What Rule of Law and Separation of Powers?
The written constitution of any democrartic country is underpinned by these fundamental doctrines. Be you never so high the law is above you – these words were famously uttered by Thomas Fuller. But the question that this necessarily begs is – What is above the law? Afterall in many countries the idea of an independant ideal of law is nonsense. Law is nothing more than the handmaiden of politics and we create wonderful institutions and devise elaborate rituals to mask this reality.
Wherein political power resides, therein lies the answers to all questions that have a legal-poltical character. It is useless to try an rationalise it in any other way. Law is ultimately a means to an end within most legal systems UNLESS judges perceive their roles as something distinct and independant from politics. Paying lip service to the doctrine of separation of powers and citing it to make decisions of a political character more palatable – is not what I mean by an independant judiciary.
“Judges rule on the basis of law, not public opinion, and they should be totally indifferent to pressures of the times.” – Judge Warren E. Burger