Human rights courts have become the place where democracies go to die. No one is above the law in democracies; everyone is subject to the laws that apply without fear or favour to all. But equally, everyone is under the law and law protects everyone. Only when both conditions apply is everyone equal under the law. Laws simultaneously act as both licence and leash. In their permissive function they enable all actors to engage in particular behaviours. In their restrictive function they set limits to what the various actors may do. If there is an imbalance, if the law makes it either too easy with too much power concentrated in the government at the cost of citizens’ liberties, democracy ends in tyranny. Or, alternatively, if law makes necessary action impossible, anarchy ensues with a complete collapse of public authority. Recent years have seen the increasing weaponisation of law to paralyse governments, by human rights lawyers in particular. The highly charged issue of mass immigration is proving decisive in shaping electoral outcomes from the US to the UK, Italy, the Netherlands and Germany. This should make judges extra cautious in venturing into the political minefield. Wrong. Pushed by voters to take back control of totally porous borders, governments are being frustrated by courts that approve activist lawyers’ cases alleging breaches of national, continental and international human rights standards. Regional and global institutions of justice like the European Court on Human Rights, the World Court and the International Criminal Court worsen the anti-democratic pathology. The end result is that the rule of law is corrupted into the bastard child of a rule by lawyers.

Law seeks to tame the arbitrary and capricious exercise of power. Democracy requires that the holders and wielders of power be chosen and dismissible by the citizens and makes the exercise of power subject to the consent of the people. Judicial romanticism is the belief that legal activism is the solution to all social-political ills. In the 2019 Reith Lectures, former UK Supreme Court judge Lord Jonathan Sumption warned against ‘law’s expanding empire’. In a subsequent article for the Law Association of New Zealand, he cautioned that ‘if we place too many rights beyond the reach of democratic choice, then we cease to be a democracy just as surely as if we had no rights at all’.

The Democrats’ weaponisation of the justice system against Trump during the Biden administration was so cynical that it backfired spectacularly. Having lost the presidency and Senate and failed to recapture the House, Democrats have turned to lawfare to frustrate Trump’s agenda. They might want to look again at poll findings on why voters preferred Trump: he doesn’t care what others think, says what he means, and does what he says. The flurry of nationwide injunctions could bring Trump’s frenetic implementation schedule of his agenda to a stuttering halt. He could launch a campaign to Make America Governable Again. Separation of powers means there are limits to the jurisdictional over-reach of all three branches. Who then holds the judiciary accountable to its limits? To claim that any reminder to the courts, as Trump, Vance and Musk have given, to stay in their judicial lane and not stray into the legislative and executive lanes risks a constitutional crisis would make the judiciary the sole arbiter of its own reach and limits as well as that of Congress and the President.

UK Prime Minister Starmer is firmly stuck with the public perception of ‘Two- Tier Keir’ operating a two-tier justice system. Some UK verdicts have been so outrageous as to make one wonder if judges are trolling the public and daring the government to reverse some of their incendiary rulings. Rulings just this month have granted a Gaza family of six right of entry under a family reunion scheme enacted for Ukrainian refugees, as if there are not already too many Jew-hating residents; stopped an Albanian criminal’s deportation because of his ten-year-old son’s distaste for foreign chicken nuggets; granted asylum to a woman who, having failed eight times to gain asylum, joined a Biafran terrorist organisation and re-applied because of risks to safety if returned to Nigeria, with the judge acknowledging she’d joined the group solely ‘to create a claim for asylum’; and prevented deportation of a Pakistani man incarcerated for child sex offences because depriving his children of their convicted paedophile Dad would be ‘unduly harsh’. Allister Heath, editor of the Sunday Telegraph, wonders just when British democracy gave way to ‘a tyranny of the human rights lawyers’. The Telegraph itself argued in an editorial on 12 February that ‘the judiciary of this country has been permitted to consolidate power at the expense of other branches of the state’ to make Britain ‘almost ungovernable’.

The judiciary is fuelling Europe’s immigration crisis more widely. An Italian court has ordered 49 migrants who had been sent to Albania after a sea rescue to be brought to Italy, the third judicial frustration in four months of Italy’s Prime Minister Meloni’s efforts to curb illegal immigration. A French court overturned the deportation order of a convicted Algerian with two failed attempts to enter illegally. An angry Interior Minister asked, ‘Should our law protect dangerous individuals or protect French society against dangerous individuals?’ On the eve of the Munich Security Conference, a 28-year-old Afghan who’d lost his asylum application drove a Mini into a trade union demonstration, killing a young mother and child and injuring 28. This follows the murder of a police officer in Mannheim in June by an Afghan; the deaths of three people in Solingen in August stabbed by a Syrian asylum seeker; a December car attack on a Magdeburg Christmas market by a Saudi refugee that killed five people; and a stabbing in the Bavarian town of Aschaffenburg in January, also by an Afghan asylum seeker, that killed two. The serial attacks associated with refugees and asylum seekers solidify the sentiment that Germany is adrift in uncharted waters. They fuel public support for the anti-immigration Alternative for Democracy party that is routinely castigated as far-right, a descriptor that is fast proving to mean ‘Too Right’ or ‘Totally Right’.

For years James Allan has been warning Speccie readers of the dangers of judicial activism by woke-infected Australian judges, for example in the Love decision. Anyone who believes the Albanese government is not influenced by electoral calculations in the kid-glove treatment of Jew-hatred and violence is ripe for buying the Sydney Opera House, on the steps of which the current wave of soft policing of hate-spewing antisemitic protests began.

In a fiery address to the Munich conference that referenced Soviet-era language of misinformation and disinformation, J.D. Vance criticised Europeans for abandoning their roots as ‘defenders of democracy’ and shutting down dissenting voices. He called EU commissioners ‘Commissars’ and warned that ‘in Britain and across Europe, free speech is in retreat’. Power speaking truth to irrelevance with no punches pulled: heady stuff! I wonder how the Albanese government now feels about the recently toughened hate speech law? And the Coalition that voted with Labor to enact it?