Obviously this is not the most scintillating of topics for a midweek column, but I’ve been thinking about the point at which court decisions and public opinion intersect.

This was sparked off by a debate I had with a couple of lawyers sometime ago (Needless to say, a group of lawyers in the same room would debate pretty much anything given the chance) .The particular subject that inspired the debate is not important for the purposes of this article, but it did raise several interesting questions.

The question at the core of the discussion was: how closely should courts follow public opinion when making important judgments? Obviously in your typical case, public opinion is irrelevant as the facts speak for themselves and judges need to follow the law irrespective of what people think.

However what we were discussing was not a typical case at all and the legal foundations on which the case was built were shaky. It also concerned cultural norms and whether a group of people had the power to interfere in the private arrangements of individuals of their clan or their religious group.

Several people were quite adamant that the courts could not make judgments in a vacuum-they had to reflect the will of the people and the prevailing standards of society. People don’t elect judges, but to all intents and purposes they represent them in the dispensation of justice.
According to this argument, cultural norms-whether legislated for or not-should be respected by courts as long as they are not against the law or flagrantly immoral according to current standards.

Courts should be a sort of mirror of society even if this may result in the restriction of certain people’s rights. Someone argued that such an approach was especially important for the developing world at a time when ‘westernization’ is encroaching on cultural values. 

This view is more of a society-based one as opposed to the more Western notion of starting from an individual’s rights as the default mode. It could be said that if certain important cases have little legal guidance to help judges, then the judges should apply the ‘average man’ test.
It was a seductive argument- and the speaker’s state of inebriation didn’t do too much damage to his eloquence on the subject. However it had enough holes in it to prompt serious opposition.

For starters, how exactly does one determine the will of the people? You can’t exactly start running an opinion poll every time a very sensitive case comes up. And even if you have the relevant stats, at what point is ‘the will of the people’ triggered? And if the will of the majority is out of step with modern notions of legality and morality, should courts be required to pander to them?

And it’s hard to forget that courts ‘going rogue’ have produced some of the most important cases in the modern age. If public opinion was an overriding factor in these kinds of situations, America wouldn’t have had cases like Brown v Board of education which desegregated schools and allowed black pupils to study alongside their white counterparts.

Perhaps it is the role of courts to rise above things like public opinion. One could argue that the judiciary shouldn’t be seen to be molding itself after Tusker project fame.   If there are no clear legal provisions or precedents affecting an important case in the courts, the judges shouldn’t be afraid to incur the wrath of the public and make unpopular rulings.

Even if a certain case has legal backing, judges can always rule it unconstitutional.
But whichever way you cut it, courts will always find themselves in a difficult position. As Otto Von Bismarck is alleged to have said ‘laws are like sausages- it is better not to see them being made.’

Courts don’t make laws- the legislature does- but their application and interpretation of the law keeps them within Von Bismarck’s dictum. It is always going to be a messy affair.

minega_isibo@yahoo.co.uk