Polity

IN COUNTRIES WITH A WRITTEN CONSTITUTION, the reach of judicial power is almost unlimited—it is only in the wisdom of its exercise that the balance of a written constitution is maintained.

Judge Thijmen Koopmans from the Netherlands—a judge reared in the civil law—was once asked how it was that in its interpretative role, that great transnational court on which he sat (the European Court of Justice) had gone much further than the text of the Treaty of Rome, which established that court. The answer he gave was disarmingly frank. He said:

What the Luxembourg Court has done is a common phenomenon of all courts, national and international. There is a natural tendency for judges to write a larger role for themselves.

In the common law world, too, this form of "judicial activism" is evident—prompting one of England's leading lawyers, Lord Anthony Lester, to suggest that the hackneyed phrase, "power corrupts and absolute power corrupts absolutely", should be adapted by today's judges as: "Judicial power is wonderful, and absolute judicial power is absolutely wonderful." However, only some English judges, not all, actually subscribe to this exaggerated concept of judicial supremacy.

On the other side of the Atlantic, in the United States, another great common law country, there is a more marked separation of powers. The modern democratic world's oldest court, the US Supreme Court, has a record of longevity (of over 200 years) but its reach is constitutionally limited: not all matters can come before it. Injustices persist because finality is given to the decisions of state and federal courts, and the writ of the Supreme Court is not all-encompassing. As one of the judges of that court once said, "the important thing we do in this place is—not doing".

In India, high court chief justices gathered in January 2001 for a conference headed by the country's chief justice. There, chief guest Prime Minister Manmohan Singh voiced his concerns about what he described...