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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. Author of FREEDOM OF RELIGION AND THE SECULAR STATE (2012), HUMANITY ENHANCED (2014), and THE MYSTERY OF MORAL AUTHORITY (2016).

Tuesday, December 23, 2008

"Taking power from the legislature and giving it to unelected judges ..."

How often do we hear this expression? I'm sick of it, not only because I now see multiple references to it every day, as the debate about a Bill or Charter of Rights for Australia gets going, but because it is so simplistic and misleading.

Take a situation where a constitutional Bill of Rights provides that the legislature may enact no law suppressing a religious viewpoint. Perhaps there's an override clause that such laws may be enacted if demonstrably necessary in a free and democratic society ... just in case we find ourselves threatened by a bunch of neo-Aztec fanatics who want to use the rest of us for human sacrifices, and the practical point is reached where we have no choice but to send in the army to try to suppress the entire cult. But imagine that, subject to the override clause, the legislature doesn't have power to go around enacting laws to suppress particular religions (or religion in general, or viewpoints that are sceptical about religion). Imagine that it would have this power, but for the particular constitutional provision.

Now, has the constitutional provision taken power from the legislature and given it to unelected judges? Well, perhaps in a contrived sense. It has certainly taken power from the legislature: the legislature no longer has the power to suppress religious viewpoints (except in certain pressing circumstances). Arguably, the provision has also given power to the courts: after all, they now have the power to strike down laws that are made beyond the power of the legislature in the relevant respect. If the override clause exists (or if something like it is considered to be implicit) courts may also need to consider whether, in the circumstances, a certain law really is demonstrably required, etc.

Still with me?

Then note that the power given to the court is merely that of ascertaining when a law has overstepped the line and when it hasn't. The court adjudicates this against a superior law, namely the constitutional provision. But this is exactly the sort of exercise that judges carry out all the time, and that they are trained for: interpreting laws, teasing out situations of inconsistency between laws, determining which prevails in the case of inconsistency, and so on. I actually like the idea that this task is delegated to highly-trained and (usually) highly-skilled professionals.

And also note this: while a power has, in a sense, been conferred on the courts, it is not the very same power that was taken away from the legislature. Judges are not empowered to do what the legislature could previously do, i.e. make laws that suppress a religion. In the new world, no one has that power anymore (subject to extreme situations or whatever). The citizens are free to believe, worship, etc., as they wish, knowing that the state has no power to suppress their religion even if it wants to. If the legislature enacts a law that attempts to do so, the citizens can challenge it in the courts. The judges are then simply adjudicating between the rights of the state and those of the citizens making the challenge. They may, alas, occasionally err - and end up letting some laws through in ways that are open to criticism. They may even err the other way. After all, the cases they are actually likely to be confronted with will probably be borderline ones, especially at the highest judicial levels. But they have no power to initiate and enact such laws themselves.

So, there is no power that has been transferred from the legislature to the judges. A (huge and dangerous) power has been taken away from the legislature, but the effect is to give the citizens an enhanced area of freedom from government power. Yes, the judges have a new jurisdiction, or function, or you can call it a "power" if you want, but it is no more than the "power" to do what they are trained to do, i.e. adjudicate the rights of the parties who appear before them in court. Those rights are found in legal instruments that may conflict - they are not created by judges. To say that power has been taken from the legislature and given to unelected judges is an incredibly misleading way of representing the situation. To see this, you don't have to believe that judges are infallible.

In short, we have a meme whose power to propagate itself is far out of proportion to the small grain of truth that lies somewhere in its vicinity.

Although I've analysed this at some length - and could do so at far greater length still to introduce appropriate caveats and so on - the gist of it should be obvious. I hope most people instinctively understand that the language I am objecting to is a kind of trick, but judging by its popularity I guess that's a forlorn hope. Sigh.


Brian said...

Great post Russell. Sometimes I think society is happy being fed sound-bites that require no intellectual effort or engagement. It's a worry.

Anonymous said...

Come on Russel. Don't be foolish man. Judges are there to faithfully interpret the law honestly. It is a usurpation for them to make it up on the fly.

This is just foolishness on your part.