05 October 2018

Do courts act as a restraint on government excess?

There is always a risk with government that it will attempt to exceed its legitimate powers. However, in jurisdictions where the state structure includes an independent judiciary, such attempts can in theory be held in check by the courts.

The notion that the state should be modelled so as to incorporate sources of internal opposition — often referred to as "separation of powers" — is a relatively modern idea. It depends on taking a sophisticated view about what government should be: not just a device for achieving what is desirable, but one with built-in restraints which on the face of it make its job more difficult.

The courts acting as a check on government requires the presence of a legal system that is autonomous enough, and self-confident enough, to be capable of critically comparing what the government tries to do with what the rule of law demands.

Notional autonomy may be a necessary condition for the role of constraint on government but is probably not a sufficient one. Opposing the government means regarding something other than government as your master; adherence to abstract legal principles, for example. If your primary commitment is to an agenda which happens to be the same as that of the government, you are likely to have little motive for resisting the government when it tries to bend the rules.

The legal system of the EU, including the European Court of Justice, was created from scratch along with the corresponding governmental entity (the forerunner of the European Commission). The whole structure was aimed at achieving a particular objective, namely European integration. A system of this kind is likely to be compromised from the outset with regard to judicial independence. The unspoken purpose of the legal apparatus will be to assist in moving towards the objective, not merely to enforce the prevailing set of rules.

Not surprisingly therefore, there is a question mark over whether the European Court of Justice is genuinely independent, or adequately fulfils the separation-of-powers function.

The above is an extract from the forthcoming article 'EC v Apple' (part 3), scheduled for publication in October.