Dikastocratic judicial activism or sensible judicial decision-making?

In our political discourse there is the everlasting discussion about the relation between the legislature and the judiciary within the trias politica. The separation of branches of power was once invented particularly to avoid absolutism and because we prefer the certainty of the rule of law above arbitrariness. We frequently hear politicians who tell us that judges interfere too much with political matters. In a worst-case scenario, our society is confronted with the usurpation of our political system by the judiciary. Some say our society and our beloved rule of law will soon be dominated by members of the judiciary, by mere wearers of the very robes that are supposed to reflect lady justice’s values. This phenomenon, also known as ‘dikastocracy’, refers to what one could call a ‘society ruled by the judiciary’, that is, a state in which the judiciary essentially make all important political decisions. In this case, the relation between the legislation and the judiciary is permanently distorted.

          The term dikastocracy is often used within the context of an important judicial decision with great political implications such as the Urgenda case (HR 20 December 2019, ECLI:NL:HR:2019:2006). On 20 December 2019, the Supreme Court of the Netherlands decided that the Dutch state had the obligation to reduce the emission of greenhouse gas from Dutch soil by the end of 2020 to at least 25 percent relative to 1990. According to the Dutch supreme court, this obligation arises from the articles 2 and 8 of the European Convention on Human Rights (ECHR), that is, the right to life and the right to respect for private and family life, home and correspondence. This is a legal possibility because the ECHR is an integral part of the Dutch legal order (artt. 93 and 94 of the Dutch constitution). These ECHR-norms must also be explained according to the standards as set out by the European Court of Human Rights (ECtHR). There have been scholars out there who argue that the system of the ECHR and the ECtHR allows for the various judiciaries of the European states party to the ECHR to use international law to effectuate essential and controversial political-like decisions.

          The difficulty about assessing whether international law is indeed a legal instrument that could be used by the judiciary to undermine the position of the legislator when it comes to political decision-making is that it is not clear when we are dealing with inherently political matters that can and should only be acted upon by the legislator rather than the judiciary. In this regard, particular attention could be paid to the so-called ‘political question-doctrine’. According to this doctrine, some societal matters are seen as inherently political, and thus, the courts cannot make a decision in those instances. There is no such doctrine in the Netherlands. However, it can be said that certain legal matters have great political implications, and in such a case the judicial decisions have de facto consequences in the political realm. On the other hand, there are instances with great legal relevance that are met with little political attention. The distinction between the political and the non-political is very often subtle. It must also be noted that it is not wise to imply that we live in a dikastocracy simply because many court rulings have political implications because political influence is not necessarily the same as judicial dominance.           A mechanism like a political question-doctrine could perhaps be a prevention mechanism for ‘judicial activism’ and thus the distortion of the separation of powers and the rule of law. This does not mean the Dutch system can or should ever adopt such a doctrine; such a mechanism should only be and can only be part of a legal system if it benefits the system in question, not simply because there are working examples overseas (e.g., The United States of America). Furthermore, an analogous approach could work as well. In any case, judicial decision-making should not be hampered by the desire to separate the political from the non-political at all costs. The judicial apparatus exerts state power, that is, one instance of power ultimately derived from the constitution, and thus, in a way, the legal will always meet the political.

Written by: Hannes Brown