The widespread assertion that judges lack democratic legitimacy by virtue of their unelected status is both conceptually and constitutionally fallacious. Democratic legitimacy is neither singular nor reducible to mere electoral representation.
Rather, in any mature constitutional order democracy is co-constituted by both the legislature and the judiciary through complementary principles of efficacy and equality; through both representation and justice. An independent judiciary is not a democratic anomaly. It is a fundamental democratic necessity.
It has become a trope, invoked with easy confidence, that judges, being unelected, operate without legitimacy. This belief holds that legitimacy in democratic systems is the exclusive preserve of institutions selected through electoral mechanisms.
However, such a view is based on a conception of democracy that is at once historically narrow, analytically flawed and constitutionally impoverished. It also displays a profound lack of appreciation for the principle and purpose of the separation of powers.
Democratic legitimacy is not a singular currency distributed only at the ballot box. It is a composite good, constituted through multiple institutions. The terms of this debate need then to be recast by asserting a more pluralistic and functionally coherent model of democratic authority, one that recognises the interdependence of legislature and judiciary and locates judicial legitimacy not outside but within constitutional democracy.
The fetish that insists electoral selection is indispensable to legitimacy betrays a failure to distinguish the electoral process from its constitutional purpose. Democracy does not reside in ballots alone, but in the rule of law. It resides in the equal application of rules, and in the institutional design that renders political power answerable to normative constraint. SA’s so-called “chapter nine” institutions are further evidence of this.
The conduct of free and fair elections, while fundamental, is not a sufficient condition for a political order to be properly called democratic. We are reminded of this by the performative “democracies” of numerous authoritarian states. Nor are free and fair elections a necessary condition for democracy given that referendums, citizen assemblies and even mechanisms electing representatives through lotteries can embody participatory legitimacy.
If democracy is to mean government by discussion under law, rather than merely government by numbers, then an appreciably wider understanding of legitimacy is required. It has to be one that encompasses both responsive representation through elected bodies and independent adjudication through independent courts that sustain the rules of societal engagement.
The notion that courts derive their legitimacy merely as institutional appendages of an electoral framework is untenable when subjected to substantive analysis.
The judiciary’s function is not representative in the same manner as is the legislature’s, but it is representational in a broader democratic sense. It actualises and equalises the application of law, in turn legitimising the legislature’s conduct. The foundation of the courts’ legitimacy is thus anchored in two principles:
- Efficacy. In the absence of interpretation and application a statute is inert. Text without adjudication is merely a type of cipher. Law must be rendered operational by institutions capable of determining its meaning with authority and impartiality. Judicial interpretation is not an act of usurpation but the mechanism through which parliament’s will acquires legal force. Judicial interpretation is therefore not a constraint upon legislative sovereignty. It is its consequence and its condition.
- Equality. Law that is not applied equally is not law, but discretion masquerading as principle. Only an independent judiciary, unmoored from the shifting sands of political preference, can ensure the equal application of rules to all legal subjects. Without this the very notion of legal rule dissolves into arbitrary tyranny, and the democratic ideal of political equality collapses.
These principles do not merely bolster the legitimacy of the judiciary, they are prerequisites for the democratic legitimacy of the legislature itself. A parliament whose laws cannot be applied effectively and fairly has lost its claim to govern through the constitutional principles of the rule of law. Thus, without courts ensuring equality at law, those treated unequally by the law become entitled to question the legitimacy of the legislature itself, and the edifice of democracy collapses.
It is time, then, to retire the simplistic binary argument between “democratically elected” and “undemocratically appointed”. Instead, we must recognise the role of three distinct yet overlapping forms of legitimacy:
- Responsive legitimacy, grounded in electoral accountability.
- Independent legitimacy, grounded in impartial adjudication.
- Shared legitimacy, arising from the functional and constitutional interdependence of representative and adjudicative institutions.
In this light, the claim that judges lack democratic legitimacy because they are unelected collapses under scrutiny. The better view is that judges derive their legitimacy from the very role they play in sustaining the conditions of democratic governance through upholding the rule of law, ensuring equality before the law, and securing the consistent and effective operation of legal norms.
To assert that majority decision-making is the best expression of equal respect, is to conflate procedural fairness with substantive justice. While majority rule may be a plausible method for aggregating preferences, it is not self-justifying.
Democracy cannot merely be the rule of the majority; it must also be the rule of rules, and that requires judicial institutions capable of enforcing legal limits on power, however popular that power may be.
The recurrent theme that “judges are unelected, therefore undemocratic” is not merely misguided, it is corrosive. It erodes public understanding of constitutional democracy and undermines the institutional pluralism upon which democratic stability depends.
Judges are not the enemies of democracy, nor are they its custodians alone. They are coequal participants in a shared constitutional enterprise, without whom the legislative will could not be given principled and equal effect.
To defend the democratic legitimacy of the judiciary is not to elevate judges above politics. It is to locate them properly within the constitutional fabric that makes politics accountable to law. It is not merely that democracy must be protected by law; it is that authentic democracy is law-bound governance, and the judiciary therefore a vital pillar of that democracy.
The role of the judiciary in genuine democracies, guaranteeing an unbiased assessment independent of political processes, is therefore not aberrant, it is indispensable.
• Dr Benfield, a retired Wits University economics professor, is a senior associate and board member of the Free Market Foundation.
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