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Harnay, Sophie --- "Democracy, citizens and judicial power: do judges contribute to democracy?" [2005] ELECD 110; in Marciano, Alain; Josselin, Jean-Michel (eds), "Law and the State" (Edward Elgar Publishing, 2005)

Book Title: Law and the State

Editor(s): Marciano, Alain; Josselin, Jean-Michel

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781843768005

Section: Chapter 9

Section Title: Democracy, citizens and judicial power: do judges contribute to democracy?

Author(s): Harnay, Sophie

Number of pages: 14

Extract:

9. Democracy, citizens and judicial
power: do judges contribute to
democracy?
Sophie Harnay*

1 INTRODUCTION

A democracy can be defined as a regime in which citizens, because they are
considered as the source and origin of power, choose more or less directly
their representatives or public policies. Thus, in terms of agency theory, a
democracy can be depicted as a regime in which the citizens, namely the
principals, delegate tasks and responsibilities to some elected agents. An
ongoing and important process of delegation of power has resulted in the
increasing role that non-elected, also named non-majoritarian, institutions
play in democratic regimes. In addition to positive justifications and explan-
ations that it receives (see, for instance, Voigt and Salzberger 2002), such a
phenomenon raises important normative questions. What is at stake here is
the control of the behaviour of these non-elected and non-majoritarian
`agents' and the subsequent legitimacy of the decisions they make. If one
takes into consideration that exit is a costly way to express oneself and voice
(for instance, through vote) is ineffective on non-elected agents, the ques-
tion is then how citizens give their consent to the decisions made by those
non-elected agents?
The question has a particular flavour when it involves judges, who are,
among the many groups of non-elected agents granted with a non-
negligible rule-making power, the ones who create the biggest problems.
This is clearly illustrated by the debates about the legitimacy of the choices
made ...