Jeremy Waldron, philosopher of law and political theorist of NYU and Oxford, visited BC September 24 and 25, and I had the pleasure of hearing him speak. I wrote the following short piece on his talk  for the Clough Center for the Study of Constitutional Democracy, where I am a fellow:

Jeremy Waldron is well known to political philosophers for his controversial views, including a critique of strong judicial review (in which a court has the power to throw out a democratically enacted law, as in the US) and his support of representative, majoritarian democracy, among others.

With such a controversial repertoire, those familiar with Waldron’s work may have at first seen his presentation on the separation of powers as uncharacteristically pedestrian. This apparently unproblematic talk, however, would strike some philosophers of law as anything but a typical defense of an established political principle. First I will sketch Waldron’s argument, and then I will show why it is surprising and complements his critique of judicial review and his preference for representative over direct democracy.

First, Waldron distinguished the notion of separation of powers from four other ‘adjacent principles’ that are often lumped together under the heading of ‘separation of powers’: division of powers (the avoidance of centralized power), checks and balances, federalism, and bicameralism. It is clear that in many ways these principles work together, but Waldron insisted that there is something about separation of powers in the narrow sense, distinct from the principles that it often operates with, that is important for our political institutions. Many think that that we simply have a separation of powers so that they can check and balance one another, or that we simply separate powers to avoid a monopoly of force. For Waldron, however, the separation of the functions of legal power—the power to create, enforce, and interpret laws—is important in its own right, distinct from the adjacent principles.

This separation is important because it creates rule of law—Waldron’s second point.Rule of law is a necessary condition for any stable society. A government respects rule of law by making and applying laws consistently and only punishing citizens based on laws that are duly promulgated. A society that does not respect rule of law might be characterized by random searches and seizures, a lack of rules governing conduct, laws that apply retroactively, or general unpredictability.

Legal scholars often associate rule of law in modern democracies with constitutionality, a force often at odds with pure democracy. How can democracy and constitutionality be at odds? Imagine a case in which a majority voted for a law that would infringe on the freedom of speech of a minority. In the US, this law would be thrown out by judicial review. Thus, many thinkers associate rule of law with constitutionality and judicial review, arguing that judicial review is a part of the constitution that protects individuals from the whims of popular democracy—judicial review protects the stability of rule of law.

Waldron did not explicitly attack this position in his talk, but his project implicitly challenges this association. Instead of linking rule of law with judicial review, Waldron argued that rule of law ought to be identified with the functional separation of powers. In order to illustrate this, he argued that the different functional powers are like an assembly line that produces laws. Legislatures, in response to demands from their constituencies, discuss and propose laws in committees and subcommittees, and eventually take a majority vote to enact a law. This prompts the executive branch to create mechanisms to enforce the new law, slowly internalizing it. At the same time, the law is promulgated in the society—individuals, corporations, and other entities make changes within their own operations to comply with the law. Finally, any disputes that arise are brought to courts where the law is interpreted to resolve any conflicts.

This process, which allows for the slow integration and internalization of new laws, is rule of law. Rather than mob rule or arbitrary lawmaking or enforcing, this process allows for social stability. So, the separation of powers in practice is this assembly line that creates rule of law. Finally, we see what might initially be surprising about this talk: rule of law, often understood as necessitating judicial review, is linked with a different political principle—separation of powers. A key point in this talk was when Waldron argued that the integrity of separation of powers means the integrity of each of the functionally differentiated institutions: “the dignity of legislation, the independence of the judiciary, and the particular authority of the executive.”

One ramification of the integrity of each power is that the legislative branch must vote and deliberate on the general form of laws only, leaving the more particular details to the administration. Here there is a clear link to Waldron’s argument in “Representative Lawmaking” in Boston University Law Review Vol. 89. Here, Waldron argues against the idea that direct democracy is ideal and representative democracy is just a sad but practical dilution of the ideal. Rather, representatives are the best lawmakers because they abstract from the particularities of their constituencies just like laws must abstract from the particular cases to which they apply. The nature of good laws is that they are general and abstract, and a good legislature will leave the particularity of application to the executive. Thus, Waldron’s theory of representative democracy complements his theory of rule of law as the separation of functional powers.

While Waldron did not specifically outline how this theory works with his critique of strong judicial review (“The Core of the Case Against Judicial Review,” Yale Law Review 115.6), we can infer that judicial powers, when properly functionally separated, will not deny the dignity of legislation by overruling laws. Instead, they receive the law as it is passed down the assembly line. They can only interpret the law to mediate disagreements over its application. The separation of powers in Waldron’s argument means that rule of law is not protected by judicial review, but by the integrity of the whole process created by the functional separation of powers. This novel way of understanding rule of law, which respects constitutionality while repudiating strong judicial review, will surely raise new debates about the function of the courts.