Prof. Gerhard Casper “Courts in a Democracy”

Courts in a Democracy
Koç University

11 November 2014
Gerhard Casper  

My subject is a conundrum:  the agency of independent judges in a democracy.  In what way are judges both agents and independent?  I shall turn to the issue of agency first and secondly to judicial independence.

I want to begin by invoking some of what was said about the matter during the American and French revolutions.  I am doing so because of their historical importance, but also because participants gave such clear, vivid, and subtle expression to what is involved when free peoples attempt to assign the judiciary a place in the organization of government. 

Over the course of the more than two and a quarter centuries that have passed since 1776 and 1789, popular sovereignty has become the prevailing doctrine for legitimating government around the world.

Popular sovereignty is a supposition with a strong fictional character that has its roots in the logical stipulation of a social contract.  The oldest still working written constitution in the world, that of the Commonwealth of Massachusetts, says in its preamble from 1780:  “The body politic is formed by a voluntary association of individuals:  it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.”

As a formula, popular sovereignty finds different expressions.  The preamble of the 1787 Constitution of the United States, also still in force, simply begins with the words “We the People of the United States …  do ordain and establish this Constitution for the United States of America.”  The reference to “the People of the United States” is somewhat misleading in that it suggests more of a preexisting reality than was actually the case.  What largely happened in 1787 was that the new federal Constitution literally constituted the people and the country.

Two years later, the preamble of the 1789 Déclaration des Droits de l’Homme et du Citoyen refers to the representatives of the French people (“les Représentants du Peuple Francais”), but in its article 3 the Declaration employs a somewhat different concept:  “The principle of all sovereignty resides essentially in the nation.  No body nor individual may exercise any authority which does not proceed directly from the nation.”

“The nation” is a more ambiguous term with often limiting political connotations.  In Europe, it has remained antecedent to and independent of varying constitutions.  Similarly, the notion of the “state” has retained an independent significance in Europe.  State-formation and constitution-making in France and many other European countries did not go hand in hand as it did in the United States.  This can lead to the state being positioned as an entity apart from the people with interests that are separate, indeed potentially opposed, to the people’s interests.  While, historically speaking, this bifurcation has undoubtedly taken place, democratically only the people can say  “We are the state”—“L’etat c’est moi”—or, in the plural, “L’etat c’est nous”—not a king, not a government, not a bureaucracy, not a military.

In spite of important historical, political, and social differences, the constitutionalist enterprises in America and in France had in common an emphasis on the protection of rights as one of its primary purposes.  The 1789 Déclaration des Droits de l’Homme et du Citoyen says in its article 2:  “The aim of all political association is the preservation of the natural and imprescriptible rights of man.  These rights are liberty, property, security, and resistance to oppression … .”

More than a decade earlier, the town of Concord, Massachusetts, had adopted a resolution stating “that a Constitution in its Proper Idea intends a System of Principles Established to Secure the Subject in the Possession and enjoyment of their Rights and Privileges against any Encroachment of the Governing Part.”

What does “a system of principles” to secure rights consist of?  More or less simultaneously with the notion of popular sovereignty and the protection of rights another concept was reflected in the revolutionary constitutions—the separation of powers.  The following extremely stringent and normative formulation is that of article 16 of the 1789 French Déclaration:  “A society in which the guarantee of rights is not assured, nor the separation of powers provided for, has no constitution.”


GerhardCasper-PosterWhen these words were written, the separation of powers had been the subject of ever-increasing attention on both sides of the Atlantic for about 150 years, though no consensus had been reached on what the concept specifically entailed for the distribution of governmental powers and for the interaction of these powers with one another.

Article XXXVII of the 1784 New Hampshire Bill of Rights, a provision that is still in force, expressed a dialectical view of the matter in emphasizing separation, coordination and cooperation:  “In the government of this state, the three essential powers thereof, to wit, the legislative, executive and judicial, ought to be kept as separate from and independent of each other, as the nature of free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.”

The formulation “as is consistent with that chain of connection,” the “indissoluble bond of union and amity,” is actually an important cautionary note from the late 18th century against losing sight of the common good in the way separation of powers is practiced.

Consensus existed on Montesquieu’s proposition that the exercise of governmental powers should not be concentrated in one hand.  Separation of powers was viewed as a necessary if not sufficient condition of liberty and the protection of rights:  its absence promotes tyranny.

In reality, most constitutions know some overlap among the powers because the three powers perform three distinguishable functions only to a limited extent and because the achievement of checks and balances depends on that overlap.

The constitutional organization of the American federal government provides a good illustration.  The separation of powers at the federal level is delineated by the organization of the constitutional text.  The Preamble speaks of the people of the United States as ordaining and establishing the Constitution.  The first article deals with the election and legislative powers of Congress.  Article II vests the executive power in a President.  Article III concerns the judicial power and its jurisdiction.

Although this organization seems to provide us with a rather pure example of the separation of powers, the American Constitution combines elements of separate and independent powers (such as an independent judiciary serving for life or a President not dependent on the legislature for his term of office) with a mixing of powers, best summarized by the concept of checks and balances.

Superficially, the legislative and executive branches seem to be assigned separate functions:  lawmaking and law executing.  The judicial branch, by applying law through dispute-resolution, performs one part of the executive function under special conditions and special procedures.  In reality, however, both the executive and the judiciary engage in lawmaking through interpretation and rule-making.  Furthermore, the President intrudes directly into the legislative by his veto power.  Congress, on the other hand, performs executive functions through highly detailed appropriations of money, legislative oversight, and the participation of the Senate in all high-level appointments, including those of federal judges.  The American system is a system of checks and balances by means of separated powers.  The purpose is to harness the love of power of those occupying the various branches of government and to prevent any one view of the people’s common enterprise from dominating.

Around the world, the traditional list of three powers—legislative, executive, and judicial—has been both narrowed and augmented over time.  Thus, in truly parliamentary forms of government the distinction between legislature and executive can be weak because parliamentary majorities control the government that, to some extent, controls bureaucracies and administrative agencies.  I say “to some extent” because in most developed democracies one can make the case that administrative agencies constitute a virtual fourth branch with a fairly high degree of operational independence.

One of the most interesting modern developments has been the creation of additional powers by providing for more or less autonomous guardian institutions that do not easily fall into any of the three categories:  a prime example are central banks, but also election and anti-corruption commissions.  Whether constitutional courts belong to the judicial branch or should be considered a sui generis guardian institution is a question to which I shall return.

While Montesquieu had misunderstood the English institutions on which he based much of his separation of powers doctrine, his importance for the postulate that the judiciary be independent, cannot be overestimated.  Montesquieu had written:  “[T]here is no liberty, if the power of judging be not separated from the legislative and executive.  Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be legislator.  Were it joined with the executive power, the judge might behave with violence and oppression.”

Expressing agreement, the 1780 Massachusetts Declaration of Rights stipulates the right of every citizen “to be tried by judges as free, impartial, and independent as the lot of humanity will admit.”  At the same time, the Massachusetts Declaration is concerned with the notion of popular sovereignty.  It uses emphatic language in this respect:  all power resides in the people, and the several magistrates, “whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.”  All “magistrates” are viewed as the people’s agents, no distinction is made among members of one branch or the other or between elected and unelected office holders.

In what sense are judges agents of the people?  What are they agents for?  A simple answer would be that the agency performed by judges is to be found in the enforcement (and development) of law by means of the impartial adjudication of disputes among citizens or of disputes between citizens and governments.

On account of the French experience with the courts of the Ancien Régime, the “parliaments,” the latter part of my proposition was denied by the French revolutionary version of the separation of powers doctrine.  The decree of August 16-24, 1790 prohibited judicial review not only of legislation but also of administrative action.  It said: “Judicial functions are distinct and will always remain separate from administrative functions.”

However, learning a historical lesson about the need for independent review in the administrative state, France has not been able to maintain a rule that freed public administration from judicial review.  The administrative and judicial functions of the Conseil d’Etat eventually led to a full blown system of administrative courts that has served as model for other countries.  More recently, even France’s agent for constitutional review, the Conseil Constitutionnel, has come to resemble constitutional courts as we find them elsewhere.  Originally, the Conseil Constitutionnel had been conceived as a body still displaying some deference to parliamentary supremacy.

Courts in a democracy adjudicate on the basis of what?  Given the organization of peoples into nation-states, national law is the primary source.  By national law, I mean law promulgated by the legislature or other bodies that within the national legal system possess delegated law-making authority in accordance with what H.L.A. Hart called the rule of recognition.

Due to strong traditions going back many centuries, private law in much of the Commonwealth and in the United States is predominantly judge-made common law.  The complexities of modern economies have, however, led to considerable statutory overlay.

On the other hand, in civil law countries judges also make law through interpretation of codes and statutes that resolves ambiguities or fills gaps.  A dramatic example of the express conference of law-making authority on judges can be found in the famous Article 1 of the Swiss Civil Code:  “The law applies according to its wording or interpretation to all legal questions for which it contains a provision.  In the absence of a provision, the court shall decide in accordance with customary law and, in the absence of customary law, in accordance with the rule that it would make as legislator.  In doing so, the court shall follow established doctrine and case law.”

Article 1 is a clear recognition of the inevitability of judicial lawmaking.  However, a court is not to follow its own will but to promulgate the rule “that it would make as the legislator” in accordance with “established doctrine and case law.”  And, of course, legislatures can overturn the law of judicial decisions with which they disagree.

A question that was at one time not easily answered is whether constitutions are law that can and should be applied by the regular courts of a given legal system.  American constitutionalism concluded early that constitutions not only are law, but that they are “higher” law that all courts need to abide by and that therefore makes it unavoidable for courts to exercise the power of constitutional review of legislation.

In Europe, on the other hand, in countries such as the United Kingdom and, well into the 20th century, France, the supremacy of parliaments was insisted upon.  The same was true for federal law in Canada until 1982.  In Switzerland, it is the sovereign people who retain the last word on legislation.

In other countries, constitutions were seen primarily as political subject matter not as law suitable for judicial review.  And then there were political theorists—the German Carl Schmitt comes to mind—who understood politics as “friend-enemy” relationships and therefore could not see courts as constitutional guardians deciding what they viewed as political issues.  What mattered to Schmitt in conflict situations were political decisions as such, not efforts to maintain the rule of law under trying and exceptional circumstances.  It comes as no surprise that Schmitt later played a prominent role as a Nazi ideologue.

After fascism and the human and political catastrophes caused primarily by that German state that had legalized injustice and organized genocide, the call for courts as guardians of the constitution was heard and answered in many countries.  As Justice Rosalie Abella, of the Canadian Supreme Court, has put it, most of the new constitutions were created precisely to act as check on government, and as a way to protect citizens’ rights from inappropriate state infringement:  they went from parliamentary supremacy to constitutional supremacy.  The same happened again with the collapse of the Communist regimes in Eastern Europe.

The main model chosen, however, in most post World War II cases was not to confer jurisdiction for judicial review on courts of general jurisdiction but on specialized constitutional courts patterned after what Hans Kelsen had designed for Austria after the dissolution of the Habsburg Empire.

Constitutional courts around the world have not infrequently a strong political accent.  Their composition is often based on political considerations and determined by politicians.  Indeed, the contemporary preference for constitutional courts seems to be, at least in part, a function of politicians seeking political control.  This has become a matter of concern in many countries.

I think there can be little question that constitutional courts should be cast as courts.  While in practice they range from the quite political (for instance, the Constitutional Court of Thailand) to the more legal (for instance, the much respected German Constitutional Court), prescriptively, normatively, we should see them as courts because of their primary responsibility:  the definition of the polity with regard to essential constitutional and legal principles, especially the protection of basic rights.

So far, I have put forward a fairly straightforward proposition:  the people as sovereign, acting through constitutions and legislatures, decide what law courts should apply.  However, matters get more complicated when the people, by referendum or through their representatives, decide to qualify their country’s sovereignty and subject it to international rules.  A significant example is the European Convention on Human Rights, as it provides individuals with individual recourse for its violation by member states.  The European Convention, the United Nations Declaration of Human Rights, and United Nations conventions have significantly broadened the authority of various human rights canons, however weak they may be in reality.

For member states of the European Union, the most dramatic limitations on legal sovereignty came with the constitutionalization of the European treaties through the jurisprudence of the European Court of Justice.  Early on, the court stipulated the supremacy of European law and obligated judges in all member states to disregard even countervailing national statutory law.  European law now includes the European Charter of Fundamental Rights.  When the French and the Dutch defeated the Treaty on the Constitution for Europe in 2005, they did not realize how little significance their decision would have.

When I mentioned earlier the task of constitutional courts to engage in “the definition of the polity with regard to essential constitutional and legal principles,” I was referring to principles derived from domestic law.  However, in reality, courts now also need to take into consideration principles of international origin.

This implies considerable challenges.  Even national legal rules that are quite specific need to be interpreted most of the time.  Different interpretations can be put forward and a judge gets to choose.  A judge also gets to choose among conflicting precedents.  What is true for ordinary law is, of course, also true for law at the constitutional or supraconstitutional level—only that law tends to be even more general and offers even more leeway for subjective interpretative strategies.  The obvious danger is that “activist” judges will formulate their own preferences, their own ideologies as law.  Too frequent crossings of the line between “constitution as ideology” and “ideology as constitution” will endanger democratic legitimacy.

If every social and political issue can be cast as a legal issue, law and its oracles may become severely overtaxed and the main agent of popular sovereignty, the legislature, subordinated to what in French is called “le gouvernement des juges.”  What is assigned to the constitution and other higher law is mostly denied the political branches and therefore raises concerns about “countermajoritariansm.”

The extreme example of countermajoritarianism is provided by the notion of unconstitutional constitutional amendments.  The Pennsylvania Charter of Privileges, as early as 1701, placed the guarantee of liberty of conscience beyond the power of amendment “because the Happiness of Mankind depends so much upon the Enjoying of the Liberty of their Consciences.”  Note that it is an individual right that was thus entrenched.

So-called eternity clauses have appeared in a number of constitutions since World War II.  They place certain constitutional fundamentals beyond amendment.  If it is claimed that a constitutional amendment violates an eternity clause, some courts assert the power to review such an amendment for its substantive accord with the clause.

The Indian Supreme Court has developed an even more far-reaching jurisprudence.  Though the Indian Constitution of 1950 contains no eternity clauses, the court has taken the position that the “basic structure” of the constitution cannot be tampered with by constitutional amendment and that therefore it has the power to annul constitutional amendments that go against the basic structure.

While one does not have to be a justice of the Indian Supreme Court ably to construct a chain of reasoning that leads to the conclusion that there is a judicial power of review over constitutional amendments, I confess to wariness.  The case for the use of such power would have to be truly compelling and its exercise, in “the spirit of liberty,” would call for much judgmental wisdom and modesty.  One of the greatest of American judges, Learned Hand, once said:  “The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias.”

For courts engaged in the more ordinary business of judicial review of legislation, the never ending challenge is, on the one hand, to be active with respect to what I call “essential” principles and, on the other hand, remain cognizant of the countermajoritarian dilemma posed by the power of judicial review.

I should like to give some definition to the concept of “essential principles.”  In order to do this, I shall focus on what written constitutions are for.  About 90 percent of all countries in the world have written constitutions.  Overwhelmingly, they were adopted in the period since 1946.

One of the most important features of these constitutions is that they make pre-commitments about governmental organization and basic rights that cannot be overridden by ordinary legislation.  As Stephen Holmes has shown, constitutions first of all comprise enabling rules that make continuous government possible.  The basic insight is that of James Madison:  if we can take for granted certain procedures and institutions fixed in the past, we can achieve our present goals more effectively than we could if we were constantly being sidetracked by the recurrent need to establish a basic framework for political life.

The continuous framework especially needs to secure essential political rights—in addition to the right to an equal vote, they are the right to freedom of speech, the right to freedom of association, the right of assembly—rights that assure the public debate.  Without them, there can be no free society.  The Italian political scientist Noberto Bobbio stressed that constitutional provisions that regulate the realm of political competition are not, as is often said, “rules of the game” but its preconditions:  without them, the game cannot take place.  Or, to quote the German Constitutional Court:  “Democracy, if it is not to remain a merely formal principle of attribution, is dependent on the existence of certain pre-legal conditions, such as a continuous free debate between opposing social forces, interests, and ideas, in which political goals become clarified and also change.”

There are other essential rights that deserve special attention.  I shall mention only one.  In the case of England, it can be traced to 1215 and was later secured in the Habeas Corpus Act of 1679:  the right not to be detained without being brought before a judge for an inquiry into the causes the government alleges for detention.  As countless historical examples from the world over show, few safeguards, in any society, are more valuable than this protection against arbitrary governments.  Its mere existence can have a deterrent effect.

The rule of law more generally is increasingly seen as a sine qua non for democracy or as an essential component of democracy.  The concept of the rule of law, of course, includes the independence of the judiciary.  In recent years, the most prominent political expression of this development have been the so-called Copenhagen criteria for accession to the European Union.  The Copenhagen criteria are an application of the insight, in Guillermo O’Donnell’s formulation, that without a vigorous rule of law, defended by an independent judiciary, rights are not safe and the equality and dignity of all citizens are at risk.

As I mentioned earlier, the 1780 Massachusetts Declaration of Rights asserted:  “It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit.”  Note that “an impartial interpretation of the laws, and administration of justice” is formulated as an individual right of every citizen.  They are not put forward as principles of governance or efficiency, but as a right on whose implementation “life, liberty, property and character” of every individual depend.  The purpose of the judiciary is not primarily to serve the commonwealth and its administration in the abstract, but to vindicate the rights of its citizens and their “character.”

This is to be done by judges who are “free, impartial and independent.”  These attributes should not only be institutional characteristics of courts, but they should be distinct personal qualities that need to be considered in the selection of judges.  Alexander Hamilton referred to “that independent spirit in the judges” that is essential “to the faithful performance of so arduous a duty.”  Hamilton also mentioned fortitude, firmness, and moderation as judicial qualities to safeguard against “ill humors in the society.”

gerhardWhat are judges to be independent from?

Montesquieu’s answer was legislature and executive.  That is easily said but not so easily accomplished since—I adopt the summary of Thomas Ginsburg—“the degree to which judges exercise real power is always limited by the preferences of powerful actors who use various formal and informal techniques to discipline courts. …  Regimes can impact the courts through controlling composition, such as by purging old members, appointing new ones and expanding or contracting the size of courts.  They can manipulate career incentives to encourage judicial conformity.  They can also focus on the design of the judicial arena, manipulating jurisdiction and creating special courts for categories of cases that are especially politically salient.  They can pass new laws to overturn errant judicial interpretations.  And in extreme cases, regimes can intimidate judges directly.”

Ginsburg’s techniques are frequently employed by autocratic governments, but they are also used in democracies.  A far out way of disciplining judges in their role as agents of the people is to choose them by popular elections and subject judges, at regular intervals, to reelections.  This has been the practice in the majority of American states since the early 19th century.  In theory a means of holding judges accountable to the sovereign people, judicial elections will, in some instances, degenerate into perverse events of partisan electioneering.  In the age of democracy, Montesquieu’s requirement that judges be independent of legislature and executive must be broadened to secure judicial independence from populist displeasures and demands.

There is no other country in the world that employs elections to select judges, as is done at the state level in the United States.  Instead, one encounters as many different selection methods as there are countries.  Not even among democracies is there a consensus on best practices.  Some democracies use a fairly political approach to choosing judges, in which governments play a decisive role; others rely primarily on judicial selection commissions that may or may not include some political representation; still others have merit-based career judiciaries with special training features.

Let me contrast two very different solutions:  the approach of the American federal constitution on the one hand, and career judiciaries, on the other.  At the level of the American national government, as distinguished from the states, federal judges are nominated by the President and confirmed by the Senate.  Their appointment is for life.  Like state judges, federal judges are chosen from among practicing lawyers, prosecutors, state and lower court judges, and, occasionally, law professors.  The American judiciary is not a career judiciary.  Men and women who get recruited as judges have had an exposure to various aspects of life before they begin their judicial service.

Variables influencing selection include professional qualifications, regional and demographic considerations, the preferences of Senators of the President’s party from the state where the appointment is to be made, the results of vetting by the Department of Justice and by bar associations.  There is also, in connection with or apart from Senate confirmation, a fair amount of public scrutiny of candidates who have been nominated by the President.

While the process seems political and, to a considerable extent, is political, the quality of the federal judiciary is, on the whole, high.  Once an appointment has been made, judicial independence is complete and removal practically impossible except in instances of criminal activity.

This applies also, of course, to justices of the United States Supreme Court, whose selection, in recent decades, has, however, become quite politicized.  One reason for this is the potential length of an appointment for life.  Given contemporary life expectancies, service as a federal judge can be quite prolonged.  Of the nine present justices of the Supreme Court, five have been on the court for more than twenty years (Antonin Scalia for 28 years) and five are older than 65 years of age (the oldest, Ruth Bader Ginsburg, is 81; Justice John Paul Stevens was 90 when he retired in 2010 after 34 years on the Supreme Court bench).

In a career judiciary ordinarily you also end up with several decades of service, though usually terminated at a fixed retirement age.  Since career judges tend to be chosen on the basis of “merit” (however defined, but often including academic merit), there is usually a fairly high degree of professionalism and competence, enhanced by special training.  To a large extent, this professionalism depends on the quality of a judge’s legal education.  To my mind, legal education has to combine a rigorous professional emphasis with the search for knowledge about law, viewed as part of the humanities and as a social science.  As should go without saying, educated independent minds are a prerequisite for judicial independence.

The independence of career judges is protected through the security of their tenure in office and through freedom from instructions.  Democracies do not know (or so we hope) the phenomenon that in the former Soviet Union was referred to as “telephone justice”:  a judge being called in a pending case by a party official with instructions for how to decide.

However, career judges are part of a bureaucracy.  I quote Martin Shapiro:  “[A]lmost every European judge is seeking to rise higher in the service.  They are particularly anxious to get a judicial place in the capital or in one of the other large cities that provide the social and cultural life desired by most university graduates.  While European judges cannot be dismissed without exceptionally good cause, they are subject to a great deal of discipline by their superiors, who control both their promotions in rank and their transfers to better courts in better places.”  Shapiro’s observation suggests that the independence of the judiciary also depends to a very large extent on the independence and integrity of the administrative organization that makes decisions of this kind.

The most important accountability mechanisms for judges in democracies are the requirement that judges publicly offer reasons for their decisions, the appellate review of lower court decisions, and critical professional and public attention to the judiciary’s work and record.

This last point is critical:  ultimately the independence of the judiciary depends on an engaged public that watches jealously over the protection of its “Rights and Privileges against any Encroachments of the Governing Part.” (Concord)