Bad Laws Make Bad Judges

Robert Bork warns that judicial activism is going global. He doesn't know the half of it.

Issue: Spring 2004

Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges (Washington, DC: AEI Press, 2003), 161 pp., $25.

Judges, according to Robert Bork, are increasingly usurping authority that belongs to the people and their elected representatives. This usurpation, Bork fears, is robbing Americans and the citizens of other democratic countries of the power to govern themselves. Certainly, the proper functioning of the rule of law is of immense importance in any democracy. How the law is developed and applied defines our individual liberties, protects or limits our political freedom, influences the moral tenor of our society, and shapes the character of our nation.

Robert Bork is right. In democracies--even the best and well-established ones--the functioning of the law is deteriorating. But the rule of law is a process with several tiers and many moving parts. Different bodies either institute the fundamental legal framework, or spell out specific laws, or write the subordinated rules, or apply this ever-growing artifact to specific cases. That those who apply the law from case to case ought to have considerable independence from those who create and enact laws has been part of democratic thought, thanks to Locke and Montesquieu, long before our body politic accepted the principle of universal suffrage.

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