The Unity of Public Law.

Vol. 14 No.10 (October 2004), pp.799-804

THE UNITY OF PUBLIC LAW, by David Dyzenhaus (ed). Oxford and Portland Oregon: Hart Publishing, 2004. 520pp. Hardback. £45.00 / $90.00. ISBN: 1-84113-434-1

Reviewed by Upendra Baxi, Professor of Law, University of Warwick. Email: U.Baxi@warwick.ac.uk

Desire for an autonomous social life of law, a life that dares speak to the supreme power, and even arrest its exercise, has always animated the work of lawpersons, legal theorists especially among them. In this work, David Dyzenhaus and his eminent colleagues insist that this is a rational desire summoning the futures, or the fates, of the “unity of public law.” The diversely framed disciplinary traditions fragments it through specialisms labelled variously as the constitutional, administrative, public international, and international human rights law. The idea of the “unity of public law” is expressed here at many levels.

Michael Taggart, following Mary Liston, thus suggests that the regulative idea (in the Kantian sense) of a human rights based approach furnishes the “culture of justification” that imparts an underlying unity to all sectors of diverse public law. Increasingly, “the imbrication of international, regional, and domestic human rights law” imparts unity to all public law formations (p.479). Mary Liston insists that the unity of public law project ought to be constructed in terms of a “justificatory democratic state” (p.139).

This construction remains unavailable outside some “thick” conceptions of the “rule of law,” translating Chief Justice Beverly McLachlin’s insight that citizens, as well as non-citizens, have a co-equal right to “rationality and fairness” in the “exercise of public power” (p.140). On this reading, the vaunted unity of public law emerges as nothing short of insistence that all affected persons within a jurisdiction have dignitary human rights (to be treated as “whole” persons), which may only be protected by “the duty to give reasons” for any and or all exercise of the executive (and adjudicative) forms of public power (pp.140, 141). Dyzenhaus, summing up the mood, method, and message of many contributors to this volumes, says this “thick” conception of the rule of law emerges as an amalgam (or what in a Deleuze and Guttari idiom may emerge as an “assemblage”) of “the fundamental legal values of a society, values which are located in various sources, written and unwritten, international and domestic” (p.1).

There is no way in which the vision of emergent unity of public law may escape the invocation of what Savingy named, with a deep order of regressive perplexity, as the volksgeist, the ineffable “spirit of the people,” or the forms of enduring cultural embodiments that constitute social inheritance (see Stone 1966, 86-118). In his great debate with Thibault, Savingy however insisted the unification of the law may not wholly proceed by the discovery of the volksgeist (the juridico-political location [*800] of shared values) but also requires doctrinal and exegetical mastery over the law itself (Savingy names this as a technical element.) Traversing these distinct realms is no easy task; it is a considerable merit of this thought-provoking collection of essays that it addresses this complex, and contradictory, set of issues. However, the authors set for themselves a difficult task of re-imagining both these realms by recomposing the volksgeist, not merely in the specific terms of discourse offered by recent Canadian interpretive ventures, but by also conceptualising a global liberal volksgeist, or the spirit of the age manifesting a common future and destiny of a universally emergent culture of human rights-oriented common law and constitutional adjudication.

Mark. D. Walters (pp.431-454) takes us on an exciting safari of “legal cosmopolitanism.” He shows how the various ways of versatile invocation of Kant’s 1795 germinal “Toward a Perpetual Peace” may still provide resources to debate constructions of the “legal black hole” manifest in Guantanamo Bay and Belmarsh and many still to be named gulags elsewhere. Walters valiantly urges “piecemeal” engagement with the task of the construction of “the meaning of common law cosmopolitanism” (p.453), despite the seemingly oxymoronic appellation! Similarly, Dyzenhaus epitomizes the central theme of the work by recalling Mary Ebert’s likening of the “common law” judicial review of administrative action to the “canary in the coal mine, warning of impending disaster but unable to deal with it” (p.15). The unity of public law thus remains a venture in “empowering” the canary, beyond its genetic potential! No more on this conception may the forms of public law regard “arbitrariness” in the wielding of public power, including the adjudicative, as a matter of “moral luck” distributing many a misfortune along its various itineraries of performances of the politics of mass cruelty. The politics of rational desire thus offered by this work remains simply stunning!

Reading the global liberal volksgeist remains still a very difficult task. It is sad that this volume altogether fails even to mention, let alone meditate upon, the corpus of Hannah Arendt and Giorgio Agamben. Arendt, as early as at the moment of the framing of the Universal Declaration of Human Rights, and predating by many generations the philosophic cottage industries that now luxuriate in proclaiming variously the “end of human rights,” dared to enunciate the refugee and the stateless as a figure marking the very end of human rights even amidst their germinal birthing (Arendt 1979). A return to this insight suggests the ways in which human rights production remains always constitutes and marks the reproduction of varieties of human rightlessness. And Agamben reminds us the “Camp as the Nomos of the ‘Modern’” constitutes the “hidden matrix and nomos of the political space in which we are still living” (Agamben 1998, 166). One way to read this volume is ask how the emerging unity of public law volksgeist may, after all, combine and recombine the dark side of modernity and postmodernity.

On the technical dimension, this volume stands influenced by some enormously important and fascinating Canadian judicial discourse concerning the future [*801] of human rights for the immigrant, stateless and asylum seeking hapless individuals and peoples viewed or refracted as well through the British (Nicholas Blake pp.225-252) Australian (Margaret Allars, pp.307-334) and the EU (Paul Craig, pp.335-356) prisms. All this offers a veritable feast for all of us hungry for new futures of human rights. But, in the main, this book remains concerned with the BAKER effect and ethos (especially see David Mullan, pp.21-60, Genevieve Cartier, pp.61-86, Lorne Sossin, pp.87-112, and Ninette Kelly, pp.253- 288). The authors remain, indeed, justified in their celebration of some remarkably gifted judicial enunciations. Obviously, it contributes a great deal to the understanding of the importance of innovating judicial reflexivity in a post-9\11 world and its aftermaths of wars of, and on “terror.”

There are no easy ways to summarize the Canadian jurisprudential achievements or angst, even when in a whole variety of ways, engagement with this work enriches comparative understanding of the futures of the public law everywhere. Regardless of the collective authorial intent, I prefer to read the work as posing a pertinent global issue concerning how justices and lawyers, as well scholars, may relate human suffering to human rights (for more on this theme, see Baxi 2002). At one level, the issue is stark in its awesome simplicity: how may elected officials, unelected Justices, and fiduciary public law scholarship strive to accord a just measure of dignity and respect to victims of misfortune and injustice found within their borders, boundaries, and jurisdictions? Should they be allowed some privileges of instant domicile (contingently maturing into “citizenship”) or be repatriated to their historic estate of human \ social suffering? How may the diversely constituted knowledge\ power constituencies address seriously the reason of human rights?

The importance of this volume, in my considered view, lies in the fact that it, on the whole, resolutely addresses this last issue. Audrey Macklin states the case quite strongly, concluding that the “foreigner” “precariously perches on the borders of the law, seeking entry qua human being into the normative terrain of human rights discourse, yet too often denied shelter under the rights of citizens precisely because she is not a citizen,” and further that the judicial outcome remains, after all, a matter of sheer luck or misfortune. Indeed, “if there is a more coherent normative logic buttressing these borders and their operations,” it “eludes” us all (p.199).

Yet the book remains resolute in search precisely of “a more coherent normative regime.” Evan Fox-Decent addresses more specifically the modes of engagement in which “the internal morality requires the decision-maker to engage in a number of comparative and inferential justificatory practices” that may or may not “entail particular outcomes” (p.150). He insists, rightly that the primary decision –maker accord some weight to ‘soft law’ standards emergent at international law, thus hopefully opening doors of judicial review in case of egregious default. I remain sympathetic to this analytic in its context, but, as the volume overall attests, there exist myriad ways of making hard law soft, and few that make soft law hard (I do not here engage this ultimately sexist diction!) In any event, [*802] Lon Fuller remained alert to the manifold tensions and contradictions of the “inner morality of law.”

When addressing human rights claims, especially of non –nationals, a cosmopolitan decision-maker faces a range of such tensions. She has to adhere not merely to the Fullerian “morality of duty” to give reasons for decisions but also somehow to the “morality of aspiration” summated by jus cosmopolticum. Failure on the first level, where for example she acts (as the administrative law parlance puts this) “mechanically and without due care,” or for ulterior reasons, and outside the realms of good faith, remains judicially reversible as being arbitrary. It is only when she does act “reasonably” that the problem of justified judicial review arises. Concerning this, it is commonly accepted that justices ought to extend strict scrutiny to the reasons offered for the initial decision. May they themselves reasonably proceed beyond this? It is on this issue that judges and jurists continue to differ, though much depends on the meaning attributed to “going beyond.”

In a pre- human rights era, the issue stood identified in terms of institutional accommodation amongst the coordinate branches of governance. Justices and courts were expected to strive for institutional accommodation concerning the powers of the executive and the legislature, no matter how all this “short –changed” them (as Stone termed it). Thus arose, for example, the notorious doctrine of “political questions” in the American constitutional jurisprudence. In a human rights era, where constitutional texts enshrine assurances of basic human rights and fundamental freedoms, the inner moralities of the law (both of duty and aspiration) expand the powers and functions of judicial review of administrative action. In an era of rampant economic globalization, these moralities seem to justify massive ambivalence concerning adjudicative power to address macroeconomic policy decisions, no matter how they may affect universally acknowledged human rights norms and standards. In the wake of the emergence of a global police state, following 9\ 11 and its aftermaths, the inner moralities of law emerge in terms of judicial accommodation of public emergencies (Ackerman, 2004; Posner and Vermule, 2003) where all over again judicial restraint becomes the “sovereign virtue.” All this, overall, then re-enacts the powerful messages from Louis Althusser and Nicos Poulantzas that characterized the so-called doctrine of the separation of powers as masking the centralized unity of state.

Perhaps, cutting across these many divides, this volume justly celebrates what may be named as the Dyzenhaus era that enshrines the principle of deference towards coordinate branches of governance in a post-modernistic mode. Practices of respect here are ungrounded from their earlier moorings in the separation of powers discourse. Rather, in post-foundational ways, Dyzenhaus’ insistence on the plurality and multiplicity of “public reason” (as John Rawls has named this) still summons the merit of preclusion, with all its constitutive ambiguity, of any alternate judicial reasoning that may result in an activist judicial performance substituting the grounds of “justifiable, and therefore reasonable and legal” by “a different conclusion on merits” (p.155). Put another way, despite the dramatic, the Protean heads of the [*803] justiciability\ merit distinction now and still resurface through the languages of “deference,” even amidst the catastrophic, transformation of the social worlds and human lifetimes. Should justices adjudge the reasonableness of the primary decision-maker in ways that “convert review of legality into a review of merits” of the initial decision (p.156)?

The new languages of deference have found a safe abode in some Canadian Supreme Court decisions, if only because deference “as respect invites engagement with” fleshing out, in terms of “the internal morality of administration . . . the implications of this engagement” (p.156). The duty to give reasons (see, in particular, the discourse concerning “alert, alive, and sensitive reasons” essayed by Mary Liston and by Michael Taggart, pp.472-75) signifies considerations that configure the political economy of judicial governance. Put simply, this nuanced analysis justifies the apex court demand that the burdens of adjudication be reduced through the hierarchies of public law decision-making: from the executive to the trial and the further rungs of the appellate adjudicative hierarchy. This is by no means an insignificant rationale, because it minimises the summit burdens of judicial review. Perhaps, eventually this crafting of “deference” may after all foster the production of human rights cultures. The deference principle does indeed invite, even enact, continuing, adult, and informal human rights education for executive and administrative decision makers and aims at maximizing adjudicative efficiency. At the same time, it articulates the transferral of here and now, lived and embodied costs to the human rights of individual asylum seeker or a migrant besieged by torture or terror on any prospect of repatriation \ return. Adjudicative efficiency is no doubt an important resource for endangered human rights, but it does not soften some tormenting challenges posed by those still excluded by the emergent jus cosmopolticum.

All this is fascinating indeed until the nagging question is finally allowed to emerge: How far does our cultivated and finely honed empathy for the difficulties of the judicial task extend without entailing complicity in the reproduction of human rightlessness? Put differently, the much-celebrated duties to give “reasons,” or “reasoned elaboration” (as Karl Lewellyn a long time ago named this), poses all over again the confrontation of the reason of the state by the unreason of human rights.

The work under review offers an embarrassment of riches, especially in terms of the practical\ technical adjudicative craft, contention, and even courage. We all stand summoned to learn a great deal from the nuanced analysis of texts of BAKER and its multiple progeny that also contests its unfolding. This is indeed a high achievement. Is it churlish to ask, from the standpoint of what I name as subaltern constitutionalism, how this internal anguished and tormented judicial and juristic talk may after all contribute to the amelioration of the estate of social\ human suffering of the rightless individuals and peoples?

To say this is, by no means, to diminish the discourse concerning reasoned elaboration; however, it moves, on this [*804] register, beyond approaches to what Allan Gewirth (1996) names as “human rights utilitarianism.” The question here then goes beyond the mere issue of duty to give reasons for administrative\ executive decisions to the very crafting of a doctrine of “good” reasons. The deontological and the instrumental \ consequentialist notions of the “good” stand enscripted \ encrypted in their various roles in this collective meditation concerning the unity of public law. The enriching discourse offers the unity of public law as a unique, or at least distinctive, global public good. One hopes that this may well be so.

A comparative caveat, one that I must here now offer, does not detract from an appreciation of this achievement. The editorial claim, rehearsed in some chapters as well, is indeed startling at least for an Indian and South lawperson. The statement by David Dyzenhaus that BAKER “establishes for the first time in the common law world a general duty for administrative decision-makers to give reasons for their decisions and . . . imposes a reasonable standard for the criterion of evaluating the legality of exercises of official discretion” (p.1) is plainly and surprisingly wrong. The Indian Supreme Court has already, and reiteratively, further with multiplier impacts in South public law jurisprudence, performed this feat ever since 1950! (Sathe, 2002). So has the Botswana Supreme Court in the UNITY DOW (1992) decision. It is simply pointless to multiply instances of the global south public law juridical creativity. Surely, notions framing a “unity of public law,” and oriented to a fashioning of a new jus cosmopolticum, at least ought to take more fully into account the creative jurisprudence of the Commonwealth of Coloured Peoples!

REFERENCES:

Ackerman, Bruce. 2004. “The Emergency Constitution.” 113 YALE LAW JOURNAL 1029-1092.

Agamben, Giorgio. 1998. HOMO SACER. (Daniel Heller- Roazen, trans.) Stanford,, CA: Stanford University Press.

Arendt, Hannah. 1979. THE ORIGINS OF TOTALITARIANISM. New York: Harcourt Bruce Jovanovich.

Baxi, Upendra. 2002. THE FUTURE OF HUMAN RIGHTS. New Delhi: Oxford University Press.

Fuller, Lon L. 1969. THE MORALITY OF LAW. New Haven and London: Yale University Press.

Gewirth, Allan. 1996. THE COMMUNITY OF RIGHTS. Chicago: University of Chicago Press.

Posner, Eric and Adrian Vermule. 2003. “Accommodating Emergencies.” 56 STANFORD LAW REVIEW 605-644.

Sathe, Satyaranjan (2002). JUDICIAL ACTIVISM IN INDIA. New Delhi, Oxford University Press.

Stone, Julius. 1966. SOCIAL DIMENSIONS OF LAW AND JUSTICE. London: Stevens & Sons.

CASE REFERENCE:

BAKER v. CANADA (1999), 174 D.L.R. (4th) 193 (S.C.C.).

UNITY DOW v. ATTORNEY GENERAL OF BOTSWANA (1992) L.R.C. (Const.) 623.

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