Lessons from Fouche: The Actions of Judges in Democracies – Part 2

Should judges make political decisions? High court judges, unlike most politicians, are appointed, not elected. This helps remove the threat of “chameleon-like” behavior, as the people have not (as with legislators) entrusted them with the power to make political decisions concerning their lives and rights. When adjudicating the law in a democracy, when at all possible, judges should attempt to consult the rule book. However, this is not always possible. In such cases, judges must often compensate for lapses in knowledge between the law and society in their rulings. Thus, judges should work hard to discern legislative intent of current and/or any other prior cases relevant to the case that must be decided. In doing so, though, judges should act as partners of legislators as opposed to agents of the legislators. However, they should not overstep their boundaries into the realm of making public policy. [1]

As such, Fouche, too, was also an appointed official (he served as the Minister of Police during a time of political upheaval in France during the French Revolution), he exhibited much greater license with his free exercise of power and often abused these powers in ways that a typical judge would not. Judges – as best as possible – adhere to the rule of law (when it is clear and fully available) in a consistent manner, whereas Revolutionary tribunals, generally lacking in morals, upstanding character, and consistent consideration for the people they served, did not always uphold the rule of law. What’s more is that Fouche instilled fear and engaged in murderous campaigns in a highly visible manner. As Minister of Police, Fouche maintained law and order by executing hundreds, even thousands during the French Revolution. These executions – were highly visible as many of Fouche’s political adversaries and rivals, along with though leaders, activists, and other aristocrats of the day – were murdered, as well. His actions were questioned by the government and, his actions were scrutizined the Committee on Public Safety. As such, modern day judges are not above reproach, either, as they are susceptible to impeachment if it is found that the have acted inappropriately in their official capacity.[2] [3]

Current judges, by contrast, do not act as “chameleons” as in the style of Fouche. Yet, some modern day judges do seem to have political leanings and informal political alliances (however, not as designated in their official capacity), although they do not necessarily capitalize upon them in the same manner as did Fouche. There are definitely judges who are considered more liberal and those who are considered more conservative in their interpretation of the laws that are currently on the books. For example, consider the polarization with regard to the views and the interpretation of the constitution in the United States today. Justices appointed by conservative and liberal justices have diametrically opposed views that have made impartial adjudication increasingly challenging in the past few years. It’s as if informal alliances have been made with the provision that if a conservative politician appoints a conservative justice, there is an informally understood expectation that the judge will interpret the law in accordance with the values of that conservative politician. As mentioned earlier, considering the intent or the political will of the framers or the legislators is important, particularly when government is in transition and/or the rule book or the constitution is either unclear or the laws have not yet been clearly established. Such may have been the case during the French Revolution, when a volatile political atmosphere may have necessitated a more thorough need to discern legislative and/or political intent.

Finally, judges do not act in a vacuum. In a democracy with judicial review and a system of checks and balances among the legislative, judiciary, and executive branches, it would be highly unlikely that a judge who exhibits behavior similar to that of Fouche would emerge in a democracy. The types of offenses committed by Fouche and his administration under Napoleon could possibly have been obviated, as judges, citizens, and society as a whole can benefit from a host of legal provisions present in a democracy. Types of provisions include judicial review of executive action, strong form judicial review (in which the rule book, or constitution, would be considered as the law of the land and judges had the power to strike down unconstitutional legislation)[4] or weak form judicial review (in which the parliament has legal sovereignty). Determinations of justiciability can be made with regard to human rights abuses, and if necessary, proportionality tests can be applied to determine the permissibility or impermissibility of human rights restrictions with regard to the law (e.g. Is the law’s aim sufficient? What is the connection of the law to the aim? Is the law more than is necessary to achieve an end?). Additionally, a democratic country with a legislative hierarchy of norms (e.g. Kelsen’s pyramid), along with laws and past judgments against unreasonable detainment (habeus corpus),[5] infringing upon human dignity, human rights abuses,[6] and unlawful executions should be adequately protected.[7]

References:

[1] Barak. Chapter 1 “The Judge in a Democracy.”

[2] Zweig, Stefan. Joseph Fouche. The Portrait of a Politician. 1930. Blue Ribbon Books, inc. New York.

[3] Zweig, Stefan. Joseph Fouche. The Portrait of a Politician. 1930. Blue Ribbon Books, inc. New York.

[4] Marbury v. Madison

[5] Rahmatullah v. Secretary of State for Defense

[6] Adalah v. Israel

[7] State v. Makwanyane

Dorkina Myrick, MD, PhD, is a physician-scientist and pathologist trained at the National Institutes of Health. Dr. Myrick also previously served as a Senior Health Policy Advisor on the United States Senate.  She is a candidate for the Master of Public Policy at the University of Oxford in Oxford, England.

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