Judiciaries

Abstract

The discussion in the last chapter illustrated the difficulty of confining bureaucracies to the function of implementing policy as opposed to policy-making. Likewise, in a discussion of the courts in modern political systems, it is impossible rigidly to distinguish between interpreting rules and making them, between rule-making and rule adjudication. It is sometimes convenient to separate different political structures, but this separation can be artificial, and it is often dictated by political patterns found in liberal democratic systems. Administrative courts and administrative tribunals have emerged increasingly in modern political systems,1 and these institutions prevent an inflexible dividing line being drawn between administrative and judicial structures. This is also true of the whole legal system: judges and courts of law are significant aspects of the total political process, and a distorted view of that process would result if there were too crude a separation of functions. Robert Dahl has argued this point strongly: ‘To consider the Supreme Court of the United States as a legal institution is to under-estimate its significance in the American political system. For it is also a political institution, an institution, that is to say, for arriving at decisions on controversial questions of national policy.’2 The American Supreme Court was the pace-setter in the 1950s and 1960s on important political questions such as civil rights, with the presidency and the Congress alternating between periods of inaction and reluctant following of the political lead established by the Court in such controversial areas.