A court with a mission is a menace, a supreme court with a mission is a tyranny
Think of some of the more bizarre interpretations that have come out of the European Court of Human Rights. How does the ‘right to a family life’ allow illegal immigrants to defy deportation orders? How did ‘freedom of expression’ come to encompass pornography in prison cells? How does the prohibition of torture mean that a state can’t repatriate foreigners to places where they won’t be tortured, but someone else might have been?
Whatever the rights and wrongs of such rulings, they are plainly political rather than legal. You can make a case that, for example, felons should not lose the right to vote. But if that is your view, you should stand for election and seek to alter the legislation. The objection to the ECHR is not that all its judgments are idiotic – though some of them are – but that it is behaving as a legislative rather than a judicial body, ruling on the basis of what it thinks the law ought to say rather than what it says.
One of the reasons it does so is that it isn’t staffed by judges – not, at least, as we understand the term. Like its cousin, the European Court of Justice, it doesn’t require its members to have served on the bench in their home countries. Many of them are academics, politicians and human rights activists who happen to have law degrees. And some are quite blatant about using the institution to advance an agenda that would be rejected at the ballot box.
Consider Britain’s new representative, Paul Mahoney. James Slack describes him as ‘A Eurocrat who has never been a judge in Britain’: for 30 years, he has worked within the Strasbourg system.
Like his predecessor, Sir Nicolas Bratza – though in more measured words – he cheerfully admits that the ECHR makes things up as it goes along: ‘The open textured language and the structure of the Convention leave the Court significant opportunities for choice in interpretation. In exercising that choice, particularly when faced with changed circumstances and attitudes in society, the Court makes new law.’
Changed attitudes, eh? As defined by whom? Not, obviously, by the electorate as a whole, or the law would have been altered. But you, the ECHR, somehow have a direct connection with ‘attitudes in society’ that elected representatives have not? And you’re absolutely certain that these attitudes represent society as a whole, not just the opinions you get from Guardian leader-writers and Matrix Chambers activists?
The odd thing is that the autocracies which were defeated in 1945, and whose re-emergence the ECHR was supposed to prevent, likewise justified themselves by arguing that they had a better sense of the people’s welfare than a parliamentary system would produce. The whole purpose of representative government is to ensure that our rulers don’t get to decide, on their own, what’s good for us. It’s hard to improve on C.S. Lewis:
Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.
Source: blogs.telegraph.co.uk
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