Monday, January 21, 2008

Judicial Aristocracy

There are a great many topics I think about a lot that don't make it onto this blog. Judicial activism is one of those issues.

This article, an interview with Antonin Scalia, contains a brief version of a profound argument that continues ad nauseum in the United States:

"I am not happy about the intrusion of politics into the judicial appointment process in my country. But frankly, I prefer it to the alternative, which is government by judicial aristocracy."

This isn't a problem confined to the United States, though, and we need to take it more seriously. Douglas Carswell, in a chapter (PDF) from Direct Democracy, via Centre Right, sets out how judicial aristocracy in the UK has broken most of its reasonable limits in recent years.

I think that the basic cause of the problem is the cognitive bias created by a lawyer's career. They deal with individual cases and that encourages them to disregard broader social effects. When so focussed on an individual case it can seem brutal to think of the bigger picture. While many lawyers will accept that deterrence can be effective they will generally be more sceptical of its efficacy than the general population.

I think they're wrong. The evidence appears to be that deterrence is very effective. However, I don't want to predicate this post on that. It is quite possible that economists have a cognitive bias in the other direction. We see everything through the prism of data and tend to lose a lot of important detail in the aggregate. Beyond that, our subject works with incentives so we are predisposed to believe in their effectiveness. Given how hard it is to increase the probability of getting caught high sentences are the often most sensible public policy if you want to control crime.

This is one of those issues that we'll struggle to resolve rationally. The difference in views is rooted in the way in which economists and lawyers understand the world. Each group will sound unconvincing to the other. The lawyers will hear unrealistic generalisation and the economists will hear mushy anecdote when listening to their opposite numbers.

Now, both lawyers and economists have a host of rational and emotional arguments to support their case. The proper way, in a democracy, to resolve the question is to put it to the public. The problem is that the legal community maintains an entirely unnaccountable power through the judiciary.

The right can win the debate over law and order but it will be frustrated by the judiciary. The judicial aristocracy's distortion of the democratic decision is then exacerbated as their resistance often has the added effect of making deterrence-boosting legislation itself appear ineffective.

I don't have any policy solutions in mind. Ending the independence of the judiciary is a big step. That's why I don't write on the subject very often. However, the problem of the judicial aristocracy is a serious one that the right should be thinking very seriously about.

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