File spoon-archives/marxism-thaxis.archive/marxism-thaxis_1998/marxism-thaxis.9803, message 946


Date: Fri, 27 Mar 1998 16:10:16 -0500 (EST)
From: Justin Schwartz <jschwart-AT-freenet.columbus.oh.us>
Subject: Re: M-TH: Tyranny of the Majority (Charles Brown)


On Fri, 27 Mar 1998, boddhisatva wrote:

> 	I find your reasoning confused.   If you remove judges form the
> electoral process entirely then they become extensions of the executive.  In
> that case, Heartfield's objections are more correct.  European democracy is
> structurally unsound.  Do you want investigating magistrates too?  How about
> Napoleonic code?

This is confused. It is a false dichotomy. It is not the case that the two
alternatives for a place in the government are the legislative and the
executive. There is a co-equal branch called the judiciary. Would you say
taht the appointed, life-tenured federal judiciary we have in America is a
branch of the executive? I think most judges would take strong exception
to that. The executive would be surprised too. Eisenhower used to say that
his two worst mistakes were both on the Supreme Court (Warren and Brennan). 

I have stated that I would not impose a civil law model on a country with
a common law tradition. As fara s I know, which isn't very far, the civil
law model works OK in Europe and it seems to be an acceptable form of
legal procedure for a relatively free society. But so is the common law
system, which strikes me as on the whole good in principle. However, I
think the judiciary should be insulated from pressure from the executive
and the legislature as well as from the pressures of electioneering and if
I thought it was worth arguing about,w hich I do not because it is not
going to happen, I'd suggest that a piece of the civil law model, namely
the civil service judiciary, was a good way to achieve that.

> 	The fact that the supreme court takes few cases is not entirely
> relevant.   They are entirely different from other appeals courts, as you
> know.

It is revelant to the point that I was making, which is that it provides a
very slender protection from errors in the appeals courts and the state
courts.

--jks




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