The strength of the judiciary

Ralf Dahrendorf, Sociologist, Project Syndicate

Alexander Hamilton, the renowned author of many of the Federalist Papers that set out the rationale for adopting the U.S. Constitution, had no doubt about the relative weight of the three great powers of state. In Federalist No. 78, he wrote that the executive commands "the power of the sword," thus the instrument of legitimate violence. The legislature commands the "power of the purse" and so makes all the rules.

But the judiciary "has no influence over either the sword or the purse," it has "neither Force nor Will, but merely judgment," making it "beyond comparison the weakest of the three departments in power."

Hamilton went on to make the case for the independence of judges in order to strengthen their position, and this case remains unassailable. Beyond that, however, the observer of contemporary politics will hardly recognize the picture drawn by America's great constitutional theorist.

For the American President, the appointment of Supreme Court justices is of major importance because the Court has the power to determine the course of affairs in important respects, as in matters of racial equality. In Germany, many controversial political issue are taken to the Constitutional Court by minorities defeated in parliament.

In Italy and also in Spain, judges (in both cases, investigating judges) seem to influence political debate more than the interplay of government and opposition. Even in Britain, where the sovereignty of parliament was until recently sacrosanct, and the separation of powers underdeveloped, a Supreme Court will now be created to scrutinize political decisions on the basis of the European Convention of Human Rights. How did it come about that the third power is by no means "the weakest" nowadays? Is this right?

In technical terms, one reason for the change is probably the complexity of overregulated modern societies. Judges are experts in complexity which cannot be said of parliamentarians nor even of the executive.

Beyond that, however, the power of the judiciary stems precisely from the assumption of independence which Hamilton regarded as crucial for their position. There is a strong and perhaps growing desire to find "independent" views amidst today's always strongly partisan -- and often overly polemical -- political controversies.

Ordinary people vaguely associate independence with truth, and partisanship with lies or at least with untrustworthiness. Thus, little protest is heard if a judge is asked to conduct an independent inquiry even into such matters as the motives for the Iraq war. In democracies, courts are heard, and obeyed, even if their judgments affect the original parliamentary power of the purse, as in recent German cases concerning the pension entitlements of particular groups.

Politicians clearly do not like this shift in power toward the judiciary. If they are personally affected, like Italian Prime Minister Silvio Berlusconi, they do not actually attack the power of the judiciary, but question judges' independence. Undeniably, the independence of judges today requires more than lifetime tenure and reasonable emoluments (which were Hamilton's concerns). In modern societies, influences on apparently independent people are numerous and hard to control.

But the debate about possibly biased Italian or Spanish or Belgian judges in highly sensitive cases detracts from the deeper question of whether the increase in the powers of the judiciary may not have gone too far. Is there a case for a pendulum swing back to the more political powers, notably the legislature?

Such a swing is necessary. Politics is by its nature about conflicts, which are sensibly regulated by the rules of democratic constitutions. Politics is also about trial and error. Political decisions can -- or at any rate, should -- never claim to represent the truth. They are intrinsically time-bound attempts to come to terms with issues, and they should be allowed to run their course if they are based on deliberations by elected majorities of representatives.

It could even be argued that the "juridification" of the political process itself has gone too far. Parliamentary committees advised by legal experts try too hard to get things right forever and forget their original intentions in the process. So there is a case for going back to political basics.

This is relevant for the current debate about reforms in many democratic countries. It could be argued that the greater the power of the judiciary is in a country, the slower the pace of reform becomes.

Such slowness is ultimately self-defeating, because it leads into a cul-de-sac from which only dramatic steps provide an escape. More confident politics and less reliance on Hamilton's third power would add to the flexibility of a society. It may even serve to strengthen trust in the true independence of judges, who are badly needed as an instance of last resort, when the rights of individuals is at risk -- and hence the very rule of law itself.

The writer is the author of numerous acclaimed books, a member of the British House of Lords, a former Rector of the London School of Economics, and a former Warden of St. Anthony's College, Oxford.