The Judiciary’s Role in Defending Liberty and Property Rights

Without protection for individuals’ bodily liberty and property rights, social cooperation cannot be achieved. And if there is no coercive power to restore them when property rights and bodily liberty are violated, those rights and freedoms become nominal and ineffective. The greatest threat to them is invasion from outside. One of the factors behind the emergence of state power was the need for coercive force to protect individuals’ property rights and freedom from external aggression.

As history shows, it was state power that threatened individual freedom and rights. Once state power emerges, those who hold it seek their own interests by using coercive force. They may invade other states or, if necessary, threaten individuals’ property rights and lives. This is why various institutions arise to check state power. If rulers’ pursuit of self-interest becomes too severe, social cooperation collapses and the very survival of the state is put at risk.

In modern society, the core institution for checking state power is the “rule of law.” When Magna Carta first appeared in 1215, the rule of law chiefly concerned consent to taxation and due process in cases of bodily detention. At the time, what threatened individuals’ property rights was not only external invasion but also the arbitrary taxation imposed by rulers. Taxation without the consent of taxpayers was little different from plunder. But power is hard to relinquish. Rulers continuously threatened individuals’ property rights, and the struggle to restrain state power continued for more than 450 years. As a result of this struggle, the consent of the people’s representatives to taxation, the protection of individual rights that state power cannot infringe, and the separation of state powers came to be established as universal institutions.

As democracy expanded, the rule of law fell into serious danger. The rule of law is meant to check state power and protect individuals’ property rights and freedoms. But in democracy, the rule of law came to be regarded as “rule by law,” that is, rule by laws enacted by the people’s representatives. Laws supported by a majority in parliament thus came to wield coercive force with almost no limits. In the past, rulers were to some extent restrained in exercising coercive power by religious doctrines or moral teachings. Now, once there is majority support, it has become difficult to limit the exercise of power.

In a democratic society, competition among political parties seeking to win power inevitably leads to legislation that protects the interests of particular groups. This is because voters will cast their ballots for the party that protects their own interests. This leads to an expansion of public finance, making tax increases unavoidable. And those tax increases are mainly concentrated on minorities. Resources are transferred from minorities to the majority. In the past, a small number of rulers threatened the property rights of the majority; now, the majority has come to threaten the property rights of the minority. This can damage social cooperation, stifle the economy’s potential, and endanger the survival of the state.

The institutions that prevent the majority from plundering the minority are the judiciary, including the Constitutional Court, and the press. But the press is sensitive to majority opinion. If a policy supported by the majority outwardly satisfies procedural legality, it is difficult to criticize it. The judiciary is the last bastion for protecting property rights and freedom, but it is not easy for it to check policies backed by the majority. Past experience shows that rulers try to keep the judiciary under their influence, so it has never been easy for the judiciary to free itself from political influence. Moreover, judges are human, and therefore cannot be completely free from ruling in accordance with their political inclinations or moral standards.

When the judiciary becomes heavily influenced by politics, predatory taxation against minorities or restrictions on freedom are carried out legally. Then everyone’s property rights and rights can be put at risk. Individuals live across many different spheres of life. It is common for someone who belongs to the majority in one sphere to belong to the minority in another. Moreover, as society develops, the diversity of life becomes ever richer. The pursuit of diverse ways of living becomes difficult without protection for the property rights and rights of minorities.

Furthermore, problems arise when individuals whose property rights or other rights are under threat seek out various means of response. Historical examples show that they may flee abroad or pursue evasive and irregular activities. At times, they may even resort to means of resistance. Then social conflict deepens and political struggle can become routine. As a result, the very survival of society itself may be placed in danger. It would be good if this were merely an unfounded fear, but the possibility is not nonexistent. That is because, in our reality, government power is so concentrated that if there is majority support, rulers are thought capable of remaking society according to their own will.

How to check the infringement of minorities’ property rights and freedom through legislation has become one of the pressing tasks of our time. In the current reality, where other institutional safeguards are lacking, the judiciary has no choice but to take on that role.

Kihwa Jung, Professor, Division of Economics, Chonnam National University

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Original title: 자유와 재산권을 지키는 사법부의 역할

Author: Gi-hwa Jeong

Date: 2017-09-19

Source: https://www.cfe.org/bbs/bbsDetail.php?cid=column&pn=17&idx=10736