XV Международная студенческая научная конференция Студенческий научный форум - 2023

What limits, if any, should an unelected judiciary respect in a democracy? Although Democracy and Its Critics will not settle the perennial debate over this question, this thoughtful defense of democratic values does provide a theoretical justification for leaving public policy decisions squarely in the domain of democratically elected representatives. In this most recent of his many works, Robert Dahl ¹reaffirms the democratic process as the most reliable means for protecting and advancing the good and interests of all the persons subject to collective decisions. He also defends democracy against what he sees as its most threatening competitor: guardianship, or the view that only a specially qualified elite can govern for the common good. Dahl's defense of democracy is of particular interest to the legal community since the arguments others have made to justify judicial policymaking often resemble those justifying guardianship. Time spent with Democracy and Its Critics will repay both the scholar and the general reader with insight into the issues of democratic theory that bear on the continual debate over the proper role of an independent judiciary in a democratic society.

Simply put, democracy means rule by the people. Dahl elaborates on this literal definition by specifying the requirements for democratic decisionmaking. For Dahl, a democratic process must make effective participation and voting equality available to all adults who are subject to the binding collective decisions of society. A democracy must also provide citizens with opportunities for understanding civic issues, as well as allow them to have control over the matters that reach the decisionmaking agenda.

Dahl builds his case for the democratic process from the fundamental notion of the intrinsic equality of all persons. Intrinsic equality, in Dahl's view, means that the interests of all persons should be given equal consideration in making collective decisions. The best way to assure the equal consideration of interests is through a democratic process where each person is entitled to participate in collective decisionmaking. Dahl favors a strong presumption that every adult is the best judge of his or her own interests. After all, Dahl argues, no one else has the same privileged position as I do to understand what my interests are. Moreover, historical experience shows that even if others fully understood my interests, they would not have the same incentives as I have to defend these interests in the decisionmaking process.

The democratic process is justified, argues Dahl, because it best serves the interests of all individuals in society. Democracy maximizes freedom by embracing basic political rights and liberties, such as free expression, and allows persons to live under laws of their own choosing. Political participation by the public in a democracy fosters the desirable qualities of independence, self-reliance, and public-spiritedness, and it provides opportunities for individuals to develop their full capacities. Finally, because participation in collective decision making is open to all, democracy - more than any other alternative - gives citizens the opportunity to satisfy other important social, cultural, and economic interests. In Dahl's estimation, a democratic government provides an orderly and peaceful process by means of which a majority of citizens can induce the government to do what they most want it to do and to avoid doing what they most want it not to do.

Despite his conviction that democracy is the best available means of collective decisionmaking, Dahl never claims that implementing democratic ideals is easy. One fundamental criticism often leveled against democracy is that in practice it can lead to unjust outcomes, especially when a majority deprives a minority of its substantive rights or interests. Dahl responds to this objection first by emphasizing that the democratic process itself requires the protection of many fundamental rights and interests, either as integral to the democratic process (such as free speech or free assembly) or as external to the democratic process but still necessary for its effective operation (such as a broad distribution of a minimum of economic and political resources). Dahl believes that even an imperfect democratic process cannot be achieved without the commitment of the citizenry to a wide array of substantive rights, and therefore a strong commitment to democracy is the best possible means of protecting these rights. In any case, he argues, even though real world democracies may at times mistakenly infringe on substantive rights and interests, the risk of mistake exists in all regimes in the real world, and the worst blunders of this century have been made by leaders in nondemocratic regimes.

Nevertheless, as Dahl concedes, the democratic process can be and has been used by majorities to deny others a variety of substantive rights and interests. These include those fundamental rights and interests that are integral and necessary to democracy, as well as other interests - like economic equality or efficiency - that are valued on independent grounds. Dahl finds it inevitable that, in the real world, democratic processes will on occasion lead to the denial of some persons fundamental rights or interests. The level to which democracies of the world today have advanced, he writes, is far from complete judged by the criteria of the democratic process.

When the democratic process is used to deprive others of their fundamental rights or interests, many american lawyers typically assume that the solution must include a supreme court with the authority to strike down national legislation that violates fundamental rights and interests. The standard argument advanced is that an independent and unelected judiciary serves as a countermajoritarian check on democratic decision making via its authority to declare legislation unconstitutional. Although Dahl concedes that nonmajoritarian arrangements, including judicial review, do not necessarily violate the requirements for democracy, he does caution against relying on judicial review as a correction for failures in the democratic process. When fundamental rights and interests in a democracy are protected by judges who are not democratically accountable, the result, according to Dahl, is a form of quasi guardianship. And quasi guardianship faces the same objection that pure guardianship does, namely that when it comes to making moral judgments or balancing between competing values, judges (like any other guardians) simply do not have privileged claims to absolute knowledge.

Moreover, Dahl presents four additional arguments against relying on judicial guardianship. First, he argues that judicial guardianship is simply not necessary to correct failures in the democratic process. After all, no other country has as expansive a judicial review power as the United States, and a number of democratic countries have no judicial review at all. According to Dahl, it simply cannot be said that fundamental rights and interests are less protected in these other countries than they are in the United States. Furthermore, Dahl identifies other ways to prevent or alleviate problems in the democratic process without resorting to guardianship: for example, changing the size of the citizenry so that minority rights and interests may be protected; establishing safeguards in voting, election, or legislative procedures (such as by creating bicameral legislatures or requiring majorities of two thirds); and relying on public opinion to evolve (as historically it has on many issues) to the point where particular minority rights and interests are ultimately vindicated.

Second, Dahl makes the obvious point that judicial guardianship encroaches on the democratic process. The broader the scope of the rights and interests the quasiguardians are authorized to protect, the more they must take on the functions of making law and policy. Judicial review takes some matters out of the domain of democratic decision making. Consequently, the more a nation relies on judicial review, the less it can utilize the democratic process.

Finally, Dahl reminds us that judicial guardians have not always stood steadfast in the protection of fundamental rights. Dahl would undoubtedly agree that the changing composition of the Court during the Reagan-Bush years may well detract from the attractiveness of judicial guardianship in the eyes of many observers. Despite these problems with judicial guardianship, Dahl concedes that such guardianship can be reconciled with democratic process, but only if the authority of the judicial guardians is sufficiently restricted.

However, when it comes to allowing judicial guardians to have authority over interests that are not essential to the democratic process, Dahl finds the conflict irreconcilable. Decisions about advancing or balancing substantive interests, he argues, are policy decisions and should be made through the democratic process. Once the rights and other interests necessary to the democratic process have been effectively secured, then the more the quasi guardians extend their authority to substantive questions, the more they reduce the scope of the democratic process.

Dahl's theory leads to a way of reconciling a limited form of judicial guardianship with democracy, but it rejects any broad form of judicial policymaking. In this respect, Dahl's political theory provides a foundation for a theory of judicial review similar to that found in John Hart Ely's Democracy and Distrust, a work which Dahl himself cites. Judicial review is justified when it is properly used to maintain the democratic process; it is not justified as a substitute for a democratic policymaking process. Thus, giving the judiciary the authority to strike down laws that violate rights of free speech or free assembly does not necessarily contravene the democratic ideal. However, permitting unelected judges to make substantive policy decisions under the guise of constitutional or statutory interpretation clearly raises serious problems for democratic theory.

In recent decades, a noticeable trend has developed in which unelected judges have adopted such an active role, and have taken to setting - and at times administering - public policy. Interest groups have discovered the courts as an alternative forum for policymaking when they lose their battles in the legislature. And some observers apparently even think that judicial policymaking is justified precisely because of the inability of the democratic political process to achieve certain substantive results.

In Democracy and Its Critics, Dahl responds to the danger that this trend toward judicial guardianship poses for democracy. He brilliantly defends democracy against its critics, including those who would have judges play the active role of guardians in our society. Lawyers and legal scholars will benefit from the theoretical context this book brings to the debate over judicial policymaking, and the reader will appreciate the clarity and thoroughness of Dahl's entire argument. In the end, Democracy and Its Critics reminds us that, although democratic regimes have been far from perfect, they are nevertheless the best available form of collective decision making.

Bibliography:

Dahl R. A Preface To Democratic Theory. – Chicago: The University of Chicago Press, 1956. – P. 110.

Bickel A. M. The Least Dangerous Branch. – New Haven: Yale University Press, 1962. – P. 158.

Bickel A. M. The Morality of Consent. – New Haven: Yale University Press, 1975. – PP. 35-49.

Berger R. Government by Judiciary: The Transformation of the Fourteenth Amendment. - Cambridge, Mass.: Harvard University Press, 1977. – P. 21.

Ely J. H. Democracy and Distrust: A Theory of Judicial Review. - Cambridge, Mass.: Harvard University Press, 1980. – P. 638.