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Chapter Thirteen. The Relationship between the Judiciary and the Legislature

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The Judge in a Democracy
This chapter is in the book The Judge in a Democracy
CHAPTER THIRTEENThe Relationship between the Judiciary and the LegislatureTHE UNIQUENESS OF THE LEGISLATUREThe Importance of the LegislatureThe foundation of democracy is a legislature elected freely andperiodically by the people. Without majority rule, as reflected inthe power of the legislature, there is no democracy. As judges andlegal scholars, we often forget this fundamental principle. Commonlaw legal thought focuses mainly on the judiciary and neglects the legislature. Jeremy Waldron has rightly said that “legislation and leg-islatureshave a bad name in legal and political philosophy, a namesufficiently disreputable to cast doubt on their credentials as res-pectable sources of law.”1In contrast, my concept of the role of a judge in a democracy recognizes the central role of the legislature.Undermining the legislature undermines democracy. My conceptof the rule of law and of the separation of powers do not under-mine the legislature. Rather, they ensure that all branches of stateact within the framework of the constitution and statutes. Onlythus can we maintain public confidence in the legislature; only thuscan we preserve the dignity of legislation. Purposive interpretationis also intended to protect the status of the legislature. Indeed, in interpreting legislation, purposive interpretation considers thelegislature’s subjective intent. I regard it as an internal inconsis-tency in Waldron’s approach that he wishes to guarantee the statusand importance of the legislature2but is not prepared to interpret1Jeremy Waldron, The Dignity of Legislation1 (1999).2See id.at 2.

CHAPTER THIRTEENThe Relationship between the Judiciary and the LegislatureTHE UNIQUENESS OF THE LEGISLATUREThe Importance of the LegislatureThe foundation of democracy is a legislature elected freely andperiodically by the people. Without majority rule, as reflected inthe power of the legislature, there is no democracy. As judges andlegal scholars, we often forget this fundamental principle. Commonlaw legal thought focuses mainly on the judiciary and neglects the legislature. Jeremy Waldron has rightly said that “legislation and leg-islatureshave a bad name in legal and political philosophy, a namesufficiently disreputable to cast doubt on their credentials as res-pectable sources of law.”1In contrast, my concept of the role of a judge in a democracy recognizes the central role of the legislature.Undermining the legislature undermines democracy. My conceptof the rule of law and of the separation of powers do not under-mine the legislature. Rather, they ensure that all branches of stateact within the framework of the constitution and statutes. Onlythus can we maintain public confidence in the legislature; only thuscan we preserve the dignity of legislation. Purposive interpretationis also intended to protect the status of the legislature. Indeed, in interpreting legislation, purposive interpretation considers thelegislature’s subjective intent. I regard it as an internal inconsis-tency in Waldron’s approach that he wishes to guarantee the statusand importance of the legislature2but is not prepared to interpret1Jeremy Waldron, The Dignity of Legislation1 (1999).2See id.at 2.

Chapters in this book

  1. Frontmatter i
  2. Contents v
  3. Introduction ix
  4. Part One. The Role of the Judge
  5. Chapter One. Bridging the Gap between Law and Society 3
  6. Chapter Two. Protecting the Constitution and Democracy 20
  7. Part Two. The Means of Realizing the Judicial Role
  8. Chapter Three. Preconditions for Realizing the Judicial Role 101
  9. Chapter Four. The Meaning of Means 113
  10. Chapter Five. Interpretation 122
  11. Chapter Six. The Development of the Common Law 155
  12. Chapter Seven. Balancing and Weighing 164
  13. Chapter Eight. Non-Justiciability, or “Political Questions” 177
  14. Chapter Nine. Standing 190
  15. Chapter Ten. Comparative Law 197
  16. Chapter Eleven. The Judgment 205
  17. Part Three. The Relationship between the Court and the other Branches of the State
  18. Chapter Twelve. Tension among the Branches 215
  19. Chapter Thirteen. The Relationship between the Judiciary and the Legislature 226
  20. Chapter Fourteen. The Relationship between the Judiciary and the Executive 241
  21. Part Four. Evaluation of the Role of a Judge in a Democracy
  22. Chapter Fifteen. Activism and Self-Restraint 263
  23. Chapter Sixteen. The Judicial Role and the Problem of Terrorism 283
  24. Chapter Seventeen. The Role of the Judge: Theory, Practice, and the Future 306
  25. Index 317
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https://doi.org/10.1515/9781400827046.226

Chapters in this book

  1. Frontmatter i
  2. Contents v
  3. Introduction ix
  4. Part One. The Role of the Judge
  5. Chapter One. Bridging the Gap between Law and Society 3
  6. Chapter Two. Protecting the Constitution and Democracy 20
  7. Part Two. The Means of Realizing the Judicial Role
  8. Chapter Three. Preconditions for Realizing the Judicial Role 101
  9. Chapter Four. The Meaning of Means 113
  10. Chapter Five. Interpretation 122
  11. Chapter Six. The Development of the Common Law 155
  12. Chapter Seven. Balancing and Weighing 164
  13. Chapter Eight. Non-Justiciability, or “Political Questions” 177
  14. Chapter Nine. Standing 190
  15. Chapter Ten. Comparative Law 197
  16. Chapter Eleven. The Judgment 205
  17. Part Three. The Relationship between the Court and the other Branches of the State
  18. Chapter Twelve. Tension among the Branches 215
  19. Chapter Thirteen. The Relationship between the Judiciary and the Legislature 226
  20. Chapter Fourteen. The Relationship between the Judiciary and the Executive 241
  21. Part Four. Evaluation of the Role of a Judge in a Democracy
  22. Chapter Fifteen. Activism and Self-Restraint 263
  23. Chapter Sixteen. The Judicial Role and the Problem of Terrorism 283
  24. Chapter Seventeen. The Role of the Judge: Theory, Practice, and the Future 306
  25. Index 317
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