What is Democracy? (67): The Form of Government That Offers the Best Protection Against Human Rights Violations

There is a clear correlation between the presence and quality of democratic government in a country and the level of respect for human rights in that country. That may sound obvious but it’s good to have some measured results. This paper for instance offers some clear evidence:

There is a substantial body of research devoted to understanding the relationship between democracy and government human rights performance. Most research centers on physical integrity rights but does not analyze the broader civil liberties encompassed by the category of “empowerment rights.” The dynamics of the relationship between the degree of democracy in a state and protection of empowerment rights might be different and improvements may take longer to emerge. This study examines the effects of democracy and democratic duration on empowerment rights scores, and it also uncovers time thresholds at which different scores are attained. The results show that regime type is more critical to the protection of empowerment rights than it is to physical integrity rights. Even in the earliest years of democracy there is a positive relationship between democracy and empowerment rights, but empowerment rights strengthen as countries gain democratic experience. …

Thus, countries with more institutionalized democratic regimes, as determined by the quality and longevity of democratic experience, are significantly more likely to respect both fundamental human rights and broader classes of civil liberties. … [A]lthough human rights protection is present in early years, it will usually be even greater after countries have had extended experience with democracy. (source)

Here are some interesting data to back this up.

The interesting thing about all this is not that there is a correlation – anyone following the news could have guessed as much. What we should care about are the reasons why there is a correlation. From the studies cited above we can see that the most important causal link is the one going from democracy to respect for human rights. In other words, there is a correlation because democracy causes respect for human rights. Vice versa may also be possible, although the argument is probably weaker. And then there may also be a hidden variable that can partially explain the correlation. For example, it may well be that prosperity and high GDP promote both democracy and human rights.

But then the next question is: how does democracy cause higher levels of respect for human rights? I guess this can happen in several ways:

  • Democracies are more likely to be systems based on the rule of law and the rule of law is necessary for the protection of human rights.
  • Democratic rulers know that they can’t get away with repression. They’ll be voted out if they try, or, worse, they’ll suffer the consequences of the rule of law, imposed on them by other branches of power in a system of checks and balances and separation of powers.
  • Democracies have systems of judicial review which allow courts to void legislation that contradicts basic constitutional rights.
  • Democracies have powerful non-violent mechanisms for dispute settlement, such as well-functioning courts. People don’t need to take the law into their own hands. Internal peace and limitations on violent behavior have beneficial effects on a number of human rights.
  • Democracy is correlated with high levels of prosperity, and prosperity makes it easier to promote respect for human rights. Rights cost money.
  • Democracies need human rights to function adequately (no democracy without free speech, free assembly, free association etc.), so they have an added incentive to respect them.

None of the above is meant to imply the following:

  1. That we can delay the implementation of human rights norms in non-democratic states. Remember the remark at the beginning that the causal link probably goes in two opposite directions and that human rights can promote democratic government. After all, if people are allowed to express themselves, they will express themselves about the workings of their government, and that is the first step towards democracy.
  2. That rights are never violated in democracies or never respected in non-democracies. It’s merely a matter of probability.
  3. That there are no elements other than democracy that promote human rights. Of course there must be. I mentioned prosperity a moment ago. Democracy is not a sufficient condition, although probably a necessary one, at least in the long run, for the full set of human rights and for the equal enjoyment of all rights by all people.
  4. That the beneficial effect of democracy on human rights is equal for all human rights or for all types of democracy. Well-developed and long-lasting democracies do better, as mentioned above, but perhaps also deep democracies, meaning democracies that provide a wide range of opportunities for democratic say.

More about the link between democracy and human rights here, here, here and here. More posts in this series are here.

What Are Human Rights? (44): External Constraints on Politics, Means of Politics, or Objects of Politics?

People describe and define human rights in lots of ways, but perhaps the most common definition is this: human rights are external constraints on politics. They determine the boundaries that political action – action by both authoritarian rulers and democratic majorities – should not cross. I want to use the metaphor of the ring to clarify this, because that will help us later on in this post. Political action – including legislation – is constrained by a ring of rights.

This definition – let’s call it definition 1 – places human rights squarely outside of and even prior to politics. This is why oppressive actions by authoritarian rulers who have not enacted human rights law can still be condemned by human rights talk. If rights were just a part of politics, this wouldn’t be possible because they would be on the same level as authoritarian politics and they would therefore lack constraining power. (Of course, it is a fact that human rights often fail to constrain, but I’m dealing here with the moral and not factual status of human rights).

The same logic applies to democratic governments that have enacted human rights law: their actions as well should, ideally, stay within a realm defined by a ring of rights. The difference with authoritarian governments is that democracies have more efficient extra-political means to keep their governments within the ring, at least some of the time (for example judicial review; in the case of authoritarian governments there are also means – such as foreign intervention, rebellion etc., but those are normally a lot less effective).

So that’s definition 1, and it’s good as far as it goes. The problem is that it doesn’t quite capture the essence of human rights in a democracy. Rights are not just or not merely outside of politics in a democracy – they are intrinsic to it. Democratic politics can’t function without human rights; rather than external constraints on politics, rights in a democracy are essential means of politics. They are the foundation on which democratic politics can function. That may be obvious in the case of some rights – no democratic politics without free speech, assembly or association rights and the right to vote – but it’s true for all rights (for example, I argued here that violations of the right not to be tortured can undo democracy).

So let’s call this definition 2 and represent it like this: the ring has become the foundation. Now, it may look as if these two definitions are contradictory and incompatible: something is either an external constraint or a means, but never both. However, rights should be both: we need rights as foundations and means of democratic politics, but at the same time we want rights to be able to constrain democratic politics when necessary (for example when the majority wants to violate rights). I think we can have both.

Things get more complicated when we consider a third definition: rights as objects of politics. The two previous definitions assume that rights are uncontroversial, but that is untrue. Human rights are objects of frequent and reasonable disagreements. They are not self-evident, God-given or axiomatic. They need justifications and arguments, and different people will have different justifications and hence different definitions of rights. The only way to deal with these disagreements is through politics: discuss them in public, and let the majority vote. (E.g. should work be a right, should unemployment insurance be, should incitement be protected as free speech? etc.) As a result, the width and strength of the ring of rights changes over time.

One could argue that it’s not up to politics to decide these disagreements, and that instead a constitutional court should deal with them. However, we know from experience that this doesn’t work: politics will continue to interfere, either directly through legislation or indirectly by way of interference with the workings of the court.

And there’s an even more fundamental problem. Definition 3 looks like it’s incompatible with definitions 1 and 2. If rights are supposed to function as constraints on politics, then we shouldn’t place rights within the political process which they should constrain. When we allow rights to become objects of politics then majorities can easily destroy the  constraints that bind them. Similarly, when majorities are allowed to vote on the fundamental means of politics they may well decide to destroy those means.

The solution is not the removal of rights from politics – that’s both illusory and undesirable – but rather the creation of a distinction within politics: normal political decisions should be absolutely constrained by human rights and should respect rights as the fundamental means of politics; and then there is constitutional politics, which is a periodical – and not a day-to-day – form of politics that tackles society’s basic rules, including human rights. Normal majoritarian procedures don’t apply here. Special majorities are required as well as other safeguards against the destruction of rights.

More posts in this series are here.

What is Democracy? (60): Is Separation of Powers Compatible With All Types of Democracy?

OK, that question is probably way too ambitious for a blogpost. There are dozens of types of democracy, so let’s just look at two types: presidential democracy and parliamentary democracy (PrD and PaD for short in what remains). And that means not only limiting the scope of the investigation but also simplifying it: there are many different types of PrD or PaD (the Westminster model is one form of PaD, the US system is one form of PrD). But that’s what you have to do if you want to keep your blogposts relatively short and readable.

Moreover, separation of powers is an enormously complex topic as well, so again I’ll have to simplify. I’ll focus on two of the three powers that are traditionally distinguished: the executive and the legislative powers and ask how separation between these two powers is compatible with PrD and PaD.

First, why is separation between these two powers an important value? For the same reason that separation of powers in general is important: to create checks and balances and to pit different powers of the state against each other so that there is less risk of tyrannical government and collusion of different powers against the people. The executive power, which normally executes the laws voted by the legislative power, usually also has a veto power against certain acts of legislation in order to limit the risk of oppressive or unjust legislation. Sometimes, when it gets very bad, the executive can also disband the legislative power and provoke new elections. Conversely, the legislative power often has the power to demand accountability and transparency from the executive power. If the legislative believes that the executive power acts in impermissible ways it can vote laws that make those acts illegal. And so on.

What are the main differences between PrD and PaD? In a PrD – where you have of course also a parliament – the executive power is elected directly by popular vote. People elect a president and this president selects her government. The people also elect members of parliament in separate elections.

In a PaD, the executive isn’t elected directly by the people. The people elect only the members of parliament. The political party (or parties) that manage to get a majority of elected members of parliament then form a government (often after coalition negotiations between parties when there isn’t one party that has managed to acquire a majority of representatives in parliament).

A PrD seems better able to respect the separation between the executive and legislative powers. A president doesn’t sit in parliament and doesn’t rely on the approval of the legislative for her political survival and hence she is unlikely to always have the same views as the legislative majority. Checks and balances can work. She has an independent mandate from the people and she can have a view that’s different from the view of the parliamentary majority. In PaD, the executive is a product of a parliamentary majority. It’s often even composed of some members of the parliamentary majority who sit both in the government and in parliament. Therefore, it isn’t common in a PaD for the executive to counteract the legislative or vice versa. In a PaD, these two powers are more or less the same. The executive is the parliamentary majority and parliament as such is systematically in agreement with the executive. It’s only the parliamentary minority that can voice opposition. But that’s it: it has a voice but it can’t effectively block executive initiatives, since it’s merely a minority. The act of legislation often originates in the executive that in fact has the power to enact whatever legislation it wants since it automatically has the support of the parliamentary majority. Why is that the case? Members of the parliamentary majority who aren’t part of the executive are often second rate party members who are easily persuaded to approve the legislative initiatives of the executive because their political career depends on the support from the senior party members who make up the executive. For the same reasons, the accountability and transparency requirements are often sidestepped because the parliamentary majority doesn’t want to embarrass the executive.

So, PaD abandons part of the separation of powers in order to gain efficiency. Parliamentary systems, compared to presidential systems, can act in a more decisive and a quicker manner (in theory at least). In a PrD, the president can block legislation coming from parliament or can have her legislative proposals voted down by a parliamentary majority.

However, this efficiency advantage of PaD compared to PrD is often lost when coalitions are necessary. This is why some parliamentary systems avoid proportional representation – which tends to produce more than two political parties with representatives in parliament – and use some kind of district system combined with first-past-the-post elections – which tends to lead to two party systems and hence avoids the need for coalitions.

Of course, this doesn’t mean that PaD doesn’t have any separation of powers at all. It usually has an independent judiciary that can act as a counterweight and that can use for example judicial review to invalidate laws that are incompatible with the constitution. So it really isn’t easy to say which system is preferable. Efficiency is perhaps just as important as separation. Yet the direct election of the executive, which is typical of PrD and also the basis of many of the advantages of PrD compared to PaD, generates more popular control and hence more democracy, and that is important as well. And finally. PrDs are more stable. So on balance I think I prefer PrD.

Measuring Democracy (8): A Multidimensional Measurement

Any attempt to measure the degree of democracy in a country should take into account the fact that democracy is something multidimensional. It won’t suffice to measure elections, not even the different aspects of elections such as frequency, participation, fairness, transparency etc. It takes more than fair and inclusive elections to have a democracy. Of course, the theoretical ideal of democracy is a controversial notion, so we won’t be able to agree on all the necessary dimensions or elements of a true democracy. Still, you can’t escape this problem if you want to build a measurement system: measuring something means deciding which parts of it are worth measuring.

You would also do best to take a maximalist approach: leaving out too many characteristics would allow many or even all countries to qualify as fully democratic and would make it impossible to differentiate between the different levels or the different quality of democracy across countries. A measurement system is useful precisely because it offers distinctions and detailed rankings and because it makes it possible to determine the distance to an ideal, whatever the nature of the ideal. Obviously, a maximalist approach is by definition more controversial than a minimal one. Everyone agrees that you can’t have a democracy without elections (or, better, without voting more generally). Whether strong free speech rights and an independent judiciary are necessary is less clear. And the same is true for other potential attributes of democracy.

Once you’ve determined what you believe are necessary attributes you can start to measure the extent at which they are present in different countries. Hence, your measurement will look like a set of sliding scales. With all the markers on the right side in the case of a non-existing ideal democracy, and all the markers on the left side in the unfortunately very real case of total absence of democracy.

(The aggregation of these scales into a total country score is another matter that I’ve discussed elsewhere).

Some candidates of attributes are:

  • Does a country include more or less people in the right to have a democratic say? How high is the voting age? Are criminals excluded from the vote, even after they have served their sentence? Are immigrants without citizenship excluded? Are there conditions attached to the right to vote (such as property, education, gender etc.)?
  • Does a country include more or less topics in the right to a democratic say? Are voters not allowed to have a say about the affairs of the military, or about policies that have an impact on the rights of minorities? Does the judiciary have a right to judicial review of democratically approved laws?
  • Does a country include more or less positions in the right to a democratic say? Can voters elect the president, judges, prosecutors, mayors, etc., or only parliamentarians? Can they elect local office holders? Does a country have a federalist structure with important powers at the local or state level?
  • Does a country impose qualified majorities for certain topics or positions? Do voters have to approve certain measures with a two-thirds supermajority?
  • Does a country provide more or less ways to express a democratic say? Can voters only elect officials or can they also vote on issues in referenda?
  • Does a country impose more or less restrictions on the formation of a democratic say? Are free speech rights and assembly and association rights respected?
  • Does a country accept more or less imbalances of power in the formation of a democratic say? Are there campaign financing rules?
  • Does a country show more or less respect for the expression of a democratic say? How much corruption is there? Is the judiciary independent?

A “more” score on any of these attributes will push up the total “democracy score” for a country. At least it seems so, if not for the conclusion that all these complications in the measurement system are still not enough. We need to go further and add additional dimensions. For example, one can argue that we shouldn’t define democracy solely on the basis of the right to a democratic say, not even if we render this right as complex as we did above. A democracy should, ideally, also be a stable form of government, and allowing people to decide about the fundamental rights of minorities is an expression of the right to a democratic say but it is not in the long term interest of democracy. Those minorities will ultimately rebel against this tyranny of the majority and cause havoc for everyone.

More posts in this series are here.

What is Democracy? (52): Predictability or Uncertainty?

Why would this question be even remotely interesting? Well, I can see several reasons. Maybe not in the West but elsewhere in the world democracy is often rejected because it supposedly undermines predictability and hence economic performance. A strong central government that doesn’t have to worry about the next election is said to be more efficient, economically speaking, because it can apply long term planning. Talkative democracies with their frequent elections, rotation in office and often federal structures are simply unable to plan and are forced to pander to the short term interests of a lot of small groups because elections are at stake. Also, people seem to prefer predictability over uncertainty in general, not just because of the economy.

Let’s just bracket the question whether or not uncertainty is in general a bad thing, and whether or not we want to limit it (uncertainty is and always will be a fact of life so limiting it is all we could do if we decide that that is what we want). Those are not questions I’m particularly interested in since the answers can reasonably go both ways (planning can be good or bad, certainty can be comforting or stifling etc.). I’ll focus on the relationship between democracy and uncertainty. Is it true, as some authoritarians claim, that democracy promotes uncertainty? Yes, for some reasons, and no, for others.

There are indeed some forces that compel democratic politicians to favor the short term. Elections need to be won, and voters naturally value short term benefits more than long term benefits, even if these long term benefits are much larger (this is called time preference). They have some good reasons for this: maybe they think that they won’t be around in the long term (or that the probability of being around decreases when the time horizon is further in the future), or maybe they don’t believe in the long term: since life is unpredictable, especially in the long term, it’s better to count on short term benefits, even if they are small in comparison, than on large but unlikely long term benefits. If that is how voters think, then they will favor politicians who focus on the short term. Democracy therefore exacerbates life’s inherent unpredictability.

Also, voters are correct in thinking that politicians have more power over the short term than over the long term, which is another reason to favor politicians who promise short term benefits. This “short-termism” may be misguided for other reasons – especially when the short term benefits are detrimental to long term benefits (e.g. driving SUVs) – but it’s indeed to some extent a fact of life in a democracy, and one which, by definition, produces uncertainty because it makes long term planning very difficult if not impossible.

It’s also true that some non-democracies have proven themselves to be better long term planners, although most non-democracies have been short term kleptocracies that ruined their national economies. Dictatorships have also shown that long term planning doesn’t need to be benevolent: the long term planning they engaged in mostly focused on the long term survival of the ruling class, not the long term benefits of the people or of business. Predictability then means eliminating opposition and dissent. And even if prosperity is the motivation, the result is often the destruction of freedom.

Another reason why democracies are particularly unpredictable is the game of action and reaction. In a democracy, the majority has to take into account reactions of the minority and reactions of a future majority. (Democratic minorities have some power, e.g. their rights cannot be violated by the will of the majority). When people react to what you’re doing, you can never be certain that the actual consequences of your actions correspond to the imagined ones. A carpenter working in isolation can be quite sure that the table he’s making will look a lot like the one he imagined. A democratic politician will most often see things happening quite differently from the way he or she expected them to happen. The plurality of a democracy means that many different kinds of reactions can interfere with actions. As a result, there’s unpredictability. Goals will not be achieved exactly the way they were intended, or will not even be achieved at all.

A democracy does not try to suppress or eliminate reactions and contradictions. It tries to ritualize them, soften them and take the violence out of them, but it needs them. It needs conflicts, opposition, criticism, plurality, rotation etc. Democracy is a game of action and reaction that is institutionalized and accepted as an inevitable fact of life in a community with different people and different goals. It cannot exist without events initiated by some and reacted upon by others. Hence democrats embrace uncertainty and unpredictability, however unpopular this may be. They don’t accept that there is necessarily a purpose, a clear plan unfolding in history, an evolution toward a certain goal, a plan or a process that can be known in advance and implemented in a predictable way. They are weary of planning because they don’t believe that planners can have the necessary knowledge to plan and because of the tyrannical nature of planning: planning has to result in the exclusion of reaction.

However, let’s not exaggerate. Non-democracies can also be quite unpredictable, and beside the fact that short-termism isn’t an exclusively democratic vice there are other things that disprove the claim that democracy is especially bad for certainty and predictability. Democracies are rule based, and much more so than dictatorships. They favor the rule of law, which means that public policy is much less impacted by changing individuals. Governments can only do what the laws allow them to do, and their actions are therefore much more predictable. You could say: so what, they can always change the laws. True, but only within the confines of a constitution which is incredibly hard to alter. Judges in a democracy have the power of judicial review and can undo acts of legislation that violate the fundamental rules of a democracy.

This “hard-coding” of the constitution shows that a democracy, like any form of government, wants to be certain of its survival. In that sense, it needs predictability, but not predictability of policy. A democracy tries to eliminate only anti-democratic reaction and opposition, not opposition to policy. An entrenched constitution is one way it does this; asking people to promise respect for it is another way. Promises produce some certainty, a certainty and predictability based on freedom. Promises imply freedom, because a promise is only valid if it is voluntary. This kind of certainty is therefore radically different from certainty produced by the elimination of reaction. In a tyranny, everybody is certain – to some extent – that the regime will survive because nobody can or dares to react, or because indoctrination and propaganda have conditioned people in such a way that they do not even contemplate reaction. In a democracy, there is relative certainty because enough people keep their promise to respect the regime, and because there are institutions enforcing respect for the basic rules. Those promises are the rationale behind the so-called “pledge of allegiance“.

Of course, this does not mean that everything in a democracy is free and voluntary. There has to be some coercion because some people will not make or keep the necessary promises. There will be coercion, not of promises, but of reactions. Promises cannot be coerced. Anti-democratic reaction is the only type of reaction that is eliminated in a democracy. Every other kind of reaction is cultivated.

An anti-democratic reaction is somewhat of a contradiction in terms. It is because of democracy that reaction is possible: democracy softens and hence promotes reaction. If reaction becomes an activity without risk, as is the case in a democracy, then reaction blossoms. Reacting against democracy is not only ungrateful, it is self-destructive.

But apart from this predictability of the institutions necessary for unpredictable political life, it is clear that the focus of democracy is on conflict, contradictions, opposition, reactions, unpredictability and uncertainty. Freedom does not always go hand in hand with control, although on an individual level this may be the rule. An individual is free if he controls his life. But a society is not free if people try to control consequences and the future. Unpredictability does not mean that people are not free to choose their future. They are just not certain that the future will be the one they have chosen.

The freedom to react disappears when politicians want to be certain of their goals. They want to be like a lone craftsman who makes a product without much interference from other people and other goals. Society is in need of a blueprint and a makeover. Reality has to be made in order to conform to the plan or the model. It is no longer the uncertain and unpredictable result of human action and reaction but the product of a plan and of the concerted efforts to realize it. Freedom is replaced by the execution of a plan and of the orders of those who best know the plan and the means to realize it. (Arendt was one of the first to make this argument).

Politics becomes a goal producer, and is no longer the platform on which different goals can be shown, can interact and can fight peacefully for supremacy. People become a means for the realization of the plan, instruments or material for the creation of society. And if they are resistant material they are forced into line, or perhaps they are even “waste”. In any case, the application of force to the materials is necessary in order to shape them. If you want to create society, you have no other means but people. People will have to be transformed. Their thinking has to be conditioned by way of education, propaganda, indoctrination, punishment, forced labor or genetic manipulation. Perhaps even selective abortion, euthanasia or simply extermination. Some materials do not allow transformation or improvement.

However, it is far from certain that the elimination of reaction is possible. It may be counterproductive and create more reaction than initially anticipated. Plurality is probably unavoidable, and therefore uncertainty as well.

More on the future here and here. More on democracy here.

LGBT Rights (5): Same-Sex Marriage and the Rights of a Democratic Majority

The (in)famous Prop 8, banning same-sex marriage in California, was approved by a democratic majority. This raises the interesting question whether democracy means something more than majority rule. Does democracy mean that a majority can decide whatever it wants? I don’t think so. That would not be a democracy but a tyranny of the majority. Democracy is much more than simple majority rule. (By the way, dictatorships can also have majority approval, but that doesn’t make them democracies).

The decisions of a majority have to take place within a framework of rules. These rules have two functions.

  • First, they facilitate the decision making (e.g. rules on free speech, freedom of assembly and association etc.), and therefore they cannot, logically, be violated without undermining the whole system.
  • Secondly, these rules limit the kind of decisions that can be taken by the majority. For instance, majorities cannot decide to violate the human rights of a minority. Why? Because these latter rules are basically the same as the former ones. The rules necessary for the successful operation of majority rule are the same, or at least profoundly connected to, the rules granting protection to the minorities. This is called the interdependence of human rights.

If a democratic majority decides to enact laws or policies that violate the human rights of minorities (or individuals, or even majorities), then courts have to step in and enforce the rules of the game. This is not judicial activism by anti-democratic and elitist judges infringing on the democratic rights of the people. It’s judges enforcing democracy, but democracy as something more and better than tyranny of the majority.

We have a clear example of all this in the case of Prop 8 (unfortunately, the courts don’t seem to be playing their constitutional role, yet):

It is our position in this case that Proposition 8, as upheld by the California Supreme Court, denies federal constitutional rights under the equal protection and due process clauses of the constitution. The constitution protects individuals’ basic rights that cannot be taken away by a vote. If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution. We believe that denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoy…I also personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation. Ted Olson (source)

There is some discussion on whether the courts should be playing a role in this. Some gay rights advocates insist that it is better to work on public opinion and hope for a general public approval of same-sex marriage in the decades to come. Of course this is a useful strategy, if perhaps somewhat naive (who knows what would have happened to the civil rights movement had the same strategy been applied then). However, the dismissal of any role for the courts, for example because of the fear of a popular backlash against equal rights enforced by unelected courts, amounts to a profound misunderstanding of democracy.

Separation of Powers and Human Rights

The theory of the separation of powers traditionally differentiates between three branches of power:

  • the legislative power (parliament)
  • the executive (the government, the administration and the police)
  • and the judiciary.

Separation of powers means independence of powers with regard to each other. The three powers are separated and divided organizations of the state. No power can assume the competence or functions of another power or can interfere with another power’s business. A few examples:

  • The executive should not vote laws (the so-called “government by decree”).
  • The legislative power should not appoint or dismiss the government or the head of the executive (this should be a prerogative of the people).
  • The judiciary should be able to work without political interference from the legislative power or from the executive, and should be able to judge cases in an independent and impartial way. The judge should not be an instrument of politics or a “political worker” who executes the decisions of the executive, as was the case in Soviet Russia for example. He is subject only to the law, and the law, contrary to an order by Comrade Stalin for example, cannot be used to influence verdicts because it is general and neutral.
  • Judges should not interfere in legislation or politics (they enter the stage when the work of politics is already accomplished; they apply the law as it is voted by the legislative).

However, this is not the end of the story. Independence does not mean that a power can do as it likes without accountability. The independence is limited because one power can control, correct, rebuke, limit or stop another power if there is an abuse of power or a violation of rights.

Some interference is necessary. Separation does not mean isolation. Powers are separated precisely because then they can check each other. If all power is concentrated in the same person or institution, then this power cannot be checked. There is no higher power than the state and hence the state must control, limit and correct itself (the “international community” is still very weak). If power has to limit itself, then it has to be divided into different parts. There must be powers and counter-powers, checks and balances. Every power moderates the other powers because every power holds the reins to force the other powers in a certain direction. A citizen must be able to go to one power in order to claim redress or compensation for violations of rights by other powers. Power protects against power and power can contradict and correct power.

Violations of human rights by one part of the state must be corrected by another part, otherwise human rights remain words without reality. Judges can control the laws of the legislature and the actions of the executive. If they find that these laws or actions are incompatible with the human rights included in the Constitution or in an international treaty, then the judges can declare these laws to be invalid or these actions to be unlawful, even if these laws and actions are supported by a democratic majority (which is normally the case in a democracy).

The power of the legislative, the executive and the majority is limited. The judiciary makes sure that both the legislative power and the executive act according to the highest law of the land, which is, after all, also an expression of the will of the majority (at least in an ideal democracy, because an ideal democracy allows the citizens to vote on the Constitution and on international treaties). Human rights and the Constitution can be used against the legislator in order to counteract the tyranny of the majority (also known as democratic oppression). When judges do this, they engage in what is called “judicial review“. The legislator can be wrong and laws can be oppressive. The law is more than just the will of the legislator. A valid law has to conform to certain requirements at the level of content, independently of the will of the legislator. A law cannot be anything, otherwise the rule of law would be a meaningless concept.

I mentioned a moment ago that the judiciary should not interfere with politics or legislation. However, is judicial review of legislation not a part of legislation? Controlling and invalidating laws, overruling the legislative power by way of a veto-right, creating a certain coherence in legislation, making sure that ordinary laws conform to the higher law (the Constitution), is this not legislation? And is it not legislation enacted by a non-elected minority which imposes its will on the majority of the people as it is represented in the legislative power, and which takes its decisions outside of the public debate? Should not an ideal democracy reject judicial review? In other words: is it not impossible for an ideal democracy to protect the rights and freedoms of the minority?

These questions are based on a false hypothesis. When a judge controls the conformity of an ordinary law and a higher law, he does not engage in legislation. He or she only makes sure that the higher law is strictly applied and respected. And as the higher law is the supreme expression of the will of the people – in an ideal democracy, the people can vote the Constitution – a judge only makes sure that the will of the people is strictly executed. There is nothing undemocratic about this and it has nothing to do with legislation. A judge who is confronted with a law which contradicts the Constitution cannot apply this law because otherwise he or she would be acting in an unlawful manner. The higher law has priority over the lower law. A lower law has to conform to the higher law, otherwise it is invalid and non-existing, “null and void”. A judge can declare the illegality of a law and can destroy a law without engaging in legislation.

The judge remains subject to the law and is not above the law or above the legislator when he or she invalidates a law. The judge remains subject to the higher law. Judicial review does not imply that the judiciary is more important or more powerful than the legislative power or than the will of the people. It only implies that the higher law is more important than the lower law and the higher legislator is superior to the lower legislator. Judicial review does not imply an exaggerated or a predominant political or legislative role for the judiciary compared to the role of the legislative power, at least as long as we consider the framing of a Constitution to be part of the legislative power. A judge can never decide on fundamental social problems or political conflicts. He or she can only apply the law, first the higher law and then the lower law.

Human rights possess a threefold significance: they are themselves standards of behavior; they constitute criteria for assessing the lawfulness of other rules (since they override all other norms, which are null and void in case of conflict); [and] they embody “instructions and guidelines” … for the creation and development of other rules. Antonio Cassese.

Individuals whose rights are violated can coerce the state – even though most of the time it is the other way around – but only on the condition that there is a separation of powers and that one power can be used against another.

However, this means that judges should not be predominantly in favor of one political party or one political philosophy, because otherwise they will review the laws from one and the same political perspective. If the judiciary is predominantly conservative, for example, then it will treat liberal laws in a very critical way and it will tend to systematically invalidate these laws because of their conservative interpretation of the Constitution.

Judicial control of the constitutionality of laws and government actions is only one example of a power limiting another. Here are some other examples:

  • A judicial verdict applies the law and is therefore dependent on the law. A judge cannot decide what is contrary to the law, which means that the legislator de facto limits the actions of the judiciary.
  • The executive is accountable to and is controlled by the legislative power. It has to give account of the way in which it has applied the laws. However, the legislative power cannot dismiss the government as a consequence of this control, at least as long as the government is directly elected, which is the case in an ideal democracy.
  • A president often has a veto-right and can block certain laws voted by the legislative power. This is acceptable on the condition that the president is directly elected.