Alexander Hamilton, the renowned author of many of the Federalist Papers that set out the rationale for adopting the US 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 judgement," 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.
ILLUSTRATION: MOUNTAIN PEOPLE
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 judgements 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?
I believe that 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.
Ralf Dahrendorf, the author of numerous books, is 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.
Copyright: Project Syndicate/Institute for Human Sciences.
Could Asia be on the verge of a new wave of nuclear proliferation? A look back at the early history of the North Atlantic Treaty Organization (NATO), which recently celebrated its 75th anniversary, illuminates some reasons for concern in the Indo-Pacific today. US Secretary of Defense Lloyd Austin recently described NATO as “the most powerful and successful alliance in history,” but the organization’s early years were not without challenges. At its inception, the signing of the North Atlantic Treaty marked a sea change in American strategic thinking. The United States had been intent on withdrawing from Europe in the years following
My wife and I spent the week in the interior of Taiwan where Shuyuan spent her childhood. In that town there is a street that functions as an open farmer’s market. Walk along that street, as Shuyuan did yesterday, and it is next to impossible to come home empty-handed. Some mangoes that looked vaguely like others we had seen around here ended up on our table. Shuyuan told how she had bought them from a little old farmer woman from the countryside who said the mangoes were from a very old tree she had on her property. The big surprise
Ursula K. le Guin in The Ones Who Walked Away from Omelas proposed a thought experiment of a utopian city whose existence depended on one child held captive in a dungeon. When taken to extremes, Le Guin suggests, utilitarian logic violates some of our deepest moral intuitions. Even the greatest social goods — peace, harmony and prosperity — are not worth the sacrifice of an innocent person. Former president Chen Shui-bian (陳水扁), since leaving office, has lived an odyssey that has brought him to lows like Le Guin’s dungeon. From late 2008 to 2015 he was imprisoned, much of this
The issue of China’s overcapacity has drawn greater global attention recently, with US Secretary of the Treasury Janet Yellen urging Beijing to address its excess production in key industries during her visit to China last week. Meanwhile in Brussels, European Commission President Ursula von der Leyen last week said that Europe must have a tough talk with China on its perceived overcapacity and unfair trade practices. The remarks by Yellen and Von der Leyen come as China’s economy is undergoing a painful transition. Beijing is trying to steer the world’s second-largest economy out of a COVID-19 slump, the property crisis and