Protecting Human Rights in a Democracy: What Role for the Courts?

A growing number of democracies have empowered their judiciaries to enforce constitutional norms, many of the most important of which are human rights norms that, as articulated, serve principally to limit the power of government. The Constitution of the Republic of South Africa (1996) provides a recent important example of such judicial empowerment. This "global expansion of judicial power" - which has been called "one of the most significant trends in late-twentieth and early twenty-first-century government" - has led, in the view of some commentators, to "the judicialization of politics". Some prominent legal scholars - most notably, Mark Tushnet and Jeremy Waldron - have recently argued that such government by judiciary, especially American-style judicial review, subverts the democratic ideal of government by the people and is therefore deeply problematic. Less prosaically, the claim is that government by a politically independent judiciary subverts the democratic ideal of government by the politically dependent, because electorally accountable, representatives of the people. The question is more broadly relevant than ever, therefore, whether it is appropriate for the citizens of a liberal democracy to cede to their courts the power to oppose, in the name of one or more entrenched human rights norms, choices made by, or actions of, electorally accountable government officials. In pursing this inquiry, two other, related questions inevitably emerge: If some power to protect entrenched human rights should be ceded to the courts, how great ought that power to be in relation to the power of the other, electorally accountable parts of government? And in exercising the power ceded to them - a power to pass judgment on the choices and actions of electorally accountable government officials - should the courts defer as much as possible to those offificials, or to some of them; or, instead, should the courts abjure such deference?