Judges in Contemporary Democracy
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Judges in Contemporary Democracy

An International Conversation

Justice Stephen Breyer, Robert Badinter

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Judges in Contemporary Democracy

An International Conversation

Justice Stephen Breyer, Robert Badinter

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Law, politics, and society in the modern West have been marked by the increasing power of the judge: the development of constitutional justice, the evolution of international judiciaries, and judicial systems that extend even further into social life. Judges make decisions that not only enforce the law, but also codify the values of our times.

In the summer of 2000, an esteemed group of judges and legal scholars met in Provence, France, to consider the role of the judge in modern society. They included Robert Badinter, former president of the Constitutional Council in France; Stephen Breyer, Justice of the Supreme Court of the United States; Antonio Cassese, the first president of the International Criminal Tribunal for the former Yugoslavia; Dieter Grimm, former vice president of the Constitutional Court of Germany; Gil Carlos Rodriguez, president of the Court of Justice of the European Union; and Ronald Dworkin, formerly of Oxford University, now professor of philosophy and law at the New York University Law School. What followed was an animated discussion ranging from the influence of the media on the judiciary to the development of an international criminal law to the judge's consideration of the judge's own role. Judges in Contemporary Democracy offers a rare and intimate glimpse into the powers and the role of judges in today's society.

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Publisher
NYU Press
Year
2004
ISBN
9780814789711

1

Judicial Activism

1.1. Presentation

Professor Dieter Grimm

I

The title “judicial imperialism” chosen by Robert Badinter for the first seminar session could suggest that the growing importance of courts in the last century has its main reason in judicial activism: The judges conquer more and more terrain that was formerly reserved for political decisionmaking or societal self-regulation. Yet, this would not be the complete truth. Before the judiciary can expand into areas previously dominated by other forces, courts must be established and endowed with competencies to decide social and political conflicts. The decision that conflict is better left to the judiciary for resolution is not made primarily in the judicial, but in the political, sphere. Without the willingness of politicians to delegate the settlement of conflicts to courts, judicial activism would lack the institutional basis to otherwise command it.
As a matter of fact, we can observe a constant growth of judicial power in the last century, which has as its roots a number of policy decisions. One reason was the general process of legal regulation of more and more spheres of life, which spanned the whole century and far out-paced the simultaneous process of deregulation in a few other fields. This process may have slowed down toward the end of the century, but it was certainly not stopped, much less reversed. In connection with the rule of law, it contributed to an extension of judicial conflict resolution, as all court statistics prove.
The process of increased legal regulation was, however, not the only source of the growing importance of the judiciary. The other factor was the willingness of the legislature to subject its own decisions to judicial scrutiny. While judicial control of administrative acts was already widely accepted in the nineteenth century, it took more than 150 years to convince societies that the achievement of constitutionalism was of little value without constitutional adjudication. For a long period of time, the United States remained alone in allowing judicial review, whereas in Europe it was regarded as being incompatible first with monarchical, and later with democratic, principles. In most cases, experience with dictatorship and its negation of the separation of powers and disregard for human rights was necessary to make way for constitutional courts with the power to review and nullify even acts of the legislature.
The next step in this development was the internationalization of the judiciary in order to secure the respect of supranationally acknowledged human rights within the states. This was first achieved after World War II by the Council of Europe by way of mutual agreement of the contracting states. But, with the exception of the Nuremberg trials, whose legitimacy remained uncertain, the attempt to prosecute violations of human rights without the prior consent of the state concerned is a novelty of the late twentieth century.
If something like judicial imperialism exists, here are the institutional preconditions without which it could not have developed. Judicial imperialism being the subject of this paper, I shall not inquire more deeply into these external reasons for the growing importance of courts and judicial conflict resolution. My intention is, instead, to analyze the internal reasons for the expansion of court power, i.e., the role that judges themselves have in this development. In order to do so, I rely mainly on the model of constitutional adjudication in Germany, partly because it is the one that I know best, and partly because the German Constitutional Court became a model for a great number of countries institutionally, as well as in terms of its jurisprudence. I shall leave international developments to my commentator Antonio CASSESE, who is much more familiar with that issue than I am.

II

As an empirical basis for answering the question whether or not judicial imperialism exists, I shall give a brief description of what the German Constitutional Court added by way of interpretation to the text of the German Basic Law and (perhaps) to the original intent of its framers.
Like most constitutions, the German Basic Law does not contain one comprehensive recognition of liberty and equality, but a catalogue of enumerated fundamental rights, most of which form the legal answer to past oppression by the government. Consequently, government power is limited by the special protection that the Bill of Rights grants only insofar as these guarantees extend. Since the object of protection is usually described in very broad terms—art, property, the home—the range of constitutional protection must be defined more precisely in the process of application, and this definition can be a narrower or a broader one. But outside the demarcation line, government is not subject to the special constraints imposed on it by the Bill of Rights.
The Constitutional Court not only preferred a broad understanding of the various guarantees (in dubio pro libertate). It also decided to close the gap that exists between the various enumerated rights. The basis for this operation was an unusually vague guarantee, namely, article 2, section 1 of the Basic Law, which reads: “Every person shall have the right to free development of his personality.
” In an early decision, the Constitutional Court construed this provision as covering any activity not protected by one of the following, more precise basic rights. The consequence is that, in spite of the enumeration of certain rights that are regarded as fundamental, any government act that has a limiting effect on a person’s freedom to behave how he or she likes can be reviewed by the Court. Because of its vague wording, article 2, section 1 of the Basic Law became an effective means for extending the protection of human rights to counter menaces to individual freedom unknown at the time that the Constitution was adopted. Where such menaces threatened to affect the health of people, as in many cases of technological innovation, the right to life and physical integrity guaranteed in article 2, section 2 of the Basic Law served as a basis for a broader interpretation, e.g., visà-vis the use of atomic energy or genetics, or vis-à-vis the emission of pollutants or noise. Where not life and health, but privacy, reputation, sexual orientation, etc., were concerned, article 2, section 1 of the Basic Law was used to support the broader interpretation.
The most important example is an interpretation of article 2, section 1 of the Basic Law that amounts to the invention of a new fundamental right: the so-called right to informational self-determination that is designed to protect the individual against the menaces of electronic data processing, and which has had a revolutionizing effect on many fields of ordinary law. (However, the creation of a “new” fundamental right is less impressive than the endeavors of the Israeli Supreme Court, which, in the absence of a Bill of Rights, developed an unwritten one, deducing it from the principle of democracy. The Israeli Court thus went further than the European Court of Justice which, in a similar exercise, could at least rely on the European Convention on Human Rights, which was ratified by all member states, and on the member states’ Bills of Rights.)
Even more important because of its applicability to all constitutional guarantees for individual liberty was the invention of the principle of proportionality, which today bears the main burden of protecting freedom against government intrusions. The Basic Law starts from the premise that fundamental rights are not absolute rights. Every right may be abused, and every one may collide with the same right of others or with another fundamental right. Therefore, the legislature has the power to limit those rights in the interest of legitimate public purposes or in order to harmonize conflicting fundamental rights. Consequently, most constitutional guarantees contain a limitation clause that, in some cases, is rather detailed, and in others (among them a right as basic as the right to life) is content with requiring a general law. A provision applying to all fundamental rights, article 19, section 2 of the Basic Law, adds that in no case may the statutory limitation affect the essence of the right at stake.
According to this text, the power of the legislature to limit fundamental rights can be extremely far reaching. The Constitutional Court regarded this as not in line with the function and rank of the Bill of Rights and, in order to maintain the priority of fundamental rights over ordinary law, developed the principle of proportionality. The principle means that a law that limits a fundamental right is constitutional only (1) when it is suitable, (2) when it is necessary to achieve its purpose, and (3) when it establishes a reasonable balance between the fundamental right limited by the law, on the one hand, and the good in whose interest the limitation lies, on the other hand. Compared with the text, the barrier against government action is considerably advanced by this interpretation. Correspondingly, the absolute barrier in article 19, section 2 of the Basic Law has lost almost all importance. Today, most civil rights cases are decided under the principle of proportionality and, among these cases, the decisive test is usually stage 3 balancing, which leaves rather wide discretion to the Court.
Everything described up to now lies within the domain of protecting the individual against government intrusion into his or her sphere of freedom—i.e., negative rights. In a 1958 landmark decision, the so-called LĂŒth decision,1 the Court began to conceive of fundamental rights not only as subjective rights enabling the individual to defend himself or herself against government acts affecting a constitutionally protected freedom. In the Court’s view, fundamental rights are at the same time objective principles (or “values,” in the earlier terminology) permeating the whole legal order and guiding lawmaking as well as the application of the law.
The immediate effect of LĂŒth was to extend the influence of the Constitution on ordinary law beyond the sphere of lawmaking to law interpretation and application as well. A law whose purpose or effect is to limit the use of a fundamental right has to be interpreted and applied in the spirit of the Constitution. As a result, the administration of justice, particularly the interpretation of the Civil Code, which formerly belonged exclusively to the civil courts, came under the control of the Constitutional Court. The absence of a clear boundary between statutory interpretation of a constitutional dimension and ordinary law has become a constant source of critique of the Constitutional Court— mostly that it went too far, sometimes that it did not go far enough.
The remote effect of LĂŒth consisted of adding another dimension to the concept and functioning of fundamental rights. In the understanding brought forth by LĂŒth, fundamental rights require the government not only to refrain from certain actions, but also to take action in order to establish or to maintain substantial freedom in the segment of social reality in which a fundamental right is to take effect—i.e., positive rights. Freedom, then, is no longer exclusively the freedom of the individual, but also the institutional freedom of the societal framework in which individual freedom is exercised; freedom of the press or of broadcasting, for instance, as distinct from freedom of the individual publisher or journalist. And the guarantee of institutional freedom can well justify limitations of individual liberty.
The most important consequence of the value-oriented interpretation of fundamental rights is the acknowledgment of a duty of the government, and in particular of the legislature, to protect constitutionally guaranteed liberties when they are threatened, not by government, but by third parties or societal forces. This obligation (Schutzpflicht) was explicitly developed in the first abortion decision (in 1975),2 in which the Constitutional Court declared the abolition of penal law unconstitutional on the ground that article 2, section 2 of the Basic Law obliges the state not only to respect life, but also to defend it against attacks by others. This is different from the approach taken by the Austrian Constitutional Court, which chose an originalist interpretation: that since, at the time of adoption of the Constitution, the basic rights were directed only against the state, and the state did not want to perform abortions itself, but rather allowed others to legally do so, no constitutional question was at stake.
The idea of a duty of the legislature to actively secure constitutionally guaranteed liberties—although developed in a case where an existing legal protection was abolished by the legislature—gained its true importance in the context of legislative abstention from defending a threatened freedom, e.g., against the threats posed by new technological developments, such as atomic energy, genetic manipulation, etc. This obligation can be fulfilled by substantial regulation, for instance, by prescribing certain security standards. But it can also require organizational structures that are suitable to promote the purpose of the constitutional guarantee or procedural rules favorable to freedom-oriented decisions in cases where substantial standards are difficult to formulate.
The obligation to legislate in order to maintain freedom was gradually extended to the preconditions of the exercise of a fundamental right, particularly in areas where the exercise is not just a matter of an individual’s will, but rather depends on social or legal prerequisites— for instance, education as a prerequisite to enjoy the free choice of a profession. It may even include financial means to make use of a freedom, e.g., elementary help for the needy, but also a sufficient financial endowment for public broadcasting so that it can fulfill its constitutionally envisaged function in competition with commercial broadcasting.
There remains, however, a difference in range between fundamental rights in their capacity as negative and as positive rights. The obligations that negative rights impose on the state can be fulfilled in one way only: The state has to omit any action that would constitute a violation of the right. Consequently, actions that infringe on such rights may be nullified by the Constitutional Court. Positive rights, by contrast—in particular, the obligation to protect threatened rights by legislation—can be fulfilled in various ways, as long as they are in accord with the Constitution. The Constitution does not prescribe a specific means to fulfill the duty. Therefore, judicial review is limited to the question whether the legislature reacted at all to a menace against a certain freedom and whether the solution that it adopted was adequate to meet the threat. Thus, it happens quite frequently that the Constitutional Court rejects law, not because it went too far in restricting a fundamental right, but because it did too little in order to protect it.
All these interpretations have extended the meaning of the Constitution beyond the original understanding. Restrictive interpretations are rare; in the field of fundamental rights they are almost nonexistent. In sum, the interpretations outweigh in my view the formal amendments to the Basic Law, although these were by no means few in number (46 in 50 years) or of minor importance. In any case, they have narrowed the room for political decisionmaking while, at the same time, the domain of the judiciary has grown.

III

This expansive mode of expounding the Constitution may be analyzed in terms of judicial imperialism. When it comes to the legitimacy of judicial review, it may even be necessary to discuss the development under this perspective. Nevertheless, it would not be appropriate to apply this criterion only. For, it is not sufficiently susceptible to the specific conditions and motives of judicial behavior. Although it would be naive to deny the existence of an institutional self-interest on the part of courts, the judicial setting leaves little room for pursuing this interest.
The judiciary has to decide individual conflicts according to pre-established norms. The cases are brought by parties, and although it is true that courts, in particular supreme courts or constitutional courts, may have the right to select cases for decision, they remain limited to decide problems presented to them by others. With very few exceptions, constitutional courts are not free to concern themselves with problems that they think deserve a legal answer. In addition, the cases rarely present a social or political problem in its full range. Mostly, it is a small portion of a much more complex situation that is submitted for judicial scrutiny. The hetero-determination of courts, both in agenda and the criteria, and the piecemeal character of their work make it difficult to develop a long-term strategy vis-Ă -vis other actors.
Moreover, courts operate under the premise of finding a just solution for the conflict at hand, whereby the standards of the “just” are pre-determined in abstract and general norms. Not being subject to democratic accountability, judges derive their legitimacy from demonstrating that they apply these norms instead of creating them. In most cases, the norms are in need of interpretation and concretization, and the broader they are formulated and the older they have become, the more room they leave for the volitive elements of norm application. But even then, the courts’ understanding of what a constitution is and the legal method that they use to determine its meaning seem to play a more important role than strategic interests in expanding their own terrain.
For the German Constitutional Court, for instance, the experience with Nazi dictatorship and the failure of the first democratic constitution, and the firm intention to make the post-war constitution matter in political and social life, were much more decisive factors in its activism than the endeavor to establish a judicial empire and to curtail the realm of the political actors. The concern with successful constitutionalism corresponded with a methodological approach whose interpretive goal is to give optimal effect to a constitutional norm in a given situation. This understanding of the role of a constitutional judge did not favor the more passive formalistic mode of interpretation predominant in the second half of the nineteenth century and during the Weimar Republic. Neither was it favorable to the likewise more passive method of originalism. Rather, the basic understandin...

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