12 - Prisoners’ Voting and Judges’ Powers

Summary

John Finnis presents a case study of prisoner voting cases before the European Court of Human Rights and the final courts of appeal in Australia, Canada, New Zealand, and South Africa. His analysis subjects the judicial reasoning in these cases to the sort of close examining courts are said to use when assessing the constitutionality of legislative measures for compliance with human rights. Finnis concludes that the Strasborg Court’s reasoning in cases from 2005 to 2012 discloses no thread of integrity in legal reasoning, frustrating attempts by legislatures to dialogue with it in designing prisoner voting restrictions. The lack of care and competence in judicial reasoning across jurisdictions is reviewed in light of the ready abandonment of judicial method with the substitution of interpretation via original public meaning with ‘living instrument’ or ‘living tree’ interpretation, according to which a bill of rights should be interpreted and applied not only in the light of present-day conditions but also according to judicial opinions about better political or social arrangements, even when this is contrary to the original public meaning. The chapter concludes by inviting legislatures, when faced with judicial precedents founded on such ‘interpretations’, to rectify the law.