Since the Paris Commune the demand for “People’s Courts” has been a fairly standard inclusion in any radical Marxist (and pseudo-Marxist) revolutionary programme. Taken beyond the point of pure rhetoric the adjective “People’s” tended to signify a demand for the election of judges and magistrates (and potentially all other sorts of court officials as well). This demand seems radically democratic enough, certainly judges hold power, are unelected, tend to represent the interests of the status quo, often (but not always) exercise reactionary agendas and are to a great extent unaccountable to anyone outside the judiciary.
A more common demand these days, one which has found its way into the manifesto of the Conservative and Unionist Party, is the demand for democratically elected police commissioners. The election of police commissioners will make the police more accountable in their actions to public (and hence political) pressure, although the powers of police commissioners to influence police tactics shouldn’t be over stated (they’re unlikely to be able to stop the local police forces from doing anything if they aren’t willing to cooperate). This seems all very positive and an unusually democratic measure for the Tories to adopt, but there is another side to all this: the election of police commissioners will make the police more accountable in their actions to public (and hence political) pressure.
The threat of the BNP (or their watered-down kin in the English Democrats or some other far-right reactionary group) getting a candidate elected and thus gaining considerable influence over policing policy is both real and disturbing. The same problem holds true for democratically elected court officials, even without the threat of the BNP, it’s not hard to imagine some “tough on crime”, “throw away the key” hanging judge getting elected amidst a tabloid frenzy.
These are specific examples of what many political theorists would consider the fine balance between democracy and the rule of law. If we take democracy to far, they say, we will have mob rule. Even civil liberty campaigner Shami Chakrabarti of Liberty, on the BBC’s Question Time two weeks ago, highlighted the Tories’ plans for elected police commissioners as a great threat to civil liberties which must be opposed.
The problem with allowing any state power to be exempt from the democratic principle, in the name of “the rule of law” or “civil liberties” or any other cause (admirable or otherwise) is that such power is rarely neutral. The armed wing of the state and its judicial legitimiser can hardly be considered institutions which are truly politically neutral, and their unchecked power cannot be left exempt from any serious socialist political programme.
Democracy means the politicisation, or rather it means unveiling the already politicised (and one-sidedly so) nature, of the institution in question. Whatever potential problems may arise within this framework it is now exposed to political pressure from below, which in the long run is infinitely preferable to a self-selecting judiciary.