Bad laws make bad judges.

• Author: Ikle, Fred C.
• Position: Book Review

Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges (Washington, DC: AEI Press, 2003), 161 pp., $25.

JUDGES, according to Robert Bork, are increasingly usurping authority that belongs to the people and their elected representatives. This usurpation, Bork fears, is robbing Americans and the citizens of other democratic countries of the power to govern themselves. Certainly, the proper functioning of the rule of law is of immense importance in any democracy. How the law is developed and applied defines our individual liberties, protects or limits our political freedom, influences the moral tenor of our society, and shapes the character of our nation.

Robert Bork is right. In democracies--even the best and well-established ones--the functioning of the law is deteriorating. But the rule of law is a process with several tiers and many moving parts. Different bodies either institute the fundamental legal framework, or spell out specific laws, or write the subordinated rules, or apply this ever-growing artifact to specific cases. That those who apply the law from case to case ought to have considerable independence from those who create and enact laws has been part of democratic thought, thanks to Locke and Montesquieu, long before our body politic accepted the principle of universal suffrage.

However, the gravamen of Coercing Virtue is targeted on the occupants of the third branch of government, in particular Supreme Court judges who wear the label "liberal" on their sleeves. By imposing the agenda of the liberal Left, Judge Bork writes, "activist, ambitious and imperialistic judiciaries" have taken sides in an ongoing "culture war", diluting "the power of the people of Western nations to govern themselves." Other scholars and politicians have voiced similar complaints, but Bork commands our renewed attention with his supreme mastery of jurisprudential reasoning, his deep-felt moral concerns, and his compelling style. Although Bork hints that the executive and the legislative branch ought to be kept in mind as possible co-conspirators, he focuses mainly on the judiciary. Implicitly, he thus exempts the other two branches of government from his indictment.

This narrow focus, in my view, does not give enough attention to the many interactions between the judiciary and the other parts of the Western rule of law. More importantly, it overlooks a variety of remedies that could mitigate the deterioration of the rule of law. For a prosecutor who must wrestle with a complex conspiracy, it might make good sense to start his case by singling out just one of the accused, preferably the least powerful one. This approach wakes up the jury with a dramatic initial salvo. But unless followed up with the rest of the case, it can be dangerous. Children in summer camp sometimes play the game of holding a magnifying glass to the sunlight so that the focused heat will burn a carbonized dot into a white page--and if they keep this game going they will set their tents afire.

Given the many strengths of Coercing Virtue, one is tempted to urge Judge Bork to write a follow-on book that will present the remainder of his important case on the deterioration of the rule of law, at home and abroad. Here is a short sketch by a jurisprudential layman of some items that the whole case might include.

Changes in the law, we are all agreed, are necessary from time to time to take account of changing circumstances. A strong subtext of Coercing Virtue asserts that it is up to the legislature--the truly elected branch--to make such changes.

This point is indisputable...