Overcoming The Rule Of Lawyers – The Usurpations Of Democracies By Critocracies (Long Version)
- The Historical Background
Originally in democracies, as in Ancient Greece and Iceland, interested male citizens (and that excluded women, slaves if they existed and non-citizens) met in a mass assembly to make decisions relating to their society. Courts did exist in those societies but did not override decisions of the assembly of the people (their democracy).
However until the late twentieth century most societies were not democracies but were governed by other arrangements such as tribal leaders, kings, dictators or military leaders to mention the most common. In such other forms of society there was generally de facto (if not always de iure) no real separation between the judiciary (or legal decision makers) and the political leadership. Very often kings and emperors personally made the judicial decisions or at least the most important judicial decisions themselves. (One among many examples was King Solomon in the Bible from which derives the phrase ‘the judgement of Solomon’ for a difficult judgement.) Where kings, dictators or emperors did not personally make judicial decisions they appointed and usually were able to dismiss the judges or officials who did make those decisions. For instance in England the Judges were in name and in reality ‘the King’s Judges’, appointed by and generally obedient to the King. It was only in the seventeenth century after The English Civil War when Parliament (whose electorate was then restricted to the relatively wealthy) sought to restrict the power of the monarch when Judges were made in reality (though not in name) independent of the monarch. Other types of regime such as dictatorships or military juntas were at least as ruthless in ensuring, by methods of terror if necessary, that Judges did as their society’s leaders wanted. There was originally no general doctrine in theory or in practice that legal or judicial authority was independent of, let alone superior to the political leadership of society.
The doctrine that the political leadership of society, be it democratic or otherwise, was subservient to foreign treaties that had been made previously by that society’s leaders scarcely existed before modern times. It is also noteworthy that in ancient Greece treaties which were usually just peace or friendship treaties (as trading until relatively recent times tended to be left to ad hoc arrangements by merchants rather than governments to deal with) frequently had ‘sunset clauses’. For instance peace treaties between Sparta and Argos (traditional enemies in the Peloponnese area of Greece) were generally made for 30 years after which they lapsed if not renewed. It is a shortcoming of modern treaties, especially now that they are intended to be taken more seriously than hitherto, that they lack sunset clauses. After all nothing is for ever in life and as circumstances change things should be consciously re-examined, be they laws or international treaties. Anyhow in the past international treaties tended to be less wideranging, only affecting international relations and not internal matters within countries and were by common practice more easily discarded. Not that international treaties in our era are not malleable to breaking point when it suits people. For example by a 1994 treaty Ukrainian territorial sovereignty was protected (in exchange for them discarding nuclear weapons) by a treaty guaranteeing it with (among others) the U.S.A. and U.K. Yet no politician in Britain or America, let alone any Court there, maintained that treaty was actually binding in either 2014 or 2022. International treaties it seems must nowadays only bind democracies and override elected governments when it suits the prejudices of the unelected elites and unelected Judges of those countries! When it doesn’t suit them, even nowadays, international law counts (as in the past) for absolutely nothing! The real truth is there are no international policemen and international treaties are now, as previously, unenforceable except when it suits some countries to try to enforce them militarily.
Another historical development is that most countries have adopted a national ‘Constitution’ in written form. Constitutions were in theory usually intended to enshrine personal rights as well as dealing with the procedures of government. They were intended to underpin and if deemed necessary override all else in the state, both in terms of law and of government. Constitutions were intended in essence to be permanent while everything else could be considered ephemeral. Most significantly Constitutions were generally intended to be interpreted by a class of professional Judges, not by elected politicians. However it may be remarked that the first thing a new type of regime generally does in a country is abolish the existing Constitution (usually by governmental decree). They replace it by a new Constitution much more to the new government’s liking. For instance in France they are already on their fifth Constitution in about 200 years (since 1792). Another significant problem with Constitutions is that if (as often) they were written a long time ago they become dated (even if written by people of exceptional brilliance as the American ‘Founding Fathers’ are reputed to have been), especially in their detailed provisions. They become unsuited to the modern world which has changed from previous ages in human technology, human understanding and in its zeitgeist or common outlook. So it becomes increasingly absurd to be governed by the provisions of a Constitution devised in and for a historically different age.
Yet whatever the theoretical form of government is, be it monarchy, dictatorship or democracy, an amount of actual power in practice seeps away unofficially but nevertheless in reality to some privileged people outside the formal leadership structure. Kings usually depended on their advisers (Louis XIV in France had Cardinal Richelieu and others: Henry VIII in England had Thomas Wolsey and many others.) Advisers might be informal even if very powerful for a time. In some cases advisers might practically be the real ruler. However advisers were generally removable by Kings, often in former times by execution. Dictators also have advisers and decision takers as well as Ministers. After all no modern ruler can himself personally take every decision that needs to be taken by a government. In democracies a lot of power, often most power is held by unelected civil servants (or quangocrats) rather than by elected politicians. Unlike most elected politicians, advisers and civil servants are supposedly people with specialist knowledge which they can generally bend to achieve the policies and decisions favoured by their own prejudices. Civil ‘servants’ have often been able to undermine democratic authority through being very difficult to dismiss. However the power civil servants and advisers have, though often real enough, is informal and ‘persuasive’ rather than formal and actually binding. So overcoming it, if democratically elected politicians are seriously minded to overcome it, is theoretically and at least hypothetically possible. So the ruling or establishment class requires a stronger mechanism for impeding democratically elected politicians they disagree with and that has become a supposedly independent and overriding class of lawyers and Courts.
Nowadays democratic control has not just been eroded. (Civil ‘servants’ and ‘advisers’ had already eroded democratic control by human ‘persuasion’ which must necessarily always be a factor.) Democratic control has been increasingly superseded by a class of intellectualist, elitist lawyers, specifically Judges. This has become intellectually underpinned and enshrined in modern democratic societies (supposedly to better safeguard individual rights) by a doctrine of ‘separation of powers’, advanced particularly by Montesquieu within his book ‘The Spirit Of Law’ in 1748 (though if you actually read Montesquieu’s book you will see he advocated independent Judges judging only the actions of individual citizens remedying the power of Kings or their agents to do so where that existed. Montesquieu neither advocated nor envisaged the judiciary making Judgements about public policy or laws passed by the legislature. The roles of executives, legislatures and judiciary were meant in Montesquieu’s actual balance or ‘separation of powers’ to be genuinely separate rather than interacting upon each other, a true ‘separation of powers’). The doctrine of ‘separation of powers’ after Montesquieu’s time has developed further, or, more accurately, changed into ‘subservience’ to the judiciary in Western democracies. That is incompatible with genuine democracy. It has become critocracy.
A critocracy is a kind of oligarchy (rule by the few) except instead of it being rule by a few rich or well connected people, it is rule or at least determination by a small class of lawyers (who have developed an overweening sense of entitlement).
- The Judicial Long Stop
The doctrine of ‘the separation of powers’ has developed into ‘judicial long stops’ implemented by unelected (supposedly independent) lawyers, in effect by an oligarchy of somewhat self-selecting people. Lawyers are a ‘closed shop’ appointed or ‘enrolled’ by other lawyers. Judges are generally appointed by other lawyers even if appointment by a lawyer nominated person may technically be approved by the odd politician or tame non-lawyer. Judges, fortified by the now generally accepted modernised doctrine of ‘separation of powers’, increasingly set parameters on the scope and activities of the elected leaders of the state.
Basically most Western democracies have at this moment (the early twenty first century) evolved into two politically competing tribes of people and politicians who are increasingly contemptuous and intolerant of each other. One tribe is the intellectualist, theoretical, idealistic, leftist, hypocritical (do as I say, not as I do, and certainly don’t take my much proclaimed belief in ‘equality’ so far as to affect me and my wealth very much), always mouthing about their favoured, very selective ‘human rights’ and ‘eradicating poverty’ tribe. The other tribe is the usually not intellectualist, more practical, more realistic and worldly tribe that in effect favours an accommodation with human nature in accepting the realities of economic inequality and the split of people into races and nations. It is like a division between the ‘populist’ saloon bar of ordinary working people and the lounge bar of usually more educated people with fancy yet impractical ideas. Interestingly the saloon bar tribe is usually led by people who (like myself) by background come from the lounge bar class but have rebelled against the idiocies rampant in the lounge bar and have crossed over (in the name of sanity) to the saloon bar tribe.
Nowadays elections in democratic countries are no longer contested so much between classes. The ‘working class’ have both diminished in numbers and most of them have now at last got wise to being promised the Earth but just receiving economic problems and social nonsense from the political left. Instead elections tend to be contested between these two tribes, the unrealistic pseudo-intellectual tribe and the more realistic, populist tribe – in general Democrats and Republicans (with traditionalist Republican exceptions, especially in Congress) in America, Labour and Conservative (with traditionalist Conservative exceptions, especially in Parliament) in Britain, left and right, even far-left and far-right. The problem is the overwhelming majority of the elite in society, that is in general lawyers, especially Judges, academics, senior civil service and most media fervently support the pseudo-intellectual unrealistic tribe. That elite are determined even when they lose elections, which they often do, to prevent the unintellectual, populist, in their view inferior, and certainly morally inferior tribe from enacting much of their programme. The fashionable, now unchallenged, though morphed from its historical roots ‘separation of powers’ doctrine enables them to engage the judiciary to accomplish that. I say when, as now, the intellectualist tribe get the populist tribe to accept the morphed ‘separation of powers’ doctrine (by which democratically elected and mandated leaders have at best to share power and nowadays be overruled by unelected judicial leaders) the populist tribe are being conned. They are being anti-democratically conned into lasting submission by the other tribe and thereby being deprived of most of their democratic mandate, however many elections they may win. Thereby it becomes almost irrelevant to the elitist, pseudo-intellectualist faction whether they win or lose elections or at most merely inconvenient if they lose elections. That is because they will always via the Judges try to ensure that the opposing populist faction never gets much power nor ultimate power by winning elections. The pseudo-intellectualist tribe have entrenched their position by this ‘Judicial Long Stop’, enabled by elitist unelected Judges, ruling via the illegitimately (democratically illegitimately) accepted ‘separation of powers’ in its modern morphed form doctrine.
Most Western Judges, being elitist think certain things and certain ‘values’ are beyond the powers of democratic representatives or indeed electors at large to change. Democracy in their view cannot override their ‘civilised’ (intellectual) values, nor their notions of the right way of doing things, nor even their view of the right things to do.
There are various techniques that the Judges (or critocrats) use in their Courts to convert their prejudices into superficially objective and authoritative ‘legal judgements’.
The first technique Judges employ is an often abusive use of their supposed right to ‘interpret’ laws, often in a non-literal way. Sometimes they do not merely exploit ambiguities in a law but are so anti-literalist as to in effect rewrite and undermine the law. They generally ‘fit’ or ‘twist’ the law into something that accords not with the general intention of the original lawmakers (if that is inconvenient) but with their own personal prejudices.
The next technique, or more accurately judicial trick is to claim to be following judicial ‘precedent’ or ‘authority’ or ‘case law’ (i.e. judge, not legislature created law). Apart from being very selective over which judicial precedent or authority to follow (and precedents often conflict with each other), they only generally follow, use or adapt whatever judicial precedents suit their own prejudices. They can reject almost any judicial precedent they don’t like by drawing some distinction between the facts in the rejected precedent case and the facts in the case they are hearing. The facts in virtually all cases before the Courts are somewhat different at least in some respects. That is ignored when convenient to Judges and emphasised when inconvenient to Judges. So Judges use ‘precedents’ or ‘judicial authority’ mainly to give a veneer, a seemingly strong veneer of respectability practically exclusively to their own prejudices.
Another modern feature of law is ‘human rights’ considerations which are widely open to ‘interpretation’. They are absolutely flagrantly ignored (I can provide some personal examples) when they do not accord with the prejudices or priorities of the Judges. However if it suits them, modern Judges, at least in European ‘democracies’ will adorn their Judgements with selective references and often personal interpretations of human rights principles.
A further judicial technique is this. Suppose a Judge cannot find something substantial in domestic law to support his prejudiced interpretation of the law (and often his attempt to subvert decisions made by democratically elected representatives). Then it may somehow be contrary to some treaty obligation or other or some principle of international law to which their country is bound. The judge’s interpretation is often a gold-plated or exaggerated personal interpretation of what was originally intended or meant by the treaty or international agreement at the time when it was signed (maybe in contrast to its later development as later ‘interpreted’ or rather amended by international judges). In any case, as I will explain later, determination of national law in relation to international treaty or law, especially treaties signed by previous governments, is not legitimate and therefore not valid in a true democracy.
Finally there is the judicial technique of Judges personally interpreting the law in terms of a written Constitution of their country, or in Britain in terms of a hypothesised (rather than actual) Constitution. This is done to add to the gravitas (supposed authoritativeness) of their Judgement by pretending it arises not from personal prejudice but from the most impeccable possible source. Yet the interpretations of Judges are generally biased to align with their own prejudices and viewpoint. However, as I will later argue, Constitutions, especially those that cannot in practice be relatively easily amended are in essence undemocratic, indeed a corruption of the notion of democracy.
So Judges create and by various underhand techniques fortify a ‘judicial long stop’ on fundamental actions or even mere decisions initiated by a democratically elected government they personally (and usually collectively, often as a kind of group-think) disapprove of. This ‘judicial long stop’, however respectably they may try to dress it up, is in the purest sense anti-democratic and critocratic. It is fundamental to and emblematic of a critocracy.
- The Differences Between Democratic Processes And Judicial Processes Facilitated This.
Everything about the way of doing law is geared to generating respect for and even mystique about lawyers, especially judges. In contrast almost everything about politics and political representatives, especially in the modern world, naturally tends to generate contempt for politicians. That is a big problem for genuine democracy.
Politics is undertaken mainly by people without specialist training nor necessarily ability for politics, let alone the myriad of other things politicians make decisions about. In the nature of democracy politics is not a guaranteed safe career as politicians may be dismissed at elections but politics is open for all to participate in. Politics is controversial, adversarial and competitive. As politicians are continually questioned, argued against and vilified by opponents, they don’t generate universal respect, let alone mystique but rather contempt.
By contrast lawyers are formally trained, qualified and then fortified by experience. It is a specialist occupation not open to just anybody. Outside commentators or critics (the few of them) are not going to be prestigious nor taken seriously by people. Lawyers are scarcely subject to dismissal. Law is not generally presented as controversial but as politically neutral though in practice Judges often bend their Judgements to favour their political prejudices. Judgements are nevertheless presented as authoritative. Other measures are also taken by lawyers to enhance their respectability. For instance there are modes of formal address and dress in Court that are meant to enhance respect. There are lines of ‘judicial authority’ and there is an ‘abstraction’ of the process. The presiding official is not presented as some human idiot (as they often are) who happens to be a Judge but is abstracted and sublimated into ‘the Court’ (even if only one person). This contrived ‘respect’ is exploited. Lawyers have also recently developed a seemingly sacred doctrine of ‘the rule of law’. In fact ‘the rule of law’ (though it is democracy which should ‘rule’) which is abstract and not always adhered to (certainly when adherence is inconvenient to lawyers) has all too easily and generally now in practice morphed into ‘the rule of lawyers’.
- The Clash Between Democracy And Critocracy Aggravated
With democratic practice bringing democratic representatives into disrepute and legal conventions bringing judges into especial repute it was easy over time for judges to assume ascendancy over democracy. This has been exacerbated by the development of practical, populist factions (previously characterised by me as ‘saloon bar’) that are sceptical of ‘the intellectual elite’, are often nationalistic and are often now dominant in Western democracies. They are in opposition to a supposedly intellectualist (or I would say ‘pseudo-intellectual’) often internationalist, virtue-signalling faction (previously characterised by me as ‘lounge bar’) to which most modern lawyers and certainly judges adhere. The gulf between the political right, especially the populist right and the judiciary within most Western democracies has become excruciating. Judges (though nominally ‘independent’ though not so in practice) have been abusing the law to frustrate policies they disapprove of, especially populist right policies (such as immigration control) as ‘unlawful’. Judges therefore in effect claim such policies are beyond the scope of even politicians with a democratic mandate to enact. This has been a general trend, more open in the U.S.A., while concealed and covered up in Britain and other countries. Indeed as a politicised and prejudiced judiciary is more open in the U.S.A. (because Judges are at appointment supposedly political nominees, but in reality put forward to politicians by the legal fraternity of legally qualified advisers) there has been some political push-back there. Indeed in the U.S.A. Democrat Party politicians are now complaining about rulings overriding democracy by a ‘conservative court’. That the American Supreme Court has been ‘conservative’ is only partly true. Yet certainly to the disappointment of Democrat Party politicians (who seem to think they have been unjustly deprived of a natural entitlement to a ‘liberal Court’) conservative as well as liberal judges have tended to judge in accordance with their own (the judge’s) political prejudices. This is probably unavoidable, human nature being what it is, and existed even in days of yore (before about 1970) when the political divide was heavily class based rather than populist v elitist/liberal based. Judges then famously favoured their own class, the middle and upper classes based right rather than the working class based left. Nowadays in most countries where judicial prejudice is covered up within their supposedly respectable system, the right have not even spotted judicial prejudice nor campaigned politically against liberal, leftist judges. Yet judges, foreign and domestic, have ever more rampantly frustrated and stifled the democratic mandates of populist or even just right-wing governments they disapprove of.
- The Theoretical Fallacies Enabling A Critocracy
A general lack of understanding of two basic principles of democracy has allowed Western democracies to become superseded by partisan critocracies.
The first principle in a democracy is the people as a whole (and not any sectional interest nor elite group such as Judges) decide all matters of public policy.
The second key principle is no democracy nor legislature nor government can legitimately bind, limit or tie the hands of its successors.
In a genuine democracy nobody (and no Court, foreign or domestic) can strike down laws or public policies enacted by a properly elected and properly convened representative government or decided by Referendum. (Referendums necessarily have even more democratic authority than elected assemblies. In general due to the huge size of modern populations democratic power is delegated by the whole people to an elected representative assembly. However where there is a Referendum that overriding power is in principle no longer delegated from the people as a whole but returned to the people as a whole for their determination of the particular issue in the Referendum).
Nor can a genuine democracy allow ‘foreign treaties’ or ‘international law’ nor international courts to override or be binding upon one’s national democracy. There are compelling democratic reasons for this. First of all it is an overarching democratic principle that no government can bind or restrict the democratic will or mandate of any of its successors. Nowadays foreign treaties often do just that. Secondly foreign, and even more multi-country international treaties usually have a mechanism for independent arbitration or arbitration by some international Court or other. That breaches the principle that in democracies the people are supreme and courts should be answerable to democratically elected people and not vice versa. Furthermore (as I will advocate later) in a democracy the elected legislature or assembly should be the Supreme Court which is not feasible in an international court system. Finally there is the essential point that there is no lasting democratic element in an international treaty or Court as neither the treaty nor any international Court is subject to periodic elections to either extend or end their democratic mandate.
Likewise state Constitutions (whether they are written, as they mostly are, or unwritten as in Britain) are democratically illegitimate unless there is an effective, workable, democratic mechanism for amending the Constitution. In principle Constitutions are an example, probably the ultimate example of governments or people of one time or generation seeking to bind their successors. That, as I have previously stated, is illegitimate as it breaches the very fundamental principle of democracy, that no democracy nor government can legitimately bind their successors. This principle is not breached where there is an effective democratic mechanism such as a national Referendum readily available by which a Constitution may be amended – indeed it may well be a good thing for a second look to be taken at proposed constitutional changes before their enactment. However Constitutions are usually devised so as to make it very difficult to change them. That is currently in reality the position with the Constitution of the United States of America where it has become nowadays practically impossible to change the Constitution. ( The American Constitution could be saved in democratic terms if it became possible to amend it through a simple majority in a Referendum which Referendum might be triggered by say a Petition signed by a third of the members of the national Congress). As well as making the Constitution ever more anachronistic over time, that is fundamentally anti-democratic and illegitimate within a democracy. The other fundamental democratic flaw with most if not all Constitutions is that it is usually left to an undemocratic Court (whose members are liable to implant their personal prejudices into their interpretations) to interpret and very often ‘goldplate’ the Constitution. It should rather be left to either the people as a whole (by referendum) or at least to democratically elected and democratically accountable representatives to interpret the Constitution. So Constitutions in general, or at least Constitutions that cannot readily and relatively quickly be amended, are without democratic legitimacy and are indeed incompatible with the basic notions and principles of democracy.
Lawyers I might add seem to delight in pronouncing the democratically illegitimate supremacy of the law and Courts. For instance in a Judgement in 1977 the famous and then most senior civil Judge in Britain, Lord Denning pronounced, “To every subject of this land, however powerful, I would use Thomas Fuller’s words of over 300 years ago, ‘Be ye never so high, the law is above you.'” Notably Lord Denning said this to the democratically elected and government appointed Attorney General. In a genuine democracy the saying should be, ‘Be you ever so high , democracy is above you’. In particular the democracy of currently elected representatives (and Referendums) is or should be above lawyers, Judges and Courts!
- The Problem Evidenced
Increasingly in the modern world in supposed democracies unelected Courts (dominated by activist pseudo-intellectual, centre-left Judges) are striking down laws and policy decisions they don’t personally agree with. They proclaim not only they but also international courts and international treaties can override democratically elected governments. Often those treaties were agreed by previous governments in merely embryonic form from which those treaties may by judicial and other ‘interpretations’ have developed in ways far beyond what was intended by those governments that originally signed them. There is even a doctrine commonly supported by international Judges such as in the European Court of Human Rights that far from being set in stone treaties and Courts that oversee them constitute ‘a living organism’ that develops over time so as to change the scope, provisions and consequences of the original treaty. So in effect no democracy let alone now but even in the past agreed to such treaties in their modern, judge enacted form!
For instance the anti-Brexit judiciary in Britain so as to stop Brexit that the British people had voted by Referendum for (before in effect being defeated by a decisive General Election in 2019) several times struck down sensible parliamentary procedures that in effect facilitated Brexit.
All that is not democracy but critocracy.
Even the position in the U.S.A. where a supposed democracy is focused on a decades long struggle to eventually alter the political composition of an excessively powerful Supreme Court cannot be democratically sensible nor even appropriate.
- Judges And Other Mechanisms Though Anti-Democratic Are No Bulwark For People’s Rights
Judges claim to be virtuous as the bulwark of citizens’ and human rights in Western democracies. Yet dictatorial governments such as in China and Iran (and in places where democracies have been overthrown by coups) easily prevent judicial defiance against their regimes through literally terrifying the Judges. The Judges are terrified of being deprived of their livelihood or liberty or even life by such governments. So there is no equivalent, indeed no effective judicial restraint on undemocratic governments. So when it politically really matters Judges are no actual protection for anybody. The supposed justification for Judges of defending people’s supposed (and perhaps ever expanding) ‘rights’ is in reality non-existent if push really comes to shove!
Likewise inconvenient international treaties are simply ignored by non-democratic governments. Furthermore any inconvenient state Constitution is ruthlessly ended by Decree if a democracy is overthrown. It is replaced by a new Constitution to the taste of the new regime (possibly to be rubber stamped by a far from free and fair referendum).
- Critocracy’s Accountability Deficit
In common with ‘harlots’ (i.e. prostitutes) Judges almost uniquely now exercise ‘power without responsibility’ and power without almost any real sort of accountability. They have ‘tenure’ until retirement after their appointment in actual fact as well as in theory. Their Judgements may be wrong, even negligent or incompetent and based on the purest prejudice. Yet unlike other people doing ordinary jobs, Judges are absolved from accountability for their actions, however much their decisions may cause distress or indeed huge financial costs to others. In our misguided democracies Judges feel superior and are exalted (unlike harlots) for having and exercising power without responsibility. In a right minded world people should be very circumspect about somebody being able to exercise power without responsibility. After all those people without any personal consequences to themselves for their mistakes are more likely than others to be first cavalier and then uncaring and then to make mistakes, many mistakes. I rather believe Judges do so.
Even self-employed business owners who are not accountable to an employer in their job are accountable in numerous other ways. Apart from informal but often very strong responsibility to usually wrongheaded officials (of many kinds) and regulators, the self-employed are ultimately responsible and accountable to Courts for their actions. Perhaps most of all they are accountable for ensuring the efficiency of their business at least to the extent that their activity in overall terms is profitable. Without profitability (and profitability depends on their ability both to attract people into being their customers and also upon financial prudence) they cannot long continue in business. So not only are employees but also employers and the self-employed accountable in many ways, both financially and to society’s laws and regulations.
Elected politicians and governments in democracies are also very much accountable for their decisions, not only to the Courts which they shouldn’t be but also (as they should be) both to their legislatures or Parliaments and also at the next election to the electors as a whole. Meanwhile, unlike Judges who are ‘above’ being influenced by such things, politicians tend to be held accountable between elections to public opinion via the media which is brutal and more recently to opinion polling. So elected politicians in democracies are accountable even if principally at the next election, also in numerous other ways between elections.
When the ‘separation of powers’ doctrine was developed (or changed from Montesquieu’s original doctrine) it was evidently overlooked that there is an absurdity in sharing power between people who are personally accountable, demonstrably accountable and those (essentially judges) who have in practice no personal accountability at all to anybody. (Judges are scarcely even accountable to other Judges who even if on appeal reverse as wrong the decision of the original Judge, they do so without personal impact upon the original Judge.) No wonder lawyers like the very unbalanced and very undemocratic, nay anti-democratic, doctrine of the ‘separation of powers’ (as it is currently understood, or in terms of Montesquieu misunderstood) between elected , accountable politicians and unelected, unaccountable Judges. So upon proper analysis this sheer unaccountability for their actions or even prejudices of Judges is a strong additional reason (on top of its fundamentally anti-democratic nature) for abolishing ‘the (modern) separation of powers’ in governance and also abolishing all of the ever-growing power of Judges over politics in democratic countries.
- The Mission Creep Virus (Gold Plating And Stretching)
Unfortunately there is a pattern or at least a very strong tendency among people to believe and act as though ‘if some is good’ then ever more is ever better until the whole structure comes falling down through counterproductive overload. This happens in the management or arrangement of all sorts of activities, for example in health services or even more in modern ‘education’. However it is usually a fallacy, a bad and ultimately damaging fallacy. Let me illustrate what I mean with the example of eating food. It is good and necessary for people to eat food. Indeed if one eats only a little food one becomes malnourished – so it is good and beneficial to eat more food than that. However if a person eats ever more food after a (far from certain) point it becomes not ever better but ever more dangerous and potentially ever more unhealthy and so ever worse. Likewise it may be argued (even though I disagree for democratic reasons) that some enshrinement of some so called human rights or ‘liberal’ values via various courts, foreign treaties or a Constitution is good. However it is certainly the case that most lawyers wanting that think that ever more detailed enshrinement of such values is an even better thing. So the tendency is not merely to initiate such practices but to develop, stretch and gold-plate them ever more (by amendments and even more by increasingly non-literal judicial interpretations). That in fact becomes ever more restrictive of any supposed democracy and leads in ever greater proportions to critocracy replacing democracy. Laws, treaties and Constitutions bequeathed by previous governments to bind their successors are in themselves illegitimate and anti-democratic. That becomes progressively worse as Judges with no democratic mandate interpret them to create ever more supposed ‘rights’ and obstacles to circumscribe and restrict the rights of democratically elected governments, placing ever more power in those judges’ hands. That adds ever more to the power of their critocracy over democracy, even spreading to operational details such as taking power over planning applications for industrial or housing developments and much else besides. So critocracy develops by a natural ‘progression’ (given human nature) from what some would argue is a good thing, a basic safeguard but what I analyse to be in itself a bad thing, into something that becomes ever more critocratic and in terms of democracy ever worse.
- No Ideal System
It might be said that an inherent problem of democracy is that while it gives precedence to and roughly enacts the wishes of the majority it does not explicitly provide safeguards for the minority, most especially concerning individual rights. ( Implicitly there is usually some recognition of minority rights within a democracy because after any election the majority may become the minority and those running the government might be changed). It can be argued, and I think properly argued, that democracy where the majority prevails over the minority at any given time, is appropriate for public affairs. By contrast it arguably should not be relevant concerning private matters and private lives where there is no or no great impact upon the public at large. A system of pure democracy does not of itself safeguard the presumed right of individual people to live their lives as they themselves wish (which I personally believe in) where their doing so does not significantly harm others nor society at large.
Judges would probably claim that they, the Courts, international treaties and state Constitutions provide that protection for individuals that democracy sometimes does not. My view is that though they interfere in the public sphere (which is undoubtedly the province of democracy) they do not even in reality regularly protect individual and minority rights. In any case their judicial interventions do not genuinely distinguish between the public and private spheres. Still less do Judges restrict their interventions to protecting individuals from unwarranted governmental interference while keeping out of intervening in decisions made by elected politicians concerning public affairs.
Let us take a recent example. The ex-President of America is a particularly controversial person, adored by many of his supporters, vilified and abominated by most of his opponents. Though I am not personally either an outright supporter nor an outright opponent of President Trump, the treatment of him by his opponents when in a majority does illustrate some of the dangers of allowing even a democratically elected majority to prevail. This was particularly so concerning his impeachments and events on Capitol Hill in Washington D.C. on 6 January 2021. His opponents developed a narrative of an ‘insurrection’ that he had caused and was responsible for. Could and would it not more appropriately be described as a violent demonstration that had got out of control? That would have happened had it been a left-wing occurrence, as when violent demonstrators took and maintained control of the Capitol Hill area in the center of Seattle, U.S.A. (the C.H.O.P.- the Capitol Hill Occupied Protest in Seattle). In Seattle it was much more like an ‘insurrection’ with a continuing occupation (driving the State Police out) of an area including the State Capitol in Seattle. Yet being leftists those responsible for that in Seattle were never treated nor prosecuted as ‘insurrectionists’, least of all by ‘Democrat’ Party (or is it ‘Hypocrisy Party’) leaders! In Washington D.C. it may be borderline but I veer to the side of 6 January 2021 being a violent demonstration. However, more important and more clear cut is the question of whether President Trump was responsible (in the criminal sense of ‘orchestrated’ or ‘planned’ rather than ’caused’ in some historically academic sense) for those events? The objective and evidentially clear answer is certainly no. Evidentially Trump addressed a regular and politically legitimate rally of his supporters in Washington on 6 January 2021 where he did not ask them or any of them to march directly to or go into the Congress buildings though a minority at the rally did so. Trump did not lead nor even accompany them there. As President he did not tell the Capitol guards whose commander he was to just let them through and naturally the guards did not. Eventually, although arguably belatedly, Trump conveyed a message to those who went to the Capitol to leave, disperse and go home. Evidently the violent events at the Congressional Buildings were not personally organised, orchestrated, nor even encouraged by Trump.
Nevertheless the Democrat Party politicians (admittedly alarmed by being personally targeted by some breakaway Trump supporters) whipped up a frenzy to politically blame Trump for criminal events Trump was not actually responsible for. First they unsuccessfully impeached him even though he was by then out of office and so no longer, properly speaking, impeachable. After that failed they have attempted to try him again and again for that same alleged offence even though normally people cannot be tried more than once for the same offence. Furthermore they rigged their Congressional Committee Of Enquiry through breaking the congressional convention over committee membership and thereby excluded all Trump sympathisers. Their political vendetta has extended to endless, generally partisan and biased investigations concerning Trump’s business and tax affairs which it seems nobody would have investigated had he still been a private citizen rather than a controversial politician. That is all clearly a flaw in a democracy and symptomatic of a problem, a real danger, in allowing a democratically elected majority to hold all power in a society.
Yet what did the judiciary (to which Trump appealed many times) do to stop this political witch hunt by some elected politicians? The answer is practically nothing. For instance Judges insisted Trump reveal his business and tax affairs to an irregularly and illegitimately comprised committee of the House of Representatives. Judges did not even insist that if Trump’s opponents in Congress got his personal information they did not pass it on (as they duly did) to the general public although practically everybody else has the right to keep their tax affairs out of the public domain. So when the democratic structure of the most important democracy in the world failed, so too did the judiciary and along with it their ‘separation of powers’. The judiciary in that supposed ‘separation of powers’ when it really counted were nearly as prejudiced as partisan elected politicians and no protection at all of an individual person’s rights.
The truth is in the end in all systems, all people, be they elected politicians or unelected Judges, are subject, as practically all people are, to prejudice. All people are imperfect and fallible. In the end all systems, all elements in any system are composed of humans and ultimately there is no systemic guarantee that can work to overcome, certainly when under pressure, human fallibility, human prejudices and human folly.
So I neither know of nor can devise any system that in the end would always protect people, notably people in a minority against injustice or infringements of what should be their personal rights. Just as I can think of no society nor system of government that can be absolutely protected against a military coup, I can think of no good mechanism for protecting individual personal rights. Even suppose hypothetically I could devise some supposedly infallible Charter of personal rights and some institution for safeguarding it, even say people actually directly elected, say ‘Civil Rights Commissioners’ to be personal rights guarantors as their sole function. A problem is any such safeguarding institution would comprise people and they being human would sometimes (faced with somebody they didn’t like akin to Trump) not fulfil their function. Yet even more often in a kind of ‘mission creep’ they would want to expand (just as Judges have done) the scope of basic protected personal rights (such as perhaps a right to an ever higher minimum income – after all income or financial support is essential to modern life) and with it their own role, their own rights to interfere and their own importance. They would also probably cross the line from protecting the private rights of individuals to interfering in public affairs, of course in the name of enhancing human rights and public protection!
So regrettably there is no totally ideal system that is possible in a society comprising fallible (and indeed biased) humans. Accordingly there is no valid reason to replace or even partly replace an elected democracy where ultimately the people as a whole hold power with an unelected critocracy where ultimately a small, exclusive, unelected, largely self-perpetuating clique of oligarchs hold power.
- Towards A Practical Remedy.
We have now in large part seen in effect the conversion of Western democracies by supposedly independent judiciaries into critocracies. This has shown a modern-type ‘separation of powers’, granting much power to a supposedly ‘independent judiciary’ though a superficially nice idea in the long run subverts, almost inevitably subverts, democracy. So that is ultimately really inherently incompatible with genuine democracy.
I should point out I do believe unelected public officials when applying the law to individuals or private companies should still be subject to the determinations of the Courts (just as Montesquieu originally advocated). However that is very different to stopping elected representatives from making law or deciding public policies. As for instance elected politicians are quite properly held accountable if crime increases through ineffective sentencing, why shouldn’t those politicians have effective control of sentencing? Why should politicians have responsibility without power and judges have power without responsibility?
The remedy is to make legal decisions subject to (and not above) the democratic system.
That means in part that Judges should not be appointed until their age-related retirement but only for a term of several years and either be directly elected and directly electorally accountable or be politically appointed and easily removable.
However the most important single remedy is for panels of elected politicians in elected chambers rather than Judges (or Courts) to have the ultimate say in interpreting and determining the law and also on giving Judgements on controversial cases (such as immigration). Furthermore elected Parliaments (or elected legislatures) should fulfil the function of the final Court of Appeal or Supreme Court.
Finally, I believe there should be some mechanism(s) for important, controversial matters of public policy to be finally put to and determined by Referendum of all the people rather like what happens in Switzerland. That is the most democratic way even though most democratically elected representatives do not much like that – however at elections representatives are generally elected for a combination of reasons rather than as a specific verdict upon any and certainly not all particular policies. Thus when it comes to significant particular policies where the democratic electoral process is at best indirect and often non-existent (as only the main policies are discussed at elections, elections which also involve the personal qualities of the candidates), it is more truly democratic to refer such matters back to the people as a whole, the people who are (or should be) the final and supreme source of authority within a democracy.
In a democracy power stems from the people and legislators and government only have such power as is demised or delegated to them for a time by the people as a whole – and Judges, international treaties and Constitutions without a direct current democratic mandate from the people by election have no real democratic legitimacy. To submit to Judges’ claims of legitimacy in influencing, let alone determining matters of public policy is to allow them to turn what they like to call ‘the rule of law’ into ‘the rule of lawyers’. The rule of lawyers is completely incompatible with democracy wherein all the people, rather than a small section of the people, the lawyers (who are not elected nor subject to voting in democracy), are entitled to decide all public policy.
Geoffrey Berg – The Guru Of Rational Politics