Judicial Aristocracy

Tim argues that British democracy is being undermined by judicial activism. Supreme Court Justice Antonin Scalia made a similar argument to the Times last year using the more poetic and, perhaps, informative term 'judicial aristocracy'. Tim is going to write to Dominic Grieve requesting clarification of the Conservative Party position on this issue. Unfortunately, this article by Fraser Nelson suggests that Grieve might take a different position.

There are a number of problems with British judicial activism:

1) An unnecessary sacrifice of democracy

Many nations have needed written constitutions and judicial power to curb majority tyranny. They're an imperfect tool, though. Constitutions can be circumvented and such 'safeguards' imply sacrificing the principle of rule by the demos to a significant degree. It is to our nations eternal credit that we haven't needed to make that sacrifice. We've done as well as any, and far better than most, without it. I see no need to sacrifice that great tradition now. The great threats to our liberty come not from an angry majority but unnacountable minorities whether in Europe or our own bureaucracy and political class.

2) Lawyers don't think like 'normal' people

Every profession comes with its own set of cognitive biases. A tendency among its practitioners to a particular way of understanding the world around them. These biases can affect the way people approach important debates. One example is that lawyers tend to be sceptical of deterrence.

A couple of generalisations: Every economist, if they're honest and believe in their discipline, believes in deterrence. We understand the world in terms of incentives and expect that setting up a powerful disincentive to being a criminal will, ceteris paribus, reduce the amount of criminality. We have very good empirical evidence that this is the case. By contrast, every lawyer, in their heart of hearts, thinks that the very idea of deterrence is unhelpful and, most of the time, pretty specious. They spend their entire career thinking in terms of individual cases. That's usually how they learn law and how they practice - one case at a time. The big picture isn't something they have any serious reason to look at and sentencing one person harshly just to affect the attitudes of others seems unjust.

These two disciplines sit at opposite ends of this crucial debate. Worse, we can't even talk to each other. Economists sound brutal and unrealistic to the lawyers, lawyers sound wooly-minded and sappy to the economists.

There is no infallible way of getting to the truth of the matter, which side is right. It is a decision that is rightly left to the people in a democracy as I set out in point one. Further, if the lawyers are given a priviliged position to change policy, beyond their ability to convince people, it can mean a massive bias against the right-wing position.

3) Weakening the defence of liberalism

Constitutions and the judges who enforce them cannot, themselves, defend liberalism. The populace can always ignore, change or pervert constitutional rules and disregard or replace judges. A constitution only has value if it has legitimacy. The American Constitution, and the power of judges to enforce it, isn't contested. People believe that free speech, for example, does deserve particular protection as a constitutional right. There is no such source of legitimacy for the British judiciary and they appeal to foreign documents such as the ECHR. This means that the judicial aristocracy actually weakens, by association, liberalism itself by association. The concept of "human rights" itself becomes thought of, by the population at large, as a foreign charter defending awful men on spurious grounds.

I've put these arguments to lawyers many times. The last is usually the most successful.

Cross-posted from CentreRight.Com