Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of American Judges
Larry Catá Backer
Penn State Law
February 9, 2003
Why do the people and institutions of democratic states, and in particular those of the United States, obey judges? This article examines the foundations of judicial authority in the United States. This authority is grounded on principles of dominance derived from the organization of institutional religion. The judge in Western states asserts authority on the same basis as the priest - but not the priest as conventionally understood. Rather, the authority of the judge in modern Western democratic states is better understood when viewed through the analytical lens of priestly function developed in the philosophy of Friedrich Nietzsche. Focusing on the American Supreme Court, this paper examines the manner in which high court judges have successfully internalized the characteristics of Nietzsche - Paul and his priestly caste within the religion of Western constitutionalism. 'Paul wanted the end, consequently he also wanted the means. What he himself did not believe, the idiots among whom he threw his doctrines believed. His need was for power; in Paul the priest wanted power once again - he could use only concepts, doctrines, symbols with which one tyrannizes masses and forms herds.' (Antichrist 42). This critique of systems, and especially of systems locating the power of judgement, reward and punishment outside the self, finds echoes in the recent constitutional jurisprudence of the American Supreme Court and serve as the basis for a continuing judicial authority. Judges acquire a monopoly over communication with the divine - justice, truth, norms - and Western constitutionalism provides the mechanism for the regulation of sin. 'The priest rules through the invention of sin' (Antichrist 49); the constitutional judge rules through the inversion of doctrine. The interpretive doctrines, standards and tests which have grown up around constitutionalism converts norms into a morass of the unknowable, except with the guidance of priests speaking through courts. And so the judge creates a mechanics of authority based on a self-reinforcing dependence.
Number of Pages in PDF File: 71
Keywords: constitutional law, judges, authority, rule of law, precedent
JEL Classification: K1, K3, K4, K19, K29working papers series
Date posted: March 12, 2003
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