Justifying Bancoult (No 2): Why Justice Hercules Must Sometimes Disappoint Us
(2017) Bancoult and the contentious nature of the British constitution. In: Allen, S. (ed.) Fifty Years of the British Indian Ocean Territory: Legal Perspectives. Springer, Cham, Switzerland. (In Press)
32 Pages Posted: 21 Feb 2018 Last revised: 2 Mar 2018
Date Written: October 9, 2017
This article considers how Justice Hercules, the personification of Ronald Dworkin's anti-positivist, interpretative theory of law, might assess the judicial reasoning in Bancoult (No 2). If, as Hercules contends, legal reasoning is a subset of moral reasoning, rooted in the legal and constitutional traditions of the United Kingdom, then I suggest that he may have reason to favour the majority judgments. The underlying moral scheme of these judgments arguably captures the historical settlement between the Crown and the courts in relation to prerogative powers. Whether or not that conclusion is correct, an interpretative reading of the judgments places the judicial disagreements in Bancoult (No 2) in a fresh light. It answers many of the positivist-inspired objections to the majority reasoning. And it reveals the differences between the judges to be, not an uncompromising 'clash of legal cultures' between executive authority and individual liberty, but a common attempt by the judges to contribute to what Kyritsis calls a 'joint project of governing': a collaborative effort on the part of each branch of government to fashion, through law, a shared vision of justice and institutional responsibility. That shared vision may fall short of what judges, and we, think justice ideally requires; but I contend that we can legitimately expect no more of legality and adjudication.
Keywords: Bancoult, prerogative powers, orders in council, judicial disagreement, Ronald Dworkin, law as integrity
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