Constitutional Law from a Pragmatic Perspective

David Beatty, a Canadian law professor, entitles his audacious study of constitutional law The Ultimate Rule of Law, and this raises an immediate question: What does 'rule of law' mean? Traditionally it has meant two distinct, though related, things. The first, which comes down to us from Aristotle's discussion of corrective justice in the Nicomachean Ethics, is that legal cases are to be decided according to the legal merits of the case rather than the personal merits or deserts of the litigants; this is law's impersonality. The second sense that the term bears, which became important in the struggle of the English and later the Americans against royal tyranny, is that the officials in a society, the 'rulers,' are subject to law, rather than having unfettered discretionary power. The relation between the two senses lies in the fact that unless the law is reasonably clear, so that it really guides judges in applying it and provides a basis for monitoring judicial behaviour for conformity to law, judges will perforce be deciding cases on something other than strictly legal grounds, and, insofar as they enforce law against other officials, they will be the nation's rulers rather than the law's servants. The threat that unclear law poses to the rule of law is especially acute in the case of constitutional adjudication, in which the highest judges exercise practically final authority without much guidance as to how they are to exercise it. Constitutions tend – partly of necessity, because they are intended to last – to contain many vague terms, terms that concern, or that are susceptible (because of their vagueness) to being made to concern, highly political and emotional subjects. The highest judges charged with interpreting and applying the constitution, unconstrained either by a clear text or by a higher tribunal, become the nation's supreme lawgivers.

Beatty is aware of this problem, but he believes he has solved it and so brought constitutional law into conformity with the precepts of the rule of law. His solution will startle most students of constitutional law. It is an extreme version of legal pragmatism. Judges dealing with constitutional issues are not to attend to the constitutional text, or to precedents ('in constitutional cases, precedents are at best superfluous' [90]) or analogies; they are not to think of their task as interpretive at all; they are to attend exclusively to the facts of the case. 'When judges are prepared to look at all the facts of a case honestly and impartially, they have no difficulty seeing and doing what is right' (112)¹ – and Beatty means legally right. This is pragmatism with a vengeance, though Beatty's preferred word is 'proportionality.' ('Proportionality makes pragmatism the best it can possibly be' [187].) The idea is that, to pass constitutional muster, a law must represent a proportional, rather than an excessive, response to some perceived social need. By carefully studying the facts of the case, judges will be able, Beatty believes, to determine proportionality. And it will be an objective determination that they make, unaffected by the vagaries of legal doctrine, constitutional text, precedent, theory, ideology, or the judge's emotions or temperament. 'When judges remain completely detached from the substantive values that are at stake in a case, and take seriously all the evidence that shows what a law really means for those it affects most, the cases show that the right answer is usually pretty clear' (98).

This is an amazing claim, so let us see how Beatty defends it. He begins with a highly critical discussion of efforts to create constitutional theories that will generate substantive results. (His own theory, in contrast, implies no specific case outcomes, though he believes, as we will see, that judges guided solely by facts will converge more or less automatically on outcomes of which he...