XXV — Giving justice back to the people
Chapitre XXV
GIVING JUSTICE BACK TO THE PEOPLE
Justice is a sovereign function. The State holds the monopoly on legitimate violence, and justice is the instrument by which this violence is regulated. But judges must be neither appointed by the executive branch, nor co-opted by their peers. They must answer to the people.
25.1 — Judges and Magistrates Are Elected
All judges—from local courts to the supreme court—are elected by direct suffrage, one person one vote. Justice touches everyone’s fundamental rights. The poor and the rich have the same interest in judges being competent and honest. Equal suffrage is the rule.
25.2 — Guarantees of Independence
Election does not mean submission to public opinion. Terms are long (for example, 10 years) to protect judges from short-term pressures. Judges cannot be recalled through the permanent recall mechanism—judicial stability demands it. Only an impeachment procedure for serious misconduct, voted by the Senate with a qualified majority, can end a term early.
25.3 — Civil Liability of Magistrates
A judge who commits a serious fault—manifest judicial error, corruption, denial of justice—can be sued civilly. Accountability exists, but it is regulated to prevent judges from being afraid to judge.
25.4 — Case Study (Empirical Example): Judicial Elections in the United States (1832-present)
The United States is the only developed country where judges are massively elected. 39 of 50 states use some form of election for at least some of their judges [121][122]. This system, born in the 1830s with Jacksonian democracy, offers a unique precedent for evaluating the advantages and risks of elective justice.
What Worked
Democratic accountability. Judges answer to voters, not to the executive who would appoint them. A judge perceived as corrupt or incompetent can be defeated in the next election [121].
Increased diversity. States with elections have more minority and female judges than states with appointments. Election opens the judiciary beyond traditional networks [122].
Popular legitimacy. Elected judges can claim a popular mandate. Their authority does not depend on the goodwill of a governor or president.
Transparency of positions. Electoral campaigns force candidates to clarify their judicial philosophy. Voters know (more or less) what they are choosing.
Lasting system. For nearly 200 years, the system has functioned without judicial collapse. States with elected judges are not worse governed than others.
What’s Problematic
Campaign financing. Judicial elections are expensive. Studies show a correlation between campaign contributions and favorable decisions for donors [123]. “Justice for sale” is a recurring criticism.
Politicization of courts. In the 22 states with partisan elections, judges campaign with a party label (Democrat/Republican). Judicial neutrality is compromised by political affiliation [121].
Popular pressure on decisions. Judges close to reelection tend to hand down harsher sentences in high-profile criminal cases [123]. Fear of “appearing soft” influences decisions.
Low voter turnout. Judicial elections attract few voters (often <20%). Results reflect mobilized activists, not general opinion.
Competence not guaranteed. Election does not filter legal competence. A charismatic but mediocre jurist can beat a discreet expert.
What We Keep from the American Model
- The principle of electing judges by direct suffrage
- Accountability: judges answer to the people
- The democratic legitimacy of the judiciary
- Opening the profession beyond co-optation networks
What We Improve
- Very long terms (10 years): protects against short-term electoral pressure—American judges often have 4-6 year terms
- No permanent recall for judges: only impeachment for serious misconduct is possible—avoids continuous pressure
- Equal suffrage only: justice touches fundamental rights, not budget. No census vote for judges
- No political campaign financing: parties do not fund judge-candidates
What We Don’t Keep
- Partisan elections: no party label for judge-candidates
- Expensive electoral campaigns: regulated and limited financing
- Short terms: our system uses long terms for independence
- Easy recall: judges are not subject to permanent recall