by Leny E. deGroot-van Leeuwen and Wannes Rombouts (eds). Nijmegen, the Netherlands: Wolf Legal Publications, 2010, 252 pp. Paper. €35.00/ ISBN: 9789058504944.
Reviewed by Michael L. Mezey, Department of Political Science, DePaul University. Email: MMEZEY [at] depaul.edu.
There always has been a certain tension between the principle of judicial independence and the idea of representative democracy. On the one hand, an independent judiciary has been viewed as an essential element of democratic societies to the extent that it guards against the exercise of arbitrary power, prevents democratically elected majorities from using their power to threaten the basic rights of minorities, and guarantees that individual human rights will be protected when a citizen stands accused by the state of violating the law. The idea of an independent judiciary is a key component of the theory of separation of powers, a theory that guards against the dangers that arise when too much power is concentrated in too few hands, and, as Montesquieu saw it, promotes moderation by government leaders and thus protects individual liberty.
On the other hand, advocates of representative government argue that public policy should be made by elected officials and that the governing majorities that citizens put into office should be able to govern unimpeded by those who do not have such a democratic mandate. In most instances, judges, rather than being elected, are appointed, ostensibly on the basis of merit rather than political considerations, and they typically serve for lengthy periods of time, often for life or until a mandated retirement age. These arrangements are supposed to insulate the judiciary from both public opinion and governing majorities, thereby strengthening its capacity to reject the improper decisions of elected officials. But, whenever the decisions of judges trump the decisions of elected officials, representative government, its proponents argue, is at risk.
Thus, separation of powers as it applies to the judiciary is simultaneously an essential element to free and democratic systems and an element that can thwart the popular will as it is reflected in the actions of elected representatives. This democratic dilemma posed by judicial independence has been a traditional topic for scholars of the American judiciary, as over the years they have wrestled with the normative issue of how aggressive the federal courts should be in overturning laws passed by states and by the Congress. However, the strong American commitment to a system of separate institutions sharing power, each with the capacity to check the other, has meant that the role of the Court, although often questioned, has seldom been seriously challenged.
The issue is a good deal less clear in many other political systems. In those systems that operate under the [*260] Westminster model, with its strong presumption of parliamentary supremacy, the existence of a power beyond parliamentary control is problematic. In civil law systems where the judiciary is strongly linked with the Ministry of Justice, maintaining the independence of judges from elected political leaders has been difficult. For those new democracies that have emerged after long periods of authoritarian rule, in which the judiciary was simply a compliant arm of the regime, the challenge has been to ensure judicial independence, while at the same time making certain that the new democratic institutions of the state have the capacity to govern during a difficult period of transition.
SEPARATION OF POWERS IN THEORY AND PRACTICE: AN INTERNATIONAL PERSPECTIVE, edited by Leny E. deGroot-van Leeuwen and Wannes Rombouts, both faculty members at Radboud University Nijmegan in the Netherlands, seeks to provide this comparative perspective on judicial independence. As such, the volume, despite its title, is less a general discussion of separation of powers and more a discussion of judicial independence from executive and legislative institutions. The anthology contains chapters reporting on the degree of, and threats to, judicial independence in Israel, Bulgaria, the United States, the United Kingdom, Germany, Belgium, Denmark, the Netherlands, Italy, France, and Portugal. Although this collection is not without its limitations, those who specialize in the study of United States judicial institutions should find this to be a useful volume, because it provides descriptive material on so many countries about whose judicial systems Americans know very little. Many of the contributions have useful insights, which will help the attentive reader toward a more comparative and therefore a more general perspective on the issue of judicial independence.
Substantively, most of the contributors to this volume are strong supporters of judicial independence, with some decrying attempts by elected officials to restrict the independence of the judiciary, others applauding steps toward fortifying the role of the judiciary, and others providing country-specific justifications for an active and independent judiciary. Although several acknowledge the conflict between the tenets of representative government and judicial independence, none are serious advocates of limiting the role of the judiciary. All work from the premise that political pressures on the judiciary are by definition dangerous for a political system.
Kate Malleson’s chapter on Great Britain perhaps comes closest to dealing with the normative question by distinguishing between two views of judicial independence and separation of powers – one arguing that separation of powers is necessary to prevent the arbitrary exercise of government power, and another arguing that separation of powers is designed to reduce the likelihood that government will act, even in a non-arbitrary manner. The first approach leaves room for an active judiciary to defend the rights of individuals and to make certain that the government adheres to the rule of the law. The second approach posits an even more active judiciary that could play a co-equal policy-making role with the legislature and the executive and thereby [*261] undermine the efficiency and effectiveness of government, as well as the commitment to government by elected officials. She views the recent moves toward greater judicial independence in the United Kingdom as a positive development, but urges a focus on how the relationship between the judiciary and parliament works out, and whether it optimizes both the public policy-making efficiency valued by defenders of parliamentary prerogatives and the protection of individual liberty valued by advocates of separation of powers.
Maurice Adams’ article on the role of the Belgian judiciary connects the expansion of judicial power with the expanding role of the state. Governments now legislate in a variety of specialized areas such as environment, public health, and technology issues, as well as the traditional and increasingly complex issues associated with the welfare state. Legislation in these areas has given rise to “complex sets of rules that usually come at the expense of quality, sound legislative technique, and a systematic and coherent approach towards law-making.” This means that “the courts can no longer confine themselves to applying the legal rule which expresses the various interests as weighed by the legislator. They are increasingly expected to weigh the interests themselves” (p.115). Adams concludes that in such a policy-making environment the judiciary can play the role of a “compensating actor” when an imbalance arises between the power of the state and the rights of citizens. He argues that judicial accountability can be assured by organizations such as the Belgian High Council of Justice that can supervise the judiciary and deal with questions of judicial overreaching. Although that could well be the case, the notion of the judiciary as a compensating actor still leaves a great deal of latitude for judicial discretion.
Writing about the Israeli judiciary that has emerged as such a powerful force in that country, Eli Saltzberger argues that an independent judiciary is essential when so much power is centralized in the Knesset, the country’s legislative body. He also suggests that the multiparty nature of Israeli governments often has meant that on several difficult issues the government has exhibited a weak decision-making capacity. This in turn has been an invitation to the judiciary to take a more active role in dealing with issues that the government seems incapable of addressing. The result has been an activist court that has insisted upon its role as the guardian of the rule of law “by not only examining whether violations of rights were made under legal authorization, but also by examining the validity of laws empowering infringement of rights and by interpreting them narrowly.” The Israeli Supreme Court has assumed the role of reviewing the discretionary actions of state authorities by applying doctrines such as “reasonableness, proportionality, and purposive interpretation of legal norms” (p.42). The activism of the Court, Salzberger observes, has provoked growing criticism among Israeli politicians, particularly those on the right, who have viewed the Court as too “liberal,” and who have called for a more “representative” judiciary – i.e., one that is more responsive to majority opinion as reflected in election outcomes and the partisan representation in the Knesset. This, in turn, seems to have produced [*262] some signs of increasing restraint on the part of the judiciary as it confronts particularly fraught issues.
Such conservative dissatisfaction with the courts will be quite familiar to those scholars of the United States federal judiciary. In his contribution to this volume, Mark Miller points to attempts by American conservatives to restrict the appellate jurisdiction of the courts, to congressional proposals for the appointment of an inspector general for the federal courts, and to more frequent threats to impeach federal judges. Although few of these attacks have come to fruition, Miller sees them as part of the conservative agenda to reign in the courts and believes that the threats alone have encouraged judges to take a more restrained position. Curiously, he omits from his analysis what some might view as the larger threat to judicial independence – the repeated failure to raise judicial salaries, and the continued understaffing of the federal bench. Nonetheless, his concerns seem increasingly relevant at the state level, where judges tend to be elected and where a number of controversial decisions, particularly on issues such as gay rights, have generated calls for impeachment.
Although the constitutions of most western European countries make a strong rhetorical commitment to judicial independence, as several of the contributions to this volume indicate, political leaders have adopted a variety of strategies that to a greater or lesser degree undermine this commitment. In Denmark, for example, the legislature and the executive control the judicial budget and the selection of judges. An examination of the pre-appointment careers of these judges suggests that they share a disposition to defer to state authorities. Taken together, these factors lead to a more constrained judiciary than the words of the Danish Constitution would suggest. Similarly, in the Netherlands, the Supreme Court has the right to issue advisory opinions on pending legislation, but Wannes Rombout’s research demonstrates that the Court exercises this power with great restraint, assiduously avoiding the most politically charged issues by claiming that they are “outside the law-making task of the Supreme Court” (p.184) and thus defer to the judgment of elected leaders.
In Germany, despite a strong commitment to judicial independence as a reaction to the Nazi past, at least one state legislature has sought to undermine the judiciary by exploiting an apparently minor power to control the number of judges in particular areas. This could lead to forcing a judge to move some distance from his home as judges are seconded to other areas. Michael Bohlander believes that such a threat could have a chilling effect on judges who might be inclined to make decisions that would offend political leaders but who are well established in their current areas of residence.
In the case of Bulgaria, as the country sought admission to the European Union and to distance itself from its authoritarian past, constant pressure, particularly by external actors, was brought to bear to move toward reforms that would strengthen the independence of the judiciary. Many reforms were enacted, particularly those that aimed at the professionalization of the justice system. However, the pattern was to [*263] legislate reforms and then undermine them in practice. In that context, Thierry Delpeuch and Margarita Vassileva conclude, all key political actors in the country voice a rhetorical commitment “in favor of a politically neutral and efficient judicial branch, but in practice, the political forces that have acceded to power have without exception tried to subjugate the judicial apparatus” perceiving it “as a potential political weapon that must not fall into the hands of adversaries” (p.67).
In Portugal, a country with a similar desire to create distance from an authoritarian past, the opposite problem exists. Here the judicial system has achieved a great degree of independence, but there also exists a perception that the institution displays favoritism in its decisions and that corruption is widespread. But, because of what Joao Paulo Dias and Jorge Almeida refer to as corporatism, the judiciary does little to police itself, defending even the incompetent and corrupt among them. Recent efforts have been undertaken to deal with these issues although their success cannot yet be assessed.
In France and Italy, political leaders have been much less subtle than their counterparts in Denmark and Germany in taking on a judicial branch that they view as being overly aggressive in the prosecution of allegedly corrupt politicians. In France, budgetary proposals made the financing that courts receive contingent upon the number of cases they decide. Politicians also began to publicly ridicule the courts for every judicial error that came to light. Moroever, French presidents, of course, have always argued often explicitly that they alone represent the public interest, a position that implicitly marginalizes the other political institutions of the nation, including the judiciary.
In Italy, a constitutionally strong judiciary, created in the wake of fascist rule has been characterized by numerous high profile prosecutions of political and governmental leaders, some for corruption and others for simple incompetence. Such prosecutions have not been confined to minor functionaries and have even reached sitting prime ministers. The politicians have counterattacked on a number of fronts. Laws expanding the permissible scope of administrative discretion have been passed, making it more difficult to punish bureaucratic malfeasance. Political leaders, like their French counterparts, have led a media campaign attacking the impartiality of the judicial system. Finally, on several occasions legislation has been changed during the course of a proceeding, legitimizing certain behavior ex post facto, thereby forcing pending charges to be rendered moot.
The chapters in this collection are for the most part descriptive, eschewing both theory and systematic analysis. Although there is an introductory chapter by the editors, it simply provides a concise summary of each of the contributions to the volume but offers neither a general literature review nor a framework for understanding the material that follows. A more significant deficiency is the lack of a concluding chapter in which the editors might have attempted to draw broader comparative lessons from the several country studies. As is often the case with an anthology, the writing and presentation is uneven from chapter to chapter, especially given the fact that the [*264] book is rendered in English, obviously not the first language for most of the authors.
But in the end, this is a useful volume, not the least because it underlines the near universality of the tensions that surround the idea of an independent judiciary and the quest, quixotic in some respects, for the “right” balance between judicial independence and the republican commitment to government by leaders elected by the people.
© Copyright 2011 by the author, Michael L. Mezey.