What Should Public Lawyers Do?
That is the title of a famous/notorious essay by political scientist Brendan O’Leary reviewing Paul Craig’s Public Law and Democracy in the UK and the USA. O’Leary attacked Craig’s book, not so much for its content but for its very mission: to draw lessons for public lawyers from political science and political philosophy.* The basic question is to what extent a public lawyer can study the subject without covering related fields such as political theory, political philosophy, or moral philosophy.
The question came up, fittingly enough, at the close of the Public Law Conference in Cambridge last month (and this, fittingly enough, will almost certainly be my last post on the event). In his summation of the proceedings, David Feldman lamented what he perceived as a focus on “values” by administrative lawyers and sounded a clarion call for a return to doctrine. He also suggested public lawyers should assess whether or not doctrinal changes are good — somewhat contradictory, as he himself admitted and David Dyzenhaus happily reminded the audience!
Of course, the divide between values and doctrine is liable to be elusive. I take it that doctrinal research has as its central mission increased coherence in the law (and I also take it that David Feldman meant public lawyers should primarily assess ‘goodness’ in this narrow sense). Sometimes, this can be attained at a relatively low level of abstraction (“Judges say X in Field A but Y in Field B even though there is no real difference between Fields A and B”), but where doctrine relies expressly or implicitly on higher-level theoretical commitments, it is surely necessary to grapple with these.
Nonetheless, there are some types of public law scholarship that are plainly either extremely theoretical — evidently branches of, most often, political science, or philosophy — or beg theoretical questions. One of the sessions at the Conference was of this nature. Kent Roach, Aileen Kavanagh, Eoin Carolan and Adam Tucker (to a lesser extent) all discussed approaches to pressing issues in public law that went beyond the confines of doctrine and required engagement with ‘politics’ more generally, if not an outright theory of the interaction between law and politics. Roach’s paper focused on different remedial decisions courts might make in constitutional cases; Carolan’s on collaborative governance; and Kavanagh’s on judicial scrutiny of legislative proceedings. Each depended to some extent on a theory of how actors in the wider political system, not just judges and lawyers, would react to judicial decisions. These papers were of an extremely high quality and I greatly enjoyed them, but they were not legal in a narrow, doctrinal sense.
I suspect most common-law public lawyers would not consider themselves high theorists (I certainly don’t, even if my paper for the Conference did have “values” in the title…). Public law theory focuses on difficult concepts (sovereignty, legislative intention, rights, etc) but takes treatment of the concepts by judges or other actors in the legal system as its starting point; given that these treatments usually have a practical orientation, public lawyers can, if they prefer, avoid engaging in more abstract philosophical inquiry (though whether this is a coherent position is, admittedly, the subject of debate).
Even the speakers at the session discussed above could plausibly avoid rising into the clouds of abstraction, for their papers had practical implications, mostly doctrinal. That these implications beg questions of other disciplines is not necessarily problematic. It rather means that those in other disciplines might be better placed to answer them, though public lawyers need not feel embarrassed to try.
* Those interested should really read Craig’s reply as well as O’Leary’s review.
This content has been updated on October 10, 2014 at 13:34.