Public Interest Litigation and Constitutional Theory in Comparative Perspective
| Author | David Feldman |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb01861.x |
| Date | 01 January 1992 |
| Published date | 01 January 1992 |
Public Interest Litigation and Constitutional Theory
in Comparative Perspective
David Feldman
*
The scope for citizens to use judicial processes to advance public, political ends
gives a discernible indication of social and legal attitudes to politics, the rights and
responsibilities of citizenship, and the relationship between electors, legislatures,
executives, courts and the disfranchised. This article looks at the way such relation-
ships are reflected in the rules governing constitutional and public interest litigation
by concerned citizens.
The article does not offer a comprehensive theory of public interest litigation.
It does not examine the use of the criminal law, equity or the law of tort for public
interest purposes. Nor does it look at civil law systems. All these areas have been
dealt with very thoroughly by others.’ The primary focus of this article is on the
way prevailing ideas of democracy and constitutionalism shape (and are, in turn,
themselves reshaped by) the capacity of private citizens to use the forms, procedures
and substance of public law, and particularly constitutional law, to advance public
political aims. It will be suggested that the judges, in approaching public interest
litigation, have to develop a view of the constitution and its underlying principles.
This will draw on those commonly accepted principles and beliefs which seem to
the judge to underpin the constitutional and political structure. This can be called
a constitutional ethic, and is a normative theory which establishes prescriptive
principles according to which the constitution should be developed and interpreted.
It sets the judge’s understanding of current arrangements and power relations in
the context of a normative constitutional and legal framework in which descriptive
and prescriptive elements are entwined.
The judge does not have an entirely free choice of constitutional ethic.
I
do not
argue that there is a Dworkinian duty on judges to make the ‘best’ fit between their
constitutional ethic and their description of the pre-existing constitutional structure,
but I do suggest that there is a weaker duty to adopt one of the constitutional ethics
which can be made to fit ‘acceptably’ in the light of operative techniques and
principles of legal reasoning. As ‘should’ implies ‘can,’ existing institutions and
rules may prevent the judge from adopting certain sets of values. Because of the
historical development of a state and its constitutional law and practice, it may prove
impossible at a particular moment to adopt (let us say) a capitalist, individualistic
constitutional ethic while staying within the constraints imposed by the need to make
decisions compatible with other aspects of constitutional law under an existing socialist
structure. In such circumstances, fundamental reform is needed which cannot be
provided by a judge unless the constitution allows judges a role which is normally
given only to constitutional legislatures. There may therefore be a tension between
*Reader in Law, University of Bristol.
This is an expanded version of a paper presented
to
the Fifth Law and Politics Colloquium at the University
of Bristol in May 1990.
I
am grateful
to
the participants for the discussion, and
to
Jonathan Hill for making
valuable comments on a later draft. Much of the research for the paper was carried out during a period
as a Visiting Fellow in the Australian National University Faculty
of
Law in 1989.
1
See particularly Carol Harlow and Richard Rawlings,
Pressure
Through
hw
(forthcoming. 1992);
Mauro Cappaletti,
The
Judicial Process in Cornpararive Perspecrive
(Oxford: Clarendon Press. 1989)
pp 268-308.
44
The Modern Law Review
55:
1
January 1992 0026-7961
January
19921
Public Interest Litigation and Constitutional Theory
a judge’s view of the legally available range of constitutional ethics, and other citizens’
views of the most desirable constitutional ethic. It is usually to be hoped that lawyers
will strive to make constitutional law approximate as far as possible to popular political
aspirations and understandings, and at the same time the judge’s view is likely to
influence other people’s understanding of the constitution, and
so
affect the future
development of political, as well as legal, discourse. The judicial view
of
the
applicable constitutional ethic and popular views of it constantly interact, while
offering more or less distorted reflections of each other.
Section
I
of the article distinguishes between interest group litigation and public
interest litigation, and outlines some issues which affect the constitutional and political
legitimacy of the latter. Section I1 examines
locus
stundi
rules: their relationship
with cultural factors, and their effects on public interest litigation by citizens under
different constitutions. The discussion illustrates what the status of such litigation
can reveal about social (rather than judicial) conceptions of democracy and the
relationship between individual and collective interests. Section I11 examines how
structural features of constitutions affect judges’ freedom to allow public interest
litigation, and explores ways in which four particular features of constitutions may
limit the range of constitutional ethical norms which are available to judges in public
interest disputes. Section IV suggests some implications which all this has for
constitutional theory.
I Interest Groups, Politics and the Democratic State
Interest groups sometimes represent the interests of their members; at other times,
they claim to be advancing interests which go beyond those of their immediate
membership. I will call the former kind of behaviour ‘representative activity’ and
the latter ‘surrogate activity’ (because the group acts as a substitute for people who
are unable or unwilling to represent themselves).2 In either mode, the group may
be concerned with individuals’ rights to property, freedom or welfare benefits
(material interests), or the implementation of values for society as a whole or a
section of it (ideological interests). This is not a hard and fast distinction, as it relates
to the reasons why groups are acting rather than the objects to be attained: if a group
advocates free opera for the masses, it could be because members are opera lovers
and the group is representing their material interest in having their desires satisfied
for free; it could be because members who feel no personal interest in opera are
acting as surrogates, representing the interests (which may be either ideological
or material) of poor opera lovers who can neither afford to see opera nor afford
to advance their own interests in the competition for resources; or the members
might be advancing a vision of the good society as one in which opera improves
society by helping to civilise it (an ideological interest, independent of any concern
for the material interests of poor
-
or rich
-
opera lovers).
The reason for distinguishing between types of interests and activities is that,
although they overlap to form a matrix of activities and reasons for action, the
differences are often constitutionally significant, and can affect the outcome of
litigation by groups or individuals in support of their, or other people’s, interests.
I argue that the differences between the constitutional ethics of different countries
explain the varying scope for different types of interests to be represented in different
2 This terminology is adapted from Richard
B.
Stewart, ‘The reformation
of
American administrative
law’
88
Harvurd
Law Review
1667-1813 (1975) at pp 1742-1744.
45
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