Dissertation Proposal: A Brief Summary

Pursuant to my review of the extant literature on (i) how and why the judiciary emerged

as a specialized branch of government, historically and instrumentally; and (ii) judicial

legitimacy, in terms of both its sources and significance, I shall attempt to argue that

states purporting to govern under the ‘rule of law’, in essence, ground their claims to

authority on the basis of legality alone (and not based on coercion, sanctions, or

violence). In this regard, the lack of popular consent for judicial office is inherently

problematic, over and above the issue of judicial review1. As members of a coordinate

branch of government, unelected judges lack accountability even in their regular

adjudicatory tasks (i.e. litigation involving binary disputes between private citizens).

Thus, I define ‘counter-majoritarianism’2 broadly, and attempt to show that, from the

public’s perspective, the absence of: (i) direct control over the functioning of judges; and

(ii) power to review judicial performance periodically, and, if necessary, remove such

functionaries from office, as applicable with other branches of government, creates a

crisis of legitimacy in principle. This crisis has implications not just on the status of the

judicial branch, but upon the state itself that establishes its existence on the rule of law

(not force).

Most scholars point to technical expertise or public support (or both) in defence of

judicial legitimacy. Some others, albeit specifically in the context of judicial review,

justify counter-majoritarianism (narrowly defined) in normative terms, using rights-

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Review by the court of the constitutional validity of a legislative act.
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The imputation that in democracies, judicial review is a deviant institution because it enables an unelected
judiciary to override the majoritarian will of the people represented through elected legislatures. This idea,
made popular by Alexander Bickel’s The Least Dangerous Branch, deals with the implications of judges
declaring a law made by an electorally-constituted branch void on account of unconstitutionality

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based or process-based arguments. Yet others use justificatory theories grounded in the

constitution, extending notions of originalism and textualism to support their claims.

Selectively borrowing from such normative paradigms, and fusing the filtrate with a

separate strand of scholarship that discusses the ‘holy symbols’ of Constitution and

Court, I try to locate the institutional sanctity of judicial office from the constitutive

document itself.

This line of scholarship deals with judicial mystique, the ‘myth of legality’, and the

extensive use of symbols, ritual, and metaphor embedded within the adjudicatory

process. Some scholars suggest that socio-anthropological residue from ecclesiastical

and the ‘magical’ antecedents of modern (secular) law, as well as the dramaturgical and

‘performative’ aspects in judicial practice, address Man’s psychological need for

certainty in an inchoate normative universe. In addition, courts derive legitimacy from

the sacramental aspects of the constitution, and thus, merge the ‘majesty’ and rituals

associated with their office into the canonical ‘sacred text’. Certain other writers claim

that judicial language, legal reasoning, and ‘canons of statutory interpretation’ bear an

uncanny resemblance to the cosmological and ontological proofs of ‘God’. Whether

deliberate or accidentally anachronistic, one could argue that such phenomena induce

reverence for, and augment the mystical prestige of, robed judges, especially in respect

of the ceremonial and ritualistic aspects of their office.

Nevertheless, these arguments, other than suggesting some esoteric justifications for

judicial legitimacy, are somewhat esoteric themselves in design. Yet, several other

theorists, in defence of their own treatises on jurisprudence, have indicated that technical

expertise, as a basis for judicial legitimacy, is a difficult value or ‘skill’ to convey to non-

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specialists. Thus, in order to convince a largely ignorant public, it is necessary for courts

to use the power of familiar symbols, ritual, and metaphor. While technical specialization

must be coupled with enduring public support to increase judicial power, the institutional

legitimacy of the judiciary must be derived from a combination of constitutional

entrenchment and sustained reverence for its office.

Empirical data in respect of public support for judges is mixed. Advanced western

democracies (e.g. the U.S.) generally show high levels of diffuse support, especially

through modern ‘scientific’ polling techniques which make public opinion concretely

measurable. Other countries, including some in Central and Latin America, show

markedly lower levels of support. Nevertheless, without formal accountability, public

support for judges by itself does not provide evidence of either legitimacy or democratic

pedigree. My hypothesis rests on the assumption that: (i) Political theory, in and by itself,

highlights the limitations of a separation-of-powers model, whereby the only way to cure

the legitimacy deficit in (western or western-based) liberal democracies is to elect all

judges; (ii) The notion of a government based on ‘rule of law’ purportedly confers

binding authority upon a coercive state; but, (iii) Traditional theory alone cannot explain

the true institutional legitimacy of the judicial branch.

Ultimately, resort must be had to the underlying metaphysical, historical, and

psychological aspects of the public’s relationship with the law and its appurtenant

custodians. The transformative elements of the litigation process, including the

transcendental features of judicial language and comport, the forced sanctity of a

courtroom setting, the solemnity of adjudicatory proceedings, and the legacy of precedent

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and timeless custom, all contribute towards the innate social demand for ceremony, ritual,

fixedness, and belief, similar to the demands from religion.

According to some political theorists, legislatures and parliaments, despite being elected

bodies, are viewed negatively by the public on account of the rough-and-tumble and

‘messiness’ of democratic processes. Other literature suggests that even when politicians

(i.e., democratic representatives) follow constitutional procedure, they fail to secure such

levels of public approbation that judges do. Part of the explanation may lie in the manner

in which the public perceives, and the media represents, their respective operations (i.e.,

of the judicial and political branches, respectively). The media is known to emphasise

unruly democratic proceedings over political manoeuvrings, if any, in respect of judges.

In addition, press accounts of court decisions usually follow a measure of formality, in

stark contrast to sensationalist coverage of the elected branches. Public awareness of the

judiciary, thus, is mediated by intervening filters as above, leading certain important

cross-sectional studies of public opinion to conclude – “to be aware of a court is

tantamount to supporting it.” This positive bias may be linked to the public’s familiarity

with the legitimizing symbols that all courts carefully maintain and promote.

Finally, there remains the question of transmitting such symbols among the general

public. This exercise is the crucial link between (a) maintenance of public reverence for

the constitution and the court’s stature, on the one hand; and (b) ensuring public approval

and support on a continuing basis, on the other. The paradox of balancing two dissimilar

objectives, especially from the pulpit of judicial office, implies that judges cannot achieve

both. They are prevented from resorting to ‘political behavior’ in the way professional

politicians are not, especially during election campaigns. At the same time, certain

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populist judges who have used media and public platforms, speeches, etc., have

undermined the status of their office, at least in terms of the public’s perception thereof.

While not burdened with the pressure of elections (with some exceptions, e.g. certain

regions in the U.S. require state judges to be elected), the judicial institution as a whole,

I argue, develops a consciousness of self that causes it to seek the preservation of ‘higher’

authority. In other words, while judicial power does not depend on the ballot-box, it relies

on perpetuating the ‘myth of legality’ and the ‘sacred’ symbols of its office that account

for prestige and public respect. These are the very factors, I argue, that account for

legitimacy, and must be propagated among members of the general public, whether

litigants or not.

However, judicial activity, by its very nature, precludes public outreach. Accordingly,

judges rely on agents of ‘myth’ transmission, typically those included within the

‘interpretive community’ of which judges themselves are an integral part. The obvious

candidates for such agency are lawyers, scholars, public intellectuals, reporters, and legal

experts. On account of their own expertise in the law, such agents are able to sustain the

salience of judicial symbols among the wider public. Lawyers, especially, are the primary

intermediaries in respect of the public’s relationship with the law. On account of

widespread ignorance about legal process and procedure, the general population relies

on lawyers to interpret the allied implications of their disputes, and in the course of this

exercise, the symbols of judicial infallibility are dispersed.

Besides lawyers and other legal practitioners, a wide range of actors inhabit the juridical

ecosystem, including repeat litigants, courtroom staff, bailiffs, registrars, clerks,

paralegals, and allied professionals. It is typical for members of the public to share a wide

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interface with such ‘minor’ actors in and around the courtroom environment, rather than

with judges themselves. Thus, I shall attempt to trace and analyse such interactions,

including those where court-related procedures invoke the ‘majesty’ of the law

(demanding ritualistic routine and performance), thereby indoctrinating the public in the

‘cult’ of legal process, much like organised religion does. Using extant scholarship on

symbolism and myth-formation, I shall ultimately seek to analyse the cultural nodes,

channels, and causative folkways through which the ‘myth of legality’ is transmitted and

sustained.