David Dyzenhaus’s The War Against Law: What’s Wrong with Common Good Constitutionalism (hereinafter, The War Against Law) is essential reading for anyone concerned about the state of the rule of law in liberal democracies. Dyzenhaus is one of the world’s most perceptive analysts of how illiberal theories, when implemented by governments, can contribute to breakdowns in the rule of law. In The War Against Law, he argues that the consequences for the rule of law are grave when governments in liberal democracies put into action the theory of common good constitutionalism.
The United Kingdom’s 2024 Rwanda Act (since repealed), and the debates surrounding it, provide the material for the case study that grounds Dyzenhaus’s analysis. He describes the Act as “a statute that removed the judges’ authority to review the executive’s implementation of a statute on the basis of the UK’s legal commitments to international human rights law, commitments that had been firmly embedded in domestic law by Parliament in legislation.” (P. 4.) According to Dyzenhaus, arguments that proponents of common good constitutionalism advanced in favor of the legislation had the effect of “subvert[ing] the rule of law while claiming to serve its ideal.” (P. 5.)
The War Against Law is a sprawling work. At times, Dyzenhaus engages in sweeping historical, political and philosophical analyses. At other times, he undertakes line-by-line exegeses of academic, political, and legal texts. A brief book review cannot pretend to adjudicate the charges that Dyzenhaus lays against common good constitutionalism nor can it delve into the details of his case study. Instead, this review will lay out the core of Dyzenhaus’s normative case against common good constitutionalism. Dyzenhaus argues that the theory’s proponents seek to transform political orders in which “government is by law” into orders “where government is by unlimited executive power.” (p. 4.) Part I of this review will set out Dyzenhaus’s conception of the rule of law. Part II will explain why he believes that common good constitutionalism’s ideas are anathema to this conception.
I. The Rule of Law According to Dyzenhaus
Dyzenhaus draws on Albert Venn Dicey’s Introduction to the Study of the Law of the Constitution (hereinafter Law of the Constitution) to develop a particular conception of the rule of law and to articulate a specific understanding of the role that courts play in states that abide by the rule of law.
Dyzenhaus summarizes Dicey’s understanding of two foundational principles of the UK constitution: parliamentary sovereignty and the rule of law. According to Dicey, parliamentary sovereignty means that the UK Parliament has the “right to make or unmake any law whatever; and further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament.” (P. 58 (quoting Dicey, Law of the Constitution 3–4 (1915)). Moreover, Dicey identified aspects of the rule of law in the UK, two of which are significant for present purposes. The first is that no individual can be punished or “made to suffer in body or goods except for a distinct breach of law, established in the ordinary legal manner before the ordinary Courts of the land.” (P. 65 (quoting Dicey, Law of the Constitution 110 (1915)). The second aspect underscores the role played by UK courts in developing constitutional principles that are essential to maintaining the rule of law. Dicey described this aspect of the rule of law in the following terms: “We may say that the Constitution is pervaded by the rule of law on the ground that the general principles of the Constitution … are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts.” Id.
After laying out the contents of the rule of law and parliamentary sovereignty, Dyzenhaus delineates the relationship between these principles in Dicey’s text. In Dyzenhaus’s reading, Dicey argued that the rule of law structures Parliament’s role as “the ultimate source of law” (P. 64) in the UK constitutional order. To support this interpretation, Dyzenhaus cites to passages in which Dicey claimed that rule of law principles influence how Parliament exercises its law-making powers. One example comes at the end of a discussion of the relationship between the principles of Parliamentary sovereignty and the rule of law. Dicey concluded “that Parliamentary sovereignty has favoured the rule of law, and that the supremacy of the law of the land both calls forth the exertion of Parliamentary sovereignty, and leads to its being exercised in a spirit of legality.” (P. 179 (quoting Dicey, Law of the Constitution 273 (1915)).
Based on his interpretation of Dicey, Dyzenhaus argues that the rule of law includes certain principles that mandate respect for rights, including an individual’s right to demand judicial oversight of executive branch decision-making. Dyzenhaus argues that since the rule of law requires that an official only punish an individual or deprive them of a legal interest for “a distinct breach of law” (P. 65), courts must be able to assess whether, in a given instance, an official acted “on the basis of an authority grounded in law.” (P. 168.) In Dyzenhaus’s view, the individual’s right to demand this kind of judicial assessment is “presupposed by commitments intrinsic to the legal order, a right without which one could not claim that there was either legal order or the rule of law.” (P. 168.) Dyzenhaus further notes that for Dicey, the courts’ interpretive role in a rule of law state is institutionally unique. Because, as Dicey notes, courts interpret laws in light of general principles, they adopt “a mode which would not commend itself to a body of officials, or to the Houses of Parliament, if the Houses were called upon to interpret their own enactments.” (P. 179 (quoting Dicey, Law of the Constitution 273 (1915)). In Dyzenhaus’s account, the relevant principles include “both the principles of the rule of law that will be found in any state committed to governing in accordance with law and the particular principles that the state has committed to over time.” (P. 183.) Dyzenhaus claims that in modern liberal states, the latter kind of principles include protections for fundamental human rights. (P. 66.)
II. Common Good Constitutionalism and the Rule of Law
Dyzenhaus argues that proponents of common good constitutionalism subvert the above conception of the rule of law when they seek to remove from courts the power to assess whether executive action is authorized by law and when those proponents support exercises of executive power that “disapplied principled commitments embedded in the law.” (P. 94.) Dyzenhaus supports his argument with references to texts that articulate common good constitutionalism’s central ideas.
Some passages quoted by Dyzenhaus aver that courts have a closely circumscribed role in the UK’s constitutional order. For example, the website of the Judicial Power Project (which Dyzenhaus associates with proponents of common good constitutionalism) states: “The British constitutional tradition has […] long centred on a disciplined account of the proper scope of judicial authority, which has been rightly subject to the legislature’s final authority to choose the content of the law and not to undermine the executive’s constitutional responsibility to choose how best to act within the scope of its lawful powers.” ( P. 230 (quoting About the Judicial Power Project online: Judicial Power Project)). In Dyzenhaus’s view, common good constitutionalism’s exponents expressed this vision of a circumscribed judicial role when they argued in favor of provisions in the Rwanda Act that removed from courts the power to review executive action.
Dyzenhaus quotes other texts to substantiate his claim that prominent common good constitutionalists advocate for a “legally unlimited executive.” (P. 243.) For instance, he cites to a passage from “Myths of Common Good Constitutionalism” (an article co-written by Conor Casey and Adrian Vermeule), where the authors express a preference for “an executive-led separation of powers … [because] hierarchical bureaucracies with very wide regulatory reach, when commanded by an energetic and motivated political executive, are better suited [when compared with legislatures and courts] to promoting the integration of substantive and moral precepts into legal ordinances.” (P. 204 (quoting Connor Casey & Adrian Vermeule, Myths of Common Good Constitutionalism, 45 Harv. J.L. & Pub Pol’y 103 at 134 (2022)). Dyzenhaus argues that an executive vested with this kind of expansive power “stands outside the legal order with the legitimacy to act at will against the law.” (P. 244.) Here, Dyzenhaus includes in the scope of the term “law” protections for human rights that, as we have seen, are among the legal principles that he believes to be fundamental in modern liberal democracies. Dyzenhaus further argues that some of the “substantive and moral precepts” referred to by common good constitutionalists are inconsistent with these fundamental legal principles. As a consequence, policy proposals that aim to give effect to those precepts (including proposals relating to the Rwanda Act) are contrary to Dyzenhaus’s conception of the rule of law and amount, in his words, to “taking a wrecking ball … to the very tradition of constitutional government.” (P. 187.)
The War Against Law is an ambitious treatise on the rule of law. It would be folly to attempt to condense its far-ranging arguments and observations into the space of a very brief review, and so I have done my best to capture only the essential elements of the book’s theoretical argument. Yet Dyzenhaus has done more than write a work of legal theory. He has sounded a warning that rings perhaps most clearly when he describes the book as “a case study of one country’s part in the drift to authoritarian rule in liberal democracies.” (P. 5.) I leave it to readers to delve into this expansive work and decide for themselves whether the warning needs to be heeded.
