood as simply contiguous with those of legislativeprocess.

Waldron alludes indirectly to this virtue oftransparency when, paraphrasing Arendt, he says that withthe establishment of a legislature, law begins to existin a new sense … as ‘ours’, as something almost tangiblelaw exists now as … something we can make commonreference to.”128 By contrast, constitutionaljurisprudence is understood as having a depoliticisingeffect: it presents itself as a set of supra-politicalconstraints on legislative and policy choices that isindecipherable to lay reasoning. Within a framework oflegislative supremacy, public debates about “rights”issues cannot so easily be divested to a privatised,expert domain. The depoliticisiation that constitutionaljurisprudence entails is usually understood as a transferof authority from political to judicial branches ofgovernment. However, strong-form judicial review canequally be understood as a source of political dominationnot so much because of the fetters it imposes on

the legislator’s will, while claiming it is unsullied by the kind ofjudicial mystification or obfuscation that I have associated withconstitutional jurisprudence. However, on the one hand, the virtue oftransparency that I have outlined does not assume that the form oflegislation is such as to permit a legislature to determine or directthe outcome of specific cases; as I argued in the first section,Rousseau’s work helps to show that the concept of legislativesupremacy need not be understood as meaning that legislation isdispositive in this strong sense. Thus there is no contradiction inarguing both that the form of legislation safeguards individualsagainst capricious “majorities” or other legislative agents, andequally that it allows conflicting rights-claims to be settled moretransparently than constitutional jurisprudence. This tension isdissolved by the fact that the transparency I attribute tolegislation applies only to the creation or origination oflegislative norms, and not to the interpretive life of these norms orthe way they are applied in specific cases. Conversely, the judicialmediation of legislative norms – whether under a Dworkinian“constructive” account or otherwise – does not obscure theirintentional and political origination. 128 Waldron (n 8), 76

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legislative choice, but rather the transformation iteffects in the public understanding and conception ofrights issues.

Conclusion

Both of the broad arguments I have set out concerning thepolitical virtues of legislative form coalesce around theconcept of publicity, that is, the idea thatauthoritative public norms should be accessible to thecitizens who are subject to them. Firstly, legislativeform requires political agents to exercise power overindividuals and groups with reference to reasonablyabstract and generalizable principles. Secondly,legislative form lays clear the political grounds ofrights-based reasoning, compared to the esoteric expertdiscourse that characterises constitutionaljurisprudence. While most theoretical arguments againststrong-form judicial review refer to a concept ofpolitical domination, these focus on the proceduralstructures of constitutional adjudication and legislativeprocess. Yet as I have argued, such comparisons areoverly reliant on certain dubious empirical assumptionsconcerning parliamentary politics. Correspondingly, anargument based on legislative form understands politicaldomination largely in relation to the ideal oftransparency or publicity in the sense I have outlined.

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