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The judicialisation of public policy

By Jim South - posted Wednesday, 12 July 2006


However, a bill of rights would require the courts to perform a public policy role. Disregarding the values of the public in this context would be questionable in terms of democratic principles. Moreover, instead of impartially interpreting the bill of rights using objective legal criteria, judges would be forced to make value judgments on a wide range of social, moral, policy and other political issues. Some rights advocates argue that this would not be a problem as judges have been making value judgments for hundreds of years when developing the common law.

That argument overlooks important differences between the common law and the laws made by parliament. When judges make the common law, they defer to the higher authority of any applicable laws made by parliament (provided those laws comply with constitutional requirements). This hierarchical relationship between the two types of laws is based on the democratic legitimacy of the laws made by the people’s representatives in parliament - a legitimacy which the common law lacks.

In contrast with the way the common law is developed, judges applying a bill of rights would not defer to the laws made by the people’s representatives. Instead, they would pass judgment on those laws. Such judgments would reflect judges’ values, rather than those of the people or their representatives. Governments would be loath to risk the political consequences of ignoring or overriding court rulings on laws deemed to violate fundamental rights.

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This powerful new role of the courts in judging and shaping public policy would significantly reduce the capacity of the people’s elected representatives to give effect to the people’s wishes. This in turn would reduce the capacity of the people to influence political outcomes. The preferences of a minority comprised of judges would be privileged over the preferences of the majority. As a consequence, the people would be denied the fundamental right upon which all other human rights depend - the right of each citizen to political equality.

Removing the right of citizens to an equal opportunity to influence political outcomes could cause them to question the legitimacy of those outcomes. This could have adverse implications for the rule of law, which in part depends on the extent to which people are prepared to abide by political outcomes affecting them.

Intelligent, reasonable people often disagree over contentious political issues. Reason and morality do not lie exclusively on only one side in political debates. Why should the opinions of unelected judges on highly contestable political issues prevail over those of the people and their elected representatives?

Judges should not be given the job of determining essentially political issues. To do so would compromise the independence of the courts and curtail the people’s democratic right to govern themselves through their elected representatives.

In response to the suggestion that man cannot be trusted to govern himself, Thomas Jefferson asked: “[H]ave we found angels in the form of kings to govern him?” Ironically, Jefferson was an initiator of the Bill of Rights included in the US Constitution, but he subsequently had misgivings about the extent of the power given to the judicial branch of government:

Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is “boni judicis est ampliare jurisdictionem” [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control.

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At the time, Jefferson had no knowledge of the awesome political power that the US Supreme Court would eventually assume in applying the Bill of Rights in the US Constitution.

Two centuries later, it is again suggested that we the people cannot be trusted to govern ourselves. Should judges govern us?

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About the Author

Jim South is a non-politically aligned Queensland public servant with an interest in analysing and commenting on current political issues.

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