Judiciary

The Judiciary in Constitutional States

The role of the judiciary in a political system cannot be analyzed without taking into consideration the institutional function of the judge: adjudication. Adjudication is a type of dispute resolution that relies on an externally appointed judge acting as the third party and where the parties to the dispute must comply with the judge's decision, even though they have no control over the choice of judge, who is appointed by the state. Thus, judges are inherently placed in a difficult position. They must resolve cases without the main element that makes the triad an effective means of resolving disputes: the willingness of the participants to submit to both the proceedings and the involvement of the third party. To address this weakness, the judicial process tends to include a number of principles creating the appearance of and reinforcing judicial impartiality. More specifically, the need to guarantee judicial impartiality implies that judges must be independent from the parties in dispute and protected from interference by them. Such independence is a necessary condition as any judge who is dependent in some way on one of the parties cannot be, and cannot appear to be, impartial.

In the political development of Europe, the incorporation of judges into the machinery of the state and the superiority of government-appointed judges over other types of judges—for example, feudal or city judges—have largely guaranteed judicial independence from the parties in dispute. However, the incorporation of the judge into the state organization creates the need to redefine judicial impartiality when one of the parties is the state itself or one of its representatives. Only by defining judicial independence in relation to the state can the judge act as an impartial third party in disputes between the state and citizens (e.g., in criminal trials). Judges can then become an effective check on the way in which public functions are performed since guarantees of independence allow them to resolve such disputes and interpret the relevant laws without coming under pressure from the state. Thus, the protection of judicial impartiality through strong guarantees of judicial independence has become one of the most important traits of constitutionalism since one of its main objectives is to limit the arbitrary exercise of political power and make it legally accountable.

The strength of the judiciary is influenced by whether it is in a civil law or common law country. In a civil law country, legislative law takes precedence over case law, and judges are bound by civil codes without regard to previous judicial decisions; in contrast, judicial rulings take precedence over civil law (legislation) in common law countries, and judges are bound by previous rulings issued by higher-level courts (stare decisis). Historically, judges in civil law countries have enjoyed less independence, and their role has tended to be less politically significant. Mistrust of the judiciary has always been high and judicial power considered an important power to be checked. Traditionally, continental judges tend to act in a subordinate way to the political branches and to the norms they enact. This reflects a historical interpretation of the “separation of powers” principle that assigns a privileged role to the legislature since it represents the popular will. Therefore, for a long period, any form of judicial review of legislation was ruled out.

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