Jakob Stein Bügel
Copenhagen Business school – IBP.
Political Science Midterm exam
27-10-2013
Introduction
In 2000 the Supreme Court in United States of America overruled the court in Florida’s ruling
concerning a recount of the ballots after the presidential election between Bush and Al-gore. The
Supreme Court decided to decline the recount, Al-Gore withdrew his objections to the electoral
outcome in Florida, and the republican candidate George Bush was installed as the 43rd president of
United States of America. (Heywood:2013:348). It is believed that if the recount would have
happened, Al-Gore would have been able to secure majority for the White House. Furthermore the
Supreme Court’s ruling has been met with suspicion because the five judges who voted for the
cancellation of the recount were all appointed by republican presidents. This raises questions about
whenever the judicial branch should be allowed / able to guise out of their law interpreting remit
and into the remit of politics influencing the lives of millions of people in the US. (Dahl:2001:301).
And furthermore: Is an independent and strong judicial branch even essential for having a
democratic polity?
The independence and the judicial review of the judicial branch have been discussed by judges,
political scientists and political philosophers. The main framework was written by the French
philosopher Montesquieu who saw a separation of powers as a tool of keeping tyranny and abuse of
power at bay (Montesquieu:1748:173). He suggested that power should be separated into three
branches: the judicial, the executive and the legislative, providing checks and balances on each
other (Heywood:2013:313). The judge Maclachlin sees the requirement for a strong and
independent judiciary as the only tool to protect minorities against majority rulings. And at the same
time a strong judiciary is not undemocratic in the way that is the pedigree of former
governments(keleman:2013:301). On the other hand some political scientists such as Robert Dahl,
views a strong judicial review with suspicion, because it is a democratic problem that the judiciary
enter the realm of the legislative body even though the judicial branch is an unelected body.
(Dahl:2001:302).
This assignment claims that an independent judiciary is essential for a democratic polity;
meanwhile a strong judiciary is not essential for a democratic polity. In order to reach these
conclusions the assignment is divided into three sections. The first works with key concepts and
theory within the field of studies of the judicial branch. First it defines the key principles of liberal
democracies, followed by Montesquieu’s writings of a separation of powers and the role / power of
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Jakob Stein Bügel
Copenhagen Business school – IBP.
Political Science Midterm exam
27-10-2013
judiciary. The section ends by the use of theory/ideas produced by Robert Dahl and Mclachlin.
However in order to reach to any conclusion we need data from the real world, which is presented
in section two. Here the characteristics of judicial branch in UK, US, Hungary and partly Nazi
Germany and USSR are represented. This data is then used together with the theory section in to
analyze the essentialism of a strong and independent judiciary. This is done by isolating
independent and strong; where the text attempts to make a scenario where a state has a judiciary
which is not independent and an example showing the benefits but also the problems with a strong
judiciary.
Key concepts and theories.
In order to discuss whenever a strong and independent judiciary is essential in a democratic polity it
is relevant to define what a democracy is, the focus in this definition will however be centered
around the democratic system in the west, known as liberal democracies. Democracy has its origin
from the ancient Greece and consist of the two words “Demos” and “Kratos” meaning “rule by the
people”(Heywood:2013:89). The liberal democracies located in the west have three key definitions.
The first saying that power is acquired though elections in the civil society. (Heywood:2013:270)
This means that the rulers in liberal democracies society have been given mandate to shape and
control the government, giving the civil society an active role in deciding its leaders compared to
systems with tyranny. Another key point which is central in this assignment is the fact that
government is constrained by a constitution laying a political framework for the system and
government. (Heywood:2013:270). This applies checks and balances between the different branches
of government. Third is the focus on a free economy, freedom of speech and free press and
individual liberty. (Ibid). However the whole idea about this kind of democracies lies in majority.
Many would argue that majority ruling has to be taken with caution in means that the majority does
not necessary take minorities groups into account.
“(…)there is no liberty, if the judiciary power be not separated from the legislative and executive. “
These words are one of the many arguments presented by the French political philosopher
Montesquieu. According to Montesquieu the powers of government should be separated into three
branches; the legislative, the executive, and the judiciary. (Montesquieu:1748:173). By this
institutional fragmentation of powers liberty is maintained and the platform for tyranny will be nonexistent. (Heywood:2013:313). The requirement is that each branch is independent in the way that
its personnel cannot operate in another branch at the same time. However at the same time
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Jakob Stein Bügel
Copenhagen Business school – IBP.
Political Science Midterm exam
27-10-2013
interdependence is required in forms of checks and balances. (Heywood:2013:313). The judiciary is
therefore supposed to be independent and possesses the ability to “check” the other branches in
order to secure democracy. One of the features in the present liberal democracies is that judges are
strictly independent and non-political actors, as a matter of the separation of law and politics
(heywood:2013:345). This is to ensure that their judgments are only influenced by their
interpretation of the law and not of partisan / political origin, hence why US Supreme Court
members hold office for life. (Heywood:2013:345). Furthermore the power of the judiciary
branches varies for every political system according to whenever the constitution is codified or
uncodified. (Heywood:2013:334).
A strong and independent judiciary can be seen as a democracy preserver, in the way that the
judicial branch’s role is to check upon the legislative and the executive branch, because it is hard for
the legislative branches, for instance, to determine whenever they have overextended their
constitutional authority. (Keleman:2013:300.) The courts can instead be seen as democracy
preservers in the way that courts are more democratic than the executive and the legislative branch
because judges within the judicial branch is a product of nominations of several governments,
therefore representing the majority over a long time span. A court intervention is therefore
legitimized that courts are a reflection of many democratic elections. This paradigm is furthermore
strengthened by the need of a strong legislative power combined with a strong and independent
judiciary in order to secure freedom and democracy in the 20th century (Mclachlin:2000:20).
Mclachlin states that the “Courts are the last defense of the individual against the tyranny of the
majority. They must be prepared to go against majority views.” The judiciary has to be strong and
ready to interfere in modern democracies.
One may see judiciary interruption in political decisions with suspicion. According to Robert Dahl
court intervention in the political realm is only legit when they guarantee: “rights to express one’s
views freely, to assemble, to vote, to form and to participate in political organizations”.
(Dahl:2002:153). However once the judiciary moves beyond this realm of ensuring democratic
rights their democratic legitimacy and authority can be questioned. (Dahl:2002:153) Once out of
this sphere the court becomes an unelected legislative body by interpreting the constitution by
which the court enacts law. (Dahl:2002:154). Such actions can be seen as a violation against the
principles of the democratic system in the way that the courts turn into policy-makers even though
they are not directly elected by the civil society. Having a Supreme Court intervening and even
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Jakob Stein Bügel
Copenhagen Business school – IBP.
Political Science Midterm exam
27-10-2013
overruling political matters such as welfare or economic decisions affecting millions of citizens;
questions the democratic legitimacy of the unelected courts operating in the legislative realm.
Judicial power must be limited in order to avoid the judiciary interfering in the legislative branch of
government.
The Judicial branch in different democratic systems.
United States of America has been a federal state since the creation of the constitution in 1787. This
means that each state in the federal system may legislate provisional or lower state law.
(Heywood:2013:334) However state laws can be overruled by the American Supreme Court in case
these laws are violating the constitution, which in United States of States is seen as “higher law”.
The Supreme Court is the highest hierarchical court in the judicial branch in the US consisting of 9
judges who hold office for life (Heywood:2013:345). The appointment of Supreme Court judges is
done by the President and afterwards approved by the senate. However since the 1930s the
presidential appointment of Supreme Court judges has been influenced by party affiliations and
ideological disposition (Heywood:2013:346). Nomination of judges whose political agenda is
linked to the president is also seen in present time, where President Barack Obama nominated Elena
Kagan as a Supreme Court judge. Kagan was acting as Solicitor General for the Obama government
before the nomination. However the nomination has been criticized because Kagan’s political
opinion is rather liberal, meaning in the US, that Kagan ideological stand point is located on the left
of the left right axis. (Jensen:2010:4).
The main function of the American Supreme court is to make interpretations of the American
constitution, one written document seen as the “higher law” in country. As mentioned above the
Supreme Court has the power (judicial review) to overrule the lower state law or the statue law if
they are violating the constitution. Judicial review / the power of the judiciary is not written in the
constitution. (Constitution:1787:article4,1). Judicial review was first observed in 1803, where the
court asserted this right in the case Marbury v Madison (Ibid). Since 1803 Supreme Court overruled
federal and state law on 120 occasions (ibid). Perhaps the most significant interference was in the
presidential election in 2000, where the Supreme court of Florida approved a state-wide recount of
ballots(Heywood:2013:348). The US Supreme court overruled the court of Florida’s ruling by first
pausing the recount. Shortly afterwards the Supreme Court cancelled the recount, which made the
presidential candidate Al-Gore withdraw his objection making Bush president of United States of
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Jakob Stein Bügel
Copenhagen Business school – IBP.
Political Science Midterm exam
27-10-2013
America. Remarkably the majority in the Supreme Court were all appointed by republican
presidents. (Heywod:2013:348). It is generally believed that Al-Gore would have won the
presidential election if the recount would have been finished. (Heywood:2013:348). Another ruling
by the Supreme Court was the overrule of local state rules about segregation in schools in 1954
In comparison to United States of America and their judicial branch is the judicial branch in the
United Kingdom. UK is different from USA by the fact that the executive branch is a reflection on
the biggest party in the parliament. (Heywood:2013:311). Another difference is the fact that the
constitution is uncodified, meaning that it is not written in just one document.(Heywood:2013:334).
This means that Parliament is sovereign; they create and change law, meaning that statue law is the
highest law. (ibid) The lack of a codified constitution means that the UK Supreme Court does not
have the same judicial review. The judicial review is limited to secondary legislation where the
principle of ultra vires, used to control the power of executive branch because checks and balances
between the assembly and the executive branch is barely present. (Heywood:2013:349. A slight
difference also comes to mind when the UK Supreme Court is funded by the Ministry of Justice
where the funding varies each year. (Phillips,2011,1). UK is just one of the many European
democracies where the judiciary is unable to call laws unconstitutional. In fact only 4 out of the 23
stable democracies since 1950 have a strong judicial review. (Dahl:2001:164-165).
An example of a democracy where the system becomes unstable and where the judicial branch is
able to preserve democracy to some degree is Hungary in the period 2010-2012. The Hungarian
government run by Viktor Orbán changed, after the election in 2010, major parts of the democratic
framework and structures in the constitution, where one was an attempt to control the judiciary
branch though the presidency.(Keleman:2013:301) Before this law proposal judges were approved
by the parliament. (Keleman:2013:301) However because of the Hungarian membership in the
European Union, the European court was able to constraint these laws. The court therefore acted as
a democracy preserver. (Keleman:2013:301). The attempt to control the judicial branch can be seen
as a parallel to the regimes in the 1930s and 1940s, where totalitarian regimes such as USSR and
Nazi Germany dictated and manipulated the courts in order to use them as tools for political
repression and political persecution, removing all political competitors from the political scene
(Heywood:2013:345).
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Jakob Stein Bügel
Copenhagen Business school – IBP.
Political Science Midterm exam
27-10-2013
The importance of a strong and independent judicial branch in democracies
The essentialism of an independent judiciary is analyzed by the use of the liberal democratic
principles. From Montesquieu and later writers inspired by his philosophy we get the impression
that the neutrality and independence of the judicial branch is important in order to acquire checks
and balances in the system. As described above the Supreme Court in the US is appointed by the
president and the senate. However the independence of the Court can be questioned in the way that,
it creates a certain bias, making the checks and balance system less efficient in the way that judges
might sympathize with the current executive’s politics. Same neutrality problem can be applied to
the UK Supreme Court, which is directly funded each year by the ministry of Justice. However
principles of neutrality are rather normative in the sense that judges are individuals, which makes it
impossible to be fully neutral; individuals always create certain biases, it is impossible to avoid.
However the purpose of the separation of powers is to avoid personnel overlapping between the
different branches, making it impossible for the executive power to directly control the judiciary.
This means that even though it is close to impossible to have a completely unbiased judiciary it is
important to have a judiciary as independent as possible for maintaining a democratic polity which
is shown below.
The attempts in Hungary by prime minister Organ to make the judiciary dependent on the executive
branch can be seen as a violation of the principles of liberal democracies in means that it either
removes or reduces the checks and balances in the Hungarian government, making it possible for
the executive and legislative branch to legislate without worrying about the constitutional
framework of the country. Furthermore the lack of an independent judiciary makes room for
tyranny, in the sense that the courts can be used as a tool of political repression and political
persecution as experienced in the totalitarian regimes in Europe during the 1930s and 1940s. Courts
directly influenced by presidency makes it therefore possible for the executive to prosecute political
rivals. Under such scenario the political system may transform into a dictatorship. This is of course
an extreme example however it illustrates the need of an independent judicial branch in a
democratic polity.
As shown above an independent judicial branch is required to have stable democracies and avoid
misuse of the courts by the executive branch. On the other hand the essentialism of an independent
judiciary raises the question whenever the judiciary should be strong or weak; meaning how much
power should the judiciary should possess. The judiciary review depends varies from the UK
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Jakob Stein Bügel
Copenhagen Business school – IBP.
Political Science Midterm exam
27-10-2013
Supreme court to the US Supreme Court. This is because of the fact that the judiciary, in states with
a codified constitution, has to make interpretations of the constitution that all laws should follow,
leaving incredible power to the judiciary. This power is often associated with the judiciary entering
the realm of politics / legislative branch. (Dahl:2002:154). On the other hand the UK Supreme
Court is relatively weak, as a matter of their constitution being uncodifed, which means that the
parliament is sovereign, in that their rule is law; without any constitutional constraints. The
following paragraphs will discuss the importance/disadvantage of a strong judicial review.
A strong local Hungarian judiciary could maybe have been able to prevent the Prime Minister
Organ from changing the political framework and rules in Hungary. Even though Organ party had
majority to change such rules, the Hungarian judiciary could have stopped this changes if it
possessed the same strong powers as the US Supreme Court. Anti-democratic laws would then have
been blocked making local judiciary serving as a democracy preserver. However many would argue
that such an act would be undemocratic, because Lagan and his government are public elected.
However it can be argued that the court is more democratic than the parliament and executive
branch, due to the fact that judges are chosen by parliament in Hungary. This means that the court is
a pedigree of the former parliaments in Hungary as well as the current; making court interventions
more democratic than current actions performed by the legislative and executive branch.
Another argument supporting the need for a strong judiciary is the example of the US Supreme
Court removing local state laws on segregation at the claim of violation of the constitution. This
ruling can be analyzed as an act of the judiciary protecting minorities. Without a strong Judiciary
branch the segregation laws would have existed until they would have been removed by the
legislative body. It would first require a change in the view of the voters before segregation laws
would be removed. Here the court acts against the majority, reflected in the legislative body, as a
defender for minorities. This can be applied to Montesquieu’s writings in the sense that the court
applies checks and balances on the legislative body that undermined the civil rights for a group in
society. Furthermore the removal of the segregation laws can also be seen as an action in order to
preserve democracy, due to the fact that one of the main thoughts about liberal democracies is
granting liberty for the individuals.
The past two paragraphs showed the need for a strong judicial branch. This paragraph seeks to
prove that a strong judicial branch is not essential for a democratic polity and is undemocratic,
violates of the separation of power and the basic principles of democracies. The cancellation of the
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Jakob Stein Bügel
Copenhagen Business school – IBP.
Political Science Midterm exam
27-10-2013
recount in Florida during the presidential election is an example of the Supreme Court moving out
of their neutral law interpreting realm and into the political realm, by installing a different president
in the white house. The rule of the court is characterized as undemocratic in the way that the
judicial branch consists of unelected actors, who in the case with the presidential election in 2000
also can be seen as highly biased. This is a violation of the principles of liberal democracies in the
way that political power is given through elections, therefore a power the court shouldn’t possess.
Furthermore the argument of the courts being democratic as they are a pedigree of former
parliaments is not viable as a matter of fact that one of the key mechanisms of elections is that the
voter can change her vote in the next election if the candidate did not perform as expected. At the
same time judicial intervention transforms the judicial branch into a legislative body, which violates
the principles of the separation of powers; executive, legislative and judicial power should be
separated into three branches. To end this argument proving that a strong judicial review is not
essential in democratic system is Dahls table over stable democracies since 1950. Here only 4 of the
23 democracies have a strong judicial review (Dahl:2001:164-165). Therefore a strong judicial
review is not essential in a democratic system.
Conclusion:
The judicial branch has to be independent in order to achieve a stable democracy in order to avoid
the judiciary being abused by the executive or the legislative branch. Furthermore it applies checks
and balances. Even though that UK and US are great examples of courts rising to be biased, the
importance of a judiciary as independent as possible is very important. Furthermore the courts in
UK and US are still independent in the way that there is no personal overlapping between the
different branches in government. On the other hand a judiciary with strong judiciary review can on
one hand be seen as democratic in the sense that it protects minorities against the majority and is a
reflection of many former governments making it democratic. However a strong judiciary is not
required to have a stable democracy. First of all because judges are unelected making their actions
as they enter the political realm undemocratic. Furthermore having a judicial body entering the
legislative realm is a violation against the separation powers. Lastly only a margin of stable
democracies since 1950 have a strong judicial review this proves that a strong judiciary is not
required for a democratic polity.
The essentialism of judiciaries intervening in political matters is therefore not essential for a
democratic polity. The US Supreme Court’s intervention after the presidential election 2000 can be
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Jakob Stein Bügel
Copenhagen Business school – IBP.
Political Science Midterm exam
27-10-2013
analyzed in many different ways and with different results. On one hand the Supreme Court is the
pedigree of many former governments, legitimizing their intervention in political matters. However
it cannot be seen as democratic that a court may intervene in such a matter, due to the fact that
voting behavior changes and that the judicial branch consists of unelected judges whose primary
function law is to make interpretations of the law and not to enter the political branch. A court
intervention in such a matter can therefore be seen as a violation against the principles of liberal
democracies; political power was used by unelected actors in a case that influences the lives of
millions of people.
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Jakob Stein Bügel
Copenhagen Business school – IBP.
Political Science Midterm exam
27-10-2013
Literature:
Heywood, Andrew (2013): Politics, Palgrave foundations (4th edition)
The American constitution (1789) published on the homepage of the American senate.
Dahl, Robert (2001): How Democratic is the American Constitution, Yale University Press
Keleman, Daniel (2013): Representation – “Judicialisation, democracy and European integration”,
published by: Taylor and Francis Group. Found on CBS-library.
Mclachlin, Beverly (2000): Singapore Academy of Law Annual Lecture
Montesquieu, Charles-Louis (1748): The Spirit of Law. Republished in 2001 by Batoche books
Jensen, Michael (2010): Retten rundt nr 3. Published by Domstolsstyrelsen.
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