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Political Science Mid Term Exam
The importance of a strong and independent judicial power in a
democratic polity
BSc. International Business and Politics
Copenhagen Business School
Political Science Fall 2013
Mid-Term Exam
22 October – 28 October 2013
Tutorial group XD, 3
Number of pages excluding front and list of references: 9
STU count: 22.160
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Introduction
This essay will examine whether it is essential to have an independent and strong judicial system in a democratic polity. I will argue, based on individual rights and checks and balances,
that a democracy needs both strong and independent courts to constrain the legislative and executive power. Firstly, since “strong, independent, essential and democracy”, are broad terms,
definitions will be presented. The definition of democracy will be the key feature of the final
assessment of the topic. Then I will use Montesquieu to give the theoretical background need
for the analysis, regarding the separation of powers. Afterwards, I will argue that we are seeing
an expansion of judicial power globally, based on empirical data. Afterwards, I will analyze
why we are seeing this development. Then, I will discuss the advantages and disadvantages of
strong and independent courts, and normatively derive how they ought to act. Furthermore, I
will touch upon the limits and problems of different imbalances between the different branches
of government. Afterwards, I will discuss the desirability of the expansive judicial power. Lastly, a conclusion will sum up the main arguments and findings of the essay. I will now turn to
my thoughts upon the choice of sources.
Choice of sources
In this assignment, I will largely use other sources than those from the examination requirements, to have a broader empirical base. Furthermore, the direct relevant pages in our book
“Politics”, by Andrew Heywood, only stretches seven pages. For this reason, I find it necessary
to use other sources for a broader perspective. A significant part of the sources I include comes
from present or former judges, to get their viewpoint on this topic. When choosing sources
written by people, which are a part of the judicial system, you naturally have to be critical
about their statements and analysis. I have tried to balance the sources between judges and political scientist, to diversify the overall discussion and the reliability. The discussion about the
advantages and the disadvantages for having a strong legislative power and judicial law making as a result, will be discussed mainly normatively. However, I will include few examples of
systems, without a balanced power relationship between the judicial and the legislative branch.
Now, I will explain from which viewpoints I will base my essay.
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Approaches
The approach to this assignment will mainly be institutional and cultural. The cultural setting is
important in explaining the change of politics of interests to politics of identity, and the rise of
rights based trials in the courts systems. The institutional approach is needed to understand the extent of powers, which the judicial branch possesses, e.g. in relation to the constitution and their
ability to limit the powers of the legislators. On a more general basis, the culture and institutions
precede actors, and in this way, individual actions is to a great extent a result of the institutional
frames, and the changes in the culture. I will now turn to the definitions needed to discuss the topic.
Definition of a “strong” judicial system
The reason for having a strong judicial system is to limit the sovereignty of the legislative power.
Sovereignty means absolute power, and exists in several countries without an independent and
strong judiciary (Heywood, Andrew, p. 58). A strong judiciary is often based on a codified constitution, which can limit and constrain the government. It is a way of fragmenting the power and
therefore creating checks and balances. Without a codified constitution, the legislative body can
make or remove any law, which gives the government unchallengeable authority (Heywood, Andrew p. 335). However, it is not enough to have a codified constitution, since a strong judicial system is needed to resist pressure and control from the government. In China for example, the constitution from 1982 states: “China is a social state under the people´s dictatorship” (Heywood, Andrew 337), but since the courts lack both the capacity and independence to uphold the constitution,
it is not practiced. The judicial system should furthermore be based on “The Rule of Law”, which
implies that it should establish a framework of laws, which all citizens must abide. Closely connected to the strength of the judicial system, is the extent of the independence, which I now will
turn to.
Definition of an “independent” judicial system
Judicial independence is based on the principle, that there should be a strict separation of powers
between the courts and the legislative and executive branch of the state. However, an independent
judicial system must also be impartial, which means that it must act as an objective actor. This im-
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plies that they cannot be subject external appointment and they must be protected by the security
of tenure (Richard, John). In countries like the United States, the judges of the Supreme Court are
elected by the senate and the president, and are often openly either democratic or republican,
which is referred to as “external bias”. This can result in what is called “gerrymandering”, which is
when the legislative body exerts power outside its boundaries, to achieve a political goals (Heywood, Andrew, p. 346). Following, I will give my viewpoints of what “essential” means.
Definition of “essential”
When I will write essential in the assignment, it will be as something indispensable and necessary.
Essential in this context refers to something fundamental of vital importance to the democracy.
This does not mean that a democracy only exist in countries without any external or internal bias
in the courts, which might not be present anywhere, but that a clear distinction between the governmental branches must be evident. The word is used in connection to the following definition of
democracy, and will be used in that sense.
Definition of “democracy”
When describing a democracy, people often only places focus on “majority rule”, based on the
Greek words, “demos” and “kratos”, which literally means the rule of the people. Martin Taylor
wrote about the common laws and the role of the judicial system in 1996, and defined modern democracy: “As our understanding of the nature of the modern democratic system 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” (Taylor, Martin 1996, p.
31). What is important in this quote is that majority rule is necessary, but not sufficient for a modern democracy. More is needed to a democracy, which is the protection of minority and individual
rights, against the majority, and it is up the courts to protect these rights. In this definition, the difference between mob rule and democracy are the courts. The majority may intentionally undercut
liberal values to some individuals, also known as “utilitarianism”, for the greater good of the majority. In extreme situations, it might result in dictatorship of the majority. Hence, in a democracy
we need an organ, which can constrain and limit the legislative and executive power, and protect
“Liberty, Equality and Fraternity” for all.
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To dig deeper into the definition of democracy, I will turn to Peter McCormick and his book
“Supreme at last”, regarding his view on courts “... there is a sense in which a strong and independent judiciary is democratic – not because the courts are overly democratic in their organization or their selection process, but because they are the mechanism that serves the other face of
democracy” (McCormick, Peter, 2000, p. 173). This quote touches upon the paradoxical fact, that
the population does not elect the judges, they have no mandate by the people, yet they are to judge
these individuals, and they are still viewed as a partner in democracy. To understand this complex
relationship, we can look at the developments in the postmodern society, where we can observe a
shift from politics of interests to politics of identity, where interest groups are emerging (Heywood, Andrew p. 245). All kinds of minorities around the world, join together and take their interests to the courts, to improve their situation. This shows how traditional less favored groups can
enhance their rights, and the role of the judiciary in the modern democracy. Now, a historical view
of the separation of powers will be presented, based on Montesquieu.
Theory on separation of powers
I will use Montesquieu to explain the theory, of which I will base my analysis. The best way to secure freedom, according to Montesquieu, was to separate the powers: “There is as yet no liberty if
the power of judging be not separated from legislative power and the executrix” (Montesquieu,
1748). So if the executive and the legislative powers are not separated, tyrannical laws can be
passed, and these laws will practiced tyrannically. Neither will there be liberty, if the judicial power is not separated from the legislative, since the judge will be the legislator. If the judicial power
was ruled by the same people as the execute, or a part of the same governmental branch, the judge
could be the oppressor. The worst scenario of all would be if all three branches were combined,
even under the people. In this way, it would be impossible for power to check power (Rasmussen,
Erik 1973 p. 37-40). Montesquieu clearly explains that this situation will result in abuse of power:
“For we cannot abuse power, must, by the arrangement of things, power checks power” (Montesquieu, 1748). It is of great importance to notice, that even though the three branches are controlled
by the people, it will still result in abuse of power.
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Statements to underpin the expansion of judicial power globally
This part will offer arguments in favor of the view that judicial power is expanding. To describe
the development of judicial power, I will turn to McCormick again, which states that we are experiencing a growth of the political power in the world. E.g., the constitutional council in France has
since the 1970´s had a “surprisingly expansive approach” to constitutional issues, which “invites
comparison to the United States Supreme court”. The European Court of Justice has intensively
worked for the integration of Europe, and imposed “judicial review and entrenched rights on the
courts of the member countries” (McCormick, Peter, 2000, p. 192). Furthermore, Martin Shapiro
and Alec Stone (1994) notes that “a political jurisprudence of rights today is endemic and occasionally epidemic” (Shapiro, Stone 1994, p. 26). For examples like these, we are seeing a trend
where the judicial branch of the governments are gaining more influence worldwide. Even though
the development, in relation to the definition of democracy, is positive, it also requires a strong
legislative body. In the next part of the essay, I will use statistical data to observe the development.
Empirical data to underpin the expansion of judicial power
If we look at the trials in the Supreme Court in
the US, to see the development of the “rights
politics”, we can observe data that supports
the rise of identity politics, which will be explained in the next paragraph. In figure 9.1
(Cain, Dalton and Scarrow 2003 p- 199), we
can observe that in 1933, 9 % of the trials
concerned rights cases in the Supreme Court,
and it grew to 65 % in 1990. This is closely linked to the creation and development of women’s
groups, NAACP and ACLU etc. Jurisdiction over constitutional rights, significantly increases
judges roles in public policy. It is very difficult to separate rights from public policy, since it by
nature, has to do with limitations on policy. Furthermore, this development is supported by the
fact, that the legislative branch cannot alter these rulings, unless they change the constitution. This
underlines a theme, which I will dig deeper into through the essay, that the judicial branch is to
some degree law making too.
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Reasons for the expansion of judicial power
One of the major reasons for the rise of judicial power might be the emergence of identity politics,
or what is also called “politics of difference”. Group politics is based on gender, sexual orientation, ethnicity, religion and culture, which all results in several groups, which wish to fight oppression by the dominating minority, or ruling groups. These groups feels marginalized by the society
and fights stereotypes developed by other dominant groups. Especially in countries like the United
States, with strong minority groups, we have seen that the courts have played a leading role in
their rights. An example could be the case Brown vs. Board of education from 1954, about racial
segregation in schools. In recent years, it has evolved to what is being referred to “positive discrimination” in the US, which refers to preferential treatment of ethnic groups, based on past disadvantage (Heywood, Andrew 2013 p. 160-166). These individuals join together to improve their
situation, by raising their arguments in the courts, when they felt the legislator’s didn´t listen
(Mclachin, Beverly 2000 p. 316). Following, a discussion on how legislators and courts should divide their powers will be derived.
Advantages of the legislatives abilities to make law
To dig deeper in to the field of judicial law making. Courts work by applying previous cases to
new situations. In this process, the rules and precedents change over time, to meet the developments of the society. In this way, the judicial branch is also law making (Heywood, Andrew 2013
p. 347). Peter Russell (2008), a professor in Political Science, has written about this phenomenon,
which he calls the “flight from politics”, from “the procedures of representative government and
government by discussion as means of resolving fundamental questions of political justice” (Russell, Peters 1982 p. 25). The legislative branch are much better suited to make laws, since they able
to set up commissions to investigate the topic, and consult different experts and advisors. Furthermore, they have bureaucrats that can calculate the costs and benefits. In addition, after the law has
been passed, the electorate has the ability to vote out the legislators if they don´t like the law.
However, courts might not be best suited to make law, but they are to interpret it, which is what
the next part will focus on.
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The complementary role of courts in law making
Courts has the role of interpreting the law, written by the legislators. Some worry, that when judges are interpreting law, they may assign meaning to loose phrases, based on their own ideological
preferences. Of cause, all law is subject to interpretation, since it is impossible to make laws so
particular, that they can be no doubt in any case. Therefore, judges have to apply meaning to different phrases, and they should do that in order to avoid situations where the law, if applied, will
result in injustice. The judge should search for the solution that the legislator intended, and in this
sense, the judge is adding or changing the law (Mclachin, Beverly, 2000 p. 323). If we look at the
courts responsibility to make sure, that the legislative power doesn´t overstep its boundaries, we
need to focus on the constitution. Most countries today has a codified constitution, and the courts
must decide whether new legislation is legal within the boundaries of the constitution. It is a legal
issue, hence, it must be the judicial branch of government that decides this. If the constitution is in
the way of new legislation, supported by the population, the constitution must first be changed
then (Heywood, Andrew 2013 p. 349).
Limits of the judicial powers
The limits to the courts powers are several. First, when the legislative branch clearly formulates
law, which doesn´t overstep the boundaries of the constitution, the job for the judiciary is only to
apply it. On the other hand, when there is an area, without clear legislation, the courts are in their
right to develop law, on a case-to-case foundation, as Taylor puts it: “So long as the legislatures
cannot find time to deal with all the problems of mankind the courts must fill the void” (Taylor,
Martin, 1996 p. 31). In addition to that case, there might also be situations where issues “are so
finely balanced as to be incapable of resolution in a political form” (Taylor, Martin, 1996 p.31).
However, this does not mean, that judges are free to create any laws they please, since they should
limit themselves. This is evident if we look at the Victorian pronouncement of the judge Baron
Parke in Egerton v. Brownlow, which states that judges are not allowed “to establish as law everything that they may think for the public good, and prohibit everything that they think otherwise”
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(Egerton v. Brownlow 1853). In the next paragraph, I will look into which considerations and precautions, the judges ought to have when judging.
Precautions that should be taken by the courts
Judges shouldn´t only look isolated at the specific case, but also take into account, that it will create precedence for future cases, as mentioned earlier. Therefore, when a judge feel the need to
change the traditional interpretation, to avoid injustice, he must consider forthcoming cases. Martin Taylor wrote, that it “… must be beneficial not on the one case only, but for all similar cases”
(Taylor, Martin 1996). Secondly, the courts should minimize the costs associated with the trial.
The old principle from The Declaration of Independence “No taxation without representation”,
should apply, since only elected representatives should be allowed to impose costs to the taxpayer.
Thirdly, the decisions made, which create precedence for the cases to come, may have a great impact on the economy, social conflicts etc. For this reason, judges must regard the potential consequences from their decisions. Last, and most important, they should be able to withstand the pressure from the popular opinion in the public, meanwhile adhering to “the felt necessity of time”
(Holmes, Oliver 1881 p.1), as it is written in the common law. This means, that they should be
ready to go against the majority, and on the other hand still stay in touch with the values of the society.
Problems concerning a strong, but not independent judicial branch
Problems may arise, when the courts are not independent from the legislative power, and when
they do not limit their own authority, as covered in the preceding paragraph. This might result in
ultra vires, which comes from latin and means, that the branch acts beyond its powers. An example could be the ruling of The Supreme Court in the year 2000, in the US, over disputes about
electoral fraud in the state of Florida. The state court ruled that the votes should be recounted all
across the state, and the Supreme Court first delayed the recount, and later ordered the recount
stopped. The votes were five in favor and four against the decision. It is believed, that if the recount had taken place, Al-Gore would have won the state of Florida, and then the election (Heywood, Andrew 2013 p. 348). All five votes in favor were from republican judges, which shows,
which a judicial branch without independence, will in some cases lead to less democratic out-
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comes. The results from trials like these might be influenced by external political pressure, as external bias. When the judges are appointed based on their political opinions, they are not able to
act neutrally (Johnson, Luke 2013). Next, I will assess whether the expansion of judicial power is
desirable, based on the preceding discussion.
The desirability of this development
Based on the definition of democracy, that focus on individual rights and the rule of law, the increasing power of the judicial branch globally, is a positive thing. Furthermore, the independence
of the courts is also essential to a democracy, to secure their ability to constrain the legislative and
executive power, according to the theory of Montesquieu. However, there has to be limits to the
judicial power, so they don´t act beyond their rights. For this reason, a strong legislative branch is
needed, to clearly define the laws under which the judicial branch should work. In addition to that,
the judicial branch should limit its own power, in relation to judicial law making, since the legislators are in the best position to do this. Based on this analysis, democracy and individual rights will
flourish even greater in societies, which has a strong and independent judicial branch, and henceforth it is not a problem, that courts globally are gaining power. Nevertheless, you will always
need a watchdog to watch the watchdog, so for this reason, the executive and legislative branch
must check the power of the judicial.
Conclusion
“Give all power to the many, they will oppress the few. Give all power to the few, they will oppress the
many.” - Alexander Hamilton
This quote from Alexander Hamilton expresses the overall argument of the essay to some degree.
Democracy is about more than majority rule, and as Montesquieu stated, even though the power
lies with the people, it will still be abused. Neither can we brush aside the fact, that courts also
needs a strong counterpart: the legislators. Therefore, the legislators and the courts are partners in
democracy, while the judicial branch is the last defense of the individual against the majority. An
imbalance between these branches will results in a less democratic polity, and each part has certain
advantages and responsibilities towards the other and the society. An important point is that the
judicial branch should neither have excessive power, and should be limited by legislative and
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themselves. Besides, a culture of politics of identity has emerged, which goes hand in hand with
the increase of the rights based trials in the courts. This is a natural response to the change in culture, and the institutional frames, which allows the courts to rule against majority decisions. This
development is to a great extent desirable, according to the definition of the modern democracy
and the thoughts of Montesquieu.
List of references:
Internet articles:
Johnson, Luke: “Sandra Day O´Conner doubts decision to take Bush vs. Gore”, The Huffington Post - http://www.huffingtonpost.com/2013/04/29/sandra-day-o-connor_n_3177322.html
Visited 26/10 2013 15.00
Richard, John: “Maintaining a strong Judiciary – the view from Canada”. Federal Court Appeal - http://cas-ncr-nter03.cas-satj.gc.ca/portal/page/portal/fca-caf_eng/speechesdiscours_eng/speech-discours-8apr2003_eng
Visited 23/10 12.00
Books:
Cain, Dalton and Scarrow (2003): “Democracy Transformed – Expanding political opportunities in advanced industrial democracies” Oxford Scholarship Online.
Heywood, Andrew, 2013: “Politics”, fourth edition. Published by Palgrave Macmillan.
Holmes, Oliver (1881): “The common law”.
McCormick, Peter (2000): “Supreme at last – the evolution of the supreme court in Canada”,
James Lorimer and Company Ltd., Publishers, Toronto 2000.
Montesquieu, Charles (1748): “The spirits of laws”. Direct link to the quote: http://www.thephilosophy.com/montesquieu-quotes. Visited 25/10 14.00
Rasmussen, Erik (1873): “Det gode samfund – politisk tænkning fra oldtid til nutid”,
Gyldendal.
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Russell, Peters (1982): “The effect of a charter of right on the policy making role of the Canadian courts”, Canadian public administration 32.
Shapiro, Martin and Stone, Alec (1994): “The New constitutional politics of Europe”, Comparative political studies 409.
Taylor, Martin (1996): “Making and changing the common law – The essential democratic
function of the courts”, (unpublished).
Academic articles:
Mclachin, Beverly (2000): “Judical Power and Democracy”, Singapore academy of law journal. 12 SAcLJ 311.
Trials:
Egerton
v.
Earl
of
Brownlow;
Hl
1853.
Judge:
Lord
Truro,
Parke
B.
http://swarb.co.uk/egerton-v-earl-of-brownlow-hl-1853/ Visited 24/10 17.00
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