Public Interest Litigation and Constitutional Theory in Comparative Perspective

Abstract

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 relationships 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