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Law on Judicial Independence

By Lawrence Solum

David S. Law (Washington University School of Law in St. Louis; Washington University, St. Louis - Department of Political Science) has posted Judicial Independence (THE INTERNATIONAL ENCYCLOPEDIA OF POLITICAL SCIENCE (Bertrand Badie, Dirk Berg-Schlosser & Leonardo Morlino eds., forthcoming 2011)) on SSRN. Here is the abstract:

This essay, a shortened version of which will appear in the forthcoming International Encyclopedia of Political Science, explains why the concept of "judicial independence" has proved notoriously difficult to define. It surveys how the term has in fact been employed, then discusses what variables must be addressed in order to fashion a definition that is both intellectually coherent and cognizant of differences between courts in different countries.

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 it 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.

To be both comprehensive and coherent, a 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 resort 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.

Incisive & recommended.

Full post as published by Legal Theory Blog on February 23, 2010 (boomark / email).