Oliver O’Donovan tells us that our leaders have to lead us, form us and allow us to flourish, or even postively to see to it that we flourish. They have to be brave and lead from the front, and make real decisions about what is good for us. They therefore have to have views about what is good, and they have to allow those views to be tested by dialogue with the people they lead. Leaders have to make decisions. They have to exercise practical wisdom, which O’Donovan calls judgment, in order that we are all increasingly able to exercise practical wisdom, and so become mature. Plato represents one major tradition of practical wisdom, but an even more sophisticated tradition of practical wisdom is that of Christian discipleship.
“In Hebrew the most general word for law, torah, meant simply “a decision.” It referred to the “ruling” that a priest would give when consulted. In the same way we say that the judge “declares the law” in relation to a case, meaning not that he quotes from law books, but that he announces a decision; “the law of the case” is simply the generic principle applied in the particular judgment. But since each judgment is not separate and discrete but occurs in the context of an institution, the law of each case is discerned in relation to the law of preceding cases; if it is to be justly proportioned, it cannot be wildly out of line with other decisions. No act of judgment, then, simply invents law de novo; that would defeat the purpose of judging, namely, determining what is proportionate to the law of precedent that stands over and behind the present decision and can be appealed to in support or criticism of it. But a law of precedent requires no distinct human legislator. Divine law, natural or revealed, when mediated through traditions of right innate in the society, is sufficient to allow courts to develop a law by way of their own judgments, a conception which our shared English legal tradition names the “common law.”
The English parliament began life as a court of common pleas, a means by which the governed spoke to the government about their frustrations, an organic line of communication between the two which served to legitimate government as pursuing the common good. The extension of parliament’s role to a deliberative forum, first for the authorizing of taxation and then for the formation of legislation, recognized the need for government to listen to the vox populi, to respect its deeply held convictions, and to take stock of its anxieties.
By converting parliament into a branch of government, modern constitutional theory lost the sense that the dialogue between government and the governed is at the heart of the legislative process. It became a purely intra-governmental dialogue. The sheer success of parliament in taming the willfulness of the monarchy led to an implosion of government and parliament upon each other, leaving an unhealthy mutual dependence.
When a certain dialogue fails to accompany the formation of law, its enactment simply becomes another form of executive action – it loses its distinctive lawlike character. But what we need is not a dialogue between departments of government, but a dialogue between government and people .”
Oliver O’Donovan Government as Judgment since expanded to become The Ways of Judgment.
