John Laws (judge) - Constitutional Theory

Constitutional Theory

Sir John Laws is noted for his extrajudicial writings in the journal, Public Law. His most notable contribution, "Law and Democracy", asserts that the constitution would be undemocratic if it gave all the power under it to the elected government. Therefore it is the constitution, and not Parliament, that should be sovereign in the British constitution. He posits that the constitution must create a "higher-order law" in which human rights and constitutional fundamentals in a democracy can be protected by the courts against the abuses of government. This position stems from a fundamental distrust of the political constitution in holding the executive to account. It is similar in form to Lord Hailsham's claim that in Britain there is an "elective dictatorship". Sir John does not see this shift to the legal sphere as being anti-democratic because judges uphold apolitical values that no politician would contest and are above the arguments that take place in the political sphere between politicians of political parties.

These statements are certainly controversial and have been fiercely contested by academics such as John Griffith and Martin Loughlin, both professors at the London School of Economics. The essential arguments made by these authors are to the effect that the metaphysical principles that Sir John cites are highly contentious. A good example of this is Laws' love of freedom of expression. When is it right for racist or sexist comments to be illegal? Whilst for Griffith it should be up to a democratically elected legislature to decide such tricky moral issues, for Laws it is firmly a matter of law for the judges to decide. The problem with the latter approach, according to Griffith, stems from the fact that judges cannot be removed if the decisions they make are judged to be wrong by citizens of a polity. For Laws, on the other hand, such counter-majoritarianism is a beneficial aspect of the law, which acts to protect those that are vulnerable in society against the tyranny of the majority.