It’s a strange sight to see, and not without a certain irony. A head of state, railing against a ‘so-called judge’ whose opinion has ‘taken law enforcement away from [his] country’. Yet this is the new normal in the USA, where the president can question the legitimacy of any judge who questions his rulings, whether they be a lowly district judge or even the most senior jurist in the country.
Worryingly, this new distrust of judges is not limited to the USA. Following the vote to leave the European Union, British judges who interpreted constitutional law (as is their duty), and determined that parliament must approve the UK’s exit from the EU, as it will entail a substantive change to the rights of citizens, have been declared ‘enemies of the people’, ignoring the fact that it is in the interest of the people that these judges have acted.[i]
Judges, of course, interpret the law. This is their job. They are the highest arbiters of the limits of the law. To suggest that a judge has undermined law enforcement in his country, or has sought to divert the will of the people is, therefore, to wilfully misunderstand the role of a judge.
I wish I could pretend that those were the only cases of note where ‘democracies’ rejected the authority of institutions to fulfil their purposes. Yet it is a trend in recent political discourse to reject ‘experts’ and the establishment – to reject the knowledge and experience of people who have devoted their lives’ work to studying certain issues.
This is deeply alarming. Our democracy, and those of many other western states which have traditionally be seen as the most ‘free’,[ii] depends on the strength of certain key institutions which limit the power of individuals. In the United States, the fear of an overweening monarch has such a significance that ‘checks and balances’ are literally written in to the country’s founding document. The argument goes that no one branch of government – neither the executive, legislative or judicial branch – can accrue enough power to act without the consent of the other two branches. In the UK, which has an ‘unwritten constitution’, such arrangements have evolved naturally. The role of the monarch has gradually been eclipsed by Parliament which, as a bicameral body, acts as a check on itself and the government. More recently, the Bank of England has been made independent of Government, and a Supreme Court established, taking on duties once reserved to the upper house.
Such checks and balances developed to stop monarchs and politicians abusing their power; to prevent anyone taking office and acting with reckless disregard for the common weal. The history of the last century provides an ample record of what happens when dictators are allowed to untrammelled control. They disenfranchise the majority. They strip away hard-won rights to secure their own power and wealth. It is a road which leads, by increments, through the ghettos and the hate crimes, to the killing fields and the gas chambers.
The last century shows us, too, that it is an easy road to take. The majority of Germans were not anti-Semites, nor the majority of Serbs anti-Catholic any more than the majority of Americans are islamaphobic. Yet with alarming ease, Turks, Japanese, Germans, Serbs, Hutu, and others were swept up by nationalist rhetoric to support or to ignore the worst acts of inhumanity.
This is the price the world pays when power is not moderated. You may think I am scare mongering, but the stakes really are that high. It may seem, today, that we are still a long way from such horrors, yet look back a fortnight, and ask yourself how much further away we seemed then. Tally up what has changed since the 20th January. And then tell me that the world has not got substantially closer to unleashing hell.
More alarmingly, the two political shifts which scare me most are ones which have upheld the will of the electorate. We have embraced division, isolation, bigotry and small minded-ness, through democratic processes. In the UK and the US, voters have collectively decided to pursue what appears to me to be self-evidently the worse of two paths.
The fundamental problem here is that, while people as individuals are brilliant, engaged, intelligent and hopeful, the same is not always true of groups. Put people in a group and they will sink to the lowest common denominators. Just think about the last time you and a group of friends tried to pick somewhere for drinks!
Of course this is far from a universal truth. Groups often make sensible decisions, in the best interests of the world. But it is clear that they also make mistakes. They can be misinformed. They can give weight to the wrong evidence. They can be swayed by the media or by anecdote. This is why, rather than direct democracy, most nations elect representatives to weigh up information and take decisions on their behalf. This is why we trust people who have devoted their lives to learning about specific issues. We accept that, for practical purposes, the average man on the street does not know enough to make a decision about, for example, who to invade (I am not claiming to be different – I know that my information is at times limited, and I am prepared to accept that I don’t always know what to do).
This is why we need institutions. Strong judiciaries to determine when a populist leader is acting beyond the limits of his power, a representative parliament to challenge the government, a free press to ensure wider accountability and to inform the popular discourse, a vibrant civil society to uphold the rights of minorities against the tyranny of the majority.
We need institutions, because people are stupid, because we make mistakes, because we can be misled or swayed by emotion. And when that happens, we need to be shown what we have done, and we need to be given scope to correct our mistakes.
[i] In a representative democracy, the citizens delegate responsibility for decision making to their representatives. Last year, those representatives voted to consult the wider citizenry on our membership of the EU. On June 23rd, we held a consultative, explicitly non-binding referendum to address that issue. Given the nature of that referendum, and given that the government had not set out what an exit from the EU would look like, either during the campaign or in their last manifesto, it is entirely appropriate that the government be required to secure parliamentary approval for any substantive constitutional change.
[ii] For freedom and liberal democracy, see e.g., https://freedomhouse.org/report/freedom-world/2017/united-kingdom