Judicial Independence

Judicial independence is a notoriously difficult concept to define, to the point that some scholars have questioned whether the concept serves any useful analytical purpose. In a literal sense, judicial independence refers to the ability of courts and judges to perform their duties free of influence or control by other actors. However, the term is more often used in a normative sense to refer to the kind of independence that is considered desirable for courts and judges to possess. Consequently, there are two sources of confusion over its meaning. The first is conceptual, in the form of a lack of clarity regarding the kinds of independence that courts and judges are capable of possessing. The second is normative, in the form of disagreement over what kind of independence courts and judges ought to possess.

As a practical matter, the type of judicial independence that is widely considered both the most important and the most difficult to achieve is independence from other government actors. On the one hand, this type of judicial independence is highly valued among those who impute to courts a special responsibility for ensuring that individuals and minorities do not suffer illegal treatment at the hands of the government or a tyrannous majority. On the other hand, this type is also considered especially difficult to achieve because the other branches of government ordinarily possess the power to disobey or thwart the enforcement of judicial decisions, if not also to retaliate against the courts for decisions that they oppose. In Alexander Hamilton's famous formulation, the judiciary is the “least dangerous” branch, having “no influence over either the sword or the purse” and is therefore least capable of defending itself against the other branches.

Formal guarantees of judicial independence from government control date back to at least as far as England's Act of Settlement of 1701, which gave judges explicit protection from unilateral removal by the Crown in the context of a larger shift of power toward the parliament and the courts. Today, the idea of judicial independence has such broad and powerful normative appeal that even states that do not honor it in practice are wont to profess a commitment to it. Two thirds of the world's current written constitutions contain some form of explicit protection for the independence of the judiciary, and the proportion of constitutional documents that contain such protections has been rising over time. Judicial independence has been formally endorsed at the international level as well, for example, in the form of the Basic Principles on the Independence of the Judiciary, adopted by the United Nations in 1985. Empirical research suggests, however, that the existence of formal constitutional guarantees of judicial independence is poorly correlated with actual respect for judicial independence in practice.

Any comprehensive and coherent definition of judicial independence must address several questions. The first is the question of independence for whom; the second is the question of independence from whom; and the third is the question of independence from what. To supply satisfying answers to these questions, however, demands resorting to some normative theory, explicit or otherwise, of why judicial independence is valuable and what it is supposed to accomplish. In other words, it is also necessary to address the question of independence for what purpose.

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