Judicial Independence

From the article “Judicial Appointments and Judicial Independence”, authored by Tom Ginsburg for
US Institute for Peace (January 2009)

“Judicial independence is a central goal of most legal systems, and systems of appointment
are seen as a crucial mechanism to achieve this goal. Judges who are dependent in some
way on the person who appoints them may not be relied upon to deliver neutral, highquality
decisions, and so undermine the legitimacy of the legal system as a whole. While
there is near-universal consensus on the importance of judicial independence as a matter
of theory, legal systems utilize a wide range of selection mechanisms in practice, often
reflecting slightly different conceptions of independence. The diversity of systems of
judicial selection suggests that there is no consensus on the best manner to guarantee
independence.

One reason for the diversity is that judicial appointment systems also implicate other
values that may be in some tension with the ideal of judicial independence. For example,
appointments must also ensure judicial accountability, the idea that the judiciary maintain
some level of responsiveness to society. A related concern is the representativeness of the
judiciary. In recent years, there has been concern in several societies about the
composition of the judiciary on ethnic and gender lines. The underlying concern is that
the judiciary should loosely mirror, to a certain degree, the diversity of the society in
which it operates. Otherwise justice will be viewed as perpetuating dominance of one
group over another. Several countries have revised their systems of appointing judges in
recent years in order to ensure more diversity on the bench.

It is helpful to begin by considering the concept of judicial independence. Independence
can be defined in a number of different ways, each with its own implications for systems
of judicial appointment. These include:
1. independence of judges from the other branches of government or politicians;
2. independence from political ideology or public pressure more broadly defined
(including ethnic or sectarian loyalties); and
3. independence of the individual judge from superiors in the judicial hierarchy,
so that a judge can decide each case on his or her own best view of what the
law requires.
This report evaluates different systems of appointing judges in light of the need for an
independent, accountable and diverse judiciary. It first considers the major systems for
appointing judges. Next it briefly considers the questions of judicial discipline and
removal, on the assumption that these systems can have significant effects on the
incentives of judges at the appointment stage. It concludes with some implications of the
analysis for the Iraqi situation.

“A Judge Is More Independent” Explained in the United States of America

(In the U.S. law)

References

See Also

• Jury System (in United States law)
• Judge (in international or comparative law)
• Jury (in international or comparative law)

Literature Review on Judicial Independence

In the Encyclopedia of Public Administration and Public Policy, [1] Ian Greene offers the following summary about the topic of Judicial Independence: A key feature of jurisdictions that practice the rule of law is an independent judiciary. This principle means that judges must be in a position, and also perceived by the public to be in a position, to make judgements about the cases before them as impartially as possible. Any attempts to influence a judge's decision outside of the rules of the courtroom are violations of judicial independence, whether from elected politicians, public servants, or private interests. Illicit attempts to influence judges might be direct, such as bribes, threats, or a telephone call from a government official. Indirect breaches of judicial independence might take the form of manipulations of the salaries or working conditions of judges who fail to tow a particular line, or they might involve exploitation of the administrative arrangements or structures of courts with the intention of swaying judicial decisions. Imprudent practices by interest groups, politicians, or the media might also threaten judicial independence.

Resources

See Also

• Jury System
• Judge
• Jury

Resources

Notes and References

1. Entry about Judicial Independence in the Encyclopedia of Public Administration and Public Policy (2015, Routledge, Oxford, United Kingdom)

See Also

Further Reading

• Global Encyclopedia of Public Administration, Public Policy, and Governance (2018, Springer International Publishing, Germany)