Judicial Parliament Democracy
What should be the function of the Judge in a modern democracy?
Michel Foucault once said 'we who seek to build democracy must not be bound by the false assertion that the rule of law is democratic'. This statement is illustrative of two things: primarily that the rationale at the heart of law can conflict with understood conceptions of democracy. Secondly that the interlinking between the role of the judiciary and the rule of law can open up avenues of criticism on what might be perceived as the traditional function of the judge. The role of the judiciary has often been recognised as somewhat paradoxical within a modern democracy because of the variety of sources and times from which doctrines date. This can be seen for example if we look at the classic passage from Henry De Bracton's 13th century De Legibus et Consuetudinibus Angliae:
'Ipse autem rex non debet esse sub homine sed sub deo et sub lege, quia lex faacit regem'
However, whilst we accept the sovereign is created and sustained by law as a central tenet of the rule of law another classic constitutional principle of the U.K. is
that cited by Albert Venn Dicey in the nineteenth century:
'The principle of parliamentary sovereignty that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament'.
The fundamental issue here is that parliament is the dominant body within the three organs of the state: judiciary, legislature and executive. However, this dynamic between the legislature and the judiciary in certain modern democracies has been described as 'a vivid picture of a deep-rooted form of sovereigntist myopia locked in combat with a new reflexive, common law constitutionalism, with the latter only beginning to prevail'. The major problem for the judiciary is this understated conflict that exists in various members of the judiciary as to what their role ought to be. In fact it was typified by the battle between Lord Denning MR in the Court of Appeal and Lord Simonds in the House of Lords decision of Magor and St Mellons Rural District Council v. Newport Corporation. Lord Denning's suggestion about the judiciary using their discretion to fill in the gaps in statutes was roundly criticised by Lord Simonds as 'a naked usurpation of the legislative function under the thin disguise of interpretation'. This battle between 'sovereigntist' and 'common law' interpretations of the judicial role will continue to rumble on because of it's implications for democracy.
The problem with a more expansive judicial function, whereby the balance of power between the various organs is more equally distributed, is that it tends to bring political pressure on the judiciary because of the unaccountability and independence. We have seen this over the years in the U.K. and other democratic jurisdictions in a variety of situations. In the U.S.A for example there were the public demands for the impeachment of Justice Earl Warren in the mid-twentieth century on the back of accusations of judicial activism. There is still an on-going criticism of the judges from Roe v. Wade who made a novel interpretation of the fourteenth amendment to implement a massively controversial right of a woman to choose in the first trimester. The judiciary in the U.K. has been the subject of numerous attacks from various politicians such as Michael Howard for 'judicial activism' as well as more recently over issues such as jail terms in the Sweeney case and Mesothelioma claims. The problem was explained by Davis in the following terms:
'Constitutional review is conducted by unelected judges who are empowered to overturn the will of democratically elected and accountable legislature in terms of a process of interpreting abstract constitutional provisions. In short, the question arises as to how to account for and justify the curtailment of the operation of a democratic political system by an unaccountable institution'
This issue is not to be lightly dismissed the power of judges both under conventions such as European Convention of Human Rights and statutory interpretation can if unrestrained end up being 'a subversion of democracy'. This is because 'judges exercise the power of judicial review by recourse to value-laden, often imprecisely worded and invariably loftily expressed constitutional rights'. The idea of Democracy is that it is supposed to empower everyone and provide opportunities that are open to everyone. The use of elective representatives is an issue of 'convenience' but the key issue for Democracy is empowering everyone to make decisions about their society and the distribution of resources. Therefore the unelected nature of the judiciary and the lack of empowerment become real issues. Thus for many commentators there is a real issue in defining what the role of the judge is in the modern democracy. The foregoing should highlight that the true debate is over how judges should behave in relation to those areas of their practice that have the potential to ride roughshod over legislative intent or legislate on controversial areas.
The first, rather obvious, observation that has to be made about the role of a judge in a modern democracy is that they must be independent from any kind of outside interference. The importance of this is in making sure that politicians under all forms of media and personal pressure don't attempt to pervert the course of justice to suit their own ends. The relation with democracy is that if judicial independence isn't protected then people are not empowered because legal decisions may become mere reflections of powerful interests such as politicians or members of the media.
In the U.K. there are three main avenues in which the actions of the judge may cause concern for our democracy. In this work I will take these as illustrative of concerns in other countries and thus the conclusions as universal however disputed this may be. The first one is that of the action of Judicial Review which is a constitutional anomaly allowing the judiciary to oversee the exercise of executive powers. Lord Hailsham in Chief Constable v. Evanslaid out was the correct role of the judges was to 'ensure that the individual is given fair treatment by the authority to which he has been subjectedit is no part of that purpose to substitute the opinion of the judiciaryfor that of the authority'. This was then further refined by the now famous Diplock tri-partite test of Illegality, Irrationality or Procedural Impropriety in the GCHQ case. The judiciary in this country have policed the extension of this power very carefully and made a great point of clarifying their role and the narrow remit that it contains in cases of ethical and political controversy such as in Gillick v. West Norfolk & Wisbech Area Health Auth. [1986] 1 AC 112 where the court re-iterated that the court should 'exercise its jurisdiction with the utmost restraintand avoid expressing ex cathedra opinions in areas of social and ethical controversy in which it has no claim to speak with authority'. This is a theme in many of these areas: namely the role of the judges must be regulated internally by exercising personal restraint rather than externally imposed limitations on their power. There is also a further argument that judicial review can help vindicate individual rights against the collective welfare which is the remit of the executive and legislature
The second large area where the judiciary has the potential to interfere or contradict democratic principles is in the arbitration of conventions such as those containing human rights. In Macarthys Limited v. Smith Lord Denning signalled the advent of a shift in power between the judiciary and legislature when he stated:
'In construing our statute, we are entitled to look to the Treaty not only as an aid but as an overriding force. If on close investigation it should appear that our legislation is deficient or is inconsistent with Community law it is our bounden duty to give priority to Community law'
We have seen the exercise of this power in cases such as Regina v. Secretary of State for Transport, Ex parte Factortame Ltd. (No. 3) and Regina v. Secretary of State for Employment ex parte Equal Opportunities Commission & Another. The worry in these cases is that the will of elected representatives was thwarted by judicial interpretation of abstract and vague rights. However, there is two rebuttals to this characterisation of the role of a judge. The first is that 'Courts are not representative bodies, and it will be a tragedy if they become representative. Their role is to give effect to the deep values of their society as expressed in its basic documents, its traditions and its history'. Secondly, there is an argument that this role is useful to a democratic society and provided the judiciary exercise some conscientious restraints. Thus it is argued that the judiciary must exercise impartiality and reasoned debate. Thus in a certain manner the courts are keeping the executive and legislature from violating constitutional principles which it, or society at large, have posited as inviolate. In this respect the recent case of A v Secretary of State for the Home Department represents the judiciary upholding a democratic mandate to measure all public law to the higher standards of human rights.
Finally, the third avenue for an intromission by the courts on democratic principles is through statutory interpretation. There is a clear danger that the use of perverse or unintended interpretations of legal rules could defeat democratic principles. Thus in the U.K. the courts have been at pains in cases such as Vauxhall Estates Ltd. v. Liverpool Corporation to state that in interpreting statutes the judiciary must give precedence to the will of parliament. This is again down to the conscience of the judge to make sure, post Pepper v. Hart, they have reference to the parliamentary debates and pre-enactment material such as Green and White papers. However, there is no denying that the open context of much language necessitates this rule, an issue which we will discuss in the conclusion.
Conclusion
This work was started with a reference to the rule of law by Michel Foucault who highlights in his discussion of the issue the fact that the rule of law has no necessarily democratic part. This observation helps us conclude how the role of a judge, if properly restrained as described above, can be justified. Finnis argued that Democracy and rule of law whilst not part of the same philosophy did tend to complement each other because the rule of law 'is always liable to reduce the efficiency for evil of an evil government, since it systematically restricts the government's freedom of manoeuvre'. In many ways what the judiciary in any democracy represent is the arbiters of the rule of law rather than part of the democratic institutions of a state.
The South African Supreme Court recognised this when it said the 'reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process'. The rule of law has as one of it's central tenets that the law be applied equally, fairly and consistently, as Aristotle stated 'He who bid the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast The law is reason unaffected by desire'. These ideals are a precondition to a democracy and whilst there may be instances that the rule of law and democracy come into conflict they are possible of resolution as the above has amply exemplified. Interestingly it was exactly language such as this that Lady Justice Arden used when describing the A case, above, when she said that the decision was 'a powerful statement by the highest court in the land of what it means to live in a society where the executive is subject to the rule of law'.
There is a clear argument to be made that the power of the judiciary in relation to the democratic legislature and executive is a metaphor for the line between the rule of law and democracy. It seems fairly clear that were the power lines to be drawn too largely in favour of one over the other then there is a clear opportunity for abuse. If democracy is omnipotent then the legislature can affect laws which do not respect minority or individual rights. This can occur through even the most benign of motives such as a misunderstanding or confusion over the realities of the issue. Secondly, where the judiciary continues to defy without good reason the will of the people then it is nothing more than tyranny. The correct answer is that the role of a judge in society is to use their own conscience to walk the line between respect for democracy and respect for the rule of law where those two conflict.
Bibliography
Books
Barnett, Hilaire 'Constitutional & Administrative Law' 2000 / Cavendish
Finnis, John 'Natural Law & Natural Rights' Clarendon / OUP / 1980
Tamanaha, Brian 'On the Rule of Law: History, Politics, Theory' CUP / 2005
Articles, Journals & Other
Barak, Aharon 'The role of a judge in a democracy' 2004 - 2005 88 Judicature 199
Blair QC, Cherie 'The Role of the Judge in a Human Rights World' 19th Sultan Azlan Shah law lecture delivered in Malaysia available online at Foucault, Michel.
Please note: The above essays and dissertations were written by students and then submitted to us to display and help others. Thanks to all the students who have submitted their work to us.
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