2 - Constituting the legislature
Published online by Cambridge University Press: 10 December 2009
Summary
Constitutional positivism
It is conventional to speak of the legislature as constituted by rules that speak to the number of members, their regional distribution, the way in which bills become statutes, and so on. But I mean by the constitution of the legislature the fundamental legal values that constitute its authority, whether or not there is a written constitution. I will start with the dramatic example of an alleged state of emergency. We saw in chapter 1 that Carl Schmitt argued that legal norms cannot apply to exceptional situations. He thus claimed that in a state of exception or emergency the writ of the rule of law does not run. I will show that contrary to Schmitt there is a genuine choice in any real or alleged emergency whether to respond to the emergency through the rule of law. I will also argue that where judges are involved in making that choice clear to a government that controls the legislature, they should articulate fully the basis for their decision.
It is a mistake then for judges to adopt the stance of judicial minimalism we saw Cass Sunstein outline in chapter 1. That stance requires judges to say as little as possible about the justification for the result they reach and it also asks them to intrude as little as possible into the work of the legislature by confining the scope of what they order. They should, that is, prescribe as little as possible to the legislature.
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- The Constitution of LawLegality in a Time of Emergency, pp. 66 - 120Publisher: Cambridge University PressPrint publication year: 2006
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