by Peter Joyce
JUDICIAL ACTIVISM
Other judges, however, exercise a wider degree of discretion when interpreting the law or constitution. Some who are faced with a situation that is not strictly covered by existing law or constitutional provision may believe it to be their responsibility to bring the existing law or the constitution up to date. Alternatively, a statute or constitutional provision at issue in a case may lack precision (containing words such as ‘normally’ or ‘reasonable’) or be ambiguous and thus capable of having more than one meaning. The judge will thus be required to give an opinion as to the correct course of action that should be pursued in the case with which they are dealing. In these situations judicial interpretation departs from the precise wording of the law or constitution. It may be guided by one or other of two principles.
Judges may decide a case according to the spirit of the law or constitution. That is, they reach a verdict based on what they view to be compatible with existing law or constitutional enactments rather than what is actually contained in them. In reaching their decision, judges may seek to determine what was in the minds of those who initially drafted the law or constitution and apply this to the case before them. Other judges may go beyond this. They may consider it their duty to adjudicate a case according to what they believe should be contained in the law or constitution rather than what actually is there.
Both of these principles enable a judge to advance beyond the mere administration of the law and, instead, to act in the capacity of a legislator. That is, they advance existing law or create new law through the ability they give themselves to interpret laws and constitutions. The term ‘judicial activism’ is applied to the situation in which judges exercise a positive role in policy making.
Judicial interpretation may help to ensure that the law or constitution is kept up to date or accords with changing public sentiments as to what constitutes reasonable conduct. However, critics of this role argue that judges ought to distinguish between interpreting the law and actually writing it. They assert that judicial interpretation leads judges to perform a role which ought to be carried out by the legislative branch of government or through the process of constitutional amendment.
Questions
In what ways can judges act as lawmakers?
Is this a good or a bad development?
The politics of the judiciary
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Insight
It is sometimes alleged that the decisions of judges are influenced by factors other than a dispassionate application of the law.
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We know from our own experiences that it is difficult to act in a totally detached and neutral manner. Our actions are likely to be based upon our personal values. Judges are no exception to this. The following section evaluates some of the factors that might influence the way in which judges discharge their responsibilities and the extent to which they are sufficiently accountable for their actions.
PERSONAL VALUES
The personal values of judges may exert considerable influence on the way in which they perform their duties. These values may be influenced by factors including the judges’ social background or legal training. This suggests that it is desirable that judges should be representative of the society in which they operate in terms such as class, gender or race. If judges are socially unrepresentative they may be open to the accusation of discriminatory conduct towards those from a different background.
POLITICAL OPINIONS
The political opinions held by a judge may also influence how that official operates. These may derive from the position which the judiciary occupies in the machinery of the state. In a liberal democracy judges may regard the preservation of this system of government to be of paramount importance. This may influence the attitude which judges display in cases when state interests are involved. Alternatively, these opinions may consist of the judge’s own political preferences. In many countries the executive branch of government has the ability to appoint judges. In America, for example, presidents often seek to promote their political values through the appointments they make to the federal judicial system, especially to the Supreme Court. They appoint judges to these positions whose political views mirror their own (although there is, of course, no guarantee that once in office – where they enjoy security of tenure – these judges will act in the manner desired by the president).
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The politics of judicial appointment in America
In America, all federal judges and justices of the Supreme Court are appointed by the president. Inquiries into a candidate’s background are initiated on behalf of the chief executive. Following this, however, they are required to be confirmed by the Senate, whose Judiciary Committee conducts hearings into a nominee’s suitability. Between 1789 and 2006 presidents submitted 158 nominations for judges to the Supreme Court, of which 122 were confirmed (and in seven other cases the nominee declined to serve). Judges of the Supreme Court serve for life subject to ‘good behaviour’. The ability of this body to overrule state and federal legislators and the chief executive influences presidents to appoint judges whose political views closely correspond to their own. For similar reasons, the Senate may pay regard to issues other than the professional competence of a nominee who comes before them for confirmation.
Some presidents have the opportunity to appoint a large number of federal judges and others very few. President F. D. Roosevelt, for example, had the opportunity to nominate nine Supreme Court judges in his tenure in office (1932–45). However, when one party has filled the office of president for a number of years, it is likely that the composition of the federal courts will reflect this control. Thus, when President Clinton entered office in 1992, he was faced with a conservative Supreme Court whose personnel had been mainly chosen by previous Republican presidents. During his eight-year period in office he was able to nominate only two members of this nine-member court. By contrast, his successor, George W. Bush, was able to nominate four judges in his eight-year presidency.
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JUDICIAL ACCOUNTABILITY
We have suggested that the personal views of judges and political considerations might influence the way in which the courts operate. If we accept that judges are able to inject personal or political biases into their work, especially when interpreting the law or constitution, we need to examine the sufficiency of mechanisms through which judges can be made to explain and justify their actions and, if necessary, be punished for them. In a liberal democracy members of the legislative and executive branches of government (who in theory are charged with initiating and carrying out legislation) are accountable for their actions. Ultimately, they rely on public support to enter or remain in public office. Judges, however, are usually insulated from any direct form of political accountability for their actions, even when these have a fundamental bearing on political affairs. They are usually unelected (although this method of appointment does apply in some American states) and once appointed enjoy security of tenure.
There are, however, some formal controls over the activities of judges. These include the ability of politicians to intervene in the operations of the criminal justice system (which in the UK includes legislation setting out a wide range of mandatory sentences which judges are required to implement). The use of juries may help to offset judicial biases. The decisions of judges can also be set aside by a successful appeal to a higher court, revision to the law or an amendment to the constitution.
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Judges and politics
The ability of the executive branch of government to appoint members to the judicial branch may be of considerable political importance. In 2000, the US Supreme Court was able to determine the outcome of that year’s presidential election.
Concern about voting practices in the state of Florida (especially in connection with discounted votes) resulted in manual recounts being commenced. The Supreme Court intervened in this process, first by halting this process and then by ruling that there
was no time to stage proper recounts of disputed ballots. This decision meant that Florida’s 25 electoral college votes were given to the Republican candidate, George W. Bush, who obtained a majority of 537 votes out of the almost 6 million votes which were cast in that state. These 25 electoral college votes gave Bush a narrow majority in the electoral college and he thus became president.
This decision contravened the traditional reluctance of the Supreme Court to intervene in elections (which were regarded as functions administered by the states) and eroded the defence of state rights which this court had upheld in recent years. Some commentators believed that party politics were a factor in the decision of the court (seven of whose nine members had been nominated by previous Republican presidents).
Courts in other countries may play equally significant roles in national elections. In Italy’s 2006 national election, the outgoing prime minister, Silvio Berlusconi, refused to concede victory to Romana Prodi, and alleged electoral fraud. It was thus left to the supreme court (Corte di Cassazione) to rule on the validity of the election results. It declared that Prodi’s centre-left coalition had won control of the Chamber of Deputies by around 25,000 votes out of 38 million that were cast, and had also secured a narrow victory in the Senate, winning 158 seats to the 156 won by Berlusconi.
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THE TENURE OF JUDGES
Liberal democratic political systems usually give judges considerable security of tenure. This is designed to ensure that these public officials cannot be placed under pressure to determine cases according to the wishes of the government of the day. In the UK, for example, senior judges can only be removed by an address of both Houses of Parliament to the Queen. In Ireland, judges can only be dismissed for misbehaviour and incapacity, and to do this requires resolutions from the Daíl and the Seanad. Additionally, an Irish judge’s remuneration may not be reduced during that official’s continuance in office.
Security of tenure tends to make judges insufficiently accountable for their actions. They are able to say and do more or less what they like in the sure knowledge that they do not have to answer directly to politicians or to the public at large. This is particularly a problem when judicial interpretation effectively gives judges a key role in the determination of public policy.
Additionally, judges may be subject to informal pressures. In particular they may be influenced by a consideration of what is acceptable to the public at large and seek to ensure that their judgements accord with what they discern as the prevailing political consensus. It has been argued that the American Supreme Court watches the election returns. This suggests that public and political opinion may play a role in determining judicial decisions.
Question
Examine the case for and against making judges more politically accountable for their actions.
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THINGS TO REMEMBER
The police and courts operate in a political environment which shapes their role and activities.
Police systems in liberal democracies may be subject to national, local or professional control.
The structure and organization of the judicial system varies from one liberal democracy to another. However, a basic division exists between civil and criminal law.
In countries with a codified (or written) constitution, the courts are given the responsibility for ensuring that national and sub-national governments obey its provisions.
Judges may be required to interpret the law in addition to administering it. This provides them with law-making responsibilities.
It is difficult for judges to be free from personal or political bias and this may affect the way in which they perform their duties.
Although judges may be subject to formal and informal controls over their behaviour, once appointed their actions are mainly immune from direct mechanisms of accountability.
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13
Sub-national government
In this chapter you will learn:
the operations of unitary and federal states
the role performed by local government
the process of local government reform in Britain.
Definition
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Insight
The term ‘sub-national government’ embraces units of government whose jurisdiction is limited to specific geographic areas within a state.
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A major role performed by government is to provide services for the benefit of the general public. Many of these are provided by national government. However, others are controlled and administered by bodies covering only part of a particular country. There are a wide variety of these, but in this chapter we will confine our attention to state, regional and local authorities. These constitute important examples of what is meant by ‘sub-national government’.
Sub-national governments are subject to considerable variation. A key distinction concerns the autonomy which such units enjoy. In federal states, such as Germany, Australia or America, power is divided between national (or federal) government and the constituent units of government. The division of responsibilities is provided for in a single source, usually a written constitution, which allocates specific functions to each sphere of government. Each enjoys autonomy in its own area of jurisdiction, which means that one may not intrude into the operations of the other. There may also be functions which are exercised jointly by both tiers of government.
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Insight
Federal political structures entail political power being exercised by both national and sub-national government. Units of sub-national government are often termed ‘states’ or ‘provinces’.
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The alternative to a federal state is a unitary one. In unitary states, political power is centralized in the hands of the national government. Countries including the United Kingdom, Sweden and France possess such forms of government. However, unitary states often possess a unit of government which is intermediate between national and local government. These are usually regional bodies which provide services for a relatively wide geographic area where the inhabitants share some form of common identity such as language, culture or race. Regional authorities vary according to the autonomy they possess: some exercise power which is devolved from national government, thus giving them a wide degree of control over such delegated responsibilities, while others merely function as administrative bodies whose role is to provide regional services according to guidelines laid down by national government.
In both federal and unitary states a range of services are provided by subordinate authorities, termed ‘local government’, whose activities will be discussed later in this chapter.
Federalism
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Insight
Federalism possesses advantages derived from localities being empowered to run their own affairs. But there are also difficulties, especially in connection with the division of powers in federal political structures.
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Federal political structures possess strengths and weaknesses. We consider these in the sections that follow.
ADVANTAGES
We have identified the division of power between a national government and constituent units such as states or provinces as the essence of a federal form of government. This situation possesses a number of advantages.
Aids the relationship between the government and its citizens
Federalism was historically viewed as a safeguard against the overbearing power of a strong, central government. In large countries it breaks down the remoteness which would otherwise occur if government were provided by a distant national authority. Government is thus brought closer to the people, who additionally are provided with the means to participate in its activities through the process of voting or through their involvement with locally orientated pressure groups.
Facilitates diversity in a country
New right ideology emphasized the virtues that derive from the diversity with whic
h a federal system of government may be associated. Variations within one country in matters such as taxation or the level of services may prove attractive to citizens or to commercial organizations, which are encouraged to move from part of the country to another to benefit themselves. Diversity may perhaps encourage competition between states to attract people and industry.
Maintenance of national unity
The autonomy possessed by state governments in a federal system may be of benefit to nations whose existence is threatened by significant internal division. Provided that a nation provides recognizable political or economic benefits to all of its citizens, groups with divergent interests may be encouraged to remain within the one state when the power possessed by the national government is limited, with most functions being provided by governments controlled by local people. Federalism thus empowers localities to run most aspects of their affairs in accordance with the wishes of the people who reside there, with restricted ‘interference’ by a national government. It may thus contribute towards retaining the existence of states threatened by separatist tendencies.
