The judicial power and democratic polity The world we live in is perpetual changing. In the last decades this has most notably been seen with the mass-media and information age growing bigger and bigger and continuous getting more influence. The impact they have is also appropiate when looking at the judiciary, which had and has to adjust itself to the changing circumstances. To adhere democratic polity the judiciary however still has to follow sets of rules and behaviour, such as the separation of powers by Montesquieu. Also the internationalization and globalization happening produce some new challenges and cases for the courts and judges. Not only has business widened and build up an even tighter network, but also politics and jurisdiction have established new and bigger areas of influence. In Europe the EU-network and eurozone have enlarged the field of work, but also in the rest of the world the judiciary faces new tasks. In this paper I want to focus on the judiciary in political systems and the relationship to democracy with examples including the German Bundesgerichtshof and the US Supreme Court. I want to make clear that the separation of powers still is very important, but has changed since its upcoming by Montesquieu. The role of the judges and the pressure coming from outside are also very crucial to get to my argument that even though the circumstances have changed for the judiciary, the main-goal is still to provide democracy for every citizen by being strong and independent. The use of the term 'democratic polity' depends on the definition of the two words and how they are put together. Something is democratic, when it is 'relating to, appealing to, or available to the broad masses of the people' (Britannica, 2013, 'democratic') while Aristotle was one of the first to define 'polity' by determining it as 'rule by the many in the interest of all' with 'the exercise of political authority' organizing society (Heywood, 2013, p. 4). So democratic polity is a form of government where as many people as possible take part in ruling while trying to make sure everybody benefits from it (Heywood, 2013, p. 268). A lot of things are important and have influence on the shaping of this term. The broad masses mentioned have to be introduced to the political process and have to get access to participation. And while some people have the political authority and power they still have to act with most people standing for the decisions. When everybody has to benefit from the political process some things have to constrain the powerful Page 1
people in government. What constrains, shapes and influences the socalled democratic polity will be discussed in this paper. The separation of powers But first another term has to be defined and clarified. The 'judicial power' in the political process is very important to place, and to do that I will look at the theory of 'separation of powers'. Stressed by John Locke and Montesquieu in the 18 th century it is the 'principle that each of the three functions of government should be ( ) a separate branch of government' (Heywood, 2013, p. 313) resulting in the legislative, executive and judiciary branch. This device is the key to prohibit tyranny and oppression, because the political authority is divided into these three branches and thereby they control one another, Montesquieu stated. On one hand there is the judiciary which interprets law by applying and readjusting it. The judges and other people who have the power in the judiciary are often appointed by the government or employed by the state but they are not elected by the citizens. This means that they as only branch in the separation of powers lack the link to the 'broad masses' and thus are not as accountable to the electorate in the way politicians are (McLachlin, 2000). Still they are a crucial and essential factor in the relationship and interdependence of the three powers, because they work with and out of the constitution of a country and give the whole government and political process the legitimacy. A constitution secures the rights of each citizen living in a country and when interpreting this, the judiciary protects these rights with the power they are given. They make sure every set rule and law is followed and thereby they give legitimacy to the other branches by being a respected and independent instance with judicial independence taking decisions not influenced by other sources. On the other hand there is the legislative in form of assemblies and parliaments which in most countries is a collection and representation of a lot of different people in the country, while the assemblies itself can be build together differently. The word assemble means 'bring (parts) together in a single group or place' (Cambridge, 1995) which embraces the whole meaning of assemblies: bringing together different voices of a population. Then there is the executive, the government of the day. Derived from either the assembly (in a parliamentary system) or directly by election (in a Page 2
presidential system) they work in the most public branch (Heywood, 2013, p. 285). Often in the social media and the responsible contact persons for most citizens, ministers and especially the leader in form of prime-minister, chancellor or president are the most important persons of interest in politics. Back in time when Montesquieu postulated the separation of powers, he invented something new - a new thought how the power of the leading and governing elite should be split up. The so-called interdependence made sure nobody had a chance to exploit the given power, the three branches controlled one another. The theory and concept Montesquieu came up with is still the same today, but however it has varied, because the setting and surrounding has altered. Influences changing the separation of powers The last decades the whole role of the government has changed and broadened (Britannica, 2013, 'separation of powers'). When entering the information age with a lot more information for everybody, politics has changened. The masses can be reached much faster and better, which mentioned before was a keypoint in the democratic polity. And when the surroundings develop further, the theory has to adjust itself. Never stagnant a lot of factors play into the field of work of a government. While we can observe the executive expanding into a much more personalized leadership with the mass-media as one key-inducement (Heywood, 2013, p. 300) the legislative also changes. As a compilation elected by the population they have a special bond to their electorate especially from their own regional area. The mass-media plays a crucial role here too, because everyone in a country has access to information about the political process going on. People can control every step taken and immediately react on it. As soon as the assembly decides something a lot of people use the social media to express their meanings and statements. As seen in the case of the American Shutdown and the so-called Obama-Care where Barack Obama (the executive) and Congress (the legislative) fought to get through a bill in October 2013 (Cohen, Bothelho and Yan, 2013) the whole world looked at them with access to a lot of information and the possibility to comment in the internet, which a lot of people did. These new technical inventions are very influencal on the way the executive and legislative branch behave, decide and present themselves. These two are in the middle of the attention, but what about the judiciary? Page 3
The judiciary works with the constitution, they have a last look on enactments and they are judges who studied law. All these factors are not always interesting and coherent for the broad masses. The actions, judgments and approaches are not understood by everybody and thus the judiciary stands a little behind the other two branches regarding the public attention. But nevertheless they have a lot of power and especially also the respect and esteem of most people. By staying calm and working with facts, the judges have established themselves as a powerful instance who take over the important role of interpreting the laws. But like the executive and legislative, the role, behaviour and field of work of the judiciary has changed. To satisfy and cope with a lot of new claims from the public, the whole branch had and has to adjust itself. Both in relationship to the political system and composition, but also in regard to the whole definition of democracy. The judiciary in the political system In most countries of the world the 'separation of powers' is in practise. When using that as a set term, we can look at the development the judiciary has taken in the changing circumstances. At first I want to look at the political system in a domestic sense the system of a country. Here the judiciary is dependent on the other two branches and their activities, but it's also the other way around with them being dependent on the judiciary (interdependence). In this the checks and balances (Heywood, 2013, p. 313) are internal tensions which assume relatively equal distribution of power and control of one another. As mentioned the executive with personalized leaders and legislative with a more direct bond to the electorate (Heywood, 2013, p. 305) have widened their field of work and thereby strengthened their power and that is what the judiciary also has done. On one hand the judiciary has been personalized too. When looking at the Bundesgerichtshof in Germany a lot of discussion has been on the president Andreas Voßkuhle. Opponents say he has centred himself and taken part in political conversation too much. 'A judge should talk through his judgments and otherwise remain silent' (Wefing, 2013) people say, but this role of a judge has changed, caused by globalization and European influence, this article claims. Voßkuhle has to deal with the new relationship between politics and the judiciary in general, because there no longer is the former clear distinction between them. More people are affected by the judgments and listen to them. A bigger media-coverage gives rise to the establishing of a leader. When a TV-programme Page 4
talks about a judgment of the Bundesgerichtshof they will show Voßkuhle and people identify the court - and thus the decisions taken - with him. At the end of the day he is in the mainfocus and as with other people of public interest, everything he does is covered. So when he makes a trip to Berlin, talks to journalists and politicians some people will say he is way too much into the political part he should not enter. But in todays society and world, the highest judge of a country has to consolidate with the other branches in the separation of powers. Today it is not only the domestic political system, but also the international one that matters. While there is interdependence in the fragmentated branches on a domestic level, the separation of powers is not that clear on international level. Here it is much more a country working as one branch while the judicial power lies at the European Court of Justice who has checks and balances going on worldwide and especially with the member states but the clear distinction and setting about who is who in the separation of powers is missing. When looking at the political system on this standard the domestic judiciaries are not that important any longer. So in order to keep a country legitimate with a relative power-equality, the judges in the country have to go on some new paths. This can be done differently, but in the case of Andreas Voßkuhle the theme Europe is very important. And in order to make Germany strong and somehow united 'against' the other branches on the higher level, he has decided to be a 'political actor' while also being the president of the Bundesgerichtshof (Wefing, 2013). This role is criticized by many people (e.g. ministers like the interior minister Friedrich) but also welcomed by many. Especially the people emphasizing on the EU and the Euro like the way president Voßkuhle takes up this task in our changing world. He not only makes the Bundesgerichtshof and thereby the German judiciary to a strong and independent branch he also stresses and supports the strong role of Germany in the EU. When working together with the other branches on a domestic level he secures and strengthens the external appearance and thereby makes the whole country strong and independent. To have these strong and independent branches in and outside the country are crucial to adhere the legitimacy. The most important task of the judiciary is to support the people living in a country or in the EU and fight for their rights. By staying somehow modern and going with the trend the mass-media and their audience demand namely having a characteristic leader Voßkuhle is an example of making the judiciary strong while the surroundings get stronger too. And by working together with Page 5
the other branches and talking to them, making his own rule and opinion clear, he ensures an independent judiciary, which is crucial and absolutely essential to achieve the main-goal given: prohibit tyranny and oppression. While in former decades people could not participate in the same way as today because there was no such big media-coverage, the judges did not have to explain themselves that much. They 'only had to do their job' taking care of the law being followed. But today a lot more reaches out to the masses and the judiciary has to adapt themselves to that. They have to explain their judgments more thoroughly and understandable for everybody and also on an international level. Whatever law is decided in for instance Germany can have a big impact on the rest of Europe. The Bundesgerichtshof is not any longer only responsible for the actions and judgments taken in Germany, but also in the rest of the world. And while the European Court of Justice also needs to be strong and independent like every other branch in the separation of powers the discussion about how and in which form this is crucial and essential, is another controversy. The judiciary and democracy The power a judge has in important and crucial cases, regarding everybody in a country or area, is big. With the separation of powers as pattern the judiciary can stop nearly everything political from happening by judicial review (Heywood, 2013, p. 346) just because they have a vetoright. So on one hand it is very good to have a strong and independent judiciary, because they secure democracy. They secure the rights of every single person by staying close to the constitution and other big and widely accepted sets of rules like the United Nations Human Rights. The courts and judges work to provide justice, fairness and freedom (Heywood, 2013, p. 343) for every single person. But how strong and independent can they be without also pleasing some requirements of others or individuals? As cited in a paper: 'democracy is a lot more complicated than elected representatives making the law' (McLachlin, 2000) the judiciary is not totally accountable for a democracy to work. But still it plays this crucial role and can change a lot. In our world getting more and more complex, the judges face more challenges and more complicated cases too. They need a lot of expertise not only on the juristic side, but also in a bigger extent on for instance business, medical or political Page 6
questions. That makes their field of work bigger, but also more dangerous for making mistakes. 'We were never pressurized more than when confronted with this decision.', the judges at the German Bundesgerichtshof said when enacting about the Euro-Rescue-Fond (Wefing, 2013). When deciding about this case they knew that their judgment would not only influence every German, but also everybody else in Europe and because of the Euro and the big network around the world a decision with a bad outcome could have had an impact on other people in the world too. When deciding about such international cases they need a lot of research and experts to get an overview and still the decision taken in these big issues is dangerous and insecure. The ongoing and result is not only addictet to the decision of the court they also have to think about the other actors on the global plan and their actions. And still also when facing these new challenges and levels of influence - the judiciary has to be careful not to take over a political role. When deciding about for instance the Euro-Rescue-Fond the basic idea should be to secure democracy in the own country but also in other countries around the world. The question is whether this is possible by being an independent and strong judiciary or maybe rather by working together with experts and politicians from the own country and thereby gain more for most citizens. Every political branch worldwide and on different levels faces more interdependence and less clear distinction between each other. Especially on the international level the distinction is not very clear and still needs to be defined. And maybe in these international cases the judiciary should be strong, but not that much independent, to achieve better condition for democracy by sharing knowledge and working together with the other branches without losing power. Maybe the international polity needs an adjustement and re-thinking of the separation of powers. The challenges facing the three branches get more and more complicated and can not be solved the way they work in the domestic field. Here the judiciary simply has to be very strong and independent, because the domestic politicians and leaders get more and more power, while other powers also rise. The mass-media covering and sometimes leading the electorate are a crucial factor in democracy. To maintain equality and freedom for every citizen the judiciary has to play an even bigger role to protect their rights and be even stronger. On a domestic level the judiciary can nearly not be strong enough as long as the judges rule according to widely-accepted laws like constitutions and international agreements as the United Nations Human Rights. Page 7
So while the judges need more expertise or experts working with them, their own thoughts and opinions can have an impact on their judgments too. Already Friedrich Nietzsche said that 'people create their own worlds and make their own values' (Heywood 2013, 301) and like everybody else a judge also gets influenced and attached by other people, happenings and different streams. These external bias (Heywood 2013, 345) can to a greater extend influence the judgments and through them the whole polity of a country by for instance other branches and politicians dictating the agenda. Some state that 'the court is trapped between the expectance of the people and the importunity of the politicians' (Wefing, 2013) and try to please everybody but that is not the idea of a judiciary. To prohibit this the judiciary has to be strong and independent to hold up against these external bias and adhere democracy in the interest of all, as defined before. But is this also applicable for the individuals building the judiciary? A lot of judges sit together to discuss and decide their judgments. But in the end the president (as Voßkuhle in Germany) has the last word. When he is conducted by external bias or internal bias, where his own opinion and thoughts come through, he is also strong and independent. But if that is the case the democracy is no longer kept up, because an individual decides important issues not relating to the broad masses but instead maybe only gaining for the judge himself. So it is important to distinguish between the judiciary and the jugdes the judiciary needs to be strong and independent, but only when they gather different judges working, discussing and correcting themselves together. As seen in the United States of America the judge Antonin Scalia is a controversial person. Working at the US Supreme Court he has a lot of power and is designated to be a true fighter for conservatism. 'The language of Scalia's opinions reinforces a politics of inequality' (Brisbin, 1997) a study concludes and shows that American judges already are personalized and influenced by other things. As a leader of the conservative movement the question is if Scalia can be a judge fighting for everybody's rights. While taking decisions, his own opinion is also exerting influence considering the judgment and this entails the US Supreme Court not totally working for democracy. The judge as an individual has too much space compared to the judiciary itself. Antonin Scalia should work with the American constitution as basis thinking about every single citizen and not the objectives of his party the Republicans. Page 8
The future of the judiciary While summing up the analysis and discussion I want to take a look at the future of the judiciary too. The judiciary is the branch in the separation of powers which works closest with facts, with set rules (e.g. a constitution) and with reasonable and substantive arguments. To stay strong and independent they need to follow that line be the branch re-adjusting things and be the instance that controls everything. That results in a democratic polity. But still the judiciary has to adjust itself to the changing circumstances especially the mass-media placing a bigger attention on the judiciary and its leaders. The judges have to be careful about not getting too political and personalize the judicial branch too much. The new paths they need to take, especially the high judges at the big courts (e.g. German Bundesgerichtshof and US Supreme Court), are dangerous and need to be explored. As the world and worldwide interdependence and network get more and more complex the judiciaries have to adjust themselves to these challenges. They need to develop and modernize their roles and field of work without ever forgetting about Montesquieu's theory. The separation of powers has changed too but the basic idea should always be held up. To constrain the other branches and get constrained in order to prohibit tyranny and oppression must be the keythought of every judge. Every single citizen must retain his rights, freedom and other laws to have a democratic polity. Also in the future that should be the main-task of the judiciary besides looking at the changing world and find a 'good way' to fit into it. Page 9
References: Brisbin, Richard A. (1997): 'Justice Antonin Scalia and the conservative revival', The Johns Hopkins University Press Britannica Academic Edition (2013): 'democratic'. In Encyclopædia Britannica. Retrieved from http://www.britannica.com.escweb.lib.cbs.dk/bps/dictionary?query=democratic 'Charles-Louis de Secondat, baron de La Brède et de Montesquieu'. (2013). In Encyclopædia Britannica. Retrieved from http://www.britannica.com/ebchecked /topic/390782/charles-louis-de-secondat-baron-de-la-brede-et-de-montesquieu 'separation of powers'. (2013). In Encyclopædia Britannica. Retrieved from http://www.britannica.com/ebchecked/topic/473411/separation-of-powers Cambridge (1995): Cambridge International Dictionary of English, 1 st edition, Cambridge University Press Cohen, T., Botelho G. & Yan, H.: 'Obama signs bill to end partial shutdown, stave off debt ceiling crisis', 17.10.2013 on CNN.com Heywood, Andrew (2013): 'Politics'. 4 th edition, Palgrave Macmillan McLachlin, Beverley ( 2000): 'Judicial power and democracy'. In 'Singapore Academy of Law Journal', Vol. 12, p. 311 Wefing, Heinrich (2013): 'Andreas Voßkuhle Richter oder Politiker'. In 'DIE ZEIT', 02.02.2013 Page 10