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What Legislation Is (Not): Comparing Legislation And Legal Rulings

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Abstract

We may sharpen our understanding of legislation by juxtaposing it with other types of legal act. John Gardner attempts to differentiate legislation from legal rulings – an unusual juxtaposition in itself – and his claims about the difference are surprising. Legal rulings are legally binding pronouncements issued by judges – eg ‘A owes B $50 in compensation’. The article queries the analysis advanced by Gardner and endorsed by other accounts. It instead offers an alternative distinction, and in so doing seeks to clarify what legislation is by what it is not.

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Notes

  1. John Gardner, ‘Some Types of Law’ in John Gardner, Law as a Leap of Faith: Essays on Law in General (OUP 2012) 54–88 at 54.

  2. For instance Gardner argues: ‘Unlike legislated law, customary law is not intentionally made’ (ibid 70). It is however disputed whether this properly characterises all custom-formation. International law, where custom remains a significant source of law, offers a particular set of challenges. Customary international law is said to depend on both practice and opinio juris, the latter standardly being understood as a ‘belief’ that the practice is legally required. Beliefs are generally thought to be involuntary, leading naturally to Gardner’s suggestion that custom is not deliberately made. But another view is that the relevant attitude comprising opinio juris should at least sometimes be understood as acceptance (which unlike beliefs may be voluntary). This is itself suggested by the nuanced and sophisticated ways in which states engage in, acknowledge and respond to practice – which, if not discounted, put pressure on the claim that custom-formation is (always) non-deliberate.

  3. ibid 74.

  4. ibid.

  5. See Joseph Raz, ‘The Institutional Nature of Law’ in his The Authority of Law: Essays on Law and Morality (2nd edn, OUP 2009) 103–121 at 110–111: ‘Applicative determinations are determinations of the rights or duties of individuals in concrete situations and are entirely different from the power … to issue orders instructing individuals to pay damages or fines or be gaoled, etc., because they disregarded their duties or the rights of others. Applicative determinations are most closely related to declaratory judgments’. Also Joseph Raz, Practical Reason and Norms (rev’d edn, OUP 1999) 136–137.

  6. Joseph Raz favours the view that applicative determinations, specifically, are essential to legal systems (which relates to his argument that norm-applying institutions are essential). See eg Raz, Practical Reason and Norms, 132–137.

  7. Examples of applicative determinations can for example be found in English civil procedure where the courts ‘may make binding declarations’; see Adrian Zuckerman (ed), Halsbury’s Laws of England: Civil Procedure, Volume 11 (5th edn, LexisNexis 2015) para 1227. ‘A declaratory judgment is complete in itself, since the relief is the declaration’; see ibid para 1268 (footnote omitted).

  8. eg Article 95(1) of the Statute of the International Court of Justice; Article 87 of the Rules of Procedure of the EU Court of Justice (25 September 2012).

  9. eg Alley v Gillespie [2018] HCA 11, paras 68–69.

  10. eg Citizens United v Federal Election Commission, 558 US 310 (2010).

  11. Also known as the High Court of Parliament. See eg Gwilym Dodd, Justice and Grace: Private Petitioning and the English Parliament in the Late Middle Ages (OUP 2007) 194, discussing how ‘private petitions had become fully integrated into the basic fabric of parliamentary life’ by the fifteenth century. See also David Lewis Jones, ‘The Judicial Role of the House of Lords before 1870’ in Louis Blom-Cooper, Brice Dickson and Gavin Drewry (eds), The Judicial House of Lords 1876–2009 (OUP 2009) 3–12 at 3: ‘A significant part of Parliament’s role, from the reign of Edward I, lay in providing remedies for petitioners either reluctant to pursue their causes in other courts or, to a lesser extent, wishing to appeal from a lower court’.

  12. Gordon S Wood, ‘Comment’, in Amy Gutmann (ed), A Matter of Interpretation: Federal Courts and the Law (Princeton University Press 1997) 49–63 at 60 – and also pointing out that the Massachusetts legislature is still called the General Court. All the same, the picture should not be oversimplified. For example, Dodd, who focuses on the late medieval English parliament, is cautious about how he characterises private petitions to that parliament because frequently they seek not the settlement of a dispute, but rather ask ‘for a favour or for a reward’ and may thus be understood as requests for ‘largesse or patronage’; see Dodd, Justice and Grace, 323.

  13. HLA Hart, The Concept of Law (3rd edn, OUP 2012) 21.

  14. Stephen Smith, ‘Why Courts Make Orders (And What This Tells us About Damages)’ (2011) 64 Current Legal Problems 51–87 at 52.

  15. Sandy Steel, ‘Remedies, Analysed’ (2021) 41 Oxford Journal of Legal Studies 539–564 at 546.

  16. ibid 540.

  17. eg Stephen A Smith, Rights, Wrongs, and Injustices: The Structure of Remedial Law (OUP 2019) 1–29, explaining the focus on private law rulings and specifically remedial rulings; Steel, ‘Remedies, Analysed’, 546–551.

  18. Timothy Endicott, ‘The Generality of Law’ in Luis Duarte d’Almeida, James Edwards and Andrea Dolcetti (eds), Reading HLA Hart’s The Concept of Law (Hart 2013) 15–36 at 16–28.

  19. ibid 25 (original emphasis).

  20. ibid 24–25.

  21. Gardner, ‘Some Types of Law’, 76.

  22. John Gardner, ‘Legal Positivism: 5½ Myths’ in Gardner, Law as a Leap of Faith, 19–53 at 21.

  23. ibid 27 (original emphasis).

  24. ibid 27–28 (original emphases).

  25. John Gardner, ‘The Legality of Law’ (2004) 17 Ratio Juris 168–181 at 169. The article is reprinted in Gardner, Law as a Leap of Faith, 177–194.

  26. Gardner, ‘Some Types of Law’, 76.

  27. Rudolf Carnap, Meaning and Necessity: A Study in Semantics and Modal Logic (2nd edn, University of Chicago Press 1956) 7.

  28. Gardner, ‘Some Types of Law’, 76.

  29. eg Hans Kelsen, General Theory of Law and State (Anders Wedberg tr, Harvard University Press 1945) 38: ‘there is no doubt that law does not consist of general norms only. Law includes individual norms, i.e. norms which determine the behavior of one individual in one non-recurring situation and which therefore are valid only for one particular case and may be obeyed or applied only once. Such norms are “law” because they are parts of the legal order as a whole in exactly the same sense as … general norms … Examples of such particular norms are the decisions of courts as far as their binding force is limited to the particular case at hand … there is no reason why only general norms should be considered law’.

  30. Gardner, ‘The Legality of Law’, 169.

  31. ibid.

  32. ibid.

  33. ibid.

  34. ibid 171.

  35. ibid.

  36. Raz, Practical Reason and Norms, 78.

  37. See Hans Kelsen, Pure Theory of Law, Translation from the Second (Revised and Enlarged) German Edition by Max Knight (University of California Press 1967) 232–233 criticising how the ‘so-called sources of law’ as a ‘figure of speech’ is often used to refer to ‘only the general norms of national law. But the individual norms are also “law,” just as much parts of the legal order as the general norms on which their creation is based … the legal order is a system of general and individual norms’.

  38. Other writers share this resistance. See eg ibid; Lon L Fuller, The Morality of Law (rev’d edn, Yale University Press 1969) 49, explaining that we should ‘in no way [think] that every governmental act possessing “the force of law” – such as a judicial decree directed against a particular defendant – must itself take the form of laying down a general rule’.

  39. Kelsen, Pure Theory of Law (2nd edn, Max Knight tr) 238–239.

  40. ibid 245.

  41. Lars Vinx, Hans Kelsen’s Pure Theory of Law: Legality and Legitimacy (OUP 2007) 152 (footnote omitted).

  42. Hans Kelsen, Introduction to the Problems of Legal Theory: A Translation of the First Edition of the Reine Rechtslehre or Pure Theory of Law, translated by Bonnie Litschewski Paulson and Stanley L Paulson (OUP 1992) 68 (emphasis added), and stating that this ‘is the continuation of the process of creating law – out of the general, the individual’ (ibid). Also eg Kelsen, Pure Theory of Law (2nd edn, Max Knight tr) 236ff.

  43. Vinx, Hans Kelsen’s Pure Theory of Law, 152.

  44. In issuing rulings involving particularistic judgment, this is also to be welcomed where it is soundly exercised. See eg Frederick Schauer, ‘The Generality of Law’ (2004) 107 West Virginia Law Review 217–234 at 228: ‘We can and do praise … judges when they … reach the right decision in this particular case’, just as we praise doctors who ‘find the right diagnosis and treatment for this patient’ (original emphasis).

  45. Gardner, ‘Some Types of Law’, 76: ‘unlike legislation, the ruling by itself does not make new law’ (emphasis added).

  46. eg David Feldman, ‘Legislation Which Bears No Law’ (2016) 37 Statute Law Review 212–224; Joseph Raz, ‘The Inner Logic of the Law’ in Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (revised edn, OUP 1995) 238–253 at 246: ‘parliamentary legislation … is a source of law, but not every Act of Parliament changes the law. Some Acts are consolidation Acts, merely re-enacting in one statute provisions previously found in several’.

  47. Gardner, ‘Legal Positivism: 5½ Myths’, 27.

  48. Gardner, ‘The Legality of Law’, 169.

  49. Georg Henrik von Wright, Norm and Action: A Logical Enquiry (Routledge & Kegan Paul 1963) 71 (original emphasis omitted).

  50. ibid 77.

  51. ibid 79, also stipulating a further distinction between rules that are conjunctively or disjunctively general with regard to occasion

  52. Raz, Practical Reason and Norms, 49.

  53. Von Wright, Norm and Action, 82 (original emphasis).

  54. ibid 83 (footnote omitted).

  55. John Austin, The Province of Jurisprudence Determined (1832) (Wilfrid E Rumble (ed) CUP 1995) Lecture I, 25 (original emphases).

  56. ibid 28.

  57. ibid 27 (original emphasis).

  58. ibid 29 (original emphasis).

  59. ibid 28 (original emphasis).

  60. Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (OUP 1991) 8. Also ibid 18, distinguishing a rule not to walk on the lawn from a particularised order: ‘we would not describe as a “rule” a particular instruction (rather than a reminder of a pre-existing rule) from a parent to a child not to walk on the lawn at this time’.

  61. Raz, Practical Reason and Norms, 73.

  62. ibid 52, distinguishing between ‘personal rules, social rules and institutionalized rules’.

  63. ibid 72 and explaining: ‘Having adopted the rule, what I have to decide is whether to act on it in this particular case. What I am not doing is assessing the merits of the case taking all the relevant facts into consideration. I am not doing this because I have decided on a rule, that is, I have accepted an exclusionary reason, to guide my behaviour in such cases’.

  64. eg Konatsu Nishigai, ‘Two Types of Formalism of the Rule of Law’ (2022) 42 Oxford Journal of Legal Studies 495–520 at 503: ‘The larger the class of persons to which a law applies, the more general the law is in this respect’.

  65. Article II, Section 3, Clause 1 of the US Constitution: ‘He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient’.

  66. Schauer, ‘The Generality of Law’, 229.

  67. Von Wright, Norm and Action, 79–80 (original emphasis).

  68. Gardner, ‘Some Types of Law’, 76.

  69. 2 BvF 2/90, 2 BvF 4/92, 2 BvF 5/92 (28 May 1993).

  70. ibid, ‘Grounds’, A1.

  71. To illustrate, on counselling the Court orders under subsection (3): ‘If necessary, medical, psychological, or legal experts or other persons shall be included in counseling. In every instance, it should be ascertained whether it is advisable, with the consent of the pregnant woman, to inform third parties, in particular the father of the unborn and the immediate relatives of both parents of the unborn’. Another example is subsection (6): ‘The counselor shall protocol, in a way which does not permit tracing of the identity of the woman counseled, her age, marital status, and nationality, the number of times she has been pregnant, how many children she has, and how many previous pregnancy terminations she has undergone. Furthermore, the counselor shall record the essential grounds stated for the pregnancy termination, the duration of the counseling session, and, if applicable, the additional persons present. The protocol must also show what information was conveyed and what assistance was offered to the woman’.

  72. 344 F Supp 373 (MD Ala 1972).

  73. ibid 378.

  74. ibid 379–386 (Appendix A).

  75. ibid (Appendix B).

  76. Pennsylvania Association for Retarded Children v Commonwealth of Pennsylvania, 334 F Supp 1257, 1258 (ED Pa 1971).

  77. ibid 1266–1267.

  78. See eg the US Supreme Court’s discussion of district court orders (and associated expert guidance on suitable desegregation plans) in Swann v Charlotte-Mecklenburg Board of Education, 402 US 1 (1971).

  79. Section III.A above.

  80. Seminal work includes eg Abram Chayes, ‘The Role of the Judge in Public Law Litigation’ (1976) 89 Harvard Law Review 1281–1316 at 1304 describing how such public law litigation ‘becomes an explicitly political forum and the court a visible arm of the political process’. Also ibid 1297 which suggests: ‘if, as is often the case, the decree sets up an affirmative regime … for the indefinite future and having binding force for persons within its ambit, then it is not very much of a stretch to see it as, pro tanto, a legislative act’.

  81. eg Ross Sandler and David Schoenbrod, Democracy by Decree: What Happens When Courts Run Government (Yale University Press 2003).

  82. Gardner, ‘Some Types of Law’, 56.

  83. ibid 76.

  84. Neil Duxbury, Elements of Legislation (CUP 2013) 13.

  85. A given legal system may of course contingently impose its own content-based constraints (eg choosing to prohibit bills of attainder).

  86. Kelsen, General Theory of Law and State, 131.

  87. eg David R Miers and Alan C Page, Legislation (2nd edn, Sweet & Maxwell 1990) 2; Paul Dresch, ‘Legalism, Anthropology, and History: a View from Part of Anthropology’ in Paul Dresch and Hannah Skoda (eds), Legalism: Anthropology and History (OUP 2012) 1–37 at 25 referring to Parliament’s enacting ‘one-off laws’. See also the literature on various periods of English legal history – eg David Dean, Law-Making and Society in Late Elizabethan England: The parliament of England, 1584–1601 (CUP 1996).

  88. Richard Kelly, ‘Private Bills in Parliament: House of Commons Background Paper’ SN/PC/06508 (7 January 2014) 3. The paper goes on to note: ‘In the 19th century there were far more private bills than public bills, whilst now the opposite is true’ (ibid).

  89. ibid: ‘The procedure for passing private bills through Parliament is similar to that for public bills … The key difference is that private bills are promoted by people outside Parliament … Also, opponents can petition against a private bill and appear before a committee appointed to consider the private bill’.

  90. eg the UK Cabinet Manual (1st edn, October 2011) para 1.16: ‘An Order in Council made under the Royal Prerogative is regarded as a form of primary legislation. Examples of this are Orders for the Prorogation of Parliament’. Prerogative Orders in Council are also defined as primary legislation under s 21(1) of the UK Human Rights Act 1998. A recent example is the Prerogative Order issued by the Queen in Council on 13 April 2022: ‘It is this day ordered by Her Majesty in Council that the Parliament be prorogued on a day no earlier than Thursday, the 28th day of April and no later than Wednesday, the 4th day of May to Tuesday, the 10th day of May 2022’.

  91. US Senate, ‘Types of Legislation’: ‘A private bill provides benefits to specified individuals (including corporate bodies). Individuals sometimes request relief through private legislation when administrative or legal remedies are exhausted’ <https://www.senate.gov/legislative/common/briefing/leg_laws_acts.htm> (accessed 11 April 2023).

  92. Private Law 115-1 (29 January 2018), 115th Congress.

  93. Private Law 108-5 (3 December 2004), 108th Congress.

  94. eg Private Law 106-6 (10 October 2000), 106th Congress; Private Law 106-17 (22 November 2000), 106th Congress.

  95. Public Law 109-3 (21 March 2005), 109th Congress.

  96. For data on contemporary UK secondary legislation see eg Vyara Apostolova, ‘Acts and Statutory Instruments: the volume of UK legislation 1950 to 2016’ (21 April 2017) House of Commons Library, Briefing Paper CBP 7438. Nor are such practices of adopting secondary legislation a new development – eg Cecil T Carr, Delegated Legislation: Three Lectures (CUP 1921) 1.

  97. Duxbury, Elements of Legislation, 13 (emphases added).

  98. eg US Constitution, Article 1, Section 9 (banning federal bills of attainder) and Section 10 (banning state bills of attainder).

  99. This also encompasses legislation that is not aptly characterised in terms of (non-)generality.

  100. Gardner, ‘Some Types of Law’, 54.

  101. Smith, Rights, Wrongs, and Injustices, 16.

  102. Brian Leiter, ‘Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature’ (2015) 55 Hastings Law Journal 1601–1616 at 1601. Leiter’s characterisation of the Supreme Court as a super-legislature trades on Kelsen’s view that a court practising constitutional review acts as a negative legislator – eg Hans Kelsen, ‘Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution’ (1942) 4 Journal of Politics 183–200 at 187.

  103. Duxbury, Elements of Legislation, 12.

  104. Gardner, ‘Some Types of Law’, 54.

  105. Section III above.

  106. As noted in eg House of Commons Information Office, ‘Private Members’ Bills Procedure’, Factsheet L2, Legislation Series (June 2010).

  107. Raz, ‘The Inner Logic of the Law’, 242.

  108. ibid 243. The rule may allow for ministerial judgment as to which measure of inflation is used.

  109. Section V below.

  110. There is some discussion of these issues in the literature. See eg John Henry Merryman and Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America (3rd edn, Stanford University Press 2007) 25: ‘Another complicating factor is the inclusion of the initiative and the referendum in the constitutions of some civil law countries; this necessarily involves the transfer of some lawmaking power from the legislature to the people, and further weakens the position of the legislature as the sole source of law’. Also Richard Ekins, The Nature of Legislative Intent (OUP 2012) 124: ‘An institution confined to endorsing or rejecting the content of proposals put forward by another body, as the head of state or perhaps one house of a bicameral parliament might do, would have a limited legislative function but would not itself be a legislature’.

  111. The action must be duly brought by a recognised means. For instance in its guidance to claimants the European Court of Human Rights explains: ‘If your application is incomplete there is a risk that the Court will not examine it, so it is essential that you meticulously fill in every part of the application form. If a single part of the form has not been properly filled in, or information is missing or you have failed to include copies of the requisite documents, the Court may refuse to register your application without examining it’ <https://www.echr.coe.int/Documents/Your_Application_ENG.pdf> (accessed 11 April 2023).

  112. The point is unaffected by the fact that courts undoubtedly have a role in shaping their rules concerning the jurisdiction and admissibility of claims.

  113. Rules of the Supreme Court of the United States (adopted 27 September 2017; effective 13 November 2017). Rule 10 provides: ‘A petition for a writ of certiorari will be granted only for compelling reasons’.

  114. eg Rule 16 on ‘considering’ the documents that have been filed.

  115. It is for example suggested that non liquet declarations were available under Roman law, and questions continue to arise also in international law regarding the powers of certain international courts such as the International Court of Justice.

  116. Regarding the Westminster Parliament eg Dodd, Justice and Grace. Regarding the US states eg Robert M Ireland, ‘The Problem of Local, Private, and Special Legislation in the Nineteenth-Century United States’ (2004) 46 American Journal of Legal History 271–299.

  117. Or eg Article 32: ‘National legislation must be enacted to give effect to [the right of access to information]’. See further eg Lael K Weis, ‘Constitutionally Obligatory Legislation: A Case Study in Legal Constitutionalism’ in Richard Albert and Joel I Colón-Ríos (eds), Quasi-Constitutionality and Constitutional Statutes: Forms, Functions, Applications (Routledge 2019) 204–223.

  118. Section V below.

  119. 210 Swiss Civil Code of 10 December 1907, Article 1(2): ‘In the absence of a provision, the court shall decide in accordance with customary law and, in the absence of customary law, in accordance with the rule that it would make as legislator’.

  120. Statute of the International Court of Justice 1945, Article 38(2): ‘This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto’.

  121. Convention on the Settlement of Investment Disputes between States and Nationals of Other States 1965, Article 42(3): ‘The provisions of paragraphs (1) and (2) shall not prejudice the power of the Tribunal to decide a dispute ex aequo et bono if the parties so agree’.

  122. UK Ministry of Justice, ‘Courts data’ <https://data.justice.gov.uk/courts> (accessed 11 April 2023). This data is drawn from the Ministry’s ‘civil justice statistics quarterly’ bulletins which gather figures for England and Wales: <https://www.gov.uk/government/collections/civil-justice-statistics-quarterly> (accessed 11 April 2023).

  123. UK Ministry of Justice, ‘Courts data’, <https://data.justice.gov.uk/courts> (accessed 11 April 2023). This data is drawn from the Ministry’s ‘family court statistics quarterly’ bulletins which gather figures for England and Wales: <https://www.gov.uk/government/collections/family-court-statistics-quarterly> (accessed 11 April 2023).

  124. Section III.C above.

  125. The collision is projected to take place in roughly 4 billion years. Scientists have dubbed the new galaxy ‘Milkomeda’.

  126. Legally less developed societies may employ other sources of general rule-making – eg custom.

  127. David Lemmings (ed), The Oxford Edition of Blackstone: Commentaries on the Laws of England, Vol 1: Of the Rights of Persons (OUP 2016) 52–53: ‘since it is impossible, in so great a multitude, to give injunctions to every particular man, relative to each particular action, therefore the state establishes general rules, for the perpetual information and direction of all persons in all points, whether of positive or negative duty’ (footnote omitted).

  128. eg John Finnis, Natural Law and Natural Rights (2nd edn, OUP 2011).

  129. Kelsen, Introduction to the Problems of Legal Theory (translation of 1st edition of Pure Theory of Law) 63–75. Also Kelsen, Pure Theory of Law (2nd edn, Max Knight tr) 233 on how a system of legal norms comprises ‘general and individual norms connected in such a way that the creation of each norm of this system is determined by another and ultimately by the basic norm’.

  130. Kelsen, Introduction to the Problems of Legal Theory (translation of 1st edition of Pure Theory of Law) 64.

  131. For Kelsen the chain ends of course at the grundnorm.

  132. eg Kelsen, Introduction to the Problems of Legal Theory (translation of 1st edition of Pure Theory of Law) 66–68. Kelsen does allow for variation; see eg Kelsen, Pure Theory of Law (2nd edn, Max Knight tr) 235–236: ‘The creation of a lower norm may be determined by a higher [norm] in different degrees’.

  133. By comparison Kelsen thinks that it is rarer in the relations between constitution and (primary) legislation or statutes. He suggests that the constitution ‘usually only determines … the procedures of legislation and leaves the determination of the content of the statutes to the legislative organs’ – see Kelsen, Pure Theory of Law (2nd edn, Max Knight tr) 232.

  134. Vinx, Hans Kelsen’s Pure Theory of Law, 84 (emphasis added; footnote omitted).

  135. ibid 153 (emphasis added). Also ibid 84 discussing how the difference is one ‘of degree or quantity, not of quality’ in that legal rulings ‘are, relatively speaking, more restricted by already existing legal norms than those of a legislature’.

  136. Kelsen, Pure Theory of Law (2nd edn, Max Knight tr) 232 and also eg his discussion of secondary legislation (ibid 229).

  137. Kelsen himself refers to ‘a concrete case’ in which the court is applying a higher-level and more general norm – see ibid 230.

  138. ibid 228 (emphases added; footnote omitted).

  139. On the emergence and practices of so-called fourth branch institutions see eg Mark Tushnet, The New Fourth Branch: Institutions for Protecting Constitutional Democracy (CUP 2021).

  140. eg Stefan Talmon, ‘The Security Council as World Legislature’ (2005) 99 American Journal of International Law 175–193.

  141. For an early exploration see also Asif Hameed, ‘Some Misunderstandings about Legislation and Law’ (2017) 16 Chinese Journal of International Law 475–514.

  142. Article 39 provides: ‘The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security’ (emphases added).

  143. s 1(1) of the UK Coroners and Justice Act 2009.

  144. s 10(1) of the 2009 Act.

  145. See Ministry of Justice, Guide to Coroner Services (February 2014) 23, representing statutory guidance issued by the Lord Chancellor under s 42(1) of the 2009 Act.

  146. s 10(2) of the 2009 Act.

  147. Gardner, ‘Some Types of Law’, 74: ‘A legal ruling is a legally binding decision on the application of a legal rule to what lawyers call a “case”’. The position may depend on how we understand the exercise of applying a legal rule and to what it is applied; with fact-finding rulings the official is still applying legal rules concerning the determination and exercise of their jurisdiction, recognising and using evidence, and so on.

  148. Tarunabh Khaitan, ‘Constitutional Directives: Morally-Committed Political Constitutionalism’ (2019) 82 Modern Law Review 603–632 at 606. See also Lael K Weis, ‘Constitutional Directive Principles’ (2017) 37 Oxford Journal of Legal Studies 916–945.

  149. The category of constitutional directives does not solely comprise legal duties to legislate but also encompasses other duties. See eg Part IV of the Constitution of India, entitled ‘Directive Principles of State Policy’, comprising numerous directives such as those expressed in Article 51: ‘The State shall endeavour to – (a) promote international peace and security; (b) maintain just and honourable relations between nations …’.

  150. Khaitan, ‘Constitutional Directives’, 610 (original emphases).

  151. ibid 619–620 on the contrajudicative character of constitutional directives.

  152. According to Article 80(2) the Confederation ‘shall in particular regulate: (a) the keeping and care of animals; (b) experiments on animals and procedures carried out on living animals …’.

  153. Article 26(2) provides: ‘The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right’.

  154. To clarify, there is a vast literature on the application of international treaties within domestic legal systems – eg John H Jackson, ‘Status of Treaties in Domestic Legal Systems: A Policy Analysis’ (1992) 86 American Journal of International Law 310–340. But treaty-based duties to legislate remain under-theorised. We lack significant analysis of the incidence and variety of such duties, and their merits or demerits including from the perspective of domestic public law theory. On the latter front treaty-based duties to legislate are not discussed in eg Duxbury, Elements of Legislation or Ekins, The Nature of Legislative Intent.

  155. eg Article 231 of South Africa’s Constitution establishes various rules regarding the domestic reception of treaties that stipulate whether or not a domestic act of transformation (incorporation, implementation, etc) is needed.

  156. eg Article 2(2) of the 1966 International Covenant on Civil and Political Rights: ‘Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant’.

  157. Regarding EU duties to contemplate making legislative acts see eg Article 7 of Protocol (No 2) on the application of the principles of subsidiarity and proportionality. This requires the EU legislator to consider whether to pursue legislative action at EU rather than Member State level.

  158. Frederick Schauer, ‘Legislatures as Rule-Followers’ in Richard W Bauman and Tsvi Kahana (eds), The Least Examined Branch: The Role of Legislatures in the Constitutional Statute (CUP 2006) 468–479 at 471 focusing on legal constraints on legislation such as freedom of expression or religion.

  159. Ekins, The Nature of Legislative Intent, 123 (footnote omitted).

  160. ibid 125.

  161. Richard Ekins, ‘How to Be a Free People’ (2013) 58 American Journal of Jurisprudence 163–182 at 173.

  162. ibid 181.

  163. Ekins, The Nature of Legislative Intent, 120 (emphasis added).

  164. Leslie Green, ‘The Duty to Govern’ (2007) 13 Legal Theory 165–185 at 166.

  165. ibid 165.

  166. ibid 166 (original emphasis).

  167. See Bentham’s Constitutional Code (1843), Chapter 6, Section II (‘Responsibility’), Article 1: ‘Of the Constitutive Authority, the constant will, (for such it cannot but be presumed to be,) is, that the national felicity – the happiness of the greatest number – be maximized: to this will, on each occasion, it is the duty of the Supreme Legislature, according to the measure of its ability, to give execution and effect’. A duty to legislate (and eg to scrutinise government policy) may be inferred from this general duty.

  168. Relevant consequences include also the internal impact on the life of the assembly (eg its general scrutiny work with regard to executive action or policy). Supposing a legal duty to make legislation alleviating poverty, we may for instance imagine parliamentary criticism of the government proceeding at times in a different register: ‘You are failing to enact needed legislation on child poverty and violating your legal duty! You are breaking the law!’

  169. Concern may build atop worry since some treaties do not even require a ratification stage in order to enter into force as a matter of international law. See eg the general rule expressed in Article 11 of the 1969 Vienna Convention on the Law of Treaties. One possible argument for limiting the legislative assembly’s involvement is that it may be afflicted by a cacophony of voices; a response is that this underestimates the possibilities for legislative self-organisation.

  170. Some constitutions require acts of transformation in at least certain circumstances. Absent such an act the domestic legislative assembly would, as a matter of domestic constitutional law, normally be free to ignore a treaty-based duty to legislate that was concluded by the government. These circumstances are of interest for two reasons. First, if a transformational act in the shape of domestic legislation is adopted, it indicates that domestic legislators are willing to subject themselves a legal duty to legislate. Second, generally speaking it is not uncommon for the approval process for adopting the transformational act to be less demanding than the ordinary procedure for enacting domestic legislation; indeed, domestic legislation need not be required. For instance, under the 1946 Constitution of Japan, Article 61 provides that the ‘streamlined procedure for approval of budgets’ (under Article 60) is also to be used by the Diet when approving treaties, meaning that ‘procedurally it is easier to conclude a treaty than to enact a statute’; see Yuji Iwasawa, ‘International Law in the Japanese Legal Order: Recent Developments’ (1997) 91 American Society of International Law Proceedings 301–307 at 301.

  171. In the UK see eg the House of Lords Select Committee on the Constitution, ‘Parliamentary Scrutiny of Treaties’ (30 April 2019) which does not address treaty-based duties to legislate.

  172. Alon Harel, Why Law Matters (OUP 2014) 2.

  173. ibid 154. It is clear in his examples, particularly the Indian and Irish constitutions (ibid 159–163), that his interests encompass directives imposing duties to legislate.

  174. ibid 158–159.

  175. ibid 151 (original emphasis).

  176. ibid 148.

  177. ibid 149.

  178. ibid 150.

  179. ibid.

  180. Assaf Sharon, ‘What is Law Worth? Discussion of Why Law Matters’ (2015) 12 Jerusalem Review of Legal Studies 21–31 at 27 querying expressivism and noting ‘the inflated significance awarded to expression among the chattering class’.

  181. Arie Rosen, ‘Book Review: Alon Harel, Why Law Matters’ (2015) 34 Law and Philosophy 699–708 at 707.

Acknowledgements

Thank you to the anonymous reviewers for their detailed and valuable feedback. Ancestors of this article were presented at the Centre for Public Law, University of Cambridge (30 January 2018); the Centre for Law, Policy and Society, University of Southampton (11 September 2018); and the Centre for Constitutional Studies, University College Dublin (21 June 2019). Thank you to all the participants for discussion and feedback. Thank you also to Richard Collins, Robert Craig, David Feldman, Joan Mahoney, Haris Psarras, Paolo Sandro and David Vitale.

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    Asif Hameed

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Hameed, A. What Legislation Is (Not): Comparing Legislation And Legal Rulings. Law and Philos 42, 593–632 (2023). https://doi.org/10.1007/s10982-023-09478-w

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