Complaints are everywhere heard from our most considerate and virtuous citizens … that our governments are too unstable, that public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party but by the superior force of an interested and overbearing majority.
(J Madison, Paper 10, in J Madison, A Hamilton and J Jay, The Federalist Papers (1987, Penguin, Harmondsworth)
To some, it might seem paradoxical to place responsibility upon the judicial sphere (an undemocratic, unrepresentative institution) for maintaining the conditions of deliberative democracy and individual liberty in preference to trusting the elected representatives of the people and, more generally, political processes. Thus, in a recently published monograph on the British constitution, Adam Tomkins claims that, despite its monarchical outward for, the constitution is in fact deeply influenced by republican values. It is just that the dominant mode of constitutional scholarship has tended to neglect the role and value of political forms of accountability, emphasizing instead (and wrongly) legal forms of control. (…) A major target of Tomkins’s polemic is something that he labels ‘legal constitutionalism’. Among its other tenets, a key aspect of legal constitutionalism for Tomkins is the notion that ‘the law should control government through the enforcement of specific rules and general principles of legality (such as human rights)‘. Apart from restating well-worn criticism of unelected, unrepresentative judges and the limitations of the courtroom as a forum for making legal policy, he asserts that the record of the judges in human rights cases shows that:
… legal constitutionalism promises more than it is able to deliver; that in practice it is able to neither secure liberty nor act as an effective check on the government of the day
Citizens, we are informed, enjoy no greater liberty now than they did prior to the 1998 Human Rights Act. In the course of this chapter, we will return to see whether this analysis of outcomes of human rights cases is credible. For the time being, it can be remarked that Tomkins’s commitment to a truly deliberative and open democracy is something which many public law scholars aspire to. The suggestion that constitutional courts have little or no role to play in attaining this state of affairs is, however, highly debatable. It is the contention of this chapter, in contrast to Tomkins, that rights-based judicial review can play some part – albeit within the limitations imposed by judicial structures – in promoting the conditions for vigorous democratic debate among a community of political equals.
In unravelling the apparent paradox between open, deliberative government and judicially determined rights, it is worth recalling the potential for majoritarian political processes to act in ways that are destructive of these ends. Certainly, Madison seems to have been aware of the problem. Further back in history, as John Laws recounted in an article published in Public Law, the loss of 25 Athenian ships at the battle of Arginusae led to a trial of eight Athenian generals before an Assembly of People. The strength of public feeling against the generals was such that, instead of being given separate trials as they were legally entitled to, the generals were tried together. When a challenge was brought to the procedure, the presiding committee yielded to public anger and proceeded by way of a single trial. The generals were subsequently sentenced to death. In order that certain basic rights deemed characteristic in a democracy (such as the right to a fair trial and freedom of expression) might prevail, the lesson of the Arginusae generals is, it seems, that we should be prepared to countenance limits upon majoritarian processes. (s.n. – M.M.-B.)
Notă MMB: a se vedea și citatul Unul dintre motivele pentru care Atena a pierdut războiul în fața Spartei: Judecarea Generalilor de către Parlament
(Rights-based Judicial Review, Constitutional Cultures and Expressive Freedom în Contested Words – Legal Restrictions on Freedom of Speech in Liberal Democracies, ed. Ashgate, 2006, la p. 11-12)