Judicial Independence

Common Law Tradition

In common law countries, judicial independence does not apply to nonprofessional lay judges, who occupy a lower level in the administration of justice. Supervising judges or even executive officials can relieve lay judges of their functions without resorting to disciplinary procedures. Lay judges are unlikely to join the professional magistracy.

The selection of professional judges involves issues of political power and the absence of transparency in methods of selection. Nevertheless, the weight of politics is counterbalanced by substantial decentralization in the real choices of judges and by the influence of barristers in England or a more informal group of lawyers in the United States. It is from these groups of lawyers that politicians find persons who are eligible to become professional judges. Once installed, professional judges almost always serve for life. They are, in addition, largely sheltered from disciplinary procedures because such procedures are difficult to implement.

In England, for instance, impeachment has become obsolete. The procedure for removing judges from the High Court or the Court of Appeals is so cumbersome that it is rarely used. Disciplinary regulation is above all the act of a professional group of “peers,” that is, the bench and the bar of barristers. In the United States, impeachment of federal judges is also rare. In order to impeach a judge, the House of Representatives must investigate the judge and issue articles for crimes or gross misconduct. The judge must then be tried in the Senate, and two thirds of the senators must find the judge guilty. Discipline for lesser offenses is the purview of judicial councils instituted at the appellate courts.

Finally, professional judges in common law countries do not participate in a truly hierarchical structure. Until recently, judges served out their careers in a single court and were not dependent upon advancement, which would have rendered them dependent on political pressure. If a professional career path is gradually taking shape, it is because professional judges are being selected from among part-time magistrates and movement between inferior and superior jurisdictions is becoming more common. The hierarchical structure is still in an embryonic state, however, and the notion of a judicial career remains limited.

Civil Law Tradition

In European continental countries, where a civil service model of justice dominates, the progressively imposed system of competitive examinations limits arbitrary political influence in judicial selection. The disciplinary regimes are less protective of judicial independence, however, and are largely supervised by [Page 850]the executive branch. In some countries, the top of the judicial hierarchy gained the possibility of playing a role in the selection and promotion within the magistracy due to its awareness of relevant political interests and its capacity to assure the discipline of the profession. If high court justices do not have the power to promote individuals, they at least retain the power to harm an individual's career.

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