The Encyclopedia of Libertarianism


The judiciary is that branch of government charged with interpreting the meaning of laws and applying them to particular circumstances. In the English common law system inherited by the United States, the judiciary was traditionally divided into (a) courts of law, which judged cases by strict conformity to rules and could require wrongdoers to pay money damages; and (b) courts of equity, which could take special circumstances of particular cases into account and could order people to do certain acts or to refrain from them—the power of injunction. Although these two systems have long been merged in the judiciaries of the United States and most states, remnants of the old division remain (e.g., litigants are not entitled to a jury in cases traditionally considered matters of equity).

The common law judiciary relies on the litigants themselves (through their attorneys) to present facts to a neutral decision maker. This system differs from the Roman-inspired civil law system, which relies on inquisitorial courts empowered to investigate as well as decide. The great English jurist Sir Edward Coke considered this difference important for distinguishing the civil law system (which he considered tyrannical) from the common law system, which he saw as the heart of English liberty. More important, common law prohibited torture of witnesses, whereas the civil law system did not, and common law courts provided defendants with the protection of habeas corpus, which civil law did not. These important protections for individual rights were, however, frequently disregarded in his time and later.

A more famous judicial institution for protecting individual rights is the jury, which historically evolved from a team of advisors assembled to aid judges. In the famous Bushnell’s Case, the English courts established that juries could not be punished for refusing to convict defendants. This case firmly established the principle of “jury nullification,” which remains the law in the United States. Some libertarian writers contend that juries should be made more familiar with this power and should refuse to convict defendants charged under unjust laws, including drug laws. Others, however, contend that jury nullification is more commonly used in the service of racism or other popular prejudices because white juries routinely refused to convict white defendants for injuries to blacks during the Jim Crow era, and that it is unlikely that nullification would make a significant difference in the war on drugs.

The common law judiciary tended to see its role as the discovery and application of legal rules implied by existing statutes and practices or by the requirements of logic and human nature. Many natural rights-oriented libertarians continue to abide by this view. During the early 20th century, however, theorists who embraced “legal realist” jurisprudence contended that the judiciary is a policymaking branch of the government that makes, rather than discovers, the law, and does so in the service of social progress. Modern realists, including law and economics scholar Richard Posner, have contended that judges should devise rules to accomplish economically efficient outcomes. Other realists, of a more moralistic bent, such as Robert Bork, have argued that the judiciary should enforce socially created mores. Friedrich Hayek’s view of the judicial role was a confused attempt to strike a middle course between these extremes. Judges should “maintain and improve” the system of social rules that have evolved through practice, he argued, and to “cope with new problems by the application of ‘principles’ [that they] distill from the ratio decidendi of earlier decisions, and so to develop these inchoate rules … that … will produce the desired effect in new situations.” Yet he also acknowledged that on occasion judges would have to “improve the existing system by laying down new rules.” Hayek’s attempt to accommodate the acknowledged need for the “deliberate efforts of judges … [to] improve the existing system by laying down rules” into his broader critique of “rationalist constructivism” and his belief that judges ought to “maintain and improve a going order” and to “enforce expectations” is among the weakest parts of his political philosophy.

Montesquieu’s pioneering work on the separation of powers, The Spirit of the Laws, held it to be essential that the judiciary be separated from the executive and legislative branches because an independent judiciary is such a powerful check against unilateral power. Indeed, during the 17th century, the Stuart monarchs of England diminished the independence of the judiciary by choosing judges sympathetic to the crown, discharging those who were not, and creating independent legal systems staffed by royal cronies. The most infamous of these courts was the secretive one known as Star Chamber, after the colorfully painted ceiling in the room where it met. Star Chamber dragged political and religious dissenters before it and would cut off their ears, among other mutilations, as punishment. Its abolition in 1641 was a milestone in the development of the common law.

The U.S. Constitution requires the separation of powers and bolsters judicial independence by providing judges with indefinite tenure—now an almost unique feature among written constitutions. This independence has led many to criticize the judiciary as an undemocratic threat to popular government. However, this critique ignores two fundamental principles: first, that the judiciary, like the other branches, possesses only the powers delegated to it by the people in their Constitution, and second, that the judiciary is empowered to defend the Constitution—which represents the true will of the people—against the encroachments of legislatures that at most represent only a temporary consensus among particular legislators. Thus, as Hamilton wrote in Federalist no. 78, the judiciary is not nullifying, but affirming the will of the people, when it declares a law void for contradicting the Constitution. It was for this reason that Justice Stephen Field described the Supreme Court as “the most democratic” of the branches of government: because the people of the United States, through their Constitution, have entrusted that branch with the duty to ensure that their legislators act only within the boundaries of the Constitution. In addition, the legislative and executive have powerful checks against the judiciary inasmuch as they are empowered to limit the courts’ jurisdiction and to refuse enforcement to their decisions. These factors led the authors of the Federalist to call the judiciary the “weakest” branch of government, and such checks have been used frequently, as when Congress barred courts from reviewing challenges to military tribunals in the War on Terror, or when the Jackson administration, by refusing to enforce the Court’s rulings in favor of the Cherokee tribe, precipitated the Trail of Tears. Critics of so-called judicial activism routinely ignore these factors and even argue that legislatures should be free to override court decisions or that courts should be stripped of their power to declare laws unconstitutional. This, however, would lead naturally to the legislature being the sole judge of its own powers. Thus, the critique of “judicial activism” is often an attack on constitutional government.

Despite the constitutional requirement of the separation of powers, many administrative agencies, although officially regarded as parts of the executive or legislative branches, frequently exercise judicial powers—by interpreting regulations and holding hearings—as well as executive power—by enforcing regulations—and legislative power—by drafting and revising rules. This blending of powers has been blessed by the Supreme Court, however, on the grounds that if some form of appeal to the courts remains available, such proceedings are compatible with the Constitution.

Although judicial powers are exercised by the judicial branch of government, there are many private market alternatives for dispute resolution. This is a throwback to the origins of the judiciary, which is rooted in the Law Merchant of the European maritime states of the Renaissance. This privately operated system provided a comprehensive means for resolving disputes and rendering judgments with regard to commercial law, and it was particularly useful for disputes crossing jurisdictional boundaries. Today, dispute resolution by such private organizations as the National Arbitration Forum or the American Arbitration Association gives consumers a choice that tends to be faster, cheaper, confidential, and conducted in layman’s language. Arbitration also allows consumers to choose the operating rules for dispute resolution in a way that government courts do not. The Federal Arbitration Act of 1925 authorizes courts to enforce the decisions of private arbitrators, and federal courts have held that arbitration is a preferred method of resolving contractual disputes. The advent of the Internet also has opened a new field for private arbitration of disputes; organizations such as Virtual Magistrate and Square Trade have created for-profit, online arbitration systems for settling disputes between Internet users. As one commentator has noted, these systems tend not only to be faster and cheaper than government courts, and to avoid  complicated jurisdictional issues, but they also tend to be more legitimate to online users who “are more likely to accept a system of law that evolves from the community it governs.”


Further Readings

Amar, Akhil Reed. America’s Constitution: A Biography. New York: Random House, 2005.

Bell, Tom W. “Polycentric Law in a New Century.” Cato Policy Report (November/December 1998).

Benson, Bruce L. The Enterprise of Law. San Francisco: Pacific Research Institute, 1990.

Bork, Robert. Coercing Virtue: The Worldwide Rule of Judges. Washington, DC: AEI Press, 2003.

Field, Stephen J. Letter of Retirement, 168 U.S. 713 (1897).

Hang, Lan Q. “Online Dispute Resolution Systems: The Future of Cyberspace Law.” Santa Clara Law Review 41 (2001): 856–866.

Hayek, Friedrich. Law Legislation and Liberty: Volume 1. Rules and Order. Chicago: University of Chicago Press, 1973.

Levin, Mark. Men in Black: How the Supreme Court Is Destroying America. Washington, DC: Regnery, 2005.

Sandefur, Timothy. “The Wolves and the Sheep of Constitutional Law: A Review Essay on Kermit Roosevelt’s The Myth of Judicial Activism.” Journal of Law and Politics 23 no. 1 (2007): 1–40.

Sturgis, Amy H. The Trail of Tears and Indian Removal. Westport, CT: Greenwood Press, 2006.

Ware, Stephen J. “Arbitration under Assault: Trial Lawyers Lead the Charge.” Cato Institute Policy Analysis no. 433 (April 18, 2002).

Originally published .