Juristocracy and The Role Of Judges in The New Constitutionalism

If the role of the judge is to apply the law, the inevitable question arises: “does this mean that judges are fettered by the rigidity of legislative decree and they cannot make law?  The obvious answer is that judges can and do make law but not in the sense of the legislative function. 


by Dr. Ruwantissa Abeyratne in Montreal 

Judges are the depositaries of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land ~ Blackstone’s Commentaries Volume 1 

Juristocracy is a term used for the process whereby there is a  transfer of power  from the legislature to the courts under what is recognized as the new constitutionalism. Ran Hirschl, who arguably invented the term, says: “ conflicts involving contentious political issues are treated as primarily legal questions rather than political ones, with the concomitant assumption that national high courts, instead of elected representatives, should resolve them”. Harvard University Press, in its blurb on  Ran Hirschl’s book Towards Juristocracy: The Origins and Consequences of the New Constitutionalism says: “the trend toward constitutionalization is hardly driven by politicians’ genuine commitment to democracy, social justice, or universal rights. Rather, it is best understood as the product of a strategic interplay among hegemonic yet threatened political elites, influential economic stakeholders, and judicial leaders. This self-interested coalition of legal innovators determines the timing, extent, and nature of constitutional reforms”.  

Blackstone sad that judges are living oracles and depositories of the law.  An oracle in Greek mythology is a priest or priestess acting as a medium through whom advice or prophecy was sought from the gods in classical antiquity. In this context,  The role of the judge seems to be the proper application of the law and not mere “dispensation of justice”, the latter being an open ended and ambivalent term more aligned to the new constitutionalism alluded to by Hirschl. The fundamental question therefore remains: do judges dispense justice or do they apply the law? 

Justice Antonin Scalia, one of the most distinguished justices of the United States Supreme Court ever, summed it best at an interview with an anecdote: once, when Lord Denning, a highly distinguished and respected member of the House of Lords (when the House of Lords was the highest appellate court of the United Kingdom) was walking, he heard a woman cry out, “Your Lordship, will you give us justice?”.  Justice Scalia went on to say that in similar circumstances across The Pond in the United States, one day when Justice Oliver Wendell Holmes of the Supreme Court was walking toward the court, Justice Holmes had responded to a similar question :  “I apply the law”.  Justice Scalia went on to support the view that the function of a judge is to apply the law, as “justice” was in and of itself an ambiguous and at best a subjective  term for which Justice Scalia had no definition.  

If the role of the judge is to apply the law, then by no means could the representative democracy of a State expect a judge to treat political issues as legal ones. Judge Richard A. Posner, writing in 2006 in the University of Chicago Law Review an article titled The Role of the Judge in the Twenty-First Century called the infusion of a political flavour into the application of the law “attitudinalism” : “At its crudest, this is the idea that judges and Justices simply vote their political preferences, so if you know whether they are Democrats or Republicans you can predict their decisions; a more refined version substitutes ideology for party affiliation. It is unquestionably true that there are liberal and conservative judges and Justices and that if you know which camp a particular judge belongs to, you know a lot about how he or she is likely to vote”. 

If the role of the judge is to apply the law, the inevitable question arises: “does this mean that judges are fettered by the rigidity of legislative decree and they cannot make law?  The obvious answer is that judges can and do make law but not in the sense of the legislative function.   

Arguing against the approach that judges should apply the law consistent with terminology and content was The Realist School of Jurisprudence which was founded in the 1930s. It based its philosophy on cultural and social norms and espoused the idea that the law should be applied realistically and not ideologically.  A.L. Goodhart, a prominent jurist, put it best: “Realists believe that there can be no certainty about law as its predictability depends upon the sets of facts which are before the court for decision. They do not support formal, logical, and conceptual approach to law because the court ,while deciding a case reaches its decisions on “emotive” rather than logical grounds. They lay greater stress on psychological approach to the proper understanding of law as it is concerned with human behaviour and convictions of the lawyers and the judges. Realists are opposed to the value of legal terminology, for they consider it as tacit method of suppressing the uncertainty of law. The Realist school prefers to evaluate any part of law in terms of its effect”.  This might be one way of looking at “dispensing justice”. 

My take is that the new constitutionalism makes political pawns of judges who could be exposed both morally and psychologically to the vulnerability of abdicating their loyalty to legal principles and instead act in preference of their institutional positions.  They would be caught up between the political elite on the one hand who do not want to function within the parameters of democracy and giant economic forces pulling away at free market economies on the other hand.  I believe  the independence of the judiciary should lie, as Jerome Frank put it, not merely in the application of the law but in the discovery of it.  This matters in any representative democracy.

A judge should interpret a law based on its text and original meaning. I agree with Justice Scalia who said   “[i]t is simply not compatible with democratic theory that laws mean whatever they ought to mean, and that unelected judges decide what that is”  and “this corrosion of democracy occurs even when law-revising judges are elected, because “[t]he five or seven or nine members of a state supreme court, lawyers all, can hardly be considered a representative assembly.” 

The new constitutionalism will make this situation even worse.

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