Tag Archives: Separation of Powers

Statism and Judicial Activism

Statism and Judicial Activism

By Duncan Whitmore

In a previous essay concerning the Supreme Court’s judgment against Boris Johnson’s decision to prorogue Parliament1, we noted that several commentators had criticised the judgment for its “political” nature, calling for greater scrutiny of the judiciary and the judicial appointments process.

It will be argued here that castigating the case as the moment when the judges crossed over from law to politics is wide of the mark, and that a politicised judiciary is a necessary and unavoidable outcome of the growth of democratic statism. As we shall see, this is a trend which Britain has endured for around a hundred years (with an acute acceleration in the post-war era). Consequently, the only way to ensure a relatively impartial, apolitical judiciary is to roll back the size and scope of the state.

The Judiciary in Political Theory

The state’s power of adjudication receives relatively little attention in everyday political discourse. Nearly all of the headlines are attracted by what the executive and the legislative spheres of the state – Presidents, Prime Ministers, parliaments, and so on – are up to rather than the wigged magistrates presiding over dark, dusty courtrooms.

One reason for this is that the non-judicial state institutions have a greater scope to act unilaterally. The government can announce initiatives and Parliament can enact laws without the need for any outside stimulus. The courts, on the other hand, are in the position of having to wait for a case to come before them, i.e. for people to find themselves in an active conflict with other people. The direct outcome of such a case may impact upon only a handful of participants and, even if the principles under scrutiny are far reaching, the judges may rule only on a single specific point at any one time. Moreover, the prevalence of democracy focuses discussion of your political rights on your ability to vote in elections which, in most cases, is not the method of selection for the judiciary. Participation as a jury member is, to be sure, viewed as a civic duty also, but this may occur only a handful times during a person’s life, and direct involvement in a court case as one of the litigants is even less likely. Thus, the perception that the judiciary has a relatively diminished ability to touch everyone’s lives has lent them a degree of remoteness compared to other organs of the state. Read more

Church, King and State – Decentralisation and Liberty

Church, King and State – Decentralisation and Liberty

By Duncan Whitmore


It scarcely needs to be said that life as a libertarian theorist and political activist is an often isolated and lonely existence. Even though we often have the evidence to illustrate that we are correct, our ideas are ridiculed, if they are ever listened to in the first place. While “free-marketism” from the point of view of generating “economic efficiency” enjoys a seat at the table of the mainstream and may, depending upon the circumstances, disseminate views which are taken seriously by the highest echelons of government, radical libertarianism does not. We are a bare minority of extremist nutcases, deluded by the romantic fairytale vision of the industrial greatness of the nineteenth century, the reality of which, we are told, meant spoils for the rich and destitution for the masses. Our intellectual heroes are derided as dogmatic crackpots who would do away with all of the civilising achievements of our social democratic world order and consign us all instead to a vigilante society reminiscent of the “wild west”.

Having said of all of this, the endeavour to justify libertarian principles is only a small part of the battle. In fact, the biggest difficulty in such justification is not in crafting high quality arguments that will consign statism and socialism to the intellectual rubbish heap. Rather, it is the fact that the die is so heavily weighted in favour of statism, and that the willingness to accept any kind of confirmation bias, however minute, for the status quo is so eager, that even if one was armed with a fortress of insurmountable libertarian arguments the debate could still be lost. No doubt many libertarian has been in the position of having taken a horse to water only to find that he will not drink – and that, sadly, we must be prepared to wait for him to realise that he is dying of thirst. Read more