This is our truth, tell us yours
The death of Antonin Scalia offers a chance to think about legal interpretation and the weakness of the law.
Scalia was the leading light in American conservative legal thinking, a Supreme Court justice of a particular, opinionated, attention seeking kind. The intensely politicized Supreme Court was made for Scalia; witty, fluent, and prone to florid language he seemed happy making unambiguous attacks on positions he disagreeed with.
Scalia’s legal thinking belonged to the literalist approach; for him it was all about the text, and nothing more. He could easily be accused of using the literal approach as a cloak for his conservative leanings, but there is a legitimate defence for the literal approach.
Bluntly, it’s not always clear what the purpose of legislation is. The lack of development of coherent policy in advance of the introduction of legislation is the hallmark ofpost war government in both the USA and the UK, and it’s getting worse, not better.
Some of Scalia’s judgements read as little better than power worship, using the doctrine of separation of powers to justify restrictions upon the oversight of the executive. He has a point however. Judges are not acountable, and must not be accountable, in the same way as the executive, so restrictions on their powers are not only sensible but desirable. Do we really want unaccountable judges seeking to guess what they think parliament intended? The perils of judge made law are evident not just in cases such as Roe vs Wade, but in cases like today’s ruling on joint enterprise in the UK Supreme court, where it’s clear the courts have led themselves astray in the course of making law over two decades.
The problem of course is that the literal rule leads you to a position where, even if the literal interpretation of the law ends up at one hundred and eighty degrees to where the legislature intended, a literalist cannot intervene.
As ever,we have a solution here; it’s a solution that focusses on how laws are made, and can be made better, rather than on the interpretative role of judges. Ifonly parliament were required, before a bill could be tabled in the commons, to have debated and approved a wite paper setting out the issues t be addressed, the prefered solutions, and the outcomes desired.
The problem is that the UK Parliament is lazy, ill-managed and incomprehensible to all but the most dedicated of observers. The legislative pathway is confused and more concerned with a sense of theatre and historic practices than effective policy development.
I would argue that every bill intoduced in parliament should be related to a clearly debated and agreed green paper, and have been prefigured by a white paper, that clearly identified the purpose of any subequent legislation. Is that so outrageous an expectation? If parliament were requriedto identify its purpsoe before introducing legislation,and subject to review if it went beyond its stated purpose, Scalia’s approach would be, like him, history.