Tuesday, January 10, 2006

Judicial Power

What are the origins of judicial power?  In this post, I shall argue they are kingly; that they share common roots with those of the ancient warrior kings, and that even today, there are kingly, or dictatorial, elements to the way they are applied and enforced.

The earliest kings were judges.  It was one of the things they did.  They used their power as kings to resolve disputes between their subjects.  The story of Solomon, and the two women arguing over the parenthood of a child, is a classic example of an ancient king executing his role as judge.

As kingdoms grew, and kingly tasks and duties multiplied, European kings delegated some of their tasks and duties to other men.  One of these was the role of judge in disputes between subjects.  A crucial assumption in this delegation of duties was that because the delegates had been appointed by the king to carry out tasks traditionally carried out by the king, in each of their specialist areas they carried the power of the king.

Judges were given the power to take decisions, which carried the force of law.  They were given the power of life and death over the King’s subjects.  They were given the power to divide and to allocate property.  And as legislation became more complex, judges were even given the power to interpret the king’s law.

As European societies evolved during the second millennium there was an interesting lack of symmetry between the evolution of the powers of the monarch and those of the judiciary the monarch had appointed.  For while the power of the monarchy was diminished, as society sought to become more democratic, the power of the judiciary, far from diminishing, increased, in relation to that of the monarchy, to the point of absurdity in both the English and French Revolutions, when judges were putting kings and their families to death.

Over the last 300 years, such kings and queens as remain have had their powers reduced to little more than a vestigial ceremonial role.  Yet their appointees, the judges, have never had their powers curbed or controlled.

To whom else are we expected to bow as we enter or leave the room in which they preside?  
Who else in our society has the power to lock up a fellow citizen on a whim?  It has been observed (click here for source) that the judicial “power of contempt is, perhaps, nearest akin to despotic power of any power existing under our form of government”, and that while one might expect such power to be vested in the autocrats of a totalitarian state, it seems out of place in a democracy.

In almost any other profession there is a review process, which can be invoked at no cost to the plaintiff.  If a citizen is mistreated by the police, the medical profession, or even a legal practitioner, they can lodge a complaint without cost or obligation.  A judge on the other hand can issue edicts almost entirely without supervision or review.  Leaving aside how few people can actually understand what is written and have any idea whether or not it represents a sound legal interpretation of the facts, there are enormous barriers to prevent anyone questioning the judgement of a judge.

First there is diplomatic expediency.  Don’t appeal, urges your solicitor; or you’ll put them off side for the next round.  Then there are the regulations.  Every “t” has to be crossed and every “i” dotted to launch an appeal, and it all has to be done within a set timeframe, sometimes absurdly short.  Finally there is the cost.  You have to be wealthy indeed to launch an appeal against the decision of any court.

For most people this is all beyond their reach, and for most judge, most of the time, it means the freedom to do or say what they will.  There is no editor to proof read their judgements, no boss to sign off on their edicts.  There is no board of directors to whom they are accountable, no shareholder to vote them out of office.  Not even the press take much interest in what they do or say.  Most of it is very dull.  Who has time to read through reams of legal judgements, questioning their syntax, logic, or interpretation of the law?  Who indeed gives a damn, save those who are directly involved?  And you can’t believe, because they’re involved.

So while the Crown, who still technically appoints the judiciary in constitutional monarchies, is reduced to an icon, a figure on a coin or a postage stamp, and the object of ridicule in the press, judges continue to enjoy the unfettered power of their predecessors of a thousand years ago.              


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