What is the role of the judiciary in a democracy?
This work is going to examine the way judiciary works and operates in a democracy. Judiciary has definitely a very significant role in a democracy as it shapes and interprets the laws. Key roles and features of the judiciary will be discussed in this work. There will be some theories looked over at and some real life examples as well.
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First of all, the meaning of the term ‘judiciary’ needs to be established. Judiciary is ‘the branch of government that is empowered to decide legal disputes and adjudicate on the meaning of the law’ (Heywood, 2007:452). Democracy on its hand has the roots in Ancient Greece as even the word itself has Greek parts e.g. demos for ‘the people’ and kratos for ‘power’. The word democracy has a lot of meanings nowadays and may not have any meaning to some people at the same time (Heywood, 2007). In this essay the word ‘democracy’ is going to be used in the context of ‘a system of government that serves the interests of the people regardless of their participation in political life’ (Heywood, 2007:72).
As it was discussed in class the role of the judiciary is as follows:
* Protect the constitution
* Look after government and parliament
* Expound the constitution and laws
The key feature of judiciary in a democracy is its complete independence from government. For judges being nonpolitical is essential as well. They must be neutral in order to be legal (Heywood, 2007). Neutrality is ‘the absence of any form of partisanship or commitment’ (Heywood, 2007:329). Often not only the judicial independence in a democracy is the case, but the external pressure can sometimes take place. Heywood argues that in this case it ‘is not so much how judges are recruited, but who is recruited’ (Heywood, 2007). Judges may sometimes be the subject to internal bias and external bias. Internal bias occurs when judges may have personal preferences and can’t be neutral in their decisions. External bias may occur when someone else may put pressure on the judge or put at risk his/her employment, it is said that the external bias is controlled by the principle of ‘judicial independence’. It gives a suggestion that judges can’t be dismissed and that the amount of criticism towards judges’ work is constrained. In reality judges tend to be dependent on certain circumstances as political bodies often have control over certain key issues e.g. judge recruitment (Heywood, 2007). As it is seen from Heywood, judges are not always neutral and therefore in a real democracy can influence the final decision in both ways.
Kathleen Sullivan, the past Dean of the Stanford Law School, agrees to the statement of judiciary being the protector of constitution: ‘ It seems obvious that the court system – especiallyjudicial review of the acts of the legislative and executive branches of government – is, in one way,a bulwark of our constitutional democracy. The court protectscertain minority rights from being trampled by the majority, protects the basic liberty and participatory rights of all, and checks the excesses of the other branches of government.That’s all well and good and crucial for democratic self governance’ (http://theblog.philosophytalk.org/2007/02/democracy_and_t.html). Kathleen adds another point about judiciary’s role in a democracy that we did not look at during the class: judiciary protects minorities and makes them less vulnerable to the majorities’ choices.
Judges expounding the law and constitution have a very important role in a democracy. Many things and even lives depend on the way a judge interprets the law at that moment. Heywood states that every judge uses law in his/her own way, interprets and builds up the argument in court: ‘…judges impose meaning on law through a process of ‘construction’ that forces them to choose amongst a number of possible meanings or interpretations. In this sense, all law is judge-made law’ (Heywood, 2007: 330).
In real life judiciary can be very contradictory. It can be observed from different angle and be seen in a different ways by different parties. For example the X case in Ireland caused a lot of confrontation. The case was about a 14 year old girl who was raped and got pregnant and wanted to go to England to have an abortion. However, she was refused to go by the High court. Later the case was solved by the appeal from the Supreme Court which stated that if there was a risk to mother’s life as the result of pregnancy as there was a suicide possibility. As the result there were three amendments proposed to the constitution of Ireland. One of them argued to remove suicide threat from the grounds for the legitimate abortion and was then rejected. Other two were ratified and these are thirteenth and fourteenth amendments (http://www.ifpa.ie/eng/Hot-Topics/Abortion/Abortion-in-Ireland-Legal-Timeline). This case shows how different judges can build their arguments and interpret the law in different ways and, for sure, influence the final decision.
Some people have mixed feelings about the way how judges are elected in a democracy. First of all they are elected just like politicians, so it makes judges political what interferes with judges being ‘strictly independent and nonpolitical actors’ (Heywood, 2007:328). It is thought that appointing judges is better than electing them as they are maybe more independent than the elected ones (http://theblog.philosophytalk.org/2007/02/democracy_and_t.html). Another case is the demographical representation of the judges in democratic countries. As it was discussed in the class about 80% of all the judges in Ireland attended UCD. Most of the judges in Britain are white young males with private education (http://www.guardian.co.uk/politics/2008/jan/28/uk.immigrationpolicy1). There was an attempt to change this pattern and encourage women and members of the minority groups to become judges to have a more diverse judiciary.
The launch of the independent Judicial Appointments Commission (JAC) in 2006 was meant to herald an end to the old “tap on the shoulder” method of recruitment and “secret soundings” among existing judges, which produced a senior judiciary that was almost exclusively white and male (http://www.guardian.co.uk/politics/2008/jan/28/uk.immigrationpolicy1).
Unfortunately, this new method of recruitment did not work as well: ‘But a Guardian review of selection shows that those appointed since last September are remarkably similar to those selected under the old process’ (http://www.guardian.co.uk/politics/2008/jan/28/uk.immigrationpolicy1).
Diversifying of the judiciary is not easy, so it will take some time, but it will certainly get to the point.
In the conclusion I would like to say that judiciary certainly works in a democracy. The question is if it works fairly, correctly and totally neutrally like it must work. Judiciary protects the constitution and judges interpret the laws in court and expound constitution. Real life examples can be very contradictory and be seen in different ways by different judges e.g. the X case.
Heywood, Andrew (2007) ‘Politics. Third Edition’, Palgrave.
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