Democracy has always been a key to success of leadership in many leading countries globally. It refers to a rule of the people whereby their voice matters in every decision making in a country ("Democracy"). Democracy has four components that include protection of the rights of citizens, active involvement of people in civic and political life, a system that involves electing and replacing leaders through a free and fair election, and a rule of law whereby regulations apply equally to all. Since the beginning of humanity, laws, politics, and policies have always influenced our way of living with different arm acting independently. A court being the legislative arm that defines what is wrong and right, policies influencing our decisions while democratic politics providing people with the chance to elect whomever they believe in most. However, in the 21st century, there has been a rising phenomenon of judicialization in democratic countries such as Canada and the United States. Judicialization of politics refers to the total reliance of the courts and judicial system in addressing key public policies, moral predicaments, and other political controversies (Hirschl). Several debates have risen in the past regarding the effect and legitimacy of judicialization of the democratic politics with different scholars having different perspectives. Judicialization limits the legislative functions of the courts, even Aristotle would have classified the judicialization of the democratic politics as a form of “oligarch” since it a mode of elite instead of a popular rule. In this paper, several reasons that prove that the courts should not be used in achieving policy goals since the process will subvert democracy with few contrasts are widely discussed.
Politics are usually controversial thus will taint the transparency of the legislature. Typically, politician manifestos are always drafted with the aim of winning an electoral support thus they will try to gain the trust of the public to get the required number of voters to win an election and defeat their opponents. Furthermore, politicians who are legislatures are usually obliged to adopt party lines thus remain outstandingly true to their parties. Nonetheless, that does not indicate that the candidates are simply delegates who are only meant to represent the interests of those assisted them in winning an election since they are elected by the public to represent them in the government. In the process of elections, use of incentives is involved to produce government programmes that are capable to win the support of the majority of citizen’s opinion, a requirement needed by the government for sustainability and gaining trust from the voters. The parties might also receive donations from other people who might need a favor from the candidates when they win thus the scenario will contradict the legislative politicians once they win the elections. Parties usually have their different ideological views with each of them trying to come up with unique policies that will draw the public to support them in the national elections. In the process, alliances are made to ensure the policies are implemented in the future. The means and ways of operation that the parties use to gain trust contradict the legislative politicians even without their knowing thus, when the public find out at some time, they lose interest in their judicial system.
Using courts in achieving policy goals leads to the disempowerment of the elected representative. When the courts have much power in deciding the outcomes of policies that govern a country, it renders the output of the elected official who is supposed to pass the bills in parliament. With the court stepping in, the function of the parliament is limited. The legal professionals with their transnational networks and dormancy of the parliaments have instigated the disempowerment as it offers the professional community the trusteeship role. The disempowerment of the elected representatives is also traced back to the origins of the United Kingdom Supreme Court, which lies in rational relations particularly between the political actors. In the power dynamics that involves the parliament and the Supreme Court, the courts are deferential to the parliament thus making it reciprocate by complying with the nation’s Supreme Court rulings even in situations whereby the parliament’s supremacy is impinged (Guarnieri " Patrizia 216).
When it comes to the representation by juries and attorneys in which the judges conduct the mediation, the claims that every court in a country can act as a democratic representative proves to be limited. A court can act as an alternative setting for particularly ‘representation’ but by only default whereby a person turns to forward their claims. Most significantly, a court may only work for forms of claims and some people unlike for parliament that may not work for other people or cases. Every court case results in a winner or a loser at the end with those having better organizational resources and deeper pocket faring better than the less privileged.
Judges indisputably resemble the political representatives especially in arbitration between interests that are conflicting with each other; however, this shared characteristic only highlights the politician’s roles rather than the judge’s representative traits in the legislature. Higher-ranking laws such as a written constitution or parliament statute may rely on the interpretation of the judges but the broad scope of discretion from the judicial branch in particular legal interpretations and the commitment of the judge's irreversibility erode the typical link even with the least kind of self-governing trusteeship. The court judges may operate as pronouncements trustees (such as the constitution, statute, or any other conventions), which was legitimized democratically. Nonetheless, the trustees too can betray the trust of those who crafted the law. Certainly, the law of trust is based on the level that the remedies, which are found in the claims where the trustees abuse the trust (Pettit 119). Hence, at times judges might be accused of making the judgments based on their rulings that go against the trust placed on them to reflect on their own needs rather than the ones of the elected politicians who crafted the constitutions, the statutes, and the conventions. The scenarios make the credibility of the judges to be questioned with doubts being cast on them, which is a great threat to the judicial system. Therefore, it is crucial for the judges to practice indiscretion when it comes to court cases.
Every court is limited as a representative forum since judges are the least representative actors in the legal systems. With exception of some states in the United States of America, judges in all courts all over the country are not in office on the basis of being elected thus voting them out of the office becomes a major issue. That prevents referring to them as “the citizen's delegates” even if the elected representatives who might participate in the appointment directly or indirectly respond to political pressures that might arise when doing so. The analogy, nevertheless, is tenuous since the trustees are not only authorized directly by the members of their states but are directly accountable to any of their fiduciary duties breaches that are bound to them that can come in different forms such as any form of incompetence, corruption, or sexual assault (Pettit 79). In notwithstanding the representative’s policy judgment independence, the public can see whether the judges are just tools representing them in courts or their trustworthy servants thus can be voted out of office in states that they are elected. Judicialization removes the judiciary from any democratic accountability and authorization. Thus, the involvement of judges in the policy-making makes them accountable to no one in the system but themselves. The act threatens the judicial independence; hence, limits democracy in a country.
Nevertheless, despite the disadvantages discussed above, the claims that the flaws associated with representative democracy particularly on “what voters voted for is not what they got” are examples that a court can be viewed as democratically thoughtful and popularly responsive body than the parliament (Scheppele 47). Courts can be viewed as representative in some ways. For instance, common laws particularly the ones, which are established on judicial precedents in the place of legislated codes empowers a court to push for independency with its roles that are simply representative. Usually, many diverse interests come before different courts in each state over period with each being advocated by its lawyer. Obviously, they will also receive a similar range of interests from the political representative too. Nonetheless, the commitments that the courts receive from their party or a broader constituency and limited time constraints may at times make them not to represent them relatively. However, by contrasts, lawyers are obliged to represent their client alone thus can act as both delegates following the customer’s directions and as their trustees. As such, the attorneys do not presume that they know the interests of their client better than they do but only represent them to their level best in the courts. In these respect, lawyers can be more democratically representatives than even the politicians who have been elected.
A Court that also incorporates “a common law trial jury” can provide a great representation of sampling or sortition. Nonetheless, to be completely efficient, the jurors involved must be aware of the nullification power. Conversely, marginalization of the jury is attributed to the origin of judicialization of politics in the United States thus, the importance of juries knowing their full rights in courts (Dezalay and Bryant 164). During that period, juries acted majorly as rubber-stampers whereby the independent judgment was controlled by instructions from the judges who at times were not impartial. For instance, in “the US v. Thomas, 116 F. 3d 606, 614 (2nd Cir. 1997” whereby the right of a trial judge was upheld following a jurors decision to excuse herself from the court during the nullification process. That came after the juror believed that the government had sufficient evidence to win the case against Thomas (“Casetext”). Nullification refers to a violation of nay jurors’ oath in applying the law as directed by the court in rendering a true verdict as per the evidence presented in court and the law (Scheppelle 19). However, the cases that involve juries following the judge’s instructions is currently limited. Juries can assist in maintaining democracy in the courts even if the judge is impartial or makes a ruling based on a political move since their decision matters most in the final verdict.
Courts were established to enhanced transparency and restore trust in the public. They are supposed to act independently without interference from third parties who might want favors from the judges and the juries in favoring them. Thus, the use of courts in achieving the policy goals subverts the democracy of any state. In this paper, multiple reasons have been discussed to prove the reasons why judicialization affects the courts negatively such as politics being a controversial factor that can easily taint the transparency of the legislature. When the legislative politicians are involved in elections, they will be forced to oblige to their parties instructions whereby in most cases parties go to a wide extent in seeking funds for their candidates by receiving donations from other citizens who might be expecting favor from the those vying after they win. Courts involvement in the achievement of policy goals also results in the disempowerment of the elected representatives. When courts are offered with excess powers especially in amending the policies, which is supposed to be the function of the parliament, the politician’s functions are limited. However, despite the cons, a court can also be used to achieve the policy goals and at the same time preserve the institutional democratically role. For instance, a system of law that is built on judicial precedents instead of legislative codes can empower the court to work independently.
Hirschl, Ran. The Judicialization of Politics. 2018, http://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199208425.001.0001/oxfordhb-9780199208425-e-8. Accessed 20 Mar 2018.
"Democracy". State.Gov, 2018, https://www.state.gov/j/drl/democ/. Accessed 20 Mar 2018.
PETTIT, PHILIP H. Equity and the Law of Trusts. Oxford: Oxford University Press, 2016. Print.
GUARNIERI, CARLO " PATRIZIA PEDERZOLI. The Power of Judges. Oxford: Oxford University Press, 2002. Print
SCHEPPELE, KIM. Democracy by Judiciary. Budapest: Central University Press, 2005. Print.
DEZALAY, YVES " BRYANT G. GARTH. Global Prescriptions: The Production, Exportation, and Importation of a New Legal Orthodoxy. Ann Arbor: University of Michigan Press, 2002. Print.
“Casetext”. Casetext.Com, 2018, https://casetext.com/case/us-v-thomas-384. Accessed 20 Mar 2018.