Created to protect citizens from the whims and abuses of their head of state, the rule of law today shows a clear imbalance in favour of the judiciary; a sovereign nation is subject to the whims of a judge who not only implements the law, but makes it himself, Natalia Rutkevich writes.
Against the backdrop of unprecedented prosecution levied at former US President Donald Trump, as well as demands from the International Criminal Court (ICC) that embarrassed the South African authorities on the eve of the BRICS summit, and the protests against judicial reform in Israel, which have been colossal in duration and scale (these unfolded in the first half of 2023), the question of the status of judiciary power in modern democracies and its relationship with the executive and legislative branches is of particular interest and has become the subject of debate and expert publications.
The system of checks and balances is the central structure of modern liberal democracy, and an independent judiciary is its most important element. For centuries, the judiciary was under the tutelage of political power (it remains so to this day in much of the world). But in liberal democracies it has not only broken free: over the past half century it has pushed political institutions into the background, according to some observers. It no longer contents with the function of control, but imposes its will and its interpretation of law on the executive and legislative bodies.
The term “government of judges”, borrowed from the French jurist Édouard Lambert, who wrote at the beginning of the 20th century about the
decisive political role of the Supreme Court in the United States, today appears in a number of publications by Western scholars who claim that the rule of law has changed in its essence and that today it can be called “juristocracy” — the hegemony of judges.
The term is used by — among others — by Ran Hirschl, Professor of Law and Political Science at the University of Toronto, who argues in his book Towards Juristocracy. The Origins and Consequences of the New Constitutionalism (Harvard University Press, 2004) that Western societies, by transferring unprecedented power from representative institutions to the judiciary, created ‘juristocratic’ regimes, where a group of legal innovators gained enormous power, defending their own interests and ideals and independently determining the timing, scope and nature of constitutional reforms.
Jean-Éric Schoettl, former secretary general of the French Constitutional Council, expresses a similar opinion in a work titled The Court as a Threat to Democracy. From the rule of law to
the government of judges.
According to the French jurist, today the laws adopted by legislators have an extremely shaky construction, which can at any time be subject to revision by the European courts and the constitutional court of the country. National laws are no longer a long-term reflection of the will of the people, but only a temporary rule of the game, constantly challenged and skilfully manipulated by judges in the interests of private players. The judge’s control over public affairs has grown considerably both in scope and intensity. Nothing escapes it.
The current legal regime does not simply challenge the judiciary to determine the legal scope of political intervention; it expands the prerogatives of the judge in every possible way... to such an extent that the latter is assigned a decisive role in the process of collective standards creation.
Initially, the Constitutional Council — a body that arose under the Fifth Republic in 1958, had very limited functions. Only certain representatives of the authorities could appeal to it. The founder of the Fifth Republic, Charles de Gaulle, wanted to avoid a tilt toward juristocracy and liked to repeat that the country’s main supreme court was its people. However, after de Gaulle’s departure, the powers of the Council began to expand, and today, as Schoettl writes, virtually nothing escapes judicial control. As a result of the reforms, the Constitutional Council gave itself the right to interpret the Constitution and the preamble to the Constitution, which mentions rights and freedoms, and began to control laws for compliance with the principles laid down in the constitutional bloc of legislation.
The Constitutional Council makes additions to the law and even to the Constitution — for example, it “discovers” new constitutional principles. The highest European courts (the European Court of Human Rights and the Court of Justice of the European Union) do the same with EU treaties. The applied principles, fragile in nature, allow an extremely wide and highly subjective interpretation of the law.
Finally, over the past half century, the rule of law has become something of an ideology, a new religion in which “human rights” is a cult, and the judge is its prime minister,
But if we go back to the origins, the rule of law implies a very definite political system, which is based on the following two principles: 1. executive power should be limited in its purview; 2. This authority must guarantee the observance of the law by the inhabitants of the country. In other words, the representatives of the state must themselves observe the law, as well as effectively ensure its observance by citizens, having secured all the necessary means for this. The dialectic between effective state power and the freedom of citizens can be summarised by the following phrase, penned by the writer-philosopher Paul Valéry: “When the state is strong, it threatens to crush us, but when it is weak, we risk perishing.”
Trampling on individual freedoms is traditionally associated with the abuse of executive power, whether it is in the hands of a king, a tyrant, a pharaoh, an emperor, the general secretary of the ruling party, or someone else. To limit it, checks and balances were created, such as an effective separation of powers and judicial control.
At the same time, in societies where state institutions are absent or operate inefficiently, the freedoms of individuals are under no less, and perhaps even greater threat, as is clearly evidenced by the example of various societies where the state is virtually absent and does not have a monopoly on violence. It was Montesquieu who defined freedom as “the peace of mind of a citizen, arising from his opinion that the government not only does not subjugate him, but also guarantees that he cannot be afraid of another citizen.” Security and the confidence of the citizen in his security thus constitute an important component of political freedom.
In general, we can say that the delicate balance between the freedom of an individual and state pressure in defence of the collective interest (or what is understood by the authorities as such) is usually violated in autocracies in favour of the latter, and in Western democracies in favour of the first. Moreover, the freedoms of a citizen of each specific country come into conflict with the freedoms of an abstract universal individual, whose protection the judiciary has prioritised for some time now. In this situation, the protection of political freedoms and national interests is hampered, and sometimes completely blocked by what Jean-Eric Schoettl calls “human rights fundamentalism”, which has become a “straitjacket for democracy.” Modern law cares less and less about collective interests or about the common good as defined by the democratic majority (be it security guarantees, historical continuity, border protection, etc.). The established legal system exalts the fundamental rights of abstract individuals, whose satisfaction political communities are called upon to deal with.
As noted in a 2018 French National Assembly report, today the rule of law is not limited to the protection of fundamental rights prescribed in the Constitution, it seeks to expand these rights, “to open the widest possible space for individual freedoms.” Concisely characterising the modern legal system, the philosopher Pierre Manent wrote: “Today our law seems to pursue the only goal — to provide the individual with all possible guarantees so that he can lead a life free from any laws.”
In a society where “human rights” take the form of a cult, increasing individual rights in any area is absolute progress. Over the past fifty years, the administrative courts of Western democracies have become more liberal in assessing the appropriateness of filing a claim and are available to an increasing number of plaintiffs. The list of categories of groups of persons who can bring civil claims continues to expand. We can talk about the “processualisation” of social relations in the West, where, at the slightest pretext, citizens consider it natural to file a lawsuit.
Interestingly, the ideological nature of the concept of “human rights” in Western society, as well as the “processualisation” of human relations were noticed and criticized by such authors as Alexander Solzhenitsyn and Milan Kundera, who denounced the lack of rights of the individual in socialist dictatorships, but did not approve of the Western “legal” model either.
Both authors are worth quoting:
“Western society has given itself the organization best suited to its purposes based, I would say, on the letter of the law. The limits of human rights and righteousness are determined by a system of laws; such limits are very broad. People in the West have acquired considerable skill in interpreting and manipulating law (though laws tend to be too complicated for an average person to understand without the help of an expert). Any conflict is solved according to the letter of the law and this is considered to be the supreme solution. If one is right from a legal point of view, nothing more is required. Nobody will mention that one could still not be entirely right, and urge self-restraint, a willingness to renounce such legal rights, sacrifice and selfless risk. It would sound simply absurd. One almost never sees voluntary self-restraint. Everybody operates at the extreme limit of those legal frames. (An oil company is legally blameless when it buys up an invention of a new type of energy in order to prevent its use. A food product manufacturer is legally blameless when he poisons his produce to make it last longer: After all, people are free not to purchase it.)
I have spent all my life under a Communist regime and I will tell you that a society without any objective legal scale is a terrible one indeed. But a society with no other scale than the legal one is not quite worthy of man either. A society which is based on the letter of the law and never reaches any higher is taking very scarce advantage of the high level of human possibilities. The letter of the law is too cold and formal to have a beneficial influence on society. Whenever the tissue of life is woven of legalistic relations, there is an atmosphere of moral mediocrity, paralyzing man’s noblest impulses. And it will be simply impossible to stand through the trials of this threatening century with only the support of a legalistic structure,” Solzhenitsyn said in his famous 1978 Harvard speech.
Ten years later, in the novel Immortality, Kundera, who left Czechoslovakia for France in 1975, wrote: “I don’t know a single politician who doesn’t mention ten times a day ‘the fight for human rights’ or ‘violations of human rights’. But because people in the West are not threatened by concentration camps and are free to say and write what they want, the more the fight for human rights gains in popularity the more it loses any concrete content, becoming a kind of universal stance of everyone towards everything, a kind of energy that turns all human desires into rights. The world has become man’s right and everything in it has become a right: the desire for love the right to love, the desire for rest the right to rest, the desire for friendship the right to friendship, the desire to exceed the speed limit the right to exceed the speed limit, the desire for happiness the right to happiness, the desire to publish a book the right to publish a book, the desire to shout in the street in the middle of the night the right to shout in the street.”
The natural dynamics of this individualistic and abstract law, of which the judge is the only interpreter, leads to the fact that in the decisions of the highest judicial instances (for example, European courts), the interests of individuals and active minorities prevail over social contract and public order in many areas, competition over regulation, the market over public services, the interests of economic players over the interests of political communities. As Jean-Eric Schoettl points out, it is not only the content of these decisions that is problematic, but their spirit — they are presented as an expression of an undeniable good that states and peoples should implement without hesitation. Through the actions of the judge, the European high courts establish a new public morality and rules of the market, regardless of national interests and feelings. Many observers worry about this shift of power from nations to supranational judiciaries whose decisions are placed above national laws and imposed without the right of appeal, outside democratic debate, away from peoples and parliaments. While the logic of the functioning of democracy assumes that laws are written for peoples and with their participation, then in communities that have recognised the primacy of supranational law, states often become a platform for the implementation of laws that are drawn up by those innovators mentioned above, who possess ideas that are bold, but often not popular among the population.
According to Anne-Marie Le Pourhiet, vice-president of the French Constitutional Law Association, the emergence of a European “judicial Leviathan” calls into question the future of democracy as a decision-making system based on popular vote. The law in a democracy is the product of the will of the majority or its elected representatives, the role of the judge here is reduced to the strict application of the law. In a democracy, the law should not be the product of few judges. A judge who arrogates to himself the right to check whether the legislator correctly combines order and freedom, whether the implementation of provisions adopted to protect public interests does not lead to disproportionate interference with private rights and interests, etc., inevitably replaces the legislator’s assessment with his own assessment.
Moreover, in the article Government of Judges and Post-Democracy, Pouthiet writes that it is appropriate in the West today to talk about the confiscation of democratic choice. “Many citizens have a feeling that it is already pointless to vote, since the last word in any case will remain with the judicial aristocracy, which the high and mightiest of this world skilfully use to their advantage. If everyone understands that decisions are made in the courts, then why go to the polling station?”
Anne-Marie Le Pourhiet, like many others, also notes duplicity and opportunism in the actions of the European Court: thus, threatening Poland and Hungary with the termination of funding for “numerous violations of the principles of the rule of law”, the European Court is clearly powerless in front of Germany, whose Constitutional Court in May 2020 declared illegal the decisions of the European Court (regarding the ECB’s purchases of the state debt of countries), and thus placed its national law above European supranational law (which contradicts European treaties). After February 24, 2022, the European courts completely forgot about the sins of Warsaw, but doubled their persecution of Budapest.
Of course, democracy cannot be reduced to the will of the majority, which is fraught with tyranny. Charters of rights and judges who ensure their effective implementation are essential safeguards against this risk.
But should the courts disregard the people’s will, including on issues of preserving the continuity of national culture and the accepted way of life? According to the authors of the cited works, this is exactly what is happening now in many Western countries. Created to protect citizens from the whims and abuses of their head of state, the rule of law today shows a clear imbalance in favour of the judiciary; a sovereign nation is subject to the whims of a judge who not only implements the law, but makes it himself. At the same time, the judge, as a “servant of the cult of human rights”, has a special aura and reputation in modern Western democracies. If politicians are increasingly suspected of misbehaviour and consequently subjected to ever-increasing judicial scrutiny, the impartiality, clarity of thought and composure of judges are effectively not called into question. It is believed that judges are not sensitive to fame, are not subject to fashion trends, pride, self-interest, etc. This presumption of innocence in relation to judges is unjustified, argues Schoettl and many of his colleagues, who say that the abuses of judicial power are no less common and dangerous than abuses by other authorities.
For Montesquieu, the judge was the mouth of the law, but now the law has become “the expression of the opinion of the judge,” all in the name of the rule of law, or at least some fundamentalist vision of the rule of law, according to which the state should be limited to ensuring individual rights and freedoms and smoothing conflicts between them.
Among the defenders of an active, “republican” form of democracy, one can often hear the opinion that liberalism has emasculated democracy. For their part, a number of jurists, who are worried about the loss of democratic control over the courts, talk about how “human rights fundamentalism” emasculates the rule of law... Concern for the rights of an abstract individual leads to infringement of the rights of a citizen, the violation of the collective rights of specific communities and — to a large extent — the impotence of national politics. (As examples, Shoettl and others point to obstacles in the fight against illegal migration, against religious extremism, against the spread of practices alien to Western societies, etc).
How can the judiciary be returned to its proper place, regulating the work of the state without unduly impeding it?
Jean-Éric Schoettl puts forward a number of rather radical proposals, such as: revision of European treaties or even unilateral refusal to apply certain norms of European law; France’s withdrawal from the European Convention on Human Rights (ECHR); the introduction of a “last parliamentary word” procedure for approving a controversial law; a revision of the Constitution to allow Parliament to abolish the paralyzing case law of European courts; subordinating the prosecutor’s office to the Ministry of Justice, etc. At the same time, the author admits that it is practically impossible to take these measures, which go against the socio-political evolution of the last 50 years, and even raise the question of their adoption. This is hampered both by the mentality of the French intellectual elite and the position of the European authorities, as well as by the fierce resistance of various lobbies that have media and political support tools. Thus, a radical reform of the “juristocracy” is possible only in conditions of an acute political crisis, the probability of which, according to the author, is quite high.