22 General Principles of Constitutional and Administrative Law

Lords unanimously held that the patient should be allowed to die.

Their basis for so doing seems to derive from no more than their intui-

tions as to a solution that many people would find morally acceptable.

Similarly in A (Re), children: conjoined twins: surgical separation

(2000), the Court of Appeal chose what it regarded as the lesser of two

evils in allowing the weaker of the twins to die in order to save the

stronger. Brooke LJ applying a doctrine of necessity against the views

of many moralists recognised that there was no combinable solution

(see pp. 1042, 1051.)

The other approach is to recognise and encourage disagreement

between competing views as a sign of a healthy society and to con-

centrate on methods by which disagreements can be resolved on a

temporary and provisional basis without precluding change. The law

can assist the process of managing disagreement by identifying incom-

mensurables and trying to combine them, ensuring that value judge-

ments are exposed and that decision makers take into account all

relevant interests. In this context lawyers often use metaphors such as

‘balancing’ interests to give an illusion of objectivity, for example,

between the claims of freedom of expression of the media and personal

privacy. Such metaphors are sometimes useful, for example where the

competing interests can be expressed as money. In the case of incom-

mensurables they are misleading because there is no common measure

and no way of avoiding the hard choice between competing interests.

Fairness is not enough in itself. For example we would probably

object to what Dworkin calls a ‘checkerboard statute’ (1986, p. 179)

under which abortion is permitted on odd days but not on even days

with a view to compromising between pro- and anti-abortionists hold-

ing sincere but incommensurable views. Different judges may have

irreconcilable points of view but we accept the decision of the judge or

of a majority, not because they are necessarily right but in the interests

of keeping the peace. We could equally fairly decide such disputes by

tossing a coin but we prefer some reasoned justification and we require

our decision makers to be personally accountable.

The clash between the incommensurable values of individualism and

communitarianism comes into the open in the context of the Human

Rights Act 1998 (see Chapter 18). Few of the rights protected under

that Act are absolute. In most cases the court must decide whether they

are overridden by various social concerns, which among other things

must be justified as ‘necessary in a democratic society’. This requires

firstly value judgements to be made about what democracy means. For

example do we consider like Rousseau that democracy requires all to be

roughly equal in terms of economic wealth so that we participate on a

23

Constitutional Values

level playing field? Secondly, the Act requires the decision maker to

make a choice between the right in question and the social goal. In rela-

tion to this choice the point at which one must give way to the other

cannot be justified by reason alone (at least short of the extreme case

where protection of the right would destroy the society altogether). The

decision maker may get some help from widespread social consensus or

from the principle of ‘proportionality’, which requires that protected

interests be interfered with no more than is necessary to achieve the

social goal in question but in the end the choice is a subjective one.

This leads to another problem. The techniques we use to choose

between incommensurables may themselves be controversial and in-

commensurable. For example should the courts decide whether there is

a right to abortion, which is the solution chosen in the USA, or should

it be left to the democratic process? It is arguable that incommensur-

able issues should be the province of elected bodies since the irrational

element that determines both the starting point and the accommoda-

tion between conflicting interests requires the support of public

opinion. Elected bodies have the merit that the decision is the outcome

of deliberation by the interests concerned being a voluntary rather than

an imposed outcome. The contrary argument is that there are certain

basic values such as freedom of expression that are so important that

they should be put beyond the reach of volatile public sentiment by

being guarded by expert judges. This reveals a contempt for democracy.

Furthermore, the democratic process may itself raise incommensur-

ables. For example some voting systems, notably the ‘winner takes

all’ system used in elections to the UK Parliament, favour strong

accountable government. Under this system the government is rarely

supported by a majority of the popular vote and minority parties tend

to be under-represented (see Chapter 11). By contrast, systems of

proportional representation such as apply in the case of elections to

the EU Parliament, the Scottish Parliament and the Welsh Assembly

favour fairness in the form of an outcome which reflects the spread of

votes cast. The price for this may be uncertain and weak government,

although some may think this is a virtue.

A democratic constitution attempts to provide a non-violent

battleground between incommensurables. Some constitutions, notably

that of the USA, are carefully crafted so as to prevent a particular

point of view from permanently triumphing. This is the driving force

of the civic republican tradition (chapter 1). There may be an illogical

and unstable compromise with a different compromise being struck

at different times. Tribe (1988, pp. 1–7) sees the US Constitution, as

‘a historically discontinuous composition; it is the product, over time,

24 General Principles of Constitutional and Administrative Law

of a series of not altogether coherent compromises; it mirrors no single

vision or philosophy but reflects instead a set of sometimes reinforcing

and sometimes conflicting ideals and values’. The same can be said of

the UK constitution which has been formed out of ‘collaboration,

negotiation and consent’ although it contains no formal mechanism

which prevents any one group from permanently holding power (Van

Caenegen, 1995, p. 173).

In the following sections I shall outline four influential models which

I suggest embody the fundamental incommensurables which dominate

constitutional law. These are firstly the individualistic model proposed

by Thomas Hobbes; secondly the liberal, quasi-democratic model of

John Locke, which represents a notion of limited and accountable gov-

ernment; thirdly the democratic communitarian model of Jean Jacques

Rousseau, which takes the idea of the state to an extreme by privileg-

ing the collective over the individual; and fourthly the conventionalist

pragmatic version of David Hume. It is important to remember,

however, that these thinkers responded both to the political agenda of

their times and to their personal circumstances.

2.3 Hobbes: Constrained Individualism

Thomas Hobbes (1588–1679) explained the nature of the modern state

from an individualistic perspective. Hobbes is pivotal to modern demo-

cratic thought in that he broke away from the mythology grounded in

Plato that good government is a matter of expert knowledge in the

hands of an elite. He recognised that human affairs are based on

irreducible disagreement and therefore that a constitution has solid

foundations only in the minimum on which it is possible to agree.

According to Hobbes this is an independent mechanism to resolve

disputes. Although one of the earliest of the modern political theo-

rists, Hobbes’s insights may well provide the most universally valid

approach to the foundations of the modern state exposing as they do

the frailty of human values and the contradiction between the indi-

vidualist and the social aspects of human nature.

Hobbes wrote his most influential work, Leviathan (1651) during a

time of widespread political unrest throughout Europe when England

was in the grip of civil war between the King and Parliament. He was a

materialist sceptic who doubted whether it was possible to discover

objective truth about the world. He thought that moral and political

values were no more than subjective human attitudes and that the

natural state of humanity is mutual conflict – a war of ‘all against

25

Constitutional Values

all’ – so that, without government, we would destroy each other.

He regarded individuals, on the analogy of the particles envisaged by

the physics of his day, as moving indefinitely and colliding with each

other unless restrained by a superior force.

Hobbes did not believe that humans are inherently wicked but

thought that our different ideas of good inevitably set us in conflict

with each other unless we accepted the need for a supreme authority.

According to Hobbes we are motivated by three impulses: competi-

tion, fear and the desire for power over others. We constantly strive to

fulfil new desires in a never-ending and ultimately doomed search for

what Hobbes called ‘felicity’. Hobbes therefore argued that the

purpose of government is to keep order and that any government is

better than none. The one thing we could all agree upon would be that

we want to survive so that we would each submit to a ruler as the lesser

of evils.

Hobbes’s most famous passage encapsulates the beauty of his

language:

Hereby it is manifest, that during the time men live without a

common Power to keep them all in awe, they are in that condition

which is called Warre; and such a warre, as is of every man against

every man . . . In such condition, there is no place for Industry:

because the fruit thereof is uncertain; and consequently no Culture

of the Earth, no Navigation, nor use of the commodities that may

be imported by Sea; no commodious Building; no Instruments of

moving and removing such things as require much force; no know-

ledge of the face of the Earth; no account of Time; no Arts; no

Letters; no Society; and which is worst of all, continuall feare, and

danger of violent death; And the life of man, solitary, poore, nasty,

brutish and short (Hobbes, 1973, p. 65).

Hobbes’s government has three crucial features. Firstly the

sovereign – ‘Leviathan’ – must have unlimited powers to issue com-

mands These are automatically binding because of the subject’s prior

agreement. Otherwise the very conflicts that the sovereign was created

to resolve would inevitably arise. Hobbes’s sovereign is not itself a

party to the social contract which is hypothetically assumed to be

made by the people with each other. The people are then assumed

collectively to have made a covenant, a one-sided promise, to obey

the sovereign, in effect making a free gift of power to the sovereign. The

sovereign, who has promised nothing, cannot be subject to legal

controls. Indeed Hobbes thought that by definition the sovereign can