Government as Judgment.

Author:O'Donovan, Oliver
Position::Theological judgment, human rights, and political process

Understanding the theological meaning of judgment can place the role of a judiciary and the balance of powers between executive, judicial, and legislative branches of government in a helpful perspective. A primary role of government is to exercise judgment and all government branches perform this role. Law can thus appropriately be made by courts. The important task is to incorporate human rights ... (see full summary)


The democracies that emerged victorious from the Second World War tried to entrench human rights as a defense against the cruel politics of power. In so doing, however, they created a major problem of self-understanding, a cleft running deep through the heart of democratic theory. Democracy and human rights are not identical things, so it is necessary to ask whether they can coexist. It seems that the answer depends on two contingent factors: how the democratic societies conduct themselves, and what rights human beings assert. You cannot champion "democracy and human rights" without quite quickly having to decide which takes precedence between them; and since either of those terms, and not just one of them, may from time to time be used as a cloak for self-interest and tyranny, there is no universally correct answer. That is the underlying problem of coherence in contemporary Western ideology.

My interest here, however, lies not with that problem, but with one deriving from it, a constitutional problem about the judicial review of legislation, "legislation by courts" as it is often alleged to be, which in the service of human or civil rights deprives lawmaking of democratic accountability. In terms of U.S. onstitutional theory, this problem is often addressed as a shift in the traditional relation between the legislative and judicial branches of government, as readers of this journal may be aware. But I hope it may be useful for a British commentator to point out that the constitutional form which the question takes here is not the only possible form. Similar difficulties confront European societies with other constitutional traditions. The constitution of the Republic of Ireland, for example, has acquired the shape of a baggy Aran sweater, full of detailed amendments that would never belong in such a document except to countermand decisions of the Supreme Court. Even the constitution of the United Kingdom, boasting a radical centralization of authority in parliament, meets the same problem through its adherence to the European Convention on Human Rights, with its attendant Commission and Court.

It is natural to suppose that the solution lies in recovering early-modern doctrines about the separation of three powers of government. These doctrines derive ultimately from the fourteenth-century Italian thinker, Marsilius of Padua, who distinguished the Legislator, which was the people itself or its representatives, from those who implemented the laws against domestic threats, on the one hand, and against external threats, on the other. But there is a difficulty with this approach, namely that on the all-important point early-modern thinkers achieved no stable consensus to which we may appeal.

Within a fifty-year period at the turn of the eighteenth century, there emerged two ways in which political philosophers defended the separation of powers--one put forth by Locke, the other by Montesquieu. Both claimed to base their observations on the best English practice; both affirmed three distinct powers of government (though only Montesquieu used the modern names and only Locke actually used the word "separate"). Yet they are very different. In Locke the greatest point of "separation" is still between the originating legislature on the one hand and the two consequential branches on the other. These branches are not so distinct from one another, since they must, Locke thought, rest in the same hands (so saving the face of the British monarchy). But Montesquieu articulated something like the familiar three-leaved shamrock pattern, with an equal distance separating each of the branches from the other two. He also demanded that separation should be concrete, the different branches of government in the hands of different people. From these two perspectives, which provided matrices for later British and U.S. constitutional practice respectively, the causes of our current problem and its likely solutions will appear quite different. Going back to early-modern sources, then, leaves us with the problem of which sources to go back to.

Christian thinkers, moreover, have their own reasons for not being content with this approach. They have a long theological tradition, partly forgotten, in which judicial and legislative activities are related quite differently. They, at least, should ask whether the root of the problem lies not in recent neglect of early-modern theory, but in early-modern neglect of the yet earlier Christian understanding. So, at any rate, I propose to argue. What the Christian tradition maintained, and the early modern thinkers denied, was a primacy of the act of judgment. And this primacy entailed a distinctive understanding of the task of legislation, which explains more satisfactorily than early-modern theory the nature and scope of the legislator's authority over courts. First, then, I shall sketch the history of premodern Christian thought on the subject, secondly suggest how it supports a better account of the branches of government, and finally return briefly to our problem, the right and limits of judicial review of legislation.


Jesus has ascended in triumph to God's right hand; yet the subdued "authorities" of this age, St. Paul held, "persist" (Romans 13:6) in order to approve good conduct and "to execute God's wrath on the wrongdoer." According to Paul, then, the reign of Christ in heaven left civil authorities with exactly one task: that of judging between innocent and guilty. We should observe that this was an unprecedentedly lean doctrine of civil government. Judgment alone never comprised the whole of what ancient peoples, least of all the Jews, thought government was about. Paul's conception stripped government of its representative, identity-conferring functions, and said nothing about law. He conceded, as it were, the least possible function that would account for its place within God's plan.

In later centuries it was Latin-speaking Western Christendom that adhered most radically to Paul's conception. "Jurisdiction" was the term that came to define that ever-fascinating and difficult relation between church and state. Courts were the central locus of government, for church and for kingdom. Here human government differed from that of God, notably (for our purposes) in that God is a legislator as well as judge. His law provides human judges with a sufficient basis for their judgments, and the Latin Church fathers were frankly suspicious of human attempts to add to it. "The term `rights,'" Augustine says, "cannot be applied to the inequitable constitutions of men." What rulers do when they act obediently to their vocation is to apply divine law to the infinite possibilities of human wrongdoing.

In Eastern Christendom we notice a difference of emphasis. Here the way was beaten for the church by the greatest Jewish thinker of the classical world, Philo of Alexandria (c. 20 B.C.-50 A.D.). For Philo, Jewish social existence was conceived partly in contrast with, partly in correspondence to, the political experience of a Greek city-state, constituted by the work of a "legislator" (nomothetes). Lawgiving in the Hellenistic world was thought of as foundation, the creation of a polls by the creation of a distinctive corpus of law. As Lycurgus was to Sparta and Solon to Athens, so, according to Philo, was Moses to the Jewish politeia, though he was unique in that he was directly inspired by the Logos or Reason of God. Also taken over from Hellenistic commonplace about government was the conception that Moses was empsuchos nomos, a "living law." The Christian Clement, a fellow-citizen of Alexandria, followed Philo's lead gladly. Now the lawgiver was Christ, the Logos himself, whom Moses had uniquely anticipated and represented.

Yet this did not really lead Greek-speaking Christians in a different direction from the Latin-speaking West. The tendency of Hellenistic Christendom to allow a direct analogy between Christ the Logos and earthly rulers is notorious. But even when that analogy was most developed, as in Eusebius' panegyric on Constantine, there was no hint that Christ's role as lawgiver could be transferred to the earthly ruler. Law was a feature of all earthly government, but governments merely kept the law rather than made it. In the East, too, then, the subject of human lawmaking is still passed over in silence. The term nomothetes and its cognates is hardly ever applied to the emperor by theologians, though in secular writing it was common. And in 530, when Justinian acceded to the imperial throne in Byzantium, a work of exhortation addressed to him by a theologian insisted, among other things, on his being subject to law, but contained virtually no acknowledgment that his task would include making law.

That this is not at all the situation among the thinkers of the high Middle Ages is due to two influences, of whom Justinian himself, at a remove, was one. Because of his codification of civil law, Justinian came to be seen as a model for the Christian lawmaker, and the description of human government came to include lawmaking as a dimension. But lawmaking here was not understood simply as legal innovation. Justinian's influence served to dignify above all the task of codification; the term legis lator, when it appears in the twelfth century, refers primarily to the early jurists who ordered and systematized the Roman law. Medieval political thought was also influenced profoundly by the rediscovery of Aristotle's Politics and Ethics, which apply the term nomothetes not only to the legal founders of city-states, Lycurgus and Solon, but also...

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