The Critical Lawyers' Handbook Volume 1
2: Critical Legal Education
Richard de Friend
From everyday political rhetoric and from the accounts given in standard textbooks it would seem that constitutional law is essentially about freedom and empowerment - the basic themes of this handbook. Constitutional law apparently serves as the source of basic rights and liberties, providing each person, no matter what his or her social or material position, with an equal 'civic' capacity, which can be exercised through the political and legal systems and can be asserted against even the most powerful 'others' including, most crucially, the state itself.
The theory that a 'free' society depends upon constitutional law has, of course, been absolutely central to liberal political philosophy over the last 300 years (Hayek, 1960; Harden Sr Lewis, 1986; Thomson, 1991). However, it is significant that over the last couple of decades constitutional law has also increasingly been taken seriously by influential sections of the left. This is reflected in: Charter 88; the programme of constitutional reform adopted by the Labour Party; that promoted by Marxism Today on behalf of the Communist Party; the more piecemeal changes which, from time to time, are advocated by Liberty (formerly NCCL); and the demands for' welfare rights' which, since the late 1960s, have been made by groups and organisations seeking to redress the levels of discipline, control and subordination imposed upon those forced to claim state benefits and services. It is also reflected in the proposals for tighter processes of criminal investigation and trial, and for more open and democratic methods of selecting judges, that have been widely canvassed in the wake of recent miscarriages of justice, such as in the cases of the Birmingham Six, the Guildford Four, the Winchester Three and the Maguires.
central task of any critical constitutional law course should be to evaluate
the claims which are made for it, explicitly or implicitly, as a means
of empowerment and liberation. More precisely, such a course should seek
to establish the kind of justice and freedom which can be realised through
constitutional law - and, equally, the kind which cannot. This will involve
an analysis, first, of the role ascribed to constitutional law in liberalism
(or, as I will now term it, 'liberal constitutionalism'); secondly, of
how far the legal culture of this country conforms to a liberal-constitutionalist
model; and thirdly, of the limits of liberal constitutionalism itself.
I will now expand briefly on each of these themes.
As I have been suggesting, the idea that liberty and empowerment are secured through law and through constitutional law in particular is part of a much wider system of thought, liberal-constitutionalism. This has aptly been described by Roger Scruton as 'the official ideology of the Western World' (Scruton, 1984, p. 192). Very schematically it can be seen to consist of the following related propositions.
First, a society or total social order is essentially a product of the infinite number and variety of relationships formed by individual human actors on a more or less voluntary basis in pursuit of what they rationally calculate to be their material and non-material self-interests (Arblaster, 1984, Chs. 2 and 3).
Secondly, though a certain basic level of social order has to be achieved through institutions (such as the family), and through an apparatus of state and law, the existence of which cannot be attributed to an act of will on the part of any particular individual or individuals, the 'just' society is one that imposes on individuals as little regulation or government as possible and thus allows them the maximum Possible scope to create and recreate their own social and economic orders through the relationships or associations that they form with others.
Thirdly, it follows from this that the state has to be restricted to those governmental functions which help to create or maintain the conditions that permit the exercise of social and economic freedom by individuals.
Fourthly, to this end, the state must itself be subject to law; this will provide the boundaries of what the state can do, and in a sense, establish what the 'state' is. To perform this function 'law' must have a status or authority which is greater than the laws the state produces to govern society; must appear to have been created independently from and antecedent to the state itself; and must serve as the ultimate criterion of the legitimacy of actions taken by the state, its agencies and officials.
many, though not all, of the countries which, over the past 250 to 300
years, have based their political and legal systems on liberal- constitutionalist
principles, comprehensive constitutional instruments have been adopted.
These specify first, what the basic institutions or offices of the state
are to be, what governmental functions each is to perform, and how those
occupying them are to be selected; secondly, how civil society is to be
conceptualised for constitutional purposes (normally as formally equal
individual citizens, each possessed of certain legal capacities, expressed
in the form of basic rights and liberties which are protected against
infringement by state action); and thirdly, in which arenas and through
which processes the constitution is to be interpreted and conflicts arising
under it resolved. So, to what extent does this country's constitutional
law approximate the liberal-constitutionalist model or ideal?
As writers of standard texts on constitutional law from Dicey to de Smith have emphasised, In the United Kingdom, without a constitution of the kind described above, the common law has served as the source of 'apparently autonomous or antecedent' legal principles and processes that govern the state. However, these principles and processes have hardly comprised a very effective regime for subordinating the state to law.
In the first place, the constitutional law developed by common-law judges contains two core principles, the sovereignty of Parliament and the prerogative powers of the Crown, which taken together provide, formally, an unlimited legislative and an extensive executive capacity to the government which at any time controls Parliament through its majority in the House of Commons. These can and often have been exploited precisely to avoid effective legal challenge to state action. For example, by granting administrators very wide discretionary powers, like those found in the legislation which set up the Social Fund; by introducing broad 'ouster clauses' like those contained in both the Interception of Communications and the Security Services Acts; by claiming 'prerogative' as an authority for action which was seemingly not possible under statute, as in R. v. Sec. Of State for Home Dept. ex. p. Northumbria Police Authority ( 1 All ER 556) ; or by making extensive use of secondary legislation which can easily and quickly be amended to deal with any defeats that are suffered in the courts.
In the second place, it can hardly be maintained that judges have exercised whatever autonomy they do possess to enhance or even to empower the weak and disadvantaged. Rather, as John Griffiths has argued (Griffiths, 1985), in exercising what is, constitutionally, perhaps their most important jurisdiction of reviewing administrative state action, judges seem consistently to have afforded far greater protection to rights such as private property and freedom of contract which act as the framework for a capitalist economy, than to those, such as communication or association, which could be used to challenge or transform. More generally, they have given much more weight to the claims of order than to those of liberty as a number of recent cases demonstrate.
In Council of Civil Service Unions and others v. Minister for Civil Service ( 3 All ER 935), it was ultimately held that the Prime Minister's assertion of' national security', widely disbelieved, but untestable in the courts, was sufficient to remove from civil servants even their right to be consulted before the government, exercising a prerogative power, prohibited them from becoming or remaining members of any trade union
In R. v. Secretary of State for Home Dept. ex. p. Cheblak ( 2 All ER 319) the Court of Appeal rejected a challenge to the Home Secretary's decision (again on alleged grounds of national security) to detain, with a view to possible deportation, a Palestinian writer who had been lawfully resident in the United Kingdom for many years and who had married and had a family in this country. As the Master of the Rolls put it: 'Exercise of [judicial review] In cases of national security was necessarily restricted by the nature of the subject matter. National security as the exclusive responsibility of the Executive. It was par excellence a non-justiciable matter.' (p. 330) The only means of challenge were either through Parliament or through a special 'advisory panel', which required detainees to make their cases without knowing the particulars of the case being made against them, and which denied them the right of legal representation, In any case, the Home Secretary was at liberty to reject the panel's recommendations. To the charge that this amounted to a denial of natural justice, the Master of the Rolls pointed out that 'natural justice had to take account of the realities, and what would otherwise be a breach was not to be so considered in that it was unavoidable' (p. 335).
Brind v. Secretary of State for Home Dept. ( 1 All ER 720) the House
of Lords, following both the High Court and the Court of Appeal, unanimously
upheld the legality of a ban imposed by the Home Secretary on the direct
broadcast of statements made by representatives of proscribed organisations
in Northern Ireland. All five judges accepted, almost without question,
that the defeat of terrorism had to take precedence over both the right
to communicate and the inextricably interrelated right to receive and
consider ideas and opinions. Nowhere was this made clearer than in Lord
Bridge's judgement where he states: '[I] find it impossible to say that
the Secretary of State exceeded the limits of his discretion. In any civilised
and law abiding society the defeat of the terrorist is a public interest
of the first importance ... The Secretary of State ... decided that it
was necessary to deny to the terrorist the opportunity to speak directly
to the public through the most influential of all the media of communication
... I do not see how this judgement can be categorised as unreasonable.
What Is perhaps surprising is that the restriction imposed is of such
limited scope. There is no restriction at all on the matter which may
be broadcast, only on the manner of its presentation.' (p. 724)
It is hardly possible here to provide a comprehensive critique of liberal-constitutionalism. However, I suggest that the following matters are particularly important to an Investigation of its limits.
First, as we noted above, freedom or empowerment is primarily expressed within liberal-constitutionalism in the form of individual 'tights'. Obviously, a person's ability to actually engage in any social, economic or 'political legal' activity depends not simply upon their having some formal right to do so, but also upon their material and intellectual resources. To take a couple of well-canvassed examples. The right to communicate may not mean much in practice in a world in which effective communication has to be carried out through the mass media, which requires huge amounts of financial, technological and 'human' capital, and which is owned by large multinational corporations. Similarly the right to natural justice or due process may not amount to much without the resources to purchase the expensive services of the lawyers.
Secondly, the version of freedom which is emphasised most heavily in liberal-constitutionalism is freedom from state and government. However, as political and social theories from the British 'Idealism' of the late nineteenth century (Vincent & Plant, 1984, Ch. 9) to Marxist-Leninism in this century have argued, to achieve substantive or material as opposed simply to formal equality in any complex, industrialised society would necessitate a great deal of sophisticated state activity.
Thirdly though apparently antithetical to an extensive state, there are certain Important features of Iiberal constitutionalism which seem to facilitate a strong, interventionist state to carry out those functions that this political theory concedes are appropriate for government. Most significantly, as we noted above, corresponding to the notion of society as an aggregate of individuals, vested with rights which formally give them capacity to engage In social, economic or Political activity, the state is constituted as a 'bearer' of formal 'capacities' to govern. Unlike most citizens, the state can command the material resources to make full use of its formal capacities, and the legitimacy of its actions tends to be determined by how far they fall within the formal boundaries set by constitutional law. This quite easily then leads to the assumption that any state action, no matter how draconian or substantively unjust it may be, has to be accepted as long as it can plausibly be claimed to fall within those boundaries. By the same token, any act of resistance or opposition, no matter how lust the cause, has to be rejected if it is illegal. The distorting effect of this formalisation of political action and political discourse can be seen particularly clearly in the 1984-85 miners' strike and, more recently, in the campaign against the Poll Tax.
and perhaps of greatest significance, is that despite the abstract,
general and universal appearance of liberal constitutionaIism, its real
history is inextricably intertwined with the development of market capitalism.
It has become the official ideology of the West because it has proven
to be the most appropriate one for sustaining the legitimacy and authority
of capitalist social and economic relations. This alone should give at
least some grounds for doubting whether any kind of liberation or empowerment
which significantly challenged such relations could ever be secured through
existing constitutional law.
This chapter is not meant to induce despair or nihilism, or even to suggest that there is no potential for empowering or at least defending the Interests of the weak and disadvantaged through a skilled and politically informed use of constitutional law. We have no option other than to exploit it to the maximum extent possible.
arguments, undoubtedly contestable, are intended, rather, to achieve two
things. First, simply to indicate why there are grounds for thinking that
only a limited kind of freedom can be secured through the practice of
constitutional law. Secondly, to provide some Intellectual tools with
which to engage critically with the accounts of constitutional law given
in standard texts and standard undergraduate courses on the subject, including,
I am somewhat ashamed to confess, the one for which I have largely been
responsible for the past five years.