The Democratic Deficit in Judicial Law-Making: Should Judges Consider Public Opinion?

Abstract

It is important in any democratic society that law-makers consider the general views of the public and act in accordance with these. It is widely accepted that by doing so, laws will be made which benefit the majority of New Zealanders. However, the judicial branch of government is not commonly seen as a law-making body. As such, they usually fail to defer to public opinion, because their decisions do not have the effect of making new law. Judges merely apply the current law. It is often argued that the judiciary should have more power to create law, as they can protect minority rights and provide a more effective check on the supreme power of Parliament. This paper looks at various situations where judges could have more authority to make law. Emphasis is placed on controversial human rights issues. However, if we accept judges could have more law-making power, this raises a fundamental issue: What role should public opinion play in a reformed system? This paper focuses on the main arguments for and against judicial consideration of public opinion when judges are essentially making new law. It is ultimately concluded that judicial law-makers should consider public opinion as one of many relevant factors only in cases where the outcome has a law-making consequence that will affect a substantial portion of society. This restrictive outcome preserves the traditional role of the judiciary as a protector of human rights.