This is a brief reply to the review of my monograph, Transnational Networks and Elite Self-Empowerment: The Making of the Judiciary in Contemporary Europe and Beyond (OUP 2019) by LSE Human Rights Prof. Conor Gearty, Vice-President of the British Academy. I am grateful to Prof. Gearty for reviewing my monograph at such length. I am replying here in hopes that the exchange may advance our understanding of outstanding questions about Judiciary institutional design (and designers)—a topic that receives insufficient attention.
This is a summary of my full reply to Gearty, which is accessible here. Gearty and other critics are invited to rebut my challenges to the legitimacy and desirability of the judicialisation of politics.
First, I will try to summarise my monograph for those who have not read it. It begins with a history of the democracies of Central and Eastern Europe (CEE) after the fall of Communism. Their newly minted Judiciaries were patterned after an institutional blueprint I call the Template, which was created by North American and West European interveners, members of an elite transnational community interested in public policy (i.e. a Network Community). Within the nation-state, the Network’s agency is that of a minority even among elites, which is to say that only the top elites belong to it. They pursue their agenda against a backdrop of “veto player dormancy”, wherein those empowered to reject the Template have scarcely noticed it (e.g. elected politicians, voting majorities). The Template maximally empowers the Judiciary over national majoritarian institutions, like parliaments, without discernible justification. This is a clear trend since 1990 and it has rendered the Judiciary no longer a “co-ordinate” or co-equal branch of government but a super-ordinate and supreme one with a self-appointed power to superintend democracy. Judiciary supremacy (or “Juristocracy”, as Gearty and colleagues term it) is one instance of a more general evolution of elite self-empowerment via non-majoritarian institutions: central banks, administrative bureaux, intelligence agencies, and media cartels. Juristocracy has moved well beyond CEE and is now cemented-in everywhere, but it’s rarely questioned by the nations and peoples whose best interests are at stake– except in America, the land of its ulterior origin.
The Template is tripartite: its cynosure is a Constitutional Court strategically pre-empting all other voices over the meaning of constitutions. Its logic means nations that have a Constitutional Court have no constitution, except the judges who make up the Constitutional Court and their body of decisions. The second part is a Judiciary Council undergirding judicial self-government, all the while insulating the judges from accountability to anyone else. The third is a Training Academy which monopolises judicial education, with the abuses that may entail.
The Template has far-reaching consequences for the consent of the governed. It institutionally trains judges to overwrite democratic public policy with their own preferences on the spurious basis of constitutional texts that are silent on the policy at hand but not silent on delegating the policy-making power to non-judicial organs. Judges are transitioned from adjudicators of guilt or innocence under pre-existing law to czars of an elite-consensus policy-project, whose will becomes “the law”—hence the euphemism “judicialization of politics”. I devote many monograph pages to showing what an error in political, legal, and institutional reasoning all this is. Prof. Gearty’s review is silent on these matters.
The Template is therefore straightforwardly about “the rule of men not law”: the men and their class who empower themselves by it. Juristocracy empowers not only judges, but a set of winners, a transnational (or “global”) crème de la crème, comprising some but not all legal professionals, many supranational functionaries, certain academics, and other interested parties like the metropolitan media. This is the Network Community, whom I have become quite familiar with since 2014 from well over a hundred semi-structured elite interviews. This “actor-constellation” conceived of and are promulgating a merger of Roman and English legal precepts and implementing a type of judicial review divergent from English tradition. For divergent ends, too, a common law judge’s exceptional coercive powers (i.e. contempt of court) may be bestowed on the supremacist structure; otherwise, non-compliance is publicly shamed.
Accordingly, my monograph is not about the rule of law, if I may correct Prof. Gearty, but about the rule of law not men, in the complete traditional phrase. From the truncation of “not men”, I surmise that some men dislike the traditional phrase teaching folks whom to mistrust. The Template works by precluding the essential contestability of law that makes it Objective Spirit in Hegelian terms, beyond reduction to violent faction, social caste, advocacy coalition, professional corps, or other one-sided actor-collective. This excludes all other men from the contest, leaving judges (and the Network Community within which they are socialised) in effortless possession of the field of action. Thus, the rule of men calls itself “the rule of law”.
Alternatives to this charade do exist and are more compatible with both democracy and the rule of law. My monograph and my full reply to Gearty’s review contain more evidence and an articulated argument distinguishing between two kinds of constitutional cases: cases of a judiciary nature, hingeing on the guilt or innocence of defendants in jeopardy, and all other cases, which are of a political nature. Independent courts of law play a crucial role in deciding the first kind. They have no role to play in any democratic polity worthy of the name in deciding the second. But Prof. Gearty is a human rights lawyer and thinks otherwise. He defends judge-made policies mislabelled “rights” (and enabled by the Template) without counting the cost (viz., loss of self-government), as rights are unconditional. My full reply rebuts this position by distinguishing between substantive and procedural rights.
In brief, a substantive right is a rule holding you harmless no matter how much harm you may have caused. The court is to proceed in a rights-bearer’s favour who invokes free speech against an accuser alleging “hate speech”. This summary judgment precludes a trial of the facts. Procedural rights govern how a trial is conducted if there is one. The US Bill of Rights originally cognized no utilities superseding trial but two: the search for truth and self-defence against the central government. Truth truly has unconditional social utility; self-defence is the law of nature. What else is comparable? Gearty reacts by ring-fencing abortion and homosexuality, rights the Network bequeathed to Ireland. Their pursuit Gearty presumes is harmless, but he attempts no rational inquiry into the actual costs versus the benefits. Instead, he falls back on a tale of a teenage girl from his hometown who died in childbirth in the dead of night under a statue of the Blessed Virgin, ashamed of disclosing her pregnancy. This justifies holding harmless the unconditional pursuit of pleasure and evasion of its costs? He implies the Church is to blame yet the girl herself took refuge there. Maybe she needed it more, not less as Gearty imagines. Church organisations and voluntary associations abound that exist to save people from themselves.
Gearty cites Poland and Hungary as examples of what I supposedly advocate. I argued only that from my perspective these are instances of veto players belatedly waking out of dormancy. I said no more, inhibited by a dearth of reliable evidence. What I suspect is that the two nations rid themselves of Juristocracy to better to recover a traditional judiciary as in early America, meaning before Lochner (see full reply). Gearty brings forward no evidence to the contrary. Generally, the savage attacks on Hungary and Poland are many, the hard data on them few.
Gearty has read more into my words than I intended. My “defence of tradition” is not an ideological position but limited to institutions checking judicial output, like General Prosecutors’ powers to prompt rehearing of dubious judicial rulings, still available in some CEE countries before 2010. Some traditions dampened the judicial tendency to override democracy—viz. election of judges in Moldova. “Lay judges” in traditional Moldovan trial procedure were non-legal professionals with life experience in the local community. All these were known by CEE jurists to enhance justice for locals. The Network meticulously abolished every one of them. A policy network without ambition to rule via unaccountable judicial power has no reason to overwrite innocent national traditions to this absolutist level of detail. And the “robust traditions” I contemplated were of Western polities before their corrupting judicialisation. Instead of East Europeans being nudged toward Britain or Norway, Britain is driven to the Template. I never discovered any justification for Blair’s reforms creating a Supreme Court and abolishing the Lord Chancellor except beholdenness to the Template. The objective effect of it was to set up a Constitutional Court. This is precisely what transpired through the Supreme Court’s decision in Miller , which I believe Gearty has misunderstood. The Supreme Court in fact empowered itself as a Constitutional Court under colour of concern over parliamentary sovereignty. Parliaments who must obey judges “upholding their sovereignty” obey a sovereign-maker, who becomes a sovereign-breaker.
Gearty faults me for lacking a stance on the democracy I defend against the Network – “In Parau’s account who – specifically – speaks for the people?” The people speak for themselves in elections and referenda that elites ignore. Any elected institution can be purged by a majority in an accountability contest. What else may representation mean? If Gearty is suggesting courts are representative, I say, “Prove it, empirically.” I have never advocated gutting the judiciary, however. Classically, judges contain state power by finding defendants innocent. The Network presume themselves to be the best and brightest, not anyone emerging from a democratic process. Finding states and peoples guilty alike, they make “hanging judges” of themselves in the national and supranational order they have erected. I only predict the assumption of moral and intellectual superiority will have unleashed their own unmaking.
Finally, the foregoing makes clear that Gearty’s misinterpretation of my book as a conspiracy theory is false. A conspiracy is a joint enterprise to commit a crime. No one commits a crime by lobbying for a cause, or letting sleeping veto-players lie, or even causing a democratic deficit. Without a crime, there is no conspiracy. If the Network sneaks around as if to keep democracy culpably dormant—if this is all a “conspiracy” is—then how is theorising it discreditable? An elite Network is at odds with democracy and the rule of law, and their claims to promote either are demonstrably false. Mine is not “just a theory”; empirical evidence for the nature, activism and ambition of the Network Community includes a trove of documents and elite interviews whereby the protagonists speak in their own voices. Do they exist or not? Gearty admits they do. Do judges making public policy that majorities reject but elites demand empower elites and judges over the people, or not? Prof. Gearty never tried to refute me on institutional or scientific grounds. Without need for a prejudicial label, readers can judge for themselves.
Parau’s full rebuttal can be found here.