Legal theory is concerned with the limits of judicial power. It asks such questions as how much leeway should judges be given to read new meanings into laws that were not intended when they were drafted by the legislature? How can judicial power be limited? Is it desirable to do so? How does the dynamic between the executive, the legislature and the judiciary work?
These are all vital theoretical questions concerning the law that all students of law need to think through. It is not a purely an ‘academic’ exercise. Rather these issues are at the heart of a healthy democracy.
It was the French Enlightenment political philosopher Baron de Montesquieu who first wrote about the idea of the separation of powers in the state. He was influenced by the British constitutional monarchy system and also the ancient Greek notion of preventing tyranny by separating out the 3 principle arms of the state – the executive, the legislature and the judiciary. It from Montesquieu that the notion of ‘checks and balances’ that is part of the American Constitution comes from.
It is interesting to note that Montesquieu noted that:
“The independence of the judiciary has to be real and not apparent merely”.
Elsewhere he wrote:
“The judiciary was generally seen as the most important of powers, independent and unchecked”
In short Montesquieu realized the danger of the judiciary. It is a fear that is found today in American society. In the field of morality and the law the Supreme Court appears to hold all the aces. It was the case of Roe v. Wade in 1973 that resulted in a Judge deciding that a woman had the right of privacy under the 14th Amendment to the Constitution that allowed her to have an abortion.
It is difficult to tell whether that was the wish of the majority of the people. Sovereignty lies with the people and they elect representatives to the legislature and executive to represent their opinions both morally and otherwise. Does a judge have the right to decide to change societal practice in such an extreme way?
Since that land mark decision every Republican President has used his executive powers to try and alter the judges presiding on the Supreme Court with the hope of over-ruling Roe v. Wade.
Why is it that the judges on the Supreme Court have life tenure? Why are they not elected representatives? Why do their decisions have the power to change laws dramatically in a society?
These are all questions that lawyers have to ponder. They must be servants of the law; and realize that have been given a massive responsibility. They must not abuse their considerable power. Rather the judiciary has to judge the feelings of the people to give the people the laws that make sense to them.
This is seen in the on-going struggle between state and federal law agencies and judiciaries regarding the issue of decriminalizing marijuana. It is something that the people want. It is the central executive and judiciary that are out of touch.