Leading judges and academic experts ask: Are Courts Representatives?

22 October 2012

The Foundation for Law, Justice and Society welcomed an esteemed panel of leading judges and legal and political experts to Wolfson College last week to debate the role of judges in democratic societies and to question to what extent -€“ if any -€“ they should seek to represent the views of the populations they serve.

European Court of Human Rights Judge András Sajó laid out the underlying issues for the discussion with a lecture on Thursday 18th October in which he argued that, in times of popular disenchantment with political representation such as Europe is currently experiencing, more power is shifted to the judiciary in areas of public policy decision-making.

Whilst he conceded that judges do have a representative function in a sense, he warned that "representation is a blurred, dangerous concept; noble but ambiguous". Outlining the dangers, he demonstrated through a number of cases how the popular will is not always expressed at the moment of decision-making, and only becomes apparent afterwards, often in response to negative media coverage.

Turning to the issue of diversity within the judiciary, Judge Sajó concluded that it can be advantageous for judicial decision-making, and provides a symbolic function, but diversity is not representation per se, and that diversity politics is very often the politics of exclusion.

The following day saw Judge Sajó joined by prominent judges from both sides of the Atlantic in a panel discussion that offered the public a rare insight into judges'€™ views on judicial accountability and legitimacy in democratic societies. Judge Jed Rakoff, a prominent Judge of the US Federal Court, opened the debate by arguing that no judges decide a case consciously based on their ideology, and that: "many federal judges are consciously aware that we are the only people who can speak for the powerless."

Judge Robert Sharpe of the Court of Appeal for Ontario countered this with his thesis that to conceive of the court as a representative body is inconsistent with the role of the judge, which is to remain independent, impartial, and unswayed by public opinion. He did, nevertheless, concur with Judge Rakoff in that democracy is a richer concept than majority rule, and that courts have a mandate to protect minorities, arguing that judges enrich strengthen democracy by sitting in judgement on the decisions of the elected representatives -€“ the politicians.

The next panellist, Justice Ross Cranston represented not only the Queen€'s Bench Division of the UK, but also the legislature, having served as a Member of Parliament prior to his call to the bench. Justice Cranston addressed the issue of diversity by drawing on his experience as one of the first judges appointed under the new appointment system devised by the House of Lords Constitution Committee's Inquiry, which aimed to achieve wider representation of different groups such as women and ethnic minorities within the judiciary.

He concluded that, because judging is a social activity, it is necessary for judges to be attuned to the interests and concerns of those appearing before them, so a more representative judiciary would not only increase public confidence in the profession, but actually result in better decisions.

This view, shared by Judge Sajó, was qualified somewhat in his closing remarks in which he argued that, whilst his court, the ECtHR, is constituted of one judge '€˜representing'€™ each member state, "A court's credibility comes from its judgments rather than the composition of the court"€.

Questions from the audience came in the form of the validity of affirmative action in the judicial appointment process and the potential for abuse of courts by certain interest groups seeking to advance their particular cause.

In the afternoon, the judges were joined by legal scholars and political scientists, to exchange research findings, theory, and firsthand experience in a workshop which aimed to shed further light on the issue.

You can listen to podcasts from the day by clicking on the right-hand links.