JUDICIAL POWER AND DEMOCRACY

• Citation: (2000) 12 SAcLJ 311
• Published date: 01 December 2000
• Date: 01 December 2000

I. INTRODUCTION

The last decade has witnessed increasing debate about what is sometimes referred to as the “judicial phenomenon”. All over the world, judges are making more and more decisions in areas that seem to trench on policy and politics — areas previously thought by many to be the exclusive prerogative of elected legislators. Some people see this as a threat to good government and democracy. They see courts as undemocratic. Judges are usually appointed, and hence are not accountable to the electorate in the way politicians are. Furthermore, judges who enter the policy arena are viewed as going beyond their proper role. The task of judges, on this view, is to apply and interpret the law. Law-making by judges, it is argued, oversteps the proper bounds of the judiciary. Alarm bells ring and calls go out for measures to rein in the judiciary.

I will argue that the view that judges are a threat to good government and democracy rests on a simplistic and outdated view of how a modern democratic state functions. In fact, democracy is a lot more complicated than elected representatives making the law. Elected legislators are important, but so is the judiciary. Both are essential to effective and just government. We need both responsible effective legislators and responsible independent courts. Our task is not to curtail judicial power but to understand how it may most effectively contribute to the just society.

II. THE GLOBAL EXPANSION OF JUDICIAL POWER

Courts have always played an important role in most western countries and many in Asia and Africa. Yet in recent years, it seems that role is expanding. Gibson, Caldeira and Baird note the worldwide ubiquity of courts and judges involved in resolving disputes and answering questions with heavy policy implications.1 Shapiro and Stone state that “a political jurisprudence of rights is today endemic and occasionally epidemic”.2 In Canada the perceived expansion of judicial power is often attributed to the adoption in 1982 of a constitutional bill of rights, our Charter of Rights and Freedoms. But the phenomenon is more profound and more complex than the simple change of a constitution. PeterMcCormick offers the following examples of the global expansion of judicial power.3

1. — In the absence of an entrenched bill of rights, the High Court of Australia moved toward a rights-based jurisprudence in the area of free speech and aboriginal rights grounded in the preamble of the constitution and the fundamental precepts of democratic government. This produced a national debate on the proper role of the courts and the High Court appears to have retrenched somewhat as a consequence.4

2. — As a result of minor amendments in the mid-1970’s the French Constitutional Council became very active in “judicializing” the legislative process. It has been suggested that the council’s “surprisingly expansive approach” to constitutional issues “invites comparison to the United States Supreme Court”.5

3. — The German federal Constitutional Court “has profoundly changed the perception of law and politics as being two separate arenas of decision making”.6

4. — The European Court of Justice has been much more effective than supposed in playing a leading role in integrating Europe and imposing judicial review and entrenched rights on the courts of member countries.7

Other examples are not hard to find. In Israel, the High Court plays a pivotal role in negotiating the conflicts between different groups and maintaining human rights. In Scotland, the Convention for the Protection of Human Rights and Fundamental Freedoms in a few short months has led to the overthrow of the system of part-time judges in criminal cases.8 England is bracing itself for challenges to a range of laws, including its laws on statements to police, when the same bill is introduced there this October. The House of Lords, which will rule on the challenges, is already playing a more interventionist role than in previous decades; witness its

intervention in the Pinochet extradition appeals.9 It should thus not surprise us that “the judicialization of politics” has been described as “one of the most significant trends in late-twentieth and early-twenty-first government”.10

These examples raise questions. Is the ascendency of the judiciary really new, or the continuation of a longer process? Whether new or evolutionary, why is it happening? And why now? Before addressing these questions, I will explore the case put against judicial law-making: that judicial power is fundamentally undemocratic.

III. JUDICIAL POWER AND DEMOCRACY

In order to understand the debate over the legitimacy of judicial power it is necessary to explore our evolving concept of democracy as we approach the twenty-first century. Democracy is in fact a complex thing. Despotism is easily understood and disliked; everyone knows the meaning of “L’état, c’est moi”. But “liberty, equality and fraternity”, the idea that replaced it, while widely acclaimed, is less readily understood.11

The idea that judicial power is undemocratic rests on a conception of democracy that means simply “the rule of the majority”. It rests on the premise that people should be governed only by laws to which they have consented through a majority of their elected representatives. Democracy thus defined seems incompatible with the idea that unelected judges should influence the laws that govern people. Therefore any judicial action beyond simple application of laws made by the legislature is illegitimate.

This argument is put succinctly by Peter Russell.12 Law-making, he states, is “not easily reconciled with widely-held normative beliefs in liberal democracy”. The “phenomenon of non-elected and formally unaccountable judges making the law” conflicts with the “basic norms” of the democratic system. What are these basic norms? That people ought only to be governed by laws to which most of them, through their elected representatives, consent to be governed.

The premise upon which this argument is built — that people should be governed only by laws to which they have consented — does not bear out

in reality. First, most laws in place in most countries were in fact not made by their legislatures. For example, much of the current law in common law countries is based on the laws made by autocratic monarchs and unelected judges in centuries past. Even in modern democracies, many laws are made by appointed administrators who create the rules of the road, set prices through marketing boards, and determine fisheries regulations. In fact, in most if not all democracies, neither the people nor their elected representatives have demonstrated approval for the vast majority of the laws by which they are governed.

Second, while majority rule is clearly a critically important element in the makeup of all democracies, it does not distinguish democracy from all other forms of government; indeed, it has been argued that rule of the majority is a principle that democracy shares with fascism, communism and other populist forms of totalitarian government.13 History demonstrates that the people may consent to be governed by laws made by dictators as well as by democratically elected representatives. If this be so, then rule by the people’s consent does not appear to be democracy’s distinguishing feature. To put it in logician’s terms, rule by popular consent is a necessary feature of democracy but not a sufficient one. Democracy requires something more. That something else is this: the will of the majority must be subject to limits, respecting the rights of others, if it is to create a genuinely democratic government and not merely mob rule.

The need for something more than majority rule arises from the impossibility of creating laws that can fairly apply to all people and the danger that the majority may not be concerned to do so even if it could. First, the majority may unintentionally undercut democratic values. No matter how fairly elected and how well-intentioned, legislators may draft laws that in practice give rise to lacunae, ambiguities and applications that create injustice in particular situations, thus denying “liberty, equality and fraternity” to some. Second, if more rarely, the majority may intentionally undercut democratic values, sacrificing the individual to the greater good of the majority. Taken to its extreme, this application of utilitarianism may create such acute unfairness as to justify the label the “tyranny of the majority”. The terrible lesson of the history of popular totalitarian governments is that democracy requires not only majority rule but rule that protects individuals and groups of individuals and promotes fairness.

I cannot put it better than Taylor:

“As our understanding of the nature of modern democratic government improves, it becomes increasingly apparent that majority rule, while an essential ingredient of the system, can operate in ways

which are as undemocratic as the rule of the minority — that democracy has to do not only with who exercises the power of the state, by and for the people, but also with the manner in which the state treats those who seek its assistance, or are obliged to submit to its authority, and with what the state allows people to decide and do of, by and for themselves.”14

Taylor adds that the Canadian Charter of Rights and Freedoms acknowledges this by referring not only to the value of democracy but to a “free and democratic society” and by its commitment to the rule of law.

The courts are the institution through which the rights of the individual are protected and through which basic fairness in the operation of the laws is assured in a democracy. To discharge this task, courts must be independent of the legislative branch of government. Absent institutional and individual independence, courts and the judges who operate them cannot properly fulfill their important roles. Courts which are subject...