Benjamin Bestgen

In April 2020, Polish Supreme Court President Malgorzata Gersdorf retired. She noted that she had been unable to stop contested changes to the judiciary in Poland which give the governing “Law and Justice Party” (PiS) increasing control over the judiciary. These include powers for political vetting of candidates for judicial office and various disciplinary powers for the Minister of Justice against judges. PiS retorts that the Polish court system is riddled with communist-era corruption, cronyism and must be reformed to serve society better.

In Britain, several pro-Brexit politicians also demanded making senior judicial appointments subject to parliamentary confirmation hearings, as they accused UKSC judges of anti-Brexit bias and overreach in judgements regarding Article 50 and the prorogation of Parliament. (Unelected) judges were told to stick to applying the law and not meddle in politics, otherwise (elected) politicians should exercise more control over judicial appointments, like in the US (or China).

Judicial reasoning

Law, as a system of rules to regulate social interactions, unavoidably contains points of political ideology and moral attitudes of the lawmakers. Judicial interpretation of statute, treaties and precedent needs to combine both fidelity to the wording and spirit of the law in general as well as the contingent particulars of each individual case.

In some cases the law will be clear, in others incredibly complex, involving many authoritative sources (some very old) and conflicting expert opinions on what the right answer is.

Judges are reminded, in the words of US Chief Justice John Roberts at his confirmation hearing “it’s my job to call balls and strikes, not pitch or bat.”

But philosopher Anthony Reeves casts doubt on this model of judging: “Judges are not simply umpires, impartially enforcing the fair rules of a voluntary and morally benign sporting event. Judges have political power in a legal system that may only be partially just or legitimate, or that may occasionally demand what it ought not demand.”

Reeves argues that judges, as a matter of judicial ethics, must consider whether in any given case “the rule of law serves democratic values or whether adjudication in fidelity to the law serves some morally worthwhile purpose.” If government or Parliament are about to commit serious moral wrongs or endanger the legitimacy of the political and legal system, judges are justified to consider such extra-legal points in their decisions.

For example, governments and legislators may seek to unjustly discriminate against minorities or migrants, allow torture, prorogate Parliament for illegitimate reasons, disenfranchise poor people, approve human exploitation, apartheid or operate secret prisons. They might endanger workers’ health or destroy environments to please corporate interests, tailor laws to specifically discredit political opponents or suppress discussion of political wrongdoing. They might use the livelihoods of millions of innocent people as bargaining chips in political negotiations.

History shows it is often up to judges whether such political actions will be upheld or resisted.

The proper role of judges

Reeves asserts that judges must be mindful of their de facto role in a political system: they are arbiters of whether the force of state power is exercised legitimately and for sound reasons. In a largely just and legitimate state, judges may have less cause to look beyond the statute book but even where a government does the right thing nine times out of ten, why should courts ignore the one instance when it doesn’t?

Politicians demanding that judges “stay out of politics” fail to fully appreciate that the judiciary is the third power of the state in a functioning democracy. A degree of healthy tension brought by the mutual checks and accountability between judiciary, government and lawmakers is ultimately beneficial to a democracy.

Politicians demanding this tension should be eased in favour of more political power over judges may not be motivated by nefarious reasons but whether their preferred idea of a good political system is still democratic is worth asking.

Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.