In constitutional discourse, much attention is rightly devoted to the risk of legislative excess. Courts are seen—and often rightly so—as the necessary bulwark against abuses of power, arbitrariness, or disregard for fundamental rights. But there is another, more subtle danger that warrants equal care: the risk that courts, in the course of their interpretation, might come to elevate their own moral vision above the lawful expression of legislative will. This phenomenon, which I term as ‘constitutional bootstrapping’, refers to the possibility that judges inadvertently transform their judicial values into constitutional obligations, without a firm foundation in the legal text.
This concern becomes even more acute in cases—if they arise—where courts are tempted to measure statutory rules not against a concrete constitutional provision, but against generalised ideals such as deliberative quality, democratic dialogue, or constitutional culture. For example, if a court were to invalidate a piece of legislation not because it conflicts with a superior constitutional norm, but because it is viewed as insufficiently deliberative, inadequately reasoned, or inconsistent with a perceived constitutional ethos, then it risks traversing the boundary between interpretation and legislative substitution. The difficulty lies not in the aspiration for better lawmaking, but in the judicial assumption of authority to enforce that aspiration through binding constitutional adjudication.
Such a possibility does not call for judicial silence, but for judicial self-restraint. The first thing we learn at University is that courts operate within a constitutional framework that assigns to Parliament the primary responsibility for lawmaking. Meaning that where a statute is enacted within the bounds of legislative competence, and does not violate an entrenched constitutional rule or a binding international obligation, then fidelity to institutional roles suggests that the judiciary’s task is to interpret, not to improve. Regardless of what defenders of natural law say, to enforce a moral or procedural ideal against Parliament, in the absence of textual warrant, risks the transformation of the court into a parallel constitutional actor. That runs counter to the notion of separation of powers which is the cornerstone of any rule of law system.
In this light, constitutional bootstrapping serves as a useful metaphor for a broader judicial temptation: to treat the court’s own sense of constitutional identity or democratic adequacy as determinative. It is a temptation to be resisted, not because courts should be passive, but because constitutional adjudication is strongest when it is legally grounded rather than morally asserted.
Perhaps it is simply that I have always stood a little too near to Hart.
