Faculty of Law, University of Oslo, Oslo, Norway
Coming Out from Behind the Law
Time has come to sum up the main findings of the book. In the introduction, I stated that the western legal tradition has common roots and a common history. This includes an ideology of law as something autonomous dedicated to protecting more general values such as justice, equality, and the rule of law that bind judges together across time and space. The book has shown how judges struggle to accommodate this ideology when it is under attack by the legislator and the executive, how they defend it, and how they depart from it. The bind is fragile and threadbare at times, at other times almost nonexistent. The fact that it is still there can, however, be seen in the way judges collaborating with authoritarian regimes still try to legitimise their actions with an appeal to this ideology. Some of them are even troubled by a bad conscience. Moreover, we must not forget that even in the deepest darkness of authoritarianism, there are judges who remain true to the ideology and work to counter the oppressive measures of the regime. Does the existence of this bind actually make life better for people living under such conditions subjected to its legal system? Unfortunately, in most cases, it does not. Nevertheless, the fact that it is there gives hope that we can improve the protection it offers. How this can be encouraged is what we turn to now.
We expect judges to be the protectors of individual rights and the rule of law. In cases where the executive and legislative powers of a state attack these basic values of our society, we want the courts to exercise their powers of review to uphold these rights. We like to think of judges as taking heroic stances against authoritarian rulers like the case in present-day Hungary where the constitutional court has been providing checks and balances between the different state organs. However, as we have seen in many recent examples of authoritarian rule in countries within our western legal tradition, the courts have failed to offer such protection.
In fact, many judges believe that, by applying the law, they are defending the rule of law, even under the most oppressive circumstances. In his great apology of the German judges under the Nazi period, Hubert Schorn writes about “those judges who performed their work by following their conscience and who saw upholding the law in a courageous and upraised way as their highest duty”.1 There is no reason to doubt that this expresses the self-understanding of many judges in authoritarian settings. Nevertheless, the consequences of their performance may be horrendous and far removed from any reasonable understanding of the rule of law.
Pressing questions are if and how we can provide safeguards to put judges in a better position to protect the rule of law and to make this judicial conduct more likely. In the constitution of the Federal Republic of Germany, there is a “perpetuity clause” based on the experience of the transition from the Weimar Republic to Hitler’s rule. Is it possible in this way to legislate against authoritarianism? An important development in international law since the examples I have reviewed in this book is the development of rules and institutions for the protection of human rights. What security can these provide against developments as those reviewed in the book? Does the answer lie in the training and conditioning of judges in a particular scientific or reasonable methodological approach to the practice of judging? Moreover, how can we make judges better in resisting the psychological forces that urge them into conformity? These are the questions to address in this final chapter.
Constitutional Provisions Against Acceptance of Authoritarianism?
History shows that the existence of a liberal constitution and a judiciary brought up under liberal values with the respect for the rule of law do not prevent a development of judicial acceptance of authoritarian regimes. Weimar Germany had one of the most liberal constitutions of its time, with an extensive catalogue of individual rights. South Africa had its legal traditions deeply embedded in common law. Chile had a tradition of independent courts with constitutional review of legislative and executive measures and ratified the international covenant on civil and political rights in 1973. The Supreme Court of Brazil was a relatively powerful institution and was regarded as a “bulwark for Brazilian democracy”.2 Why did such clear commitments against authoritarianism not a guard against the development of tyranny and oppression?
One could argue that in the cases of Germany and South Africa, the road taken by the authoritarian rulers were provided for by their respective constitutions. In both cases, there were provisions that opened for authoritarian measures against social emergencies. Had these roads been closed, one could argue that they would not so easily have been opened by the courts. This is the basic thinking behind section 79 (3) of the present German Basic Law, which contains the so-called guarantee of in perpetuity.
Basic Law section 79 (3) states that “no constitutional amendment can abolish the fundamental rights of the constitution or the federal structure of the republic”. This provision protects not only from the excessive use of emergency powers but also against a dominant social force changing the rules of the game. Constitutional amendments that suspend or abolish basic rights and minority protection are often difficult to accomplish in social settings where the political majority risks a situation where it loses political power. In such a case, it will be in need of constitutional protection from the new rulers in power. Where power changes hands as a result of elections and the election outcome is uncertain, the probability is that politicians will opt for a legal regime of protection of fundamental rights.3 If, however, those in power expect that they can hold onto it, their incentives to maintain constitutional constraints on political power will decrease. This is what happened in Germany after the Nazi takeover. Hitler said in his Königsberg speech in 1932: “I only seek the power. Once we get it we will never, so help us God, give it up. We will not allow ourselves to be removed”.4
The perpetuity clause should guard against such situations where a majority or a dominating political force lacks incentives or the ideology to uphold the protection of the rule of law. Such a provision might protect from amendments made from within the constitution but cannot protect it from the argument that the constitution as such has been repealed. This was the legal construction that was established within Nazi Germany soon after the takeover of power. The regime enacted emergency legislation in accordance with the Weimar constitution, and the enabling Act of 24 March 1933 gave the government power to enact legislation without the involvement of the Reichstag. This included legislation amending the constitution. Nevertheless, it could still be held that constitutional provisions that had not explicitly been repealed were still in force as German law. The Nazi lawyers rejected this argument, and the legal opinion that became established was that the regime was unbound by any other basic law than the good of the German people, ultimately in the way declared or willed by the Führer.
We find an illustrating discussion on whether the Nazi order was a continuation of the Weimar constitution or not in a case of the Special Court of Darmstadt from 26 March 1934 and in the comments that this case received in the Juristische Wochenschrift.5 The Chief of Police of Hessen had issued orders to prohibit assemblies and propaganda of Jehovah’s Witnesses and later on to disband the organisation and prohibit membership of it. The legal basis for the orders was the Empowering Act. The defendants in a case before the Special Court of Darmstadt were all charged with breaking the orders. The Court decided that Jehovah’s Witnesses were a religious society in the meaning of article 137 of the Weimar constitution and that the orders of the Hessen police chief were in contradiction to this provision. The Court argued that article 137 could not have been repealed by the empowering Act since this in itself was based on article 48 of the constitution, which did not allow derogation from article 137.6 Even though the empowering Act empowered the government to change the constitution by constitutional laws, such laws had not been enacted regarding article 137.
It also argued that the Weimar constitution, as such, was still in force in as far as it had not been expressly revoked by constitutional legislation. If one regarded the constitution as such as abolished, all present institutions and law would be left hanging in the air. The Court also pointed to the fact that large portions of the constitution were not in contradiction of the foundations of the National Socialist state. Freedom of religion had not been abolished by the National Socialist state, and this would, according to the words of the Führer, not happen. Under these circumstances, article 127 had to be respected by the police—the orders against Jehovah’s Witnesses were invalid.
The decision was met with prompt and clear criticism by Ernst Rudolf Huber, professor in Kiel, Leipzig, and Strasburg and a leading constitutional lawyer of the Nazis. He stated that the ruling was based on incorrect legal considerations and that it came to the wrong conclusion. The Court had misunderstood what it is for a constitution to be in force. This does not depend, maintained Huber, on whether elements of a constitution are still in force. For a constitution to be in force, it had to be the “unified, comprehensive and single power basis for the political life of a state”. The unified character of a constitution is defined by its main supporting principles, which under the Weimar constitution were formal democracy, parliamentarism, federalism, distribution of power, and individual rights. All of these principles had been smashed by National Socialism, not through legislation but directly in a revolutionary manner, immediately through the seizure of power by the National Socialist Party. Against such reasoning, any constitution is defenceless.
The basic problem that faces the judiciary in transitions from liberal rule of law settings to authoritarian rule is the one of constitutional loyalty. If the courts are carried over from the previous regime, they will have been established under the constitutional order of that regime. This constitutional order thus forms the legal basis for their official powers. A regime that seeks to establish its powers from a different legal source, be it a new “revolutionary” legal basis or the “dictates of necessity”, has its legal basis partly outside of the previous constitutional arrangement. The courts in such situations are forced to choose between upholding the former constitution and depriving the new regime or its measures of legality and assessing the measures of the new regime under the legal basis that the regime itself claims to be its constitutional foundation. This break may be open in the way that no effort is made to hide the fact that society has undergone a revolution or hidden in the way that the transition is proclaimed as a (re)interpretation of the prevailing constitutional arrangement. In addition to the two alternatives of upholding the old and accepting the new legal bases, judges may opt to resign or to maintain that a determination of the constitutional basis of the regime is outside the scope of judicial review.7
The arguments for each of these four lines of action are complex and may be based in law, legal theory, and ethics. What is certain is that they cannot be solved by legal reasoning alone since they entail not only the interpretation and application of the law but also the choice between different legal regimes. In practice, the courts submit to the new regime in most instances. This may be disappointing from the point of view of the rule of law and of political morality because it means that the courts abstain from protecting and upholding basic rights in the face of authoritarian rule. But a simple and basic argument for this line of action is that it is untenable for a court of law to exist under a regime if it seeks its legal basis in a constitutional arrangement that is not accepted by this regime.
The argument put forward by the Appellate Division of the Supreme Court of Rhodesia after the Smith government declared its independence from Britain illustrates the point. Southern Rhodesia was annexed by Great Britain in 1923. In 1961, the colony was granted a constitution where under, inter alia, its legislature had the power to make laws for the peace, order, and good government of Southern Rhodesia and where “the executive authority… is vested in Her Majesty and may be exercised on Her Majesty’s behalf by the Governor”.
On November 11, 1965, the prime minister of Southern Rhodesia and his colleagues issued a “Declaration of Independence” purporting to declare that “Southern Rhodesia was no longer a crown colony but was an independent sovereign state”. On November 16, 1965, the United Kingdom Parliament passed the Southern Rhodesia Act, which declared that Southern Rhodesia continued to be part of Her Majesty’s dominions and that “the Government and Parliament of the United Kingdom have responsibility and jurisdiction as heretofore for and in respect of it”.
Pursuant to an arrest made under emergency legislation passed by the Smith government, the Privy Council of the United Kingdom was asked by the wife of the detainee to rule on the legality of the arrest.8 In addressing this issue, the Privy Council also ruled on “whether or how far Her Majesty’s subjects and in particular Her Majesty’s judges in Southern Rhodesia are entitled to recognise or give effect to laws or executive acts or decisions made by the unlawful regime at present in control of Southern Rhodesia”.
Lord Reid, speaking for the majority, conceded that “Her Majesty’s judges have been put in an extremely difficult position”. He continued:
But the fact that the judges among others have been put in a very difficult position cannot justify disregard of legislation passed or authorised by the United Kingdom Parliament… It is for Parliament and Parliament alone to determine whether the maintenance of law and order would justify giving effect to laws made by the usurping Government, to such extent as may be necessary for that purpose.
The Smith government refused to recognise the decision of the Privy Council and received support from the courts of Rhodesia, even though the judges had been appointed under the old British constitution and had sworn allegiance to it. Two judges resigned in protest. One of them, Justice Fieldsend, was appointed as the first Chief Justice of Zimbabwe when the white minority rule was overthrown.
By continuing to function as courts, the judges, by necessity, accept the fundamental legal basis of the present regime. Arguments between the courts and the holders of power over the protection of rights and the rule of law must therefore, by necessity, take place within the legal framework accepted by the regime. No perpetuity clause from the ancient regime can alter this.
Most German lawyers did not offer resistance to the Nazi demands; on the contrary, they offered their services to develop the law in line with National Socialist policy. They might have felt obliged to do so, but in their collaboration, they departed from positivism. If they had stood by legal positivism, they would have rejected treating National Socialist ideology and the mysticism of Hitlerism as superior sources of law. Some of those who chose to resist referred to positivism to assist them. With this, for example, the Prussian Administrative Appeals Court was able to halt the reinterpretation of statutes in the light of the new ideology, and it was able to hold the NS legislator to its legislation. But it had few supranational or supra-legal sources from which to draw arguments to curb the contents of the legislation issued by the regime.
On the other hand, the judges in South Africa resisted by applying a common law approach, an approach that referred to general principles of unwritten law. This legislation could be interpreted restrictively and its effects limited. But the common law judges in South Africa too had to yield to parliamentary supremacy and lacked the means of higher laws to overrule unambiguous and clear provisions in legislation.
In the situation today, national judges have the international regimes for protection of human rights as positive legal sources to employ against oppressive measures of national law. International law represents standards for the evaluation of national measures. The interpretation and application of these standards is, in many instances, guided by the case law of international courts and tribunals. The laws and practices of national authorities are monitored and evaluated by independent international authorities and courts.
Independently of the national legislator and ruler, international norms can be held to be binding as positive law on national judges. This was the approach taken by the Nuremberg tribunals after World War II, and it was followed by the German Supreme Court after the breakdown of the GDR and the reuniting of Germany. When asked to consider judicial crimes after the breakdown of the GDR, the German courts accepted that a judge could be performing an illegal act when applying laws in the way envisaged by the legislator and the rulers. They reached this result partly by including ratified international human rights instruments in their reasoning, arguing that when ratified these also form part of the positive law that the judge has to take into account. That the GDR had ratified the International Covenant on Civil and Political Rights in this way became part of the reason for why they could be held criminally liable for enforcing the national law of the GDR.9
Today, the individual responsibility and criminal liability for breaches of international law are widely recognised and well established, both in customary law and in the Rome Statute of the International Criminal Court. It is also well established that breaches referred to by the statute can be tried both by international courts and tribunals and by national courts.
International human rights regimes work on the legal orders of participating states in two ways. On one hand, they constitute an authoritative body of law that has legally binding force. On the other hand, this body of law forms a basis for which international pressure can be applied on a violating state by other states. Both these ways can contribute to preventing states from serious violations of individual rights through their municipal law.
Hopefully, the force of international law and of international monitoring regimes will make the participation of national judges in oppression and evil less likely. This is, however, by no means certain. Research on the effect of international human rights regimes cannot show any conclusive results. Statistical analysis indicates, “International rights promotion can help a bit when domestic conditions are right, but it rarely initiates reform on its own. Moreover, it seems to have little impact on many of those countries that need the most help, including those ruled by dictators or plagued by war”.10 As pointed out by Gene Sharp, international pressure may weaken dictatorships somewhat, but their continuation is mainly dependent on internal factors.11 International support and pressure can, on the other hand, be of great assistance when there is powerful internal resistance.
Regardless of the quantitative effects of human rights standards, international human rights will represent a contradictory body of law when the legislator enacts oppressive laws. In this respect, they will increase the cross-pressure facing the judge. This is, on the other hand, nothing entirely new. In the cases that we have seen before the establishment of the international human rights regime, judges were also under cross-pressure when an authoritarian regime developed in a society that was formally based on a liberal constitution and the rule of law. The German judges did not lack standards of protection of the rule of law, but they failed to employ them. The South African judges had standards in common law, which they failed to bring into effect. The Chilean Junta even went through the proceedings of ratification of the International Covenant on Civil and Political Rights at the same time as they perpetrated their terror against political opponents at home.
Even though the existence of norms with the force of positive law prohibiting oppressive and authoritarian measures is nothing new, there are important differences in the situation as it has developed since the turn of the millennium. Whereas the international norms in the twentieth century for the most part were very general and abstract in nature, there exists today a vast body of case law giving specific guidance to their interpretation and implementation in practice. There are also well-functioning international institutions that contribute to their enforcement. The role of the European Commission in the French measures against the Roma in 2009 is a notable example of this.12 The engagement with Hungary by the European Commission and the Council of Europe is another example.
Institutions are important in that they represent an addition to the mere normative force of an argument. Judges who can invoke the international regime for the protection of human rights against oppressive measures of their regime have a much firmer basis for their resistance than their colleagues of the past. On the other hand, not even institutions are foolproof. Even such a firm institution as the Chief Justice of the US Supreme Court has been openly defied, by the President of the United States. In 1861, Lincoln suspended the writ of habeas corpus in connection with declaring martial law in Maryland. After the arrest of John Merryman, Chief Justice Roger B. Taney issued a writ of habeas corpus. This was not obeyed, and Taney wrote a letter to Abraham Lincoln demanding that he perform his duty as the President of the United States. Lincoln disregarded this ruling and continued to suspend habeas corpus throughout the country.
Lincoln’s refusal to abide by the order met with little public criticism. Rehnquist explains this with Taney’s authorship of the principal opinion in the Dred Scott Case, which had inflamed the North and cast a shadow over the Supreme Court for at least a generation. He also points out that courts at that time did not form such an important part of public life as they do today.13 One lesson to be drawn is that courts are not totally immune to currents of public opinion that may undermine their authority. This goes for international institutions as well, of course.
The one important difference today is that judges now have the instruments to oppose an authoritarian ruler. These instruments are available even to a positivistic-minded judge. Therefore, a judge does not have to appear “political” to go against the regime. He can base his opposition in specific norms of positive law, based on traditional legal sources such as enacted norms and case law.
Alas, lack of means is but one factor contributing to the acquiescence of the judiciary in oppression. Loyalty to the authority of the national legislator, institutional factors, solidarity to the profession, and entrapment are others. To employ the means available under international law, the judge also needs to break loose from these forces. This can sometimes be difficult. National courts sometimes assert their authority in challenge to international legal opinion.
The international legal protection of human rights also suffers from the vulnerability of constitutional protection, as US judge Learned Hand referred to when he stated:
Liberty lies in the hearts of men and women; when it dies there, no constitution no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.14
On the other hand, familiarity with the international human rights regime, respect for its legal authority, as well as awareness of the dangers entailed in the situation of a judge when the legislator wages war on the rule of law, may contribute to the maintenance of the spirit of liberty in the heart of the judge.
The Politics of Legal Methodology
Some argue that judges who stick to the correct legal methodology will not engage in undermining the rule of law when it is under attack by an authoritarian legislator. Legal method has been a topic of inquiry since antiquity. Quintilian (ad 32–96), in his Institutio Oratoria, states the following about legal interpretation:
Moreover every law either gives, or takes away, or punishes, or commands, or forbids, or permits. It gives rise to dispute either on its own account, or on account of another law; and to inquiries either with regard to its wording, or to its intention. As to its wording, it is either clear, obscure, or equivocal.15
This could be written in a book of legal method of our own time. The topics, the arguments, and the controversies over legal methodology are integral parts of the undertaking of judges and legal scholars.
Many legal issues are framed not as issues of substance but as controversies over which legal method should apply. In American constitutional law, differences in position over constitutional theory, which determines the correct approach to take in the interpretation of the constitution, are a main divide among both scholars and judges. The development of new legal orders like the order of European Union law is accompanied by the development of new or particular legal methods and approaches to interpretation.
In some situations and some legal jurisdictions, there exists a high degree of consensus on the correct legal method. In present-day Germany, most scholars and judges ascribe to the objective approach to interpretation of statutes. In Scandinavia, in the last half of the twentieth century, there was a high degree of consensus around the realist approach to legal sources. In other situations and in other jurisdictions, the situation is more pluralistic and marked by scholarly controversy. This was the situation in Germany at the beginning of the twentieth century, and it is the situation in the US and many other jurisdictions today.
In most cases, the issue of legal methodology is seen as a theoretical question to be debated and resolved through scholarly debate. Arguments employed in this debate are both theoretical, of the kind that “this and that approach increases the rationality of the legal decision-making”, and practical, of the kind that “this and that approach increases legal certainty or justice in the outcome of legal decisions”. This is not the place to go into these debates. It is important to note, however, that the solution of methodological issues is most often perceived as something that belongs to the professional and academic sphere. The legislator seldom gets involved, and if so it is customarily only in particular issues, for example to regulate the relationship between national and international laws.
Notwithstanding the claims of some theories, legal orders can fulfil their functions despite the fact that their judges base themselves on very different approaches to interpretation and legal reasoning. This is true even when there are different competing approaches side by side in the same legal order. Different legal approaches often lead to different legal results. This does not mean, however, that it is perceived that the choice between them should be made on account of the legal outcomes they produce. A choice made on this basis will often be accused of being opportunistic and insincere.
Where academics debate, practitioners employ legal methods as part of their everyday routine. In many cases, the employment of a particular method is not a result of a conscious choice but rather a matter of “doing things as they are done” according to established practice. The reasons for seeing the method as obvious can be a result of legal training, theoretical belief, or just everyday habit and routine. But because legal results often follow from the method employed, the law may be perceived as more binding and less open than it actually is. This is an observation that can be made even if one believes, in principle, in the existence of one correct legal answer. The legal theory of, for example, Ronald Dworkin employs the talents of “Hercules” to arrive at the correct answer. However, since normal judges are not Hercules, they have to make evaluations and estimates. Moreover, these evaluations and estimates may be wrong at the same time as they may be dependent upon choices of methodology.
There is nothing wrong about this situation in law; in fact, it is unavoidable. Since we cannot know the right answer, a conscious debate over what methods to employ is rational and prevents single-mindedness. Even though methodological choices influence and sometimes even determine outcomes, these debates are not inherently political as long as there are no direct relations between methodological choices and political interests. In normal times, predictability will, under some circumstances, favour this interest and, under other circumstances, the other—as is also the case with choices such as subjective, objective, or contextual approach to interpretation of statutes.
Oppression can also be legitimised through a variety of legal approaches and methods. This has led some to assume that there is no connection between legal methodology and contribution to oppression through the law. A more probable assumption is that this situation shows the political side of legal reasoning. Legal reasoning is about different ways of valuating stability and change. Is it also about different appraisals of contextual preconditions, legislative purpose, and legal principles? All these are values inherent in the law, where choices have to be made all the time as part of doing law. Nevertheless, in a situation where the legislator is at war with the rule of law, this choice acquires a particular political dimension the judge cannot avoid. The same is the case in other situations of great social upheaval and change. In such situations, the judge cannot only be a judge but must also make a personal choice. And this choice is an inherently moral choice where the judge is accountable.
Lawyers often frame great political issues as issues of methodology. The revolutionary changes that judges under Nazism brought about in private and civil law were mostly not justified by appeal to the new principles and the Nazi ideology. Rather, more typical was the resort to normal and everyday legal arguments, such as extensive interpretation, analogies, and filling of gaps and lacunae in the law.16