From democracy to juristocracy

Have we given courts too much power?

I’ve written for UnHerd about the UK Supreme Court’s ruling against the government’s Rwanda migrant deportation policy, and why it raises serious issues of sovereignty and democratic legitimacy, regardless of what one thinks of the specific bill. As I write in the piece:

The Supreme Court’s ruling against the government’s Rwanda plan may have been a foregone conclusion, but the broader political fall-out was not. Even though the Supreme Court struck down the migrant bill without relying on the European Convention of Human Rights (ECHR) or the Human Rights Act, the decision is nonetheless bound to reignite the discussion about the ECHR — which is what kickstarted the British courts’ judicial review of the bill in the first place.

For years, critics of the ECHR have argued that the Convention and its handmaiden, the European Court of Human Rights, represent an unacceptable infringement on national sovereignty. Supporters of the ECHR, on the other hand, claim that it has been an important driver of social progress, helping to redress blind spots within the UK’s legal system.

In a way, both sides are correct. Consider the ECHR’s most important UK-related rulings — ranging from homosexual equality to journalistic freedom — and few would disagree that it has played an important role in strengthening the protection of citizens’ rights in Britain. Yet it is also true that the ECHR raises important issues over sovereignty and democratic legitimacy. Should a supranational court have the right to decide whether a certain bill, approved by an elected parliament, passes the ethical and moral litmus test?

It is, though, a mistake to treat the ECHR in isolation, as its critics do. For the same question could be asked of any national court, including the Supreme Court itself. The influence of the ECHR is only one part of a much bigger story: the wider judicialisation of our political and democratic systems.

Over the past few decades, an unprecedented amount of power has been transferred from representative institutions to judiciaries, transforming national and supranational courts into full-blooded political and decision-making bodies — and giving rise to a new type of political regime altogether: what some have called juristocracy.

Read the rest of the article here.

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Best regards,

Thomas Fazi

Website: thomasfazi.net

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Latest book: The Covid Consensus: The Global Assault on Democracy and the Poor—A Critique from the Left (co-authored with Toby Green)